Open source in the legal firing line

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When SCO finally sought bankruptcy protection last month, it effectively brought to an end the latest attempts by a corporation to prove it had some form of monetary right to Linux code. SCO's contention that its code was incorporated into the Linux kernel was ultimately disproved in court, and it is paying the price as a result.

Yet this is small fry compared to the rumblings surrounding the Linux movement right now. Earlier this week, both Novell and Red Hat found themselves on the receiving end of litigation, as both were sued over allegations of Linux patent infringement.

The two organisations that have brought the case - IP Innovation and the Technology Licensing Corporation - argue that three patents dating back to the early 1990s have been infringed. The patents themselves cover, as reported by IT PRO earlier this week, a "user interface with multiple workspaces for sharing display system objects". The lawsuit targets Red Hat Linux, Novell SUSE Linux Enterprise Desktop and Novell SUSE Linux Enterprise Server.

Stand off

The litigation is now, inevitably, being seen as a major test case, as it's the first time that major patent issues surrounding open source software will have been addressed in a court room. It perhaps goes without saying that the repercussions of any ruling could send tremors right throughout the open source software movement, and people on both sides of the argument are already taking up their positions for ringside seats. No matter that some of the plaintiffs have argued that their beef isn't with open source software: there's little getting away from the fact that this is a significant legal yardstick.

It's also the first major move in a stand-off that has ensued ever since Microsoft chief executive Steve Ballmer first made comments over Linux and patent infringement, a subject he's frequently returned to over the past years. Ballmer had really started to stoke the hornet's nest last year though when he stated his belief that Linux impinges on Microsoft-held patents, and while no legal action has followed from the Redmond giant to back up his words, many interpreted his comments as a veiled threat. It wasn't the first time that Ballmer had expressed such views: as far back as 2001, he called Linux "a cancer that attaches itself in an intellectual property sense to everything it touches".

Further fuel this time round though was added to the fire when Microsoft then inked its by-now infamous deals with Linux vendors such as Novell. One factor of such deals was an agreement that neither party would sue the other for patent infringement, and they were widely condemned within the open source community. Indeed, many vendors - such as Ubuntu and Red Hat - publicly stated that they would never sign such an agreement, and weren't shy about criticising those that had done. However, this was seen as the first step in Microsoft attempting to gain remuneration for what it believed to be people making use of its technology and innovations.

235 infringements?

Microsoft lit the touch paper again earlier this year when, in a Fortune magazine piece, it was reported that 235 specific examples had been identified where open source software was found to be infringing on its patents.

Considering one patent breach is often enough to cause the kind of financial penalties that would send many organisations grovelling to their financiers (and sometimes worse), this is clearly no small matter. Digging into the detail, the Linux kernel itself is alleged to be infringing 42 of Microsoft's patents, its GUI is accused of violating 65, while the Open Office suite another 45. Going back further, in 2004 Steve Ballmer referred to a report by the Open Source Risk Management Group which itself conceded that Linux could infringe 283 patents, of which 27 where Microsoft owned.

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