Legal wrangles and software remain on collision course

I predicted not too long ago that patents, copyrights, licenses and software were on a collision course that was going to be none too pretty. More evidence of this mess emerged in the past few weeks.

First Red Hat was hit with an action by FireStar over the way object oriented applications access a database. And that came on the heels of a call for arbitration in the embedded software space, with Express Logic seeking an injunction again Green Hills Software over purportedly improperly copied APIs.

[Late addition: Another patent-related tussle has emered between Akamai and Limelight Networks. Om Malik writes: "We have said in the past, the eyeballs are back, and so are the CDN lawsuits. Let the fireworks begin."] 

One of these actions shows the capricious nature of who an allegedly aggrieved party can go after with commonly used software, ie FireStar going after Red Hat/JBoss, and not Oracle or Sun or others who apparently operate in a similar way. The other shows the license, pardon the pun, that some commercial software vendors feel they are entitled to because of practices common within open source circles.

Clearly one of the biggest stumps that software providers can stub their toes on is the boundaries and/or blurriness between commercial and open source code. I'm sure that's why Palamida recently scored a second major round of venture capital financing. Palamida offers means for software users and producers/distributors to better track and monitor the code under the hood -- both open source and commercial. They are well placed to ride the wave of concern -- illustrated by these actions -- over what legal gotchas may lurk within software products, even mere snippets within APIs.

The Red Hat-FireStar case has been reported widely, so I won't dwell on it. It appears in the hands of the lawyers now. As usual, it's all about the money, I suspect. Yet I don't think users of JBoss JEMS are in any real risk here. It simply further illustrates that at this point cloak-and-dagger legal ramifications shadow the software business. Who gets paid what for what is being pushed to new limits. Indeed, we can probably expect more general legal issues with code as a competitive weapon, or a way to milk a company that has deep pockets. These practices are not new, but they do seem to be ramping up.

As for the Green Hills Software-Express Logic tussle, this does have ramifications for those evaluating or using the recently delivered Green Hills Software µ-velOSity, a micro-kernel addition to Green Hills' INTEGRITY family of real-time operating systems (RTOS). Until the call for an injunction is ruled on by the arbitration body in the case, perhaps within 6-8 weeks, a cloud hangs over this product.

If an injunction is allowed, and µ-velOSity cannot be sold (barring any settlement between the companies), users of the product have no guarantee the code as they know it will ever come back to market. Green Hills says it does indemnify its users, so there is apparently low risk that users themselves would be approached by Express Logic. They just might find themselves using a non-existent product.

The rub in this dispute is that Express Logic claims copyright infringement, as well as allegedly unfair business practices, against Green Hills for the APIs used in Green Hills Software's µ-velOSity. Express Logic has a similar product ThreadX, which Green Hills was a major resellers of -- that is until Green Hills came out with µ-velOSity in April.

Green Hills says the whole action against its APIs is "stupid," that APIs can not be protected by copyright, that such things happen in open source all the time, and that established legal precedent (and Google searches on "copyright an API") support them.

Express Logic says Green Hills saw a popular product, copied parts of it to produce a competitor, and then rode it into Express Logic's accounts. Express Logic wants the µ-velOSity product stopped in its tracks, and they want their own ThreadX product protected from allegedly unfair business practices, especially from its own resellers. So is this a case of a business relationship gone sour, of sloppy reverse-engineering, of intellectual property arrogance, of sour grapes in a competitive environment? The arbitration process could take years to decide.

Meantime, the key here is to track the injunction. I'll report on the outcome ASAP. Yet the larger lesson here is that it behooves those architects and developers involved with just about any software product to closely monitor how legal risks -- not just technical considerations -- impact their choice of product, vendor, and partner. This may be particularly important in the embedded market, where software is often hard to divorce from the product itself, or at least swapping software in the field comes at high cost.

The legal wrangling of software intellectual property wars and battles is not an abstraction. It's real. And it needs to be a part of any evaluation and specification process for tools, platforms, infrastructure -- just about any software used in commercial and open source endeavors. Unfortunately, designers need not just do due diligence about the right software for the job technically. Specifiers of software must be aware of the legal risks and ramifications of their choices, too, for the gotchas are growing.

Full Disclosure: Akamai and Wind River, an embedded software vendor, are sponsors of my BriefingsDirect B2B informational podcasts.