Observe OSS best practices to avoid legal reprisals

Making use of codes or software that are ratified by the Open Source Initiative (OSI) such as the GNU General Public License (GPL) will ensure peace of mind for developers and help prevent lawsuits from patent holders, industry watchers say.

Charles Lemaire, a veteran software patent attorney at Lemaire Patent Law Firm, said big IT vendors, particularly those that have obtained open source patent portfolios through acquisitions, are unlikely to initiate legal action against developers that have either made use of free software in the past or continue to develop software based on past open source codes.

With its acquired patent portfolio from Sun Microsystems that includes MySQL, Java and OpenSolaris, Oracle last month initiated a lawsuit against search giant Google over alleged infringements on its Java patents. This move sparked fears that other open source companies might consider enforcing legal action based on their existing patent portfolios.

"In general, based on the structure of most GPL licenses, we don't believe this suit is part of a general threat to open source developers, using GPL code, who are compliant with the terms of the relevant GPL open source agreements," Lemaire told ZDNet Asia in an e-mail interview.

Russell Nelson, the proprietor of Crynwr software and a board director of the OSI, agreed. Speaking for himself and not on OSI's behalf, he said: "It would be hard to start suing people for violating a patent that they've been given a license for, even if the patent license is implicit in the open source promises made by the license."

Lemaire recommended software developers better protect themselves from patent lawsuits by adopting some best practices to avoid falling afoul of patent laws. One way is to seek regular advice from an intellectual property attorney who understands both patent and copyright laws. If that is not possible, these developers would have to personally keep abreast of the changing open source legal landscape, he said.

Companies involved in open source work should also consider leveraging the patent system to "create options", he suggested. Sun, for example, did so by patenting aspects of an innovative technology that is also offered free through an open source channel. Such moves are a "good thing" as it allows companies to "get tough" and be able to better protect themselves when the need arises, Lemaire said.

Facing open source scrutiny
Oracle had released a press statement Aug. 12 alleging that Google, with its Java-based mobile operating system Android, had "knowingly, directly and repeatedly infringed Oracle's Java-related intellectual property".

The next day, Oracle ended open distribution of source codes for its Solaris operating system, effectively ending developers' daily access to builds of Solaris binaries after version 2010.05. Development efforts were brought in-house and focused on releasing a proprietary version of the OS, Solaris 11.

These decisions have evoked ire among open source developers, noted an analyst in a previous ZDNet Asia report, who said Oracle was likely to face the wrath of people with strong open source conviction.

Michael Meeks, a developer from Novell who has contributed to another former Sun project OpenOffice, noted that the patents which form Oracle's case against Google are the "bete noire of the Free Software movement", adding that he hopes these patents will ultimately be "rendered harmless".

Red Hat's executive vice president Alex Pinchev indicated that patent lawsuits such as the Oracle-Google example are just "patent trolls" and about acquiring money. In an interview with ZDNet Asia, Pinchev described the U.S. patent system as "broken".

"It used to be that patents were meant to safeguard developer's software but, these days, you can sue everyone and their brother for money," he said.

Did Google go too far with Android?
However, Lemaire has a different take on the lawsuit. Based on his firm's study of the complaint and underlying patents, the patent lawyer said Oracle has a legitimate case against the Android OS maker, at least on the patent infringement allegation outlined in the lawsuit.

He explained that Google chose to develop its own virtual machine, Dalvik, based on Java ME (Mobile Edition) technology, for the mobile OS. By doing so, the Android maker ignored concerns over platform fragmentation previously highlighted by Sun executives and chose not to adopt the standard-setting IcedTea iteration of APIs (application programming interfaces) introduced by Red Hat. This opened the door for Oracle to sue.

Lemaire said: "[The protection from GPL licenses] may not apply if you develop your own virtual machine or other codes that you do not license under GPL. Google, in this instance, uses an Apache license which is a different, non-GPL license, for its Dalvik virtual machine."

To this, Meeks conceded that if Google had not insisted on its own "clean-room implementation" and had reused the code from the IcedTea project instead, this lawsuit would "potentially not be possible".

When contacted, Oracle declined to comment but pointed ZDNet Asia to its press release stating its commitment to open source developers, particularly in the Java arena.

The company announced during its recently concluded Oracle OpenWorld conference that it plans to bring Java developer sites, such as developers.sun.com and java.sun.com into the Oracle Technology Network, and integrate these sites into a main Java Web portal, java.oracle.com.

"Java at Oracle has never been more vibrant," Ted Farrell, chief architect and senior vice president for tools and middleware at Oracle, said in a statement. "With recent releases of our developer tools and GlassFish server, Oracle is demonstrating its commitment to providing a range of technologies for a diverse audience of Java developers. We also recognize that community participation and open source are an essential part of maintaining a vibrant and industry leading Java platform."

Red Hat's Pinchev chimed in with an optimistic note, saying: "Open source will not die. Look at Microsoft for example. They tried to kill it a few years back and yet now, they claim to be the biggest supporter of the open source community."