Attacks against open source failing, says patent attorney

Just before heading out to LinuxWorld, a patent attorney offered her insights into the current legal battles surrounding open source and advice for IT shops and software developers.

Proprietary vendors' attacks against open source and Linux intellectual property are just a slight bump in the

road, according to Karen Faulds Copenhaver, a former partner in the patent and intellectual property group of Testa, Hurwitz & Thibeault LLP in Boston. She believes that the creativity of the open source community will help it overcome the challenges posed by these attacks.

On the eve of LinuxWorld, Copenhaver offered her insights into the current legal battles surrounding open source and advice for IT shops in this interview. At LinuxWorld this week, she will begin her new role as executive vice president and general counsel for Black Duck Software Inc. of Waltham, Mass. Black Duck provides information services that help companies effectively manage the development and use of software intellectual property (IP).

Do you think that open source software development is a risky business because of the plethora of IP claims being made today?

Copenhaver: Of course, it is hard to take some of the claims seriously, based on the way they have been presented by SCO [Group Inc.] in the public arena. But the lawsuits did raise a significant issue about how we are going to demonstrate the property pedigree of software that is going to be created open source community. That is an issue that would have come up whether it was SCO or some other company raising it. Now that people are focused on it, I think we will see a lot of people trying to manage that process better. That will be a good thing for all of us.

Whenever you are going through a change, there is always a period where people become uncomfortable; that is what causes people to change. So, I believe that [the fact] people are feeling uncomfortable is what is going to move us forward to solve the problem.

We are at the beginning of a very steep learning curve. The issue has been identified, and we will learn how to better manage the software development process to minimize these risks.

What can developers and companies do to build their own software to protect their open source software creations?

Copenhaver: Companies have always had three choices with respect to an important discovery: file a patent, protect the idea as a trade secret and hope that no one else files a patent, or disclose the invention so that no one else can get a patent.

Open source proponents would obviously choose to disclose the invention so the patent office will consider it when reviewing a patent application for novelty. Small companies that cannot afford to file a lot of patent applications should think carefully about the value of a patent on a significant invention -- both in terms of protecting their products and in terms of trading value to get rights to patents owned by others.

If the company chooses not to pursue patent protection, they should consider the fact that someone else might get a patent on their invention.

What do you think of the fact that some major software companies are putting more code into open source? What are the market and software development industry repercussions of this trend?

Copenhaver: I think it's great. It is hard to imagine what the industry would look like today if the hardware platform for the PC had not been 'commoditized.' Prices would have been higher, development would have been slower and interoperability would have been a constant problem. Open source will have the same effect on the software industry. A common platform enhances the competitive environment; competition is good for everyone and we will all reap the benefits.

The existence of enterprise-level software, like MySQL, in an open source version that is available on a commercial basis is a great example of what could be. MySQL has done a good job of managing the process of incorporating open source into a commercial product. I think you are going to see more companies adopt that model and similar models, and the contributions that they will make to the open source code base will be important.

So many corporate IT pros are savvy about programming and do a lot of tweaking of the software used by their companies. Is there any danger in that and if so what would it be?

Copenhaver: The first point is: What do they do to keep the codes they want to maintain as a proprietary separate from the open source code? Before, legal advisers tried to educate developers that they shouldn't be copying code off the Web without studying its licensing carefully, and it is hard to capture their minds and hearts with that message. After all, people have been doing that for a long time.

If the products they are tweaking are for only internal use, there really isn't much risk, unless you want to spin off an organization. Then, if you start distributing code that you have developed for yourself internally you will have to think about the origins of that product and what licenses exist for it.

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