Needed: Open-Source Education, Understanding

Much of the confusion and consternation over the use of open-source software can be alleviated simply by users understanding how such software may be licensed and software vendors taking greater care to research the intellectual property used in their products. That was the consensus of a Web-based panel of legal experts hosted Wednesday by JBoss Inc., a maker of open-source J2EE-based application-server software.

"The risks of patent infringement are almost equal for both proprietary and open-source software," says Lawrence Rosen, founding partner of technology law firm Rosenlaw & Einschlag. Rosen has served as JBoss's legal counsel in the past. "Open-source-related lawsuits are just not as prevalent as they seem."

The most famous open-source legal action, SCO Group's $5 billion lawsuit against IBM, was first posed as a trade-secrets violation, but it's morphed over time into a hybrid contract- and copyright-infringement case, says Jim Harvey, a partner with Alston & Bird LLP's technology group. Harvey is also part of the defense team for AutoZone Inc., the auto-parts retailer and Linux user SCO is suing for copyright violation.

While the progress of SCO's case against AutoZone has been slowed pending the outcome of its case against IBM, all of the lawyers on Wednesday's panel agreed that SCO's strategy of keeping its action in the spotlight have helped advance education about open source. "There's a lot of ignorant disregard for open source," Harvey says. "People think it's too much for them to understand."

SCO's open-source prosecutions also mark a new kind of litigation, one that involves a community of defendants who use the Web as a tool for real-time communication, says David Byer, a partner with Testa, Hurwitz & Thibeault LLP's patent and intellectual-property practice group. Their most prominent tool is Groklaw.net, a Web site and blog created by paralegal Pamela Jones with the help of volunteers who post immediate responses to any new developments in SCO's various cases."It's an extraordinary thing to watch, to have evidence provided within minutes of arguments being brought in court," Byer says. "This type of response will be with us for a long time."

Several vendors who sell open-source software and services, including Hewlett-Packard, IBM, and Novell, have offered varying levels of financial protection against litigation in order to keep growing their Linux-related revenue. Open Source Development Labs, a global consortium of technology companies promoting the adoption of Linux, is considering the creation of a database that would help programmers search for prior art, which is similar, previously patented technology that would prohibit new developments from be patented.

Open-source software vendors and users may feel threatened by litigation because the various open-source licenses deal with patents in different ways, or not at all. The open-source community has more than 53 licenses at its disposal, this proliferation occurring when open-source programmers decide existing licenses aren't sufficient, Rosen says.

With the average patent litigation costing its participants about $3 million each, it behooves the open-source market to work this out, says Paul Arne, a partner with Morris, Manning & Martin LLP and co-chair of that firm's technology group. Still, there are fewer open-source licenses than there are proprietary software licenses. "Actually, it's a consolidation," he says. "With different proprietary vendors, their licenses are never the same."