Sun ready for war over IP litigation

Sun seems to be trying to strengthen its ties with the developer community by issuing a bold statement that promises the defence of end users from IP litigation

As Sun moves to tie itself more closely to the developer community by releasing an open-source version of Solaris, chief executive officer Scott McNealy has reinforced the company's willingness to "take bullets" to protect end users from patent and copyright litigation.

McNealy told ZDNet UK sister site ZDNet Australia the recent Kodak patent case was an example of the company "taking a bullet" to protect its end-users.

Indemnifying customers or otherwise protecting them against action by companies with intellectual property claims is a crucial plank of Sun's strategy to secure continued faith from an end-user and developer base which is eyeing growing levels of litigation with increasing concern. The issue really exploded into the public consciousness when Unix company SCO launched a multi-billion dollar case against IBM alleging its code had been inappropriately copied into Linux.

The strategy is core to Sun's bid to win the hearts and minds of Solaris' base of developers and create a community around the operating system on the x86 platform by announcing the open-source version of Solaris. That version is similar to Red Hat's model for its Fedora community Linux distribution.

"Customers need to use a software provider with cash in the bank, who protects and indemnifies them and will look out for their interests," McNealy said.

When asked how many bullets Sun could take, McNealy said the company had $7.4bn in the bank, strong growth and an "IP war chest" that "scares a lot of companies away". McNealy did not rule out a patent war, but was confident of Sun's position should one occur.

"If one breaks out, I think we have a better war chest. We have more bullets than anybody else in the network computing industry, including IBM. If you look at what we've invested over the years and what we've patented and copyrighted over the years, we have not excised our war chest offensively, we've kept it only defensively cause we don't want to aggravate the community, we want to support the community.

"A lot of people argue that software patents are a misapplied… art, but what the heck -- there can be lots of folks out there… that don't have another way of making money. Kodak, like we all know, are hardly the model of profitability and strategic positioning right now".

On the new version of Solaris, McNealy told delegates to a conference in San Jose, California, that he first said five years ago that software would be free. However, details of the final licence for the new Solaris operating system are still being finalised and an announcement is due in the next 45-60 days, with the product being released in late January. Sun executives said developers would be able to view and compile the code and write drivers for the operating system.

The new licensing arrangement "took a while" because it was subject to legal and contractual arrangements that were "very complex and detailed", McNealy said.

McNealy also defended the Java Community Process (JCP) and its "stewardship" of Java rather than a fully free or open-source licence such as the GNU General Public License (GPL).

"The RIAA went after college kids in Illinois so who are [those with patents] going to go after? I don't know, but maybe they go after the distributors, who then have to raise the prices of the product they sell to you or updates or they get an injunction, I don't know how this all plays out. All I know is that I didn't want to confuse the Java community or let them be nervous over any litigation so we took the bullet," he said.

"Who is going to take the bullet if Java had not been the Java community process but rather GPL? By the way Linux went GPL about the same time Java went out JCP, two different community development models, which has been more successful? Which is running more places, which is more scalable, which has indemnification, binary compatibility which has no viruses, I mean you can't argue the JCP hasn't been very effective. I would argue maybe the most effective community development process out there yet and we take the bullet for people."

"People get nervous because we are supposedly the dictator, I would say we are the steward as opposed to the dictator. Linus Torvalds is clearly in charge of Linux so what is the difference?"


Sun's decision to reach a settlement with Kodak led to much debate over whether McNealy's company had let the technology industry down by not fighting its corner.

Kodak had claimed that the Java language, developed by Sun, infringed several patents which the photography giant had acquired in 1997. The case went to court in the US, and Sun agreed to licence the patents for $92m. Kodak had been seeking over $1bn in damages.

In "Sun has betrayed us all", ZDNet UK argued that Sun had effectively paid off a vexatious litigant trying to enforce an unreasonable patent claim. Sun disagreed strongly with this view -- denying that it had "betrayed" the open source community by settling the case. Some ZDNet UK readers backed Sun, while others agreed the firm had behaved badly. Many put the blame on Kodak, and an American legal system that allows software to be patented.

ZDNet UK's Graeme Wearden contributed to this report.

Brendon Chase writes for Builder AU. For more Builder AU stories, click here.