Aust open source drama echoes SCO fight

Deacons solicitor, Nick Abrahams today revealed he was in pre-court negotiations to defend a legal case in which a large IT company was attempting to use provisions of the open source General Public License to force his client to reveal its proprietary code.

The un-named company -- which Abrahams today described as "quite a significant gorilla in the Australian market" -- has accused his client of using open source code alongside its proprietary code. If proven, the allegation would force the developer to share its source code with the open source community.

Abrahams said the case had the potential to set a precedent in Australian common law.

"If your organisation uses a piece of open source code and that code contains or in any way touches proprietary code that you're using, then, potentially, there's the obligation to make the proprietary code available to the rest of the open source community," said Abrahams.

Abrahams' revelation was part of a wider set of warnings on the legal risks associated with using open source software in which he discussed the SCO's legal claim against IBM at length.

While he was dismissive of SCO's claim, repeating views that its claim is largely vexatious and "may fall away", he did raise concerns about the impact that software patents may have on the open source community and its software.

Deacons contend that the patents, which can place intellectual property controls on broad methodologies used to implement software, could stifle open source development.

The solicitor's comments intersect strongly with work being carried out by IP Australia in its review of rules applied for patenting business process methods. The review was understood to be a response to a welter of disputes over business process patents that have arisen since the U.S. changed intellectual property laws.

Amazon and Barnesandnoble.com's highly public stoush over a one-click online shopping cart application, which began in October 1999 brought these disputes into the mainstream. The issue was revived in 2002 when Overture sued Google on the strength of the Yahoo-subsidiary's intellectual property claims over the latter's pay-per-click and auction systems.

IT heavyweights Microsoft and IBM, were two players whose patent portfolios cast a particularly dark shadow over the open source community, according to Abraham.

He said that whilst IBM had publicly committed to taking a hands-off approach -- not allowing its patents to impinge on the open source arena -- Microsoft's position was less clear.

"Microsft has a number of patents that could be breached by various permutations of Linux -- Microsoft has not come out and said it won't use its patent portfolio to threaten the open source community," he said.