Sun gives way more than an inch, but open source advocates want the whole mile

Somewhere within Sun, the executives are saying "Whattayagotta do to get some respect around here? We give and give and give and they still want more." The "they" of course is the open source community. The last "give" was the 1600 patents that Sun appears to have promised not to assert against developers who implement one or more of those patents in software licensed under the recently Sun-authored Open Source Initiative-approved Community Development and Distribution License (CDDL, pronounced "cuddle"). Because the CDDL is OSI-approved, that structure, as I described previously, technically qualifies as an offer of legal protection (in the form of indemnification) to the open source community as long as the relevant open source work is licensed under the CDDL.

For Sun, the arrangement cleverly killed two birds with one stone.

On one hand, because the source code from differently licensed code bases, such as the CDDL-licensed OpenSolaris and the GPL-licensed Linux, cannot be intermingled (due to license incompatibilities), Sun prevented its nemeses Red Hat and IBM from implementing those patents in Linux in a way that's harmful to Sun (especially considering the damage that Linux has already done to Sun). On the other hand, it should have positioned Sun as a friend to the open source community, while also creating an open source operating system project that's more legally attractive to both developers and other licensees than Linux.

But as clever as the plan was in trying to stroke the open source community while protecting Sun's interests, the open source community wants more, and now the question is whether or not Sun will capitulate.According to a News.com story, members of the open source community including the Public Patent Foundation's Dan Ravicher are asking Sun for answers that appear to pressure Sun to go one step further by extending the protection it's offering to not just developers operating under the CDDL, but also to developers operating under any OSI-approved license as IBM recently did with 500 of its patents. According to the story's headline -- "Sun: Patent use OK beyond Solaris project" -- Sun appears amenable to the idea. But in terms of any capitulation, the story only quotes Sun's head of Solaris marketing as saying, "We're definitely looking into what would make sense and what would make the community feel more comfortable with the patent grant we have made available."

Meanwhile, in his blog, Sun COO and President Jonathan Schwartz appeared less conciliatory when he made light of the usefulness of IBM's patents (such as one for tamper proof set screws) to open source developers and said, "We know we need to help the community understand how to take advantage of our grant - but at least all 1600 of the patents we've granted to the world were for operating systems and software."

The OpenSolaris/CDDL arrangement was way too precise in its results to have been an accident that resulted in unintended consequences. Should Sun open its patent protection to all open source developers (and not just those operating under the CDDL), it would be a 180-degree turn. The company might as well switch OpenSolaris to the GPL and offer the same protection to developers operating under that license. My sense is that there won't be such an about face. Whereas Sun has already given 3/4 mile and the open source community wants the entire mile, Sun will probably figure out how to extend the distance it has gone to 7/8 mile. If the patents are all applicable to the operating system as Schwartz says they are (I haven't had a chance to look), 7/8 mile on highly relevant operating system code will still be at least 3/8 mile more than anyone other benefactor has gone. Meanwhile, with all this pressure in the open source world, my other hunch is that something else has to "give," and that something else has to do with how software patents get awarded. This is going to be one interesting year.