Open-Source Under Fire

FRAMINGHAM (09/26/2003) - A little more than two years ago, a senior executive at Microsoft Corp. made an implicit threat against the open-source movement.

Open-source software, he suggested, might violate his company's intellectual property.

It was a threat to take seriously, because intellectual property laws have always been the snake in the grass when it comes to open-source's long-range viability. For IT, the question is whether there will be any refuge from a world dominated by a few greedy, arrogant giants if open-source becomes a tool no one dares to use. The signs aren't good right now.

So far, Microsoft hasn't directly carried out that threat. That dubious distinction has fallen to the widely loathed SCO Group, which has launched a campaign of fear, uncertainty, doubt and lawsuits against Linux.

Indirectly, of course, Microsoft (and Sun Microsystems Inc.) are helping SCO by paying licensing fees that have helped fund SCO's legal pit bulls. By an amazing coincidence, Microsoft and Sun have the most to lose from Linux's rise.

A key question, yet to be answered, is whether users can be held liable if an open-source developer does put infringing code into a product. (Keep in mind that SCO hasn't persuasively shown such infringement.)

If so, the logic that puts users in that position is bizarre - and dangerous. If I buy a book whose author has plagiarized passages from someone else, I'm not liable. Nor should a user of open-source software be liable in analogous circumstances. That's one reason why SCO's threats against users are so obnoxious.

SCO's action against IBM at least has some logic in this respect, because SCO is attacking an allegedly infringing developer and seller of open-source products. But what happens when proprietary software companies start suing individual contributors to big open-source projects?

Anyone can sue anyone else. That's a good thing, because it means (in theory) that the small guy can seek justice. But today's legal system isn't as much about justice as it is about money and time. Many innocent defendants settle because it would be too expensive to mount a winning defense, however unfair that may be. This keeps happening in part because judges have shown a craven unwillingness to punish plaintiffs who bring bogus actions.

IBM can defend itself, and the open-source community is doing a bang-up job of showing that SCO's would-be emperor has yet to put on any clothes. But if IT wants to preserve open-source as a serious option, more concerted action may be required, because this kind of stuff seems likely to continue no matter what happens to SCO.

IT needs to push for more legal clarity and for judicial sanctions against abusers of intellectual property laws. The future of open-source may depend on it.

Dan Gillmor is technology columnist at the San Jose Mercury News. Contact him at dgillmor@sjmercury.com.

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