Penguin chief: Linux patent and copyright FUD 'not relevant'

Open source angels with dirty faces

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Fear ye not, Linux faithful. Thy software is no more susceptible to patent or copyright attack than any other piece of closed source software.

That's according to Linux Foundation executive director Jim Zemlin, who told penguins gathered as his group's annual Collaboration Summit on Wednesday not to believe the FUD - fear, uncertainty, and doubt - claiming that violations are unique to their beloved Linux or open source in general.

He was referring to an IP-attorney-penned opinion piece in the Huffington Post on Google's Android, which theorized that Google's use of the original Linux "header files" made the operating system vulnerable under US copyright law. "Google's Android contains legal landmines for developers and device manufacturers," was the HuffPo's modest headline. Even Linux daddy Linus Torvalds weighed in, claiming this was "totally bogus"

"I assure you, most of this is really not relevant," Zemlin said on Wednesday of such claims.

"Seems like every couple of weeks, I'll see a story about how Google is violating an open source license or a particular version of Linux is more susceptible to patent infringement lawsuits," he said during a keynote looking back at 20 years of Linux.

People building the code are wiling to comply with licenses, he said, and where there are issues, people are working within the Linux Foundation to resolve them. "The only time I hear about it [FUD] is sensationalized stories that seem to emanate from Linux competitors," he noted.

Rivals are indeed attacking Linux and open source. Microsoft made casual statements over patent violations in Android before following its words with actual action and suing handset makers shipping Android on their phones for violating un-named Microsoft patents.

Android has become the fastest moving smartphone operating system, making it a fat target for those who ready to make easy money through on-going royalty payments. If the analysts are right – and it's a big if – Android is going to become the world's number-one smartphone operating system by 2015.

But the challenges to Linux and open source aren't just coming from the likes of Microsoft. They're coming from inside the Linux camp too. Foundation member Oracle, the world's biggest database maker, is taking fellow Foundation member Google, the web's number-one search company, to court, saying that Google's smartphone operating system violates its Java patents. It's a claim Google has denied and is contesting.

Doesn't this not just create a bad impression, but also play into the hands of the enemy?

According to Zemlin, Linux and open source aren't at disproportionate risk from patent and copyright claims. Everybody is at risk. It's just that Linux and open source are more frequently targeted, thanks to their growing success and thanks to the patent environment they're operating in. In other words: There's more money to chase.

But shouldn't Foundation members like Oracle and Google avoid suing each other and present a united front against attackers from the outside world?

"The point I was making was not whether or not the member of the Linux Foundation are a bunch of angles, and it's not whether or not we all agree on what a patent reform package should look like. It's to say: patent litigation is clearly an issue in the technology industry," Zemlin told The Reg following his Wednesday keynote.

"Every member of this organization recognizes they joined for a collective reason. They might have their competitive differences, but they fully support an open Linux platform, and you don't see them suing each other over the core definition of Linux."

Infighting apart, the Linux Foundation arguably sets another dubious example by being home to IBM - one of the biggest patent holders on the planet - with Google now jump starting an effort to catch up. Google is bidding $900m for 6,000 patents currently held by bankrupt Nortel Networks. Some reckon the reason Android's coming under sustained attack - 39 suits brought in the last year according to patent watcher Florian Mueller - is because Google doesn't have an adequate patent portfolio.

That's the theory, anyway. Practice is proving a different beast as patent holders Nokia, Microsoft, Motorola, Apple, or RIM are all being sued, either by each other or somebody else.

As far as Zemlin is concerned, this is an imperfect world, thanks to the the current patent laws, and he feels that the fact that IBM is on-board with the Foundation is a good thing. IBM has proved relatively benign in terms of enforcing its patents, while some see the fact it owns so many patents as something that can be used to discourage attacks on Linux. Being a major contributor to Linux and open source and a beneficiary via its server and services biz, IBM has certainly got plenty at stake.

"You have to take a more sophisticated view of the world than say: "This guy's good this guy's bad" and making these sweeping moral judgment," Zemlin said of patent holders like IBM living inside the Foundation's tent. "We are in a situation that's messy and mess required diplomacy and collations, and sometimes strange bed fellows.

"While IBM does have a very large patent portfolio, clearly IBM is a very good friend from a patent perspective of Linux and in that respect they are a very strong ally. And that goes across the board - [for] companies with very large portfolios who... are very, very good friends of Linux and that's the world we live in."

For Zemlin, the real danger lies not with the big players, who have a series of mutual self interests to protect, but with the small patent trolls - technically called non-practicing entities. These are players who buy single patents of whole portfolios and want payment for claimed violations.

The most recent example is of Texas-based H-W Technology's action against 32 of the biggest names in tech, who it says violated a patent granted in 2009 that covers systems running on smartphones and other similar devices that let users "receive information and offers from merchants and to complete a transaction with one of said merchants without having to generate a voice call."

Among those H-W's hitting are Apple, Google, Microsoft, Amazon, eBay, Motorola, Nokia, Sony, Verizon, Expedia, Priceline, and Hotels.com.

It's the kind of suit we're becoming too familiar with: a previously unknown company with no product, lassoing a bunch of fat tech companies and a couple of big-name end users, claiming damages plus injunction against sale of the companies products or services in the US. Oh, and it's filed in a Texas legal jurisdiction. Before H-W, there was GeoTag. You can be sure there will be others.

To Zemlin's earlier point – about Linux and open source being no more prone to attack than other software – you'll notice H-W has netted both advocates and opponents of Linux and open source. ®

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