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Threat of IP Entanglements Grows Alongside Open Source : Page 2

While IT pros who want to 'scratch their own itch' have turned to Linux and other open source software by the thousands, intellectual property experts say their satisfaction won't circumvent the chilling effect that successful patent litigation could have on innovation.




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Trespassing on Intellectual Property?

Despite the news of rapid Linux growth and adoption, some spied a dark cloud looming over the confab, in the form of software patents and the as-yet-unrealized threat that successful patent enforcements pose.

"Any open source project imposes infringements against tens of patents granted in the U.S. today. The point is those patents shouldn't have been granted in the first place," said Bruce Perens, SourceLabs vice president of developer relations and policy, during a "State of Open Source" press conference put on by Prentice Hall.

"A pernicious company still could shut this whole thing down in the United States and other countries," the author and Linux/open source evangelist warned. "Companies must contact their congressmen and say 'we have to protect this.'"

"Any open source project imposes infringements against tens of patents in the U.S. today."—Bruce Perens, SourceLabs vice president

Others tried a more positive viewpoint. "If you listen to the naysayers, Linux has a legal sword hanging over it," said Stuart Cohen, CEO of the Open Source Development Lab (OSDL), during a panel discussion titled "The Explosive Growth of Linux and Open Source: What Does It All Mean?" He tried to mollify the concern by citing that Linux prevailed against The SCO Group's public assertions that Linux violated some of its copyrights.

Cohen announced the OSDL Patent Commons Project, which will serve as a central, publicly available repository, overseen by OSDL, where individuals and organizations can submit and pledge patents. Developers can then review the submitted patents to ensure they aren't violating the IP rights of patent holders.

Some experts in the intellectual property arena are unabashed in their belief that software patents are an idea whose time is over. Many patents, they say, are at odds with the freedom to innovate but patent holders have the law on their side.

Eben Moglen, a professor of law and history of law at Columbia University who serves pro bono as General Counsel for the Free Software Foundation, echoed Perens. "We need badly patent reform throughout the world. Patent litigation poses more problems than any other problem businesses face," he said during the Linux Growth panel.

In an effort to eliminate bad patents, avoid frivolous litigation, and protect the Free Software Foundation's charter of free software use, Moglen founded the Free Software Law Center (SFLC). "The foundation that the Free Software Foundation built for freedom needs scaling up," explained Moglen, who defends programmers against patent lawsuits and claims brilliant minds among his clientele—"I've received more unsolicited e-mail from geniuses than just about anybody except maybe the admissions office at Harvard."

"We need badly patent reform throughout the world."—Eben Moglen, General Counsel for the Free Software Foundation

The SFLC is a law school that teaches young lawyers to take up the cause of free software development against patent litigation.

As holder of the most software patents in the world, IBM would seem the ideal villain in this freedom-vs.-IP owners debate, but Big Blue, having been an avid proponent of Linux growth for several years, seems in an unlikely position to enforce them; a legal attack would scare off potential adopters (read: customers) and would be at odds with the company's current strategy.

With its contributions to and backing of open source projects Apache Derby (Java relational database), Geronimo (J2EE application server), and Harmony (J2SE 5 implementation), IBM is focusing on "how do we encourage growth for IT at large," according to Senior Vice President of IBM's Software Group Steve Mills. "A community is growing around these offerings to bring a vitality that leads to new functionality, new solutions," he said.

Mills explained that IBM hopes these innovations move the industry forward and encourage adoption. With an open source revenue model that offers paid services for free products ("combining 'free' and 'fee'"), Mills said, "it's evident, across things that IBM is doing, that combinations of open source and traditional commercial products can coexist."

Glen Kunene is the Managing Editor for DevX.
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