IBM's latest filing in the SCO case looks particularly damning; it may finally be curtains for SCO. But even if the judge dismisses the suit tomorrow, Linux customers won't be able to rest easy. As Bruce Perens reminds us, the Microsoft/Novell partnership has brought a host of new intellectual property issues to bear. And so, the cold war between Microsoft and open source software lumbers on into another year.
As with the real Cold War between the United States and the Soviet Union, the chief instruments of this conflict are fear and intimidation. So long as the threat of lawsuits looms, customers will hesitate before deploying open source.
Indemnification is the "missile defense" of this cold war. Customers expect open source companies to offer them immunity from intellectual property lawsuits that might result from the use of their software. But is this really a promise the vendors can make?
The concept of indemnification is insidious. Rather than assuaging fears, it actually contributes to them because the risks involved are so vague. Who might file a lawsuit? What code will be involved? What sums will be named? What other companies might step up to defend against it? What will be the long-term implications of the suit? And given so many unknowns, how can you budget for indemnification? How much security are you really getting for your money?
This quandary leads to a chilling effect, as befits a cold war. The primary beneficiary is the proprietary software industry. If the specter of the courts sends open source customers chasing their own tails in search of indemnification, Microsoft couldn't be happier.
The problem is, when you bring fear and uncertainty to bear on the open source market, you also stifle creativity and innovation. Open source is a wellspring of code that has benefited the entire software industry -- including those who now seek to quell it.
I'm reminded of a recent ad campaign by Chevron, which touches on geopolitics in the post-Cold War era. "There are 193 countries in the world," reads the ad. "None of them are energy independent." While it's true that the majority of the world's nations must rely on the few who won the "geological lottery" for their fossil fuels, even the largest oil-producing nations import gasoline, for example.
Software is in a similar situation. A few giant vendors produce key software for the majority of computers in use today. But at the opposite end of the spectrum, independent developers and hobbyists have made significant contributions in their own right. In between are countless other ISVs of varying sizes. And all that code is constantly intermingling, moving hand to hand, each piece of software complementing the others.
Just as most open source developers use some proprietary software, somewhere, I doubt you'll find a single proprietary software vendor that doesn't deploy open source behind the scenes, whether it's an open source database, a source code version control system, or a Web server. Sometimes open source code actually becomes part of proprietary products.