Open Season On Open Source?

Could Apache--the world's most widely used Web server--become a legal time bomb for thousands of companies? How about Sendmail, the world's most widely used mail transfer agent, or even Samba?

A two year-old Hewlett-Packard internal memo recently surfaced, suggesting that this is exactly what Microsoft planned to do with these open source institutions. Gary Campbell, the former HP executive who wrote the memo, believed at the time that Microsoft was preparing a legal onslaught against open-source software that would have dwarfed SCO's current legal antics.

Campbell's goal at the time was to warn his colleagues that HP should consider reducing its legal exposure to open- source products. Microsoft was, he wrote, "specifically upset about" Apache, Sendmail and Samba, all of which he considered likely targets if and when the company launched a wave of patent infringement lawsuits.

None of this came to pass, of course: although Microsoft maintains a visceral dislike of open-source software and licensing schemes, the company has never so much as hinted at the sort of high-stakes, headline-grabbing lawsuits Campbell predicted at the time. Although HP has verified the authenticity of the memo, which first appeared on the NewsForge site, the company has also taken pains to distance itself from Campbell's conclusions, which have become politically and economically inconvenient.

Could Campbell's doomsday scenario still unfold? For the time being, Microsoft is far more interested in settling old lawsuits than in launching new ones. And with SCO's Darl McBride running amok in the tech industry like a patent-happy Mini-Me, Microsoft can afford to sit back, relax and see what happens.

At the same time, however, Microsoft has taken a much more active interest in its intellectual property portfolio, including an aggressive licensing program. Is this business as usual for a company with a rich tradition of innovation, or is it the first step towards making Campbell sound like a prophet rather than a panic-monger?

It's hard to believe that Microsoft would attack a product like Apache under any circumstances; few things would be as likely to provoke a massive legal and economic backlash. On the other hand, newer and potentially more vulnerable open- source products, such as the Novell-backed Mono project, may provide far more tempting targets. If Microsoft decides to send in the lawyers, look for them to focus on new and emerging open-source software rather than established products.