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.