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.
