Open Source

The sitting duck that is open source

A jury irresponsibly awarded a huge victory to Apple over Samsung. This judgement could have a serious impact on not only the landscape of smartphones, but the whole of open source.

Last week a Jury ruled against Samsung in what I would consider not just a travesty of justice, but a mockery of our court of law. That ruling, in favor of Apple, not only opened up a Pandora's box of possible ridiculous IP lawsuits, but it reminded me that open source is just a sitting duck for such law suits and juries like the one that awarded a big shameless win in Apple's column are loaded for bear.

Here's what really gets me about this — open source is, at its heart and soul, OPEN. Anyone can grab the source of application and pick through it with as fine a comb as they need. With that in mind, what developer (or company) in their right mind would steal someone else's intellectual property and integrate it into their code?

None — that's who.

But this lawsuit tosses logic out the window and says, "It doesn't really have to be code — can be a design metaphor or paradigm. Now, any platform with a Dock might be fodder for Apple's lawyers.

Have a Start Menu? Watch out, here comes Microsoft!

But let's take this back a few years. Remember NeXTSTEP? Apple bought them — most likely to avoid such a lawsuit. Remember the original Xerox mouse? Maybe that company should open up a can of lawsuit on Apple for basically stealing their idea.

Or... let's go back even further. Who was it that invented the square? That genius should crawl out of the grave and sue Apple for designing the iPad around that shape.

You see where this is going, right? It's leading to law suits like George A. Romero suing me for writing books about zombies. It's leading to Rush suing any band with three members. It's leading to the Babylonians suing the world for continuing to use Algebra.

Ultimately, however, what this does is open up a sky of vultures hovering over open source.  Because of the nature of open source, any company can pick and preen over the code and any bit that might even remotely resemble a fraction of a glimpse of intellectual property owned by the third party— BAM! You've been lawyered.

I don't like where this is going. Not. One. Bit. This whole nightmare scenario puts open source at a severe disadvantage. Not one open source project I know of has the capital to defend itself in a court of law — especially for a frivolous, pointless, selfish grab for power (such as the one Apple just won).

As all of you know, I am not only a huge advocate of open source, I am proud of what the open source community has achieved and how they've managed bring to life some of the best projects on the planet. The idea that everything could be scattered to the four winds, simply because a jury made an incredibly irresponsible judgment, makes me realize the foundation open source rests on could be shakier than we'd all like to think.

I hope Samsung will take this back to the courts and appeal this until the court system realizes their folly. Maybe they should use the same tactics as Apple has used and sue for the obvious thievery on Apple's part (hello, drag-down notification bar!) Otherwise, this judgment could be the call to arms for proprietary companies to take aim at open source and shoot them down like sitting ducks.

Maybe what needs to happen is a sort of vetting process for open source code — just so there is legal documentation/proof that no IP infringement has occurred. Of course, even that wouldn't protect from lawsuits claiming that the use of two fingers on a glass screen as a human interface is a patent infringement.

I certainly hope I'm wrong about this and the trickle-down effect doesn't rain on the open source parade. But I have a sneaking suspicion, if this isn't overturned, the ramifications might get pretty ugly.


Jack Wallen is an award-winning writer for TechRepublic and He’s an avid promoter of open source and the voice of The Android Expert. For more news about Jack Wallen, visit his website

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