Big Blue files counterclaims against SCO (News.com)

Posted Aug 8, 2003 9:19 UTC (Fri) by Duncan (guest, #6647) [Link]

> Is it possible for a patent-holder to stipulate that an open-source project gets
> an implicit free license as long as it's certifed by the OSI or FSF, or blablabla?

Yes.. but the validity of such a specification doesn't yet have case history backing
it up, much as the GPL has no case history (at least court) backing IT up.

Basically, it comes down to this. Such self limiting language on targets of
enforcement doesn't generally go in the patent itself, where it would hold co-equal
status to the rest of the patent claim. Rather, a company simply says it chooses
not to enforce the patent when applied in X type cases. If it actually contributed
the code to a GPL project (as IBM did with various kernel code contributions)
itself, then the case is pretty much settled. However, if someone else simply
takes them at their word that they aren't going to enforce for X type development,
and writes code that infringes based on the patent holder's statements, well,
management and policy may change (look at what happened with
Caldera/SCO!), and there's no case history yet on whether the independent
developer of the code could count on the courts not decreeing that it's the
property of said patent holder, and within their rights to change their mind on it, or
not. Thus, that gets pretty dicey.

Red Hat has made news for filing its own patents, which it swears up and down it
intends to use only as a defense, should somebody decide to "SCO vs. IBM"
them, or for cross-licensing, and that the FLOSS world is free to use them without
fear. It's a very common practice in the proprietary world, and usually results in a
cross-licensing agreement where both sides have a license to use the other's IP.
It has proven a VERY effective defensive tactic, and should prove so in the
SCO/IBM case as well. RH claims it is just building its own defense, should
someone in the proprietary world decide to take them on. However, the reaction
of those in the know in the FLOSS community has been decidedly mixed,
because on the one hand they can't really blame RH for strengthening their
defense, which they acknowledge FLOSS DOES need to be doing, but OTOH,
there's always the chance RH could become another Caldera, or simply be
bought up by someone like MS, who could use the patents far differently..

As far as IBM, keep in mind their history. They were around back when hardware
was hundreds of thousands of $$ and the software package was basically thrown
in, and those with the $$ to spend on the hardware were pretty much free to do
what they wanted with the software, because after all it was useless without the
costly machines to run it on. It's not hard to believe that they wouldn't have
minded staying there, or that they wouldn't mind getting back to that. Thus, their
entire strategy with Linux is to make the software free again, so they can get
back to the game they are comfortable with --> selling the hardware, selling the
equally valuable if not now more so support services, and WHO CARES about
the software! Linux is just the most convenient means to that end, but as they
say, the enemy of my enemy is my friend, and IBM is currently proving a pretty
good friend indeed. IOW, IBM is agnostic on FLOSS, because it tends to be
agnostic on software in general. However, FLOSS in general and Linux in
particular happens to be the best way possible to get back to that environment
they've proven so good at operating in, from their viewpoint, and they've been
quite happy to put their $$ where their goal is, and support Linux to the tune of a
billion and counting! Yes, if they ever became the enemy, they'd be pretty
formitable, certainly more so than SCO, and probably more than MS, because MS
is mainly economic, while IBM would be IP rights. However, viewed from the
above angle, that isn't going to happen, because IBM would be far happier simply
doing what it did back when IT was the monopoly, supplying the hardware, and
"don't fuss the little stuff" (software).