Much of the confusion and consternation over the use of open-source software can be alleviated simply by users understanding how such software may be licensed and software vendors taking greater care to research the intellectual property used in their products. That was the consensus of a Web-based panel of legal experts hosted Wednesday by JBoss Inc., a maker of open-source J2EE-based application-server software.
"The risks of patent infringement are almost equal for both proprietary and open-source software," says Lawrence Rosen, founding partner of technology law firm Rosenlaw & Einschlag. Rosen has served as JBoss's legal counsel in the past. "Open-source-related lawsuits are just not as prevalent as they seem."
The most famous open-source legal action, SCO Group's $5 billion lawsuit against IBM, was first posed as a trade-secrets violation, but it's morphed over time into a hybrid contract- and copyright-infringement case, says Jim Harvey, a partner with Alston & Bird LLP's technology group. Harvey is also part of the defense team for AutoZone Inc., the auto-parts retailer and Linux user SCO is suing for copyright violation.
While the progress of SCO's case against AutoZone has been slowed pending the outcome of its case against IBM, all of the lawyers on Wednesday's panel agreed that SCO's strategy of keeping its action in the spotlight have helped advance education about open source. "There's a lot of ignorant disregard for open source," Harvey says. "People think it's too much for them to understand."
SCO's open-source prosecutions also mark a new kind of litigation, one that involves a community of defendants who use the Web as a tool for real-time communication, says David Byer, a partner with Testa, Hurwitz & Thibeault LLP's patent and intellectual-property practice group. Their most prominent tool is Groklaw.net, a Web site and blog created by paralegal Pamela Jones with the help of volunteers who post immediate responses to any new developments in SCO's various cases.