Bossie Awards 2011: The best open source software of the year

Paying the suits
Issues like this are dividing the open source community into two camps. The vast bulk of the projects are relatively small community products run by developers for developers. The libraries and tools are used by people who can read the source code, so they value openness. The licenses make each and every member a full partner in the creation from the beginning, and this encourages the contributions that inspire metaphors like "melting pot" and "stone soup." Everyone playing at this level seems to be getting what they expect from the licenses.

But things are changing at the highest levels because vast fortunes are now being built upon the code created by these contributions and the status of the code depends heavily on the licenses. MySQL, for instance, was worth $1 billion because the company owned the copyright to the entire body of code and could use this leverage to extract fees from commercial entities that relied upon it.

Many eyes continue to stay focused on Oracle as the company makes decisions about how it will continue to digest MySQL and the other open source projects that came with Sun. There are few indications that much has changed dramatically. The MySQL code is still largely produced in-house and Oracle still offers commercial licenses. The Oracle logo is visible on the front page of the MySQL website, but it's buried at the bottom. Oracle seems happy to move slowly.

Another area of much concern is how Oracle will treat Java. While many pushed Sun to be quite open with the source code, the company retained just enough legal power to exert control. Now Oracle is using some of those strings to sue Google for its use of Java in Android, insisting that the phones are infringing on some patents. Some are suggesting that Google may settle and agree to pay a fixed amount per handset for a license.

Oracle is not alone. Microsoft has approached mobile phone manufacturers with its own patents, and some calculations suggest that Microsoft may make vastly more money from the sales of Android phones than the sales of Windows Phone 7 licenses.

"There is little relief in sight," said Google's Chris DiBona about patents in general. "It is my thinking that the consumer is already spending in the aggregate billions more for software, hardware, and services than they'd need to if we didn't have software patents dragging down the industry."

DiBona did not comment about the Android suit itself, limiting himself to general discussions about how patents affect all users.

"The current effort is to use the power of money and the contempt for sharing to earn unjust economic rents by charging users for our innovations on the basis of widespread abuse of patent law," said Eben Moglen, a law professor at Columbia University who directs the Software Freedom Law Center.

While Moglen points out that many open source projects may have a good defense against patents because the source code is published, he notes that it is often time-consuming and expensive to fight the legal battles.