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

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.

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TOPICS: Open Source
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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.

Topic: Open Source

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  • OIN and other patent pools

    Open Source has Patents also. There are already several pools of patents pledged to Open Source and Linux. OIN aquired some more patents about a week or so ago http://www.openinventionnetwork.com/press_release.php . OIN is just an example of 1 such pool- OIN FYI is funded by IBM, Novell, Red Hat, Phillips, and Sony. IBM also has it's own patent pool dedicated to FOSS as does Novell and CA. Red Hat has a program that will pay a programmer to patent their work if it goes into a pool for Linux usage.

    This is also an indication of a split in the mentality between the Free Software and Open Source Software movements. The Open Source movement is acquiring patents where as the Free Software movement sees software patents as an abomination and is trying to get software patents abolished or at least limited.

    The real loser with software patents is the Non-Open source small developer, you know the small inventor whom patents are supposer to protect, as they neither benefit from the FOSS pools nor do they have the cash to get their own patents.
    Edward Meyers
  • IU wonder why MS didn't name them as co-defendants.

    To be honest, I am really suprised that MS didn't ask the court to name the open source folks as co-defendants in this case. (A co-defendant doesn't need to be involved at all to be named in a civil case. All that is required is to demonstrate they are doing the same things.)

    I think the MS lawyers missed a key play here...
    No_Ax_to_Grind
    • Oops, "I wonder".. (nt)

      .
      No_Ax_to_Grind
    • EOLAS

      Already gave them a free license...

      Duh!
      Edward Meyers
    • No wonder you're surprised

      [i]To be honest, I am really suprised that MS didn't ask the court to name the open source folks as co-defendants in this case.[/i]

      Well, that goes in the "how seriously to take Don's legal opinions" file.

      Have a look at the FRCP -- the choice of defendents is up to the plaintiff, not the other defendents.

      [i]I think the MS lawyers missed a key play here...[/i]

      That, or maybe they went to law school.
      Yagotta B. Kidding
      • Not to mention

        Patents are grants of monopolies to exclude others from using or making the invention.

        It is not the same as copyright where the author has exclusive rights which only they, or someone they authorize, can engage in those activities.

        Especially considering that EOLAS specifically and publicly said they would not exclude Mozilla from using the patented "invention".
        Edward Meyers
  • Software Patents are pushing adoption of GPL

    Against Software Patents and full rational
    http://news.zdnet.com/5208-3513-0.html?forumID=1&threadID=5691&messageID=117003&start=44
    [i]Complex cross licensing arangements are increasingly becoming a legal quagmire. Microsoft is facing a number of lawsuits from companies which Microsoft did enter into a formal relationship, for example Timeline Inc
    http://www.theregister.co.uk/content/53/29419.html

    Kodak had a formal relationship with Sun and the SCO Group is also suing IBM based upon the exact same class of legal cross licensing relationship that Bill Gates suggested as a solution to patents back in 1991.

    However
    While software patents remain a threat to the entire software industry, including Linux, the patent issue is pushing many companies, including IBM, HP, SUN, Oracle, SAP and Novell are turning to a simpler form of cross licensing arrangement - the GNU General Public License, or GPL and LGPL.

    Only GPL and LGPL like so-called "viral" licenses effectively grants all downstream users the right to freely use the sofware. A license that even the largest of patent portfolio holders, such as IBM, are adopting to collaboratively develop new software. This, along with customer demand, is the major reason that Linux is being widely adopted and not one or more of the BSD based distributions.[/i]

    Risk to USERS of open source from patent claims?
    http://linux.slashdot.org/comments.pl?sid=178180&cid=14775376
    [i]1) Any patent lawsuit against a user of a software component used by major vendors will automatically result in those vendors lending legal support to reduce the chance that their own customers will also end up being sued.
    2) Any patent lawsuit costs the suing party at least several hundred thousand dollars.
    3) Any patent put before the courts is at very great risk of being destroyed by prior art.
    4) Any payout awarded from a single end user has to be in proportion to value of the patented technology. The value of a single instance will could only be measured in hundreds of dollars, not coming close to covering the costs of suing
    5) Patent lawsuits take six years to over a decade to work it's way though appeals.
    6) Developers will release new software using a method that circumvents the patent in question within two months. This will be quickly adopted and by the time the first patent case is resolved there will be no further customers for the patent holder to sue.
    7) The outrage generated in taking out a case against any open source will result in Groklaw and other groups putting the suing party and their lawyers under the closest scrutiny. You will not believe the level of bad publicity, let alone the the amount of prior art, dirty business practices, and legal suspect practices and even violation of statutes (
    http://users.rcn.com/srstites/jacuse/sec.complaint.v4.html
    ) that [/i][b]will[/b][i] be uncovered.

    Lastly to quote Pulp Fiction, and then "we are going to get medieval on your ass."
    Any IP case against users of open source puts the attacker at a far greater risk.[/i]
    David Mohring
    • Corrections for Zdnet broken formatting

      Working link for "Against Software Patents and full rational"
      http://tinyurl.com/msv32

      "Kodak had a formal relationship" to " BSD based distributions." should be italicised
      David Mohring