Think-tank report lays into Linux

http://www.techworld.com/applications/news/index.cfm?NewsID=3373

23 March 2005
Think-tank report lays into Linux
Guess what? Organisation is funded by Microsoft

By Matthew Broersma, Techworld

Open-source software may be a legal time-bomb waiting to
explode into a torrent of lawsuits, according to a new study
from the Alexis de Tocqueville Institution (ADTI).

The report follows on from controversial studies in 2002 and
2004 in which ADTI president Kenneth Brown spotlighted
alleged security concerns around the open-source development
model and challenged Linus Torvalds' claim to have invented
the Linux kernel.

ADTI's critics have noted that Microsoft is one of the
think-tank's financial backers, a fact acknowledged by ADTI
and Microsoft, although ADTI has declined to discuss the
funding of specific reports. Microsoft funds several
think-tanks, including the American Enterprise Institute,
the Center for Strategic and International Studies, the
Heritage Foundation and the Cato Institute.

Regardless of its funding sources, ADTI has an openly
critical stance toward open source software, which it refers
to as "open sores software" and "hybrid-source software" in
a news section devoted to the topic on its website.

The new study, called Intellectual Property - Left?, focuses
on what author Brown sees as a number of worrying legal
issues that surround the open-source development model, and
which he argues put open-source on a collision course with
standard intellectual property law. The study will be made
public shortly, Brown told Techworld.

The conflicts with IP law are self-evident, Brown argues.
"After a brief glance at much open source software
development, it becomes readily apparent that a number of
open source practices directly conflict with best practices
associated with protecting intellectual property," he
writes. "Both intentionally and unintentionally, users,
developers, and distributors are in conflict with
traditional, staid intellectual property law." Among the
potential conflicts are "licensing, attribution, anonymity,
derivative works, and indemnification", according to Brown.

Brown finds it "intriguing" that many open-source
contributors work for large IT companies. "Every day, an
untold amount (sic) of employees beholden to strict
employee/invention/intellectual property agreements, in
their spare time (and even during work-hours) freely give
away ideas, code, and products to open source projects," he
writes. This opens up questions around the legal ownership
of contributions, and could even open an avenue for a
"disgruntled employee" to give away company secrets by
contributing them to open-source projects, the report
argues.

Most worrying of all is the absence of litigation around
open-source projects, Brown says. "Certainly it is
improbable (and mathematically impossible) to assume that no
infringement is occurring," he writes. "Thus, we are left to
conclude that infringement to date has largely been getting
a 'pass'." Those involved must ask themselves when the
litigation will arrive and what will trigger it, he argues.

So far, potential litigants have kept quiet because open
source software is so popular, and they are afraid of
looking like bullies, Brown argues. Open source has been
adored in the media and proclaimed "as 'liberation
technology' as a way for small or disadvantaged countries to
finally become competitive with the US and Europe," he says.
Open-source proponents such as Open Source Development Labs
chief executive Stuart Cohen have "issued defiant, brazen
challenges to the question of infringement", Brown writes.

In the face of such pressure from IT industry journals and
discussion sites, many owners of intellectual property have
kept silent for "'fear' of excoricating reprisal in the
media, etc." Brown writes.

But such silence won't last much longer, he argues - just as
the music industry finally got up its courage to sue
song-swappers, and Apple risked unpopularity by suing web
journalists, IP holders could begin to take action, if only
they can face the disapproval of the media. "It is safe to
surmise that challenging public domain software infringement
is as hairy a prospect as suing young teenagers for
illegally downloading music, or demanding a reporter's
sources for allegedly illegally leaked trade secrets," Brown
writes.

Once the first significant litigation happens, it could open
the floodgates against what Brown calls "public domain
software". "Almost any ruling against a user, distributor,
or developer of open source, could result in a precedent
that could significantly change public domain software
practices," he writes. Any precedent could "open the gateway
for deluge of similar, copycat lawsuits".

Anyone can see that a legal apocalypse is likely by looking
at the origins of open source, Brown argues. "Tellingly, the
origin of open source is a model that was spawned from a
movement away from standard intellectual property rules," he
writes. "Thus, if the growth of open source is consistent
with its roots, an impending showdown between proprietary
companies and/or intellectual property owners is highly
probable."

Brown's 2004 report alleged that credit for the origin of
Linux should go to projects such as Minix, authored by
Andrew Tanenbaum. That report drew criticism from many
quarters, including Tanenbaum himself. "My conclusion is
that Ken Brown doesn't have a clue what he is talking
about," Tanenbaum wrote in a web posting at the time.

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