Linux inner circle disregards Microsoft's patent play

The Linux faithful might be staring down the barrel of another round of Microsoft's legal taunts, but at last week's Linux Foundation Summit, the reaction was more ho-hum than oh-no.

"The reality is that they are not going to sue a single customer," says Jim Zemlin, executive director of the Linux Foundation. "It would not be in their business interest. Microsoft is not going to sue their customers."

Zemlin says one fact alone – that most corporate Linux users have a mixed environment with Microsoft software – will protect users from the software giant going after them based on patent infringement.

The patent issue has risen to near the top of the Linux Foundation's list with the signing last year of a cross-licensing patent deal between Novell and Microsoft, in which Microsoft promised not to sue Novell Suse Linux users for patent infringement. Several similar deals have followed since with Linux vendors Xandros and Linspire.

As part of its charter, the Linux Foundation offers legal-protection services for developers to safeguard the future of Linux.

Microsoft claims that Linux violates 235 of its patents, although it has yet to detail what those patents are. Critics contend the issue is meant to create uncertainty among potential corporate Linux adopters.

But Zemlin says the contracts are hurting Linux "only in the fact that Microsoft uses them to create a perception of risk that in reality is not there."

Many others at the foundation's first-ever summit -- a collection of some of the most influential Linux kernel designers, software developers, and user companies -- took that same position.

"Open source is safe for us to use: That is the message that I want to get out there," said Chris DiBona, Google's open source program manager.

"I would be shocked if Microsoft didn't have patents that read on Linux," said Mark Radcliffe, a partner at law firm DLA Piper US who advises companies on intellectual property issues. "Will they enforce them is the question. Companies using Linux don't have to fear patent suits."

Radcliffe thinks Microsoft is in a difficult position because it probably couldn't avoid spearing its own customers with any legal action.

"I think the Microsoft [Novell] deal was a misfire," he says. "I think what Microsoft's actions recognize is that Linux is here to stay. And any competitor will use tools to try and slow it down."

Others say that patents have become a real problem for the computer industry.

"They are sold to the public as being about supporting innovation, but their impact on industry is a nightmare," says Mark Shuttleworth, the founder of Ubuntu Linux. "They don't help IBM, they don't help Sun, and they don't help Microsoft. But the free software guys are worried about this."

So worried, that the Free Software Foundation added to its near-final GNU General Public License (GPL) 3.0 specific language that addresses patent deals that could erode the unique open source qualities of the Linux operating system.

The hype has reached such proportions that Dan Frye, vice president of Linux and open technology at IBM and head of its Linux Technology Center, said during a panel session at last week's summit, "everybody, just chill when v3 comes out."

GNU GPL 3.0 is slated for final release on June 29.

Linux creator Linus Torvalds, who is employed by the Linux Foundation, wrote on the Linux kernel mailing list last week that the Linux kernel may stay under Version 2, which he said is a better license, but that Sun's choice of licensing for open-sourcing Solaris could influence the decision.

The Linux kernel is made up of a number of components, developed by various individuals under a number of different open source licenses, which means all those stakeholders would have to agree to switch to Version 3.

"People are looking to Linus for that kind of leadership," says Google's DiBona. "I think v3 will be evolutionary, which is what it is supposed to be."

Others say the issue of GPL 3.0 license adoption goes much deeper than just patent concerns.

"Even if v3 is better than v2, it has to be significantly better to undertake all the pain to change the kernel code [licensing]," said James Bottomley, a kernel developer and CTO of SteelEye Technology, which makes high-availability software for Linux systems. "We are not going to waste six months to change the kernel. This is a pragmatic argument, not a legal one."

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