Government // Enterprise Architecture
Commentary
7/13/2007
01:26 PM
David  DeJean
David DeJean
Commentary
50%
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Open Source Is Dead, Long Live Open Patents?

I've been trying to make sense out of the new Version 3 of the General Public License and I've got to tell you, I can't yet. All I can see is that (1) in the short term, the GPLv3 has turned Microsoft's deal with Novell into a hairball Redmond is trying to cough up; (2) further out, unless the two ayatollahs of open source, Richard Stallman and Linus Torvalds, kiss and make up, either Linux or

I've been trying to make sense out of the new Version 3 of the General Public License and I've got to tell you, I can't yet. All I can see is that (1) in the short term, the GPLv3 has turned Microsoft's deal with Novell into a hairball Redmond is trying to cough up; (2) further out, unless the two ayatollahs of open source, Richard Stallman and Linus Torvalds, kiss and make up, either Linux or the GPLv3 (or both) is dead, and (3) in the long run IBM's move to create a lawsuit-free zone with license terms for its patents just might provide an alternative. [This entry has been corrected.]*****************************

What WAS I thinking? This entry has been corrected to remove my original hasty - and very mistaken -- statements in the closing paragraphs about the ownership of Unix. Thank you, Groklaw, for so gently correcting them. IBM did not invent Unix. That honor belongs, of course, to Bell Labs. And SCO's lawsuit against IBM alleging that IBM transferred intellectual property related to Unix into Linux has not been settled -- although it should have been, long since. The "victory" my misfiring synapses served up was the Utah District Court's ruling on July 3, 2006 that dismissed 182 out of 294 items of evidence provided by SCO against IBM in discovery.

The mention of Unix was peripheral to my opinion that the GPLv3 may do long-term harm both to the open source movement and to the wider adoption of Linux, which I still see as valid - along with the idea that the depth of IBM's intellectual property and the company's willingness to use it in the service of fostering a more open environment for software development could help take up the slack should that occur.

*****************************

Microsoft, with its Novell deal, may be feeling like it won a battle against Linux only to find that it's losing the war.

A month ago, at the time of the Linux Foundation Collaboration Summit and the announcement of the final draft of GPLv3 Microsoft's cosmic bluffing over patent lawsuits had apparently achieved its goal: it had opened what looked like a deep and perhaps fatal split in the open-source community, and with the Microsoft-Linspire deal made it look like the Linux community would fall into the gap in slow motion, one company at a time, leaving Microsoft's archenemy, Red Hat, without allies.

But the final version of the GPLv3 included poison-pill provisions that would prohibit any company that distributes open-source software from extending patent protection to some users of the software and not others, regardless of how or from whom the user received it, and it broadened the definition of "distribute" to include what Microsoft was doing with Novell.

As a result, Microsoft seems to be feeling that the Novell deal has blown up in its face. It has backpedaled furiously, saying that nothing it's done should be construed as "accepting status as a contracting party of GPLv3 or assuming any legal obligations under such license." But Novell is saying it will be only too happy to honor coupons handed out by Microsoft, even though that might involve delivering GPLv3-licensed code. Does this make Microsoft a "distributor"? It says no. The other side says yes. Read Charles Babcock's great piece, "Microsoft Avoids GPL Trap To Step Into Snare," and make up your own mind.

What is clear to me, though, is that by insisting on making the GPLv3 a weapon of war, Richard Stallman and his Free Software Foundation have thoroughly alienated Linus Torvalds and his Linux crew, and a GPLv2/GPLv3 split seems likely. I don't see how the open source movement continues if it can't present a united front. The people and companies that use Linux have enough trouble already trying to walk the line between open source and commercial software. Adding a GPLv2-vs-GPLv3 layer will make it an order of magnitude tougher. The more ideological provisions of the GPLv3, like those that target Microsoft and "tivoization" of hardware, may have the unintended side effect of marginalizing, not enhancing, the GPL and the open source model.

The good news in all this is that Microsoft, stripped of its tactical success against Linux, might either have to actually make good on its threats and file a patent suit or shut up, already. The bad news is that the GPL -- and by extension the open source movement -- might not be able to recover from its wounds.

Which is why we should perhaps be thinking about alternatives, and watching what IBM is doing with its own patents. It cannot be a coincidence that on Wednesday IBM, the largest patent holder in the United States, announced it would grant software developers unlimited access to patents it holds that can be used to implement more than 150 standards designed to make software interoperable - but only as long as those developers are not suing any party -- not just IBM -- over patented technology necessary to implement software standards.

I think this is more than just a "can't we all just get along?" gesture. It follows other IBM moves, like its 2005 contribution of 500 patents to a "patent commons" for use by the open-source community. I think the company is genuinely concerned about the horrible problems posed by the current patent mess, and it's taking a long view toward doing something about it. IBM's announcement this week doesn't mention open source. It just says in effect that it will work with developers who are willing to forego patent lawsuits as a business plan. Do you think that could be Big Blue's way of making a bet on the future - or lack of it - of the GPL?

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