The open source patent war

Due to the fact that Linux is free software and belongs to no-one, it is often assumed that Linux is "surrounded by legal uncertainties."

However, Linux is no more or less prone to legal uncertainties, by which we usually mean potential patent infringements, than any other software application or platform. The problem is not the software nor the license, but the legal framework within which the software industry operates. Software patents have become part of the standard software industry model but are antithetical to the objectives of open source software and are seen as problematic for the good health of future software development by free software developers.

The problem for proprietary software companies is that free software pulls the rug from under traditional software models. By definition free software is collaborative. Numerous individuals, hardware companies and academic establishments contribute to the code that is contained in a Linux distribution, and all have a vested interest in its success. The customer gains because the software is free and tends to be more adventurous, versatile and secure. The only potential loser is the traditional software vendor.

So it has been suggested, sometimes by the software vendors themselves, that those who are threatened by the competitive success of open source might seek to challenge Linux through the courts, on the grounds that the software, and Linux in particular, might include "stolen IP", and infringe the patents or copyrights of others. This is unlikely. The accusation has often been made, but the code is there for all to see, and no convincing evidence has ever been presented of any infringement.

The more likely action is of the type affected by Microsoft in its recent agreement with Novell whereby Microsoft was able to announce that it had provided patent protection to Novell's Linux customers and developers, sowing the uncertainty and doubt that Linux may be susceptible to legal action for patent infringement. Microsoft offered a similar agreement to Red Hat, and was rebuffed.

The practical response

Mark Webbink, the legal counsel for Red Hat, has an "aversion to the term IP, or Intellectual Property. If we're going to talk about patents, let's talk about patents", he says. "Patents don't care how you license your software. They only care whether you're infringing. The strong evidence based on the number of claims to date is that Windows and Microsoft are much more vulnerable to patent infringement claims than any open software is. At any one time Microsoft is defending 30 to 40 patent infringement suits. In our entire history, Red Hat has had only two patent claims against it. Linux is no more or less vulnerable to patent claims than any proprietary software."

The crux of the problem, according to Webbink, is that "over the last two decades there has been a proliferation of trivial and contestable patents triggered by a relaxation of the rules by the US Patent and Trademark Office (USPTO), which has progressively lowered the bar for patent claims."

This is a point that Bruce Perens, a founder of the Open Source Initiative (OSI), has also argued. In a Slashdot discussion on the Microsoft/Novell agreement, he noted that "there are simply so many software patents, on so many fundamental principles, that no non-trivial software program could exist that was licensed by all patent holders with claims reading on the algorithms used. This is regardless of whether it is proprietary or free software."