News

Open Source State of the Union

• By John K. Waters
• August 5, 2004

SAN FRANCISCO, CA--Linux and open-source guru Bruce Perens opened his third bi-annual "Open Source State of the Union" talk at the LinuxWorld Expo in San Francisco with a dire warning about the dangers of U.S.-style software patents spreading to Europe. “If we continue toward a regime of global software packaging with patents as bad as the U.S., Linux and open source are toast,” Perens said.

He was referring to news that the city of Munich, Germany, had decided just a day earlier to halt temporarily its plan to migrate 13,000 of its desktops to Linux because of concerns about software patent issues. Although the European Patent Convention currently allows no software patents in the European Union, an initiative known as the EU software patent directive, now making its way through the EU's legislative process, has sparked worries that this could change.

Perens believes the Munich announcement was "a bit of a political set piece" meant to force the city to push the German federal government to vote against the EU software patent directive. He lamented what he sees as "an extreme amount of complacency, sort of a head-in-the-sand attitude, within our own [open-source] community" on the issue of software patents. The often controversial Perens suggested that software companies like Microsoft could some day step into the void created by such complacency.

"I keep hearing, 'Well Microsoft would never move against us,'" Perens said. "That would be too much of an antitrust problem, or, their own customers wouldn’t allow them to shut down open source. Remember, this is a company that is filing up to 30 new patents a day. I frankly don’t believe that they are that meek about what people will let them or won’t let them do." Perens added that Microsoft's practice of patenting "vague things," such as organizing photo albums by date, and basic computer/user interactions, such as the double click, are potentially dangerous to the open-source movement.

Perens has been an integral part of the open-source movement from its beginnings. He is the primary author of the Open Source Definition, the manifesto of the open-source movement. He currently serves as the executive director of the Desktop Linux Consortium, a non-profit organization dedicated to the advancement of the use of Linux on the desktop, and he is the editor for the Prentice Hall PTR "Bruce Perens' Open Source Series" books.

Perens is also on the board of a new organization: Open Source Risk Management (OSRM), which provides "risk mitigation consulting" and indemnification to corporations that wish to adopt open-source technologies, but worry about the legal ramifications of doing so -- basically, patent insurance.

Why sell patent insurance? By aggregating the risks of large companies with high potential liability, Perens said, OSRM could create "a legal team independent of any hardware or software vendor that can be our star team to defend Linux/open source against software patent suits.

"The very existence of an insurance company with a deep fund for defense means that many frivolous lawsuits that would otherwise be filed will never see the light of day," he added.

The OSRM released a study earlier in the week that identified 283 non-court-validated patents that may cover the Linux kernel.

Report author attorney Daniel Ravicher joined Perens during his presentation. “If we are to believe what most of the luminaries and leaders in the free and open-source software community have said [for a decade], patents pose a risk to free and open-source software,” Ravicher said. “That’s old news. What OSRM has said is, let’s find out exactly how big [the risk] is and what we can do about it.”

Ravicher, who is the executive director of the Public Patent Foundation and senior counsel to the Free Software Foundation, said that most patent cases do not end in favor of the patent holder. But to truly understand the potential risk of software patents, it's vital to understand who owns them.

The OSRM study found that a third of the 283 patents that could conceivably threaten the Linux kernel are held by companies that say they are friendly to Linux -- companies such as IBM which, according to the study, holds 60 patents; HP, Intel, Cisco and Novell also fall into the friendly patent-holder column. In his not-so-friendly column, Microsoft holds 27 of the potentially dangerous patents, Ravicher said.

"It's not far-fetched to think that the convicted monopolist could launch a patent-based offensive against the open-source community and those who adopt its technologies," maintained Perens. "I do not recommend that individuals buy this kind of insurance any more than I would recommend that they buy meteor insurance. But there are some companies for which this is a valid consideration."

To critics who accuse him of having a conflict of interest on the patent issue because of his position on the OSRM board, Perens is dismissive. "I've been talking about software patenting for eight years," he said. "I’m on that board [of OSRM] to keep them honest, to keep them consistent with the ethos of the open-source community. If I make money from this, it will be the first time any of the companies I have founded, or have been on the boards of directors of, has ever made any money. While people accuse me of conflicts of interest, it feels to me like I’m doing volunteer work on my way to the poor house."

Perens also touted his latest project, UserLinux, which he described as "an enterprise Linux without the price tag" of, say, a Red Hat distribution. When it is released (Beta 1 is due in September), UserLinux will be available with no per-seat fees and with a distributed service model. Under that model, independent support vendors, certified by the organization, will offer support on an incident basis. The result of this release, Perens said, is that "Linux is free again."

Perens' devotion to the principles of open source even carries over to the book series he edits for Prentice Hall. That series is published under a unique open-source license that literally allows anyone to copy the text and sell it, Perens said. "You're wondering how we make money," he told his audience. "We bill the retail pipeline before the text actually becomes open source. That allows us to produce an open-source book and still make a profit for the publisher."