In an op-ed piece published by BusinessWeek today, Linux Foundation
Executive Director Jim Zemlin stated his organization will be ready to fund
the legal efforts of anyone who produces Linux software who's threatened
with - or sued on account of - patent infringement. If necessary, Zemlin
writes, the foundation will use its own patent portfolio to mount
countersuits.

"Touch one member of the Linux community, and you will have to deal with
all of us," reads Zemlin's article. "Microsoft is not the only - perhaps
not even the largest - owner of patents in this area. Individual members of
the Linux ecosystem have significant patent portfolios. Industry groups,
such as the Open Innovation Network and our own legal programs at the Linux
Foundation, aggregate our membership's patents into an arsenal with which
to deter predatory patent attacks. With our members' backing, the Linux
Foundation also has created a legal fund to defend developers and users of
open-source software against malicious attack. We don't expect to but, if
needed, we will use this fund to defend Linux."


The latest saber-rattling comes in response to Microsoft's seemingly
dichotomous comments two weeks ago from CEO Steve Ballmer, alleging that
Linux already violates dozens of its patents, and suggesting that more open
source authors "play by the same rules" as Ballmer believes it does.
Zemlin's position raises the issue of whether a possible affirmative
defense using patents for technologies that happen to be used in Linux,
would violate the spirit, if not the letter, of the General Public License
under which Linux is distributed. The preamble for the current version
specifically refers to the dangers of patents in an open source
environment: "Any free program is threatened constantly by software
patents. We wish to avoid the danger that redistributors of a free program
will individually obtain patent licenses, in effect making the program
proprietary. To prevent this, we have made it clear that any patent must be
licensed for everyone's free use or not licensed at all."

The meaning here is, any time someone obtains a license to use patented
intellectual property, it's a concession that it's property belonging to
someone else, not the general public. The implication from that meaning is
that the purpose of obtaining patents is to establish a foundation for
issuing licenses.

But language currently being considered for GPL version 3, for that same
paragraph, may be more conciliatory toward individuals such as those to
whom Zemlin refers, who might want to obtain a patent simply as a defensive
mechanism. "Every program is threatened constantly by software patents,"
reads the current draft, the word "free" having been conspicuously removed
from that sentence. "States should not allow patents to restrict
development and use of software on general-purpose computers, but in places
where they do, we wish to avoid the special danger that patents applied to
a free program could make it effectively proprietary. To prevent this, the
GPL assures that patents cannot be used to render the program non-free."

In an attempt to mitigate some of the damage Ballmer's comments caused,
members of Microsoft's open source laboratory blogged last week for Port 25
that Microsoft promises never to engage in "frivolous litigation" or
spreading fear. Borrowing a metaphor from former President Clinton,
Microsoft now refers to the agreement it wants open source authors to make
with the company as its "IP bridge." "Our IP bridge makes lawsuits
unnecessary," Microsoft's Bill Hilf and Sam Ramji wrote.

That didn't stop the Linux Foundation's Zemlin from issuing a challenge to
Microsoft to join it in what Zemlin characterizes as its own singular
effort to instigate patent reform. "We ask Microsoft to stop engaging in
FUD campaigns that only serve to undermine confidence in the U.S.
intellectual-property system," he writes for BusinessWeek. "Instead, please
work with us to make the patent system tighter, more reasonable, and
efficient for everyone in the software business."

http://www.betanews.com/article/Linu...nal/1180127700