Linux gets a bigger shield against patent attacks

Long-needed change by industry association formed to protect Linux from software patents finally arrives -- but beware the exceptions

The open source community should feel a little safer from software patent attacks today. The Open Invention Network (OIN), a consortium of Linux contributors formed as a self-defense against software patents, has extended the definition of Linux so that a whopping 700 new software packages are covered, including many developer favorites.

Just one hitch: The new definition also includes carve-outs that put all Linux developers on notice that Phillips and Sony reserve the right to sue over virtualization, search, user interfaces, and more.

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It's a big expansion of Linux's territory -- dotted with some major landmines. At least they're clearly marked.

A NATO for patents
Formed in 2005, OIN was in many ways a reaction by its funding corporations -- IBM, NEC, Novell, Philips, Red Hat, and Sony -- to the threat to Linux posed at the time by Sun Microsystems and SCO. By pooling their patent portfolios and offering a viral scheme to attract more patents, they hoped to render members immune to software patent attacks around the Linux platform.

Using a set of cleverly worded license agreements, OIN offers any entity willing to sign its license the right to use any other licensee's patents to defend itself against Linux-related patent attacks, provided they reciprocate in kind. The effect is to create an ever-expanding patent pool for licensee use. (It has no value in defense against companies who don't make anything except threats -- so-called nonpracticing entities or, more plainly, patent trolls.)

Of course, laying down all patents a consideration among OIN's members. So OIN limited use of the pool of patents it gathered to the Linux System -- a carefully worded list of technologies that circumscribed the interests of its chief paymasters. You can only protect yourself from attack by a patent aggressor using OIN's patents if your software is part of the Linux System as defined by OIN.

That has been a growing problem. The Linux System definition at the heart of OIN has been a fixed list of technologies that has remained unchanged since 2005. Many of us in open source communities felt exposed and excluded by the glaring omission of key technologies -- such as Java. Indeed, I worked with OIN to include OpenJDK when I was with Sun back in 2009. OIN freely admitted this was a problem, but changing it involved very extensive multiway negotiations among its members.

That's why the news, announced Tuesday, that OIN would open its umbrella wider was so welcome. The 700 new software packages include KVM, Git, OpenJDK, and WebKit, which by themselves represent a dramatic extension of scope.

The Linux System is now defined so as to include popular virtualization and development tools. The list includes a wide range of Java tools: OpenJDK and IcedTea, GNU gcj, GNU classpath/libgcj, Apache Jakarta, Eclipse, and more. Negotiating this agreement must have been an enormous task of aligning corporate biases.

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