By Brian Proffitt
Managing Editor
A little blonde child kneels before the static-laden TV, staring
intently at the flickering snow. With an eerily calm voice, she
announces “they’re he-erre.”
Thus was the tagline for the 1982 movie Poltergeist,
where Heather O’Rourke’s character announced the coming of some
malevolent spirits to their suburban California home.
This pop culture phrase resonated through my head a great deal
this week when I attended the Open Source Development Labs
Enterprise Linux Summit. Back in November, Linux Weekly News ran an
article entitled “The Lawyers Are Coming.” With all due respect to
my colleagues at LWN: the lawyers are already here.
The conference’s sessions focused on a variety of issues, from
technical to business to legal, so it would be unfair of me to
insist that the OSDL that the legal overtones to the conference was
a planned outcome. But for attendees, the legal aspects of working
with open source software was certainly what dominated many of the
conversations I had or overheard.
I am not the first to notice this phenomenon, and certainly any
reader of Linux Today will have noted the increase of legal stories
in the past 18 months or so. Copyrights, infringement, and the
granddaddy threat of them all, patents are all up for discussion
these days. Interestingly enough, it only took one company’s
lawsuits to raise the specter of litigious problems for Linux and
open source software.
As many of the conference attendees were lawyers, bringing this
point up to them just got you patronizing looks that imparted “of
course there are legal issues, little man, what else would you
expect?” And, while the developers attending the conference
outnumbered the legal eagles, bringing up this strong correlation
between open source and the law got you replies along the lines of
“that’s what we’re here to find out.”
Thus far, with some exceptions, the legal community’s response
to this whole mess has been fairly restrained. That may get a
chuckle, but I do think that things could be much worse. The
response has been strong, but not what I would characterize as
shrill. Okay, there was Open Source Risk Management’s big 283
potentially infringing patents announcement during last summer’s
LinuxWorld but since then the arguments have settled down to a more
conversational tone.
The question becomes, should the Linux community join this
conversation? Undoubtedly yes, but then the question becomes
how should they join the conversation?
Here’s some background that may help shed light on where I stand
on this one: I used to be a configuration and QA manager for a
in-house development team, building code for our corporate
overlords. Before that, I was a newspaper editor. These experiences
have taught me an important lesson: know where your code, or your
facts, are coming from.
Thus, when the legal teams come in and say that knowing the
origins of your code and what licenses it has is an important step
that must be a part of the development process, they’ll certainly
get no argument from me. In fact, I’d join that chorus. Such
organizing of code is a little more work up front, but the ability
to quickly trace code back through version control and
straight-forward origin discovery is a great boost to development
efficiency, disaster recovery, and–it seems now–legal protection.
It’s good practice and it’s free insurance to boot.
Free insurance is always good, yet a lot of people will not take
advantage of it. When I was learning to fly, my flight instructor
would drill into my head over and over that when you take a
cross-country flight, you should always file a flight plan, even if
you are flying visually. Flying visually is not as tightly
regulated as flying with instruments, when you are pretty much
required to be in contact with air traffic control. (Trust me, when
you are flying through some of the crap I’ve seen, you
want these regulations.)
But on a visual flight filing a flight plan and staying in touch
with ATC is optional and quite a few pilots opt not to do it. I
myself am guilty of being lax about this. A sunny day, a short
flight, what could happen?
Why you should file a flight plan on any flight is simple: if
something does go wrong, and you don’t show up at your intended
destination, somebody will start looking for you a lot faster. And
if you’re trapped in some remote wilderness, speed is always of the
essence.
If that’s the only message I can impart in this week’s column,
that would be it. Knowledge is power and knowing the code’s
background can only help you, even if you believe that the chances
of you ever getting sued are nil. It’s free insurance, plain and
simple.
Of course, there seems to be a whole new cottage industry
sprouting up with new products and techniques to help you do this.
I tend to view this with a cynical eye, and encourage you to be
smart shoppers if you start looking at these products.
Right before I left for home, I had a brief conversation along
these lines with Bernard Golden, author of Succeeding with Open
Source. I mentioned to him that while the legal overtones of
this conference were interesting, I could not help but wonder why
it is that for all the different aspects and products of open
source, it was specifically free software’s GPL and Linux that was
bearing the brunt of the legal concern.
After all, are the FreeBSD or OpenBSD folks getting as worked up
about all this as we are? If they are, I have’ve heard them.
Nobody’s challenging the legal veracity of products like
OpenOffice.org, either. This I find really interesting, since from
a layman’s point of view it would seem to me that of all the
products that would have infringement or patent issues with a
proprietary software vendor, OpenOffice.org would have the highest
potential.
I am not saying that OpenOffice.org should or does have a
problem with legal issues. Possibly even more than Linux right now,
OpenOffice.org represents the biggest threat to Microsoft, because
OO.org is cross-platform and Microsoft Office is one of Microsoft’s
biggest sources of revenue. Yet thus far, the FUD is being tossed
at interoperability issues. This is stupid FUD, to be sure, but I
keep wondering why Microsoft is avoiding such a large target?
Cynics will tell you that it’s because OpenOffice.org’s biggest
patron Sun Microsystems is in league with Microsoft following last
year’s lawsuit settlement. That may be part of it, but I am more
inclined to think that Microsoft is holding back based on the
theory of mutual assured destruction.
Under the MAD theory, if all sides have the same weapons, they
will be less likely to use them, unless they think they can pull it
off so fast and so quietly that they get a slight edge. MAD applies
here as well, and I would be willing to bet that it’s driving the
proprietary companies insane.
A simple scenario is this: Microsoft decides to sue an open
source product developer for patent infringement. Whether the case
has merit or not, how long do you think it would take for IBM or
Novell to slap ten times that many patent infringement suits on
Microsoft? Or a hundred times?
And you can forget about launching a patent suit quietly. The
presence of Groklaw and a number of other sites, including Linux
Today, assures that any legal action will come under intense
scrutiny from the open source community. Gone are the days when
civil suits were private, uninteresting events. Now they are the
shone under the light of public knowledge, something that I think a
company like Microsoft would definitely shy away.
The litigation and the legal protections are not going to go
away. The clouds are rolling in. Does this mean you can’t fly? No,
you’re just going to have to fly more carefully and with a little
more guidance.