New Linux Group To Tackle Legal, Standards Challenges -- And Microsoft

Linux, the open source operating system, is preparing for the next phase in its competition with Microsoft by adopting a model more closely resembling Microsoft's deep-pocketed protection of Windows.

Linux's two most important support groups, the Open Source Development Labs and the Free Standards Group, said this week they'll merge in February to form the Linux Foundation. It's an acknowledgement that Linux can't afford to divide its resources for funding, legal defense, and standards, since problems on any of those fronts could weaken the operating system's advancement. "We will be a vendor-neutral organization capable of responding to competitors' attacks and FUD," says Jim Zemlin, executive director of the new foundation and former head of the Free Standards Group.

The merger faces the financial reality that vendors didn't want to keep paying for two Linux advocates. OSDL was losing money; in 2004, it overspent its $8.2 million in member dues by $2.4 million. In December it laid off staff. The new foundation's sponsors include Hewlett-Packard, IBM, Intel, Novell, and Oracle, each paying $500,000 for platinum member status. AMD, Cisco Systems, and Sun are among those paying $200,000 for gold member status. Red Hat is paying $20,000 as a silver member.

The Linux Foundation will continue to supply the Linux Standard Base, the unglamorous but necessary work of keeping major Linux distributions to an agreed-upon set of system functions so developers can produce applications that run with different Linux versions. It also will provide the Linux Developer Network with information and specifications on services and interfaces that work with Linux. And, it will continue to employ Linus Torvalds, who manages the Linux kernel. Fragmentation of standards is one of the biggest risks facing Linux, contends Allen Brown CEO of Open Group, a consortium that advocates for open standards.

Legal protection will stay one of the central missions of the new group. Three major efforts will continue under the Foundation: the Open Source As Prior Art project to defend against patent challenges; the Patent Commons, for companies to contribute patents to be used in defense of Linux; and the Linux Legal Defense Fund, launched by OSDL in 2004 with the promise of $10 million for Linux users and developers to fight intellectual property-related litigation. "Microsoft spends a lot of money protecting its Windows platform," Zemlin says. "We're going to do the same thing."

The Linux Legal Defense Fund has served mostly as a deterrent to lawsuits against Linux, although "a handful of folks have tapped the fund," says Linux Foundation legal counsel Diane Peters, formerly the OSDL's legal counsel. Peters wouldn't provide details about who's received legal defense funding or how much had been issued.

Linux's legal problems erupted in March 2003 when The SCO Group took IBM to court, alleging that IBM had contributed SCO-owned code to the Linux kernel. The related cases have largely fizzled, though SCO continues to press its claims. Still, intellectual property challenges remains a big threat. Novell isn't taking any chances, aligning itself Microsoft in a pact that protects it from any lawsuits, which Microsoft hangs over the heads of Linux users.

The importance of the OSDL's legal fund may be more symbolic at this point as only a handful of cases have been sought to knock down open source. The open-source community has gone through the courts to stop Kamind Associates from using the trademarks, domain name, and copyrights belonging to the super-niche Java Model Railroad Interface project, which licenses its open-source model train software under the MIT artistic license, to sell Kamind's proprietary software. In one of the few other noteworthy open source court cases, Firestar Software in June filed a patent suit against Red Hat days after it bought open-source middleware maker JBoss, claiming that JBoss infringes on a Firestar patent for a method of interfacing an object-oriented software application with a relational database to facilitate access to the database. "We expect Red Hat to fight to the end and not settle," Peters says.

When it comes to law suits filed over Linux intellectual property violations, "there's been more smoke than fire," says Andrew Updegrove, a partner with Boston law firm Gesmer Updegrove as well as legal counsel and a director with the Free Standards Group. "SCO raised this issue, but no one's lost any money on it other than paying too much for lawyers." In fact, the SCO lawsuit has been good for Linux, raising legal questions about the use of other people's intellectual property in the open source operating system.

Linux Foundation's formation is expected to be ratified and board membership announced the first week of February. As the Linux Foundation will be supported primarily through membership fees, members investing the most money will have the biggest role on the board. The board will include up to 19 directors, 10 them representing its "platinum" members, including Hewlett-Packard, IBM, Intel, and Novell, who pay $500,000 for the privilege.

The board also will include directors from up to three of the foundation's "gold" members, which include AMD, Cisco, and Sun, who paid $200,000 for their membership. One "silver" member, paying $20,000, will also get a seat on the board. The remaining five at-large board members will include one member of the Linux Foundation's technical advisory committee, two members nominated through the open-source community, and two members the board can appoint at its discretion.

The Linux Foundation's membership will include 70 vendor sponsors, says Open Group's Brown, reflecting "the reality of the market -- who's shipping large volume of open source product."