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Pick Your Open Source Poison: Microsoft's Patent Claims Or GPLv3

Controversy swirls around the revised General Public License, and Microsoft keeps the heat on.
After months of debate, the release of the next version of the General Public License, under which most open source products are issued, is imminent. The Free Software Foundation plans to issue GPL version 3 in its final form June 29. As the revised license nears completion, however, new doubts are being raised over whether it's headed in the right direction.

On one front, Microsoft continues to challenge the legitimacy of Linux and other open source products, claiming they violate hundreds of Microsoft patents. Microsoft is offering patent-protection deals to Linux distributors to shield them from any future lawsuits it might file. Last week, it disclosed pacts with Linux distributor Xandros, which represents less than 1% of the market, and Korean manufacturer LG Electronics, which embeds Linux in some of its devices. The deals have the same "we won't sue your customers" provision of an earlier arrangement with Novell.

Mark Radcliffe, an intellectual property attorney with DLA Piper, portrays such arrangements as relatively meaningless. If Microsoft's patents had teeth, he says, more major Linux vendors would be forced to the table.

As if to reinforce that point, Red Hat last week reaffirmed its resistance to any such agreement. Open source software "should not be subject to an unsubstantiated tax that lacks transparency," a company spokesman said by e-mail.


Microsoft may continue to leverage its patent portfolio at open source's expense, but an equally serious challenge may spring from disagreements within the open source ranks over just what the GPL should accomplish going forward. Doubts over the GPL's future are to be expected, argues Eben Moglen, legal adviser to the Free Software Foundation's Richard Stallman on GPL drafts. Indeed, Microsoft is encouraging bloggers and writers to take potshots at GPLv3, Moglen said last month in an address at the Open Source Business Conference.

Last week, new doubts were voiced not by Microsoft, but by William Hurley, chief architect of open source strategy at BMC Software and chairman of the Open Management Consortium, a group committed to producing open source IT infrastructure management software. GPLv3 is designed to forestall Microsoft's patent deals, restrict digital rights management, and ban restrictions that sometimes get placed on open source embedded in hardware. Maybe GPLv3--intended as a license that grants freedom to developers--is trying to do too much, suggests Hurley.

License Complexity
>> Digital rights management isn't allowed under GPLv3
>> Patent ambiguities could complicate cross-licensing agreements when GPL software is involved

>> GPLv3 bans restrictions on open source that's embedded in hardware appliances

>> Revised license tries to anticipate scenarios in which a GPL issuer might bring patent claims against users
In a blog posting titled "The Death Of A Software License," Hurley argues that the Free Software Foundation is moving away from developers' core interests and getting bogged down in its own political agenda. "The FSF should realize by now their influence is waning," Hurley wrote. "They're really hamstringing themselves with version 3, taking the license further and further from where industry developers are heading."

Not everyone agrees that the Free Software Foundation's efforts are at odds with developers. Barry Klawans, CTO at JasperSoft, a supplier of open source business intelligence software, says companies that want to commercialize their open source code still like the protections of the GPL. "I think the GPL will continue to be used in infrastructure projects, where the developers agree with the FSF's philosophy," he writes via e-mail.

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Even though Microsoft asserts it has patents that cover some open source functionality, it will think twice before targeting users, many of whom are its customers. Underscoring the user community's clout, Robert J. Carey, CIO of the Navy, last week issued a memo mandating that open source be considered in all Navy software acquisitions. Notably, Carey expressed no interest in whether open source vendors have Microsoft's patent protection or which version of the GPL should apply.