Who will defend open source?

A few days ago, the Software Freedom Law Center (SFLC), chaired by Columbia University law professor Eben Moglen, announced that it would provide legal services free of charge to the Wine project , an open source implementation of the Windows API on Unix-based systems. And the funny thing is, to my knowledge the Wine project hasn't even been sued … yet.

Wine makes it possible to run Windows software on top of Linux. It's not an emulator, so there's no need to install a pirated copy of Windows. But being able to run familiar applications such as Microsoft Office or iTunes makes it easier and more convenient for users to switch to Linux. And that can't make Microsoft happy.

It's the same story we hear again and again. Intellectual property is becoming the No. 1 cash crop of corporations worldwide. When that revenue source is threatened -- when someone wants to give ideas away for free -- it's time to call in the lawyers.

To understand the true impact of this threat, however, you need look no further than the ongoing slugfest Linux users love to hate: The SCO Group vs. IBM. SCO claims that IBM improperly used SCO Unix code in its AIX and Dynix OSes, code SCO alleges found its way into Linux as well. To prove its point, SCO asked the court to have IBM turn over all source code and related documentation pertaining to the development of AIX and Dynix. A simple enough request, right?

Wrong. What IBM eventually produced included 80GB of source code and nearly a million pages of documentation, according to documents revealed by Groklaw. IBM says compliance with the court order involved more than 400 IBM employees and amounted to more than 4,700 hours of work.

In another instance, a company called Maui X-Stream recently marketed a product called CherryOS, which it claimed to be a PowerPC chip emulator for the Intel platform, written from the ground up. When members of the open source community asserted that CherryOS was nothing more than a fraudulently re-branded version of the free PearPC emulator, Maui X-Stream's response was basically "Prove it." So that's what one blogger, who goes by the handle DrunkenBatman, set out to do. The result was an exhaustive, 47-page analysis detailing evidence to support the claim.

Those 47 pages may be a drop in the bucket compared with what IBM had to do, but they're a good indicator of the burden even a minor legal tiff can place on an open source project. DrunkenBatman volunteered his time, but countless other projects might not be so lucky. And guess what? Maui X-Stream is apparently miffed enough about DrunkenBatman's efforts that it's threatening to sue him.

The bottom line is that you don't have to actually lose a lawsuit to lose the battle. Whether the issue is enforcing an open source license or defending against intellectual property infringement claims, the specter of litigation already looms over many open source projects. In particular, projects involving heavily patent-encumbered multimedia technologies such as FFmpeg, MPlayer, and the VideoLAN client expect to shut down completely if patent laws in the European Union are reformed to resemble those in the United States.

And that's why the SFLC's announcement is so encouraging and important. If open source software is to continue to thrive, it's going to need a lot more volunteers -- not just to write it, but also to defend it.