Open source's open sore

Intellectual property rights can catch out the unwary, says Alison Bryce

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Intellectual property rights can catch out the unwary, says Alison Bryce





In a case which, over the course of several years, has spiralled to encompass some of the biggest names in computing, a Utah federal court has finally ordered IBM to turn over the code-base of its AIX and Dynic operating systems for scrutiny by SCO, a relative software minnow.

The action against IBM is the latest step in a lengthy campaign by SCO to enforce intellectual property rights over code allegedly misappropriated and redistributed worldwide as part of the Linux open source operating system, from which AIX and Dynic are derived.

Although SCO's dogged pursuit has been controversial, it does highlight the challenges which have appeared around open-source during its evolution from intellectual hobby-horse to global business phenomenon. Let there be no doubt that today, open source - in particular Linux - is very big business.

Earlier this year, IBM opened up 500 patents from its substantial portfolio for open-source use. For a company whose patent licensing regime has helped it prosper though more frugal times, this is a clear investment of faith in the movement by IBM.

From an intellectual property perspective, open source does not fit neatly with how software has traditionally been developed and commercialised. As such, there are several issues a company considering getting involved with open source should be aware of.

Code is freely available

As most in the industry know, the key difference between open source and proprietary commercial software is that open source developers make the underlying source code of their work freely available to third parties. This code can be re-used and redistributed in its original form, modified or even split into parts and reused in other pieces of software.

Beyond this over-arching principle, the detail governing how open source code may be used is set out in a number of standardised licences. These licences attempt to strike a balance between the desire to see open source software used as widely as possible, with the need to protect the movement and its contributors from one-sided commercial exploitation.

Most common among open source licences is the GNU General Public Licence (GPL). The main requirement of the GPL - and its many derivatives - is that the source for any licensed code, including derivative work, must be made publicly available. On a practical level, this means any commercial product which uses even a small amount of GPL code immediately becomes open source itself and, therefore, subject to the same requirements of free availability. Although this so-called "viral effect" is intended to protect the rights of open source developers, it can be commercially disadvantageous for the unwary.

Proprietary protection

Yet, the GPL does not seek to stop commercial application and it is possible to use open source code without throwing away rights in proprietary software. Software used in conjunction with GPL code will remain closed and proprietary, as long as the proprietary source code is kept distinct and clearly separate from the open source code.

The GPL also contains requirements which, in short, prevent any software containing GPL code from being patented. This is to prevent redistributors of a free program from individually obtaining patent protection, thereby making that code proprietary.

Questions over the legal validity of the GPL were partially put to bed after the licence was recently upheld by a German court. However, so long as the SCO case rumbles on in the US, there will continue to be uncertainty surrounding the intellectual property status of open source in general and Linux in particular.

A win for SCO would have dramatic consequences for the open source movement, as the company would be entitled to go after the licence fees it could otherwise have received from IBM. This may result in many Linux users potentially facing claims from SCO - a threat which has prompted some users to already seek an indemnity from their supplier.

Yet, even as these questions remain unanswered, open source continues to grow in popularity, both for those supplying and purchasing software. Any organisation considering such a course should read the licence, weigh the costs and ensure they are making an informed choice.

Alison Bryce is an associate specialising in intellectual property with corporate law firm Maclay Murray & Spens

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