The true legal vulnerability of Linux

Waiting for the Big One

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A recent focus on the problem of software patents raises the question: could Linux be sued off the face of the Earth?

The not-so-random thought came up this weekend when I read the New York Time's special report, "The Patent, Used as Sword." This article, which I highly recommend you read when you get a chance, comprehensively examines the broad landscape of software patents without really coming down too hard on one side or the other. It does, I should add, leave you with the sense that something is wonky with this whole idea that billions can be spent and companies can go down just because one side's lawyers are quicker on the draw than others.

If I were the uncharitable type, I would say that this is also the article that shows where The Times finally gets a clue, but that's not really the case. The staff at the Grey Lady knows full well what's going on in the land of software patents, having covered it for quite some time. But reading the piece, I could now help but feel a little sense of relief that the Times was finally giving the topic the level of detail that a lot of us in the tech media have been hollering about for years.

I hope that the increased attention on the issue helps bring some pressure on the patent system to bring some real reform. But then I also hope I'll win the lottery, so there's that.

Reading some of the ugly anecdotes of companies going down, it was very hard not to imagine someone pulling the trigger like that on a Linux company. Which led to the central question of this blog: why hasn't someone fired the litigious missiles at Linux yet, and is it just a matter of time before Linux gets big enough that someone will make the effort?

Well, for one, companies have come at Linux already, and thus far their efforts have been either blocked in court or elegantly countered.

The first, and most infamous major example of this was, of course, The SCO Group's clumsy attempt to try to muscle Linux users into a licensing program based on the (wrong) premise that they (a) owned the rights to Unix and (b) Linux infringed on Unix and therefore Linux users owed SCO some coin. (For further background, see Groklaw. Pretty much all of it through 2010.)

Now, as we all know, in 2003 SCO went after some big-pocketed customers (AutoZone and DaimlerChrysler) and the richest Linux player at the time, IBM. This would be the first real case that all of us at the time were waiting for and dreading: Linux now had some money behind it, and now someone wanted to get their share.

But then things went sideways for SCO, and the real test of the case, that Linux allegedly infringed on Unix, never got a strong test in court. Novell started making noises that SCO did not have the right to sue on the basis of the Unix copyrights because, lo and behold, Novell still owned those rights. SCO immediately sued Novell to shut them up and maintain that it owned Unix… and lost.

Crash, boom, bye bye SCO.

There have been others, mostly directed at Red Hat, which has established that there's gold in them thar hills, and therefore the inevitable lawyers chasing after what they can get. Red Hat successfully fended off Acacia-owned IP Innovations in a 2010 East Texas jury trial (I know, go figure!), invalidating three of IP Innovations' patents.

But later that same year, Red Hat would settle with another Acacia-owned company, Software Tree LLC, for an undisclosed amount.

Early in 2010, Red Hat was dragged into Canadian company JuxtaComm-Texas Software LLC's infringement claims for a patent (US Patent No. 6,195,662) covering the manipulation and exchange of data between computer systems, along with companies like British Air. A quick check of Pacer reveals that while that case in the Eastern Texas district court ended just last month, Red Hat seems to have settled again on August 22, 2011.

That's too bad, because in July of this year one of the other remaining defendants in the case, Pervasive Software, blew a hole in two claims within '662 and rendered the patent invalid. On September 19, JuxtaComm would end up being ordered to pay the remaining defendants' court costs.

Red Hat doesn't always settle… in another case it's defending itself against from Twin Peaks Software, Red Hat took the unique step in defending itself from a patent infringement claim by leveling a counterclaim that Twin Peaks is in copyright violation on mount, the file management app that is licensed under the GPLv2. Not only is Red Hat seeking GPL compliance, it's also going after Twin Peaks for damages and is seeking an injunction on Twin Peaks' own product sales.

On one level, using the GPL as a weapon is pretty funny, but in seriousness it really only work against companies that are actually practicing entities, not the non-practicing entities colloquially known as patent trolls.

It should not be taken away from this article that I'm picking on Red Hat. But as the most visible Linux player these days that's making some real money, Red Hat will no doubt find itself embroiled in other lawsuits.

But what about the Big One? The mother of all lawsuits destined to Destroy All That Is Penguin?

Many in the Linux community believe that, as a proxy for Microsoft, that SCO case was just that. Rather than the death through a thousand cuts approach all of these individual trolling cases seem to be taking, the SCO case was the biggest concerted effort against Linux that would have (if they could have pulled it off) potentially put Linux under the boot of a decidedly unfriendly company. But the case was bungled so badly, if there was a conspiracy, then I have little doubt that the actors in such a cadre were left feeling very burned by the experience.

Does that mean the Big One will never come? No one can predict for sure, but I have a gut feeling that no, it won't really happen. While there will always be the odd troll, I don't think it's in the interest of a major competitor to try a take down of Linux in the courtroom.

Why not? Simply because Linux is so pervasive now. Suppose patentgeddon did somehow happen, and Linux were forced to change drastically in order to comply? Do you know how many core infrastructures would be blown up were that to happen? And where would these IT departments go? To Microsoft? To Oracle? If one of these companies happened to be the Plaintiff, then I think not. More likely Linux customers would be so angry at having to give up or overhaul their Linux machines, they would start to resent said Plaintiff's products with a vengeance.

And then there's the simple reason of: why bother? Why would Microsoft try to destroy Linux when it can simply co-opt the technology and use it within its own products as needed? In fact, that's exactly what the company is doing, and is actually becoming a larger player in the Linux kernel space.

Free software, whether as in freedom or as in beer, just makes it less productive to mount a shock and awe campaign.

That's not to say Microsoft and other players won't keep trying to whittle away at Linux through various licensing campaigns and veiled threats. This is a war of slow attrition and the ultimately the goal will not be the destruction of Linux, but the control.

Read more of Brian Proffitt's Open for Discussion blog and follow the latest IT news at ITworld. Drop Brian a line or follow Brian on Twitter at @TheTechScribe. For the latest IT news, analysis and how-tos, follow ITworld on Twitter and Facebook.

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