OpenSourceLegal.org

According a report in the WSJ, International Business Machines Corp. has filed new counterclaims against SCO Group Inc. in the closely watched case involving the Linux operating system.

According to the Journal, the new counterclaim charges that SCO infringed IBM’s copyrights by distributing IBM’s contributions to Linux after SCO had violated its Linux license by claiming a copyright on parts of Linux. IBM says in its counterclaim that SCO violated the general public license, or GPL, under which Linux is distributed. The GPL requires Linux distributors to permit customers to freely copy the software.

IBM reportedly won’t offer to indemnify its Linux customers from facing lawsuits related to intellectual property claims involving Linux, because, it believe most indemnities are narrowly drawn and are often invalidated by customer activities, such as making modifications or combining the indemnified product with other code, which are central to the vitality of open source. It said the H-P indemnification requirements, will inhibit customers from taking full advantage of the open source development process.

Microsoft r eportedly will indemnify all customers using current and earlier versions of its software (not just large volume users). Microsoft has posted the policy on its website.

The UK eGovernment Unit policy statement on acquisition of open source software can be found here.

In a pa tent policy posted on its website, Novell has said it will use its patent portfolio to defend against IP attacks on its open-source products.

Open Source Risk Management is a “risk management” (i.e. insurance provider) for the open source market.

Although this is somewhat old news, rumors continue that version 3 of the GNU GPL may be proposed, including among other things a requirement that source code must be available to users who use the software over a network. See informatio nblast article. Examples cited include the Affero General Public License, which has as a new clause 2(d):

“If the Program as you received it is intended to interact with users through a computer network and if, in the version you received, any user interacting with the Program was given the opportunity to request transmission to that user of the Program’s complete source code, you must not remove that facility from your modified version of the Program or work based on the Program, and must offer an equivalent opportunity for all users interacting with your Program through a computer network to request immediate transmission by HTTP of the complete source code of your modified version or other derivative work.”

This could have a major impact on entities using open source software to build service businesses, which up until now, because they did not “distribute” software, did not have to share source code and accordingly trade secrets.

The Apache License, version 2.0 is now available. As noted on the Apache Web site, the goal of the new license intends to to clarify the license on submission of contributions and requires a patent license on contributions that necessarily infringe the contributor’s own patents. As a result the license diverges significantly from the BSD license which it used to resemble strongly.

Interestingly, the definition of a contribution in the license uses the words “intentionally submitted”; it is unclear to me what that would mean, for example, in the context of the SCO-Linux case

The Commonwealth of Massachusetts has a good analysis of various different open source licenses and the implications for state usage at the Informati on Technology Division website.

According to materials available on the Open Source Risk Management website, there is a level of patent infringement risk that Linux users and developers should prepared to address. The study found that no software patent fully reviewed and validated by the courts is infringed by the Linux kernel. The study found, however, that there were 283 software patents not yet reviewed by the courts that could potentially be used to support claims of infringement against Linux.

Microsoft has focused attention on the reported 283 patents which could potentially cause issues. A spat has ensued.

The Wall Street Journal has an article on the release as open source software of older software that a developer chooses not to update. See also a companion story on Yahoo.