Free spirits

April 29, 2005

Open-source programmers, who help drive many institutions’ computer systems, are pirates to some - but they now have a legal champion, reports Stephen Phillips

The new Software Freedom Law Center (SFLC) signals free open-source software’s coming of age, says its chairman, Eben Moglen. “The scale and commercial value of free software is increasing exponentially,” enthuses Moglen, who is also a law professor at Columbia University and a veteran open-source legal advocate and software copyright expert.

The source code underpinning open-source programs is freely distributed on the internet as a work in progress for informal networks of independent programmers to brainstorm and to suggest improvements.

Open source keeps alive the early ideas of the web as a public common, replacing information “ownership”, says Moglen, who bills himself on his website as a “dotCommunist”.

The approach contrasts starkly with the proprietary model of commercial software vendors such as Microsoft, for which source code is a trade secret, corporate crown jewels that confer precious competitive advantage.

The $4 million (£2 million) New York centre, which opened in February, will help programmers in the nascent movement craft legally watertight contracts to govern their products and to navigate the legal minefield of the software market.

Stoked by the success of Linux, a variant of the popular Unix operating system, open-source products have made real inroads into commercial systems’ user base, says Steven Weber, political science professor at the University of California, Berkeley, and author of The Success of Open Source . He views the open-source community as a cutting-edge group organisation.
A disparate, loose-knit global coalition of freelance programmers chipping in lines of code via the web hardly sounds like a recipe for stable, robust software.

But the movement, driven by the idea that pooling knowledge and tapping many minds optimises product development, is a disciplined community in which suggested contributions are strictly vetted and subjected to rigorous peer review before being ratified, much like scientific inquiry, Moglen says.

Open-source programs are typically concentrated beyond the Microsoft-dominated desktop computing arena in powerful back-room servers performing data-crunching activities, experts say. Weber estimates that up to 40 per cent of web servers - computers that deliver web pages to individual PCs - run on Linux and other open-source operating systems.

Among leading users are colleges and universities, attracted by the lure of downloading free system software. “Institutions can use commodity hardware then deploy Linux [to pare] costs,” says Stacey Quandt of the Robert Frances Group, a technology industry research house.

Open-source progeny aside from Linux include Apache, a popular web-server software system, and Mozilla, an alternative web browser to Microsoft’s Internet Explorer.

In a far cry from the movement’s egalitarian, non-corporate roots, the scale of adoption has convinced behemoths such as IBM, Hewlett-Packard and Intel to support open-source systems and to develop products that are compatible with them. IBM sells technical support, consultation and systems integration services for Linux-based programs, Quandt says.

In 2000, Quandt, together with other leading companies, formed a consortium - Open Source Development Labs - to promote open-source products. Its members subsequently bankrolled the SFLC.

But success can come at a price, even when the product is free. The popularity of open-source software, which undercuts corporate revenues, has landed the movement in the cross-hairs of litigious businesses that argue that open-source programmers are pirates who trespass on companies’ intellectual property. Microsoft has touted a study saying that Linux could infringe up to 283 patents. Open-source advocates counter that many proprietary programs incorporate open-source code and argue that software patents are often ill-deserved, covering routine programming procedures.

Nevertheless, a big catalyst for the SFLC’s inception is the looming spectre of a pending court case against IBM - for allegedly violating patents in updates it made to Linux - by SCO Group, a software company from Utah.

The lawsuit carries potentially far-reaching implications for other open-source projects. More alarming still, SCO is also suing end-users AutoZone and Daimler-Chrysler.

Quandt says that open-source developers and users face no more legal threat than their proprietary counterparts. Weber argues that the offending algorithms in the SCO suit are fairly elementary in programming circles and could be substituted without going to court.

But open-source advocates fear that the perceived risks surrounding open source could chill wider adoption of the software.

Moglen hopes the SFLC will allow open-source developers to compete on a surer footing with private firms and their armies of lawyers. He says: “Better legal assurance is essential to getting new customers [who might be] fearful of legal exposure.”

He adds that the centre will help developers “to put together software based on good legal standards”.

The centre’s formation reflects the maturation of open source, Weber says. “The field is taking itself seriously and is recognising that it needs a legal strategy to protect itself.”
Moglen anticipates a possible legal offensive against software patents that impede “the free exchange of ideas”.

“Patent offices arbitrarily hand out 20-year statutory monopolies for things that should be regarded as common knowledge,” he complains.
In line with his political ideals, Moglen takes a suitably egalitarian view of programming.

“Software-making is an incremental art,” he says. “It’s not a question of one skilled person coming up with novel, unobvious inventions.”

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