Could more Eolas-like open source benefactors hurt Microsoft, others?

Summary:Whenever Sun CEO Jonathan Schwartz ends up talking about his company's open source strategy, the word "indemnified" invariably crops up. Schwartz, who is always on-message, never forgets to slip in a reminder that when Sun open sources something -- like Solaris -- that users of that open-sourced-something are using software that is fully indemnified.

Whenever Sun CEO Jonathan Schwartz ends up talking about his company's open source strategy, the word "indemnified" invariably crops up. Schwartz, who is always on-message, never forgets to slip in a reminder that when Sun open sources something -- like Solaris -- that users of that open-sourced-something are using software that is fully indemnified. In other words, if you're using something that Sun has open sourced and should anybody come after you for the misappropriation of their intellectual property as a result of that usage, What is it about Firefox that's causing the open source browser to win converts from Microsoft's IE? that somebody will have to go through Sun first.  By contrast -- a point that Schwartz never fails to make -- very few other open sourced bodies of software are fully indemnified the way Sun's are. 

Legal protection is available for other open source software. But, as indicated in some indemnification coverage I published more than two years ago (which is still reasonably current), such protection is often limited in scope, has strange strings attached to it (eg: you need to be a customer of the vendor), or both. Sun' indemnification isn't totally string-free by the way. In the case of some software (eg: OpenSolaris), users are tied to the Sun authored and hardly-used elsewhere Community Development and Distribution License (CDDL).  But given that the CDDL is an Open Source Initiative-approved license, it's hard to be as hypercritical of that string as one might be of others. Nevertheless some open source advocates expect more from Sun and, based on my last interaction with Sun chief open source officer Simon Phipps, Sun is clearly GPLv3-curious.  In other words, the CDDL string might one day be broken.

As evidenced by these and other discussions regarding the extent to which open source software is or isn't in the legal clear, indemnification is almost always discussed in the context of what it means to the open source community and how or why legal certainty is usually an advantage of commercial software.  But rarely is the flipside discussed where such indemnification works against the commercial software community.   

After reading Tim Bray's recent post about how his logs are showing unabated percentage growth in the number of Firefox users that show up on his blog by way of external search engines ("heading for 30 percent" he says), I began to wonder what it is about Firefox that's causing the open source browser to win converts from Microsoft's Internet Explorer (IE).  As a side note, that trend could end up reversing itself once Internet Explorer 7 ships.  There's also probably an entire blog entry, or meme, in the little discussed fact that Firefox appears to be doing a pretty good job against IE despite the fact that Microsoft, with one executive decision, can marshall more resources into IE than Firefox may see in its entire lifetime.

I don't know that there's any one single answer to the why question.  Some people may prefer Firefox for its lack of ActiveX connectivity (perceiving it to be more secure for that reason). Others may be using Linux.  Still others may simply prefer it from a user experience point of view.  What does any of this have to do with open source and indemnification that works against the commercial software community?  Most people probably viewed Eolas' recent legal victory over Microsoft for the financial windfall that it was.  But I see it as a big "uh oh" for commercial software providers.

After losing to Eolas, Microsoft, was forced to remove important plug-in functionality from Internet Explorer.  Firefox, on the other hand was not. Eolas has turned out to be an open source benefactor, allowing open source developers access to its intellectual property.  In other words, in an extremely unusual twist of fate, a patent worked against commercial software and in favor of open source software to the point that the open source software had a distinct usability advantage over commercial alternatives.  Along the bigger indemnification-and-Bray-spots-upswing picture, I couldn't help but wonder if (a) there are other holders of significant functionality-related patents out there that are like-minded to Eolas, (b) if they come forward, could they similarly hobble commercial alternatives, (c) what that means from an end-user adoption point-of-view, and finally (d) where that could lead the software industry in the very long term.  In the Eolas case, the conspiracy theorist in me also wonders if Eolas had any silent partners (aka: Microsoft enemies).  I have no evidence to suggest that's the case.  But it would make for a good screenplay.

Currently, while there are plenty of infringement claims like the one Symantec recently filed against Microsoft, I don't know if or how many similar claims have been filed by companies or patent holders that, like Eolas, are willing to make their intellectual property freely available to open source developers.  Symantec is a commercial software company.  But, given the subscription-orientation of the anti-malware market, what prevents Symantec from doing something similar? Much the same way companies like Red Hat and JBoss pick up their revenue from subscriptions, Symantec could make its IP available to open source developers in a way that drives its subscription revenue up.  At the same time, it could deny commercial competitors (not just Microsoft) access to that IP.  OK, so it's unlikely that Symantec would do something like that.  But you get the picture.  If other IP benefactors come forward and make their technologies available to the open source community on some exclusive basis, the commercial software community could end up having done to it what some have said it will do to open source.

Topics: Open Source

About

David Berlind was fomerly the executive editor of ZDNet. David holds a BBA in Computer Information Systems. Prior to becoming a tech journalist in 1991, David was an IT manager.

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