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Stephen Shankland

Staff Writer, CNET

SAN JOSE, Calif.–When Sun Microsystems releases Solaris as open-source software, it plans to provide legal protection from patent-infringement suits to outsiders using or developing the operating system–one of several ways Sun hopes to make Solaris more competitive with Linux.

Details of that protection plan won’t be revealed until Sun announces its licensing terms for open-source Solaris in the coming weeks. But at an event here this week to announce the Solaris 10 OS, Sun Chief Executive Scott McNealy offered an example of how patent protection could work. McNealy mentioned his company’s $92 million payment to Kodak to settle a patent suit over Java that could have affected others who ship Java products.

“You should have a company that can protect you and take that $92 million bullet,” McNealy said. Sun also has an arsenal of patents it can use as the basis for countersuits against computing companies, he said, adding that “most people with network-computing intellectual property probably don’t want to come after us, because we might go right after them.”

But open-source developers using Solaris technology need not fear that Sun’s patent arsenal will be used against them, Sun President Jonathan Schwartz said. “It is not our intent to say, ‘Here is our intellectual property and we’ll sue you,'” Schwartz said.

Intellectual-property protection of open-source software has moved to the forefront in the computing industry as the result of matters such as the SCO Group’s ongoing attack on Linux. That attack involved a now-scrapped charge that IBM stole SCO’s Unix trade secrets and used them in Linux, and it still involves a claim that AutoZone’s use of Linux violates Unix copyrights. Among the responses has been a Hewlett-Packard indemnification plan against SCO attacks and a warranty from Linux seller Red Hat promising to replace any infringing code.

Sun’s intellectual-property umbrella is a new facet in the Santa Clara, Calif.-based company’s efforts to boost the status and adoption of Solaris, a proprietary version of Unix that has suffered in recent years at the hands of open-source Linux. Other facets include the decisions to offer Solaris for free while charging for a support subscription; to release the vast majority of source code underlying the operating system, including major new features; and to spread Solaris to mainstream x86 processors–particularly Advanced Micro Devices’ 64-bit Opteron.

The protection “sounds like a gracious offer,” said John Ferrell, an intellectual-property attorney at Carr & Ferrell. “Sun’s going to act as a bit of a threat to third parties who come in and try to assert their patents against adopters and developers who incorporate the Sun products.”

Linux, a top rival to Solaris along with Microsoft Windows, IBM’s AIX and Hewlett-Packard’s HP-UX, lacks such protections. As infringement concerns have increased, however, Red Hat has begun seeking patents it can use defensively, while a start-up called Open Source Risk Management plans to extend its current Linux copyright-infringement insurance to include patents in 2005.

Novell, too, has pledged to use its patent portfolio to counterattack if someone sues Novell or a customer for patent infringement involving open-source software Novell distributes.

Sun isn’t the only Linux rival to try to entice allies through legal reassurances. Earlier in November, Microsoft expanded its legal protections for customers accused of intellectual-property infringement.

Large companies including IBM, HP and even Microsoft recognize the benefits of open-source software: It can boost projects by attracting outside programmers, tighten the link between programmers and those who use the software, and build new communities of programmers. But many open-source advocates have spoken against software patents, making it awkward for companies with large patent portfolios to embrace open-source software.

“This has been a very difficult conundrum of large patent holders: the opportunity available from working with the open-source community while still preserving the heavy investment they have in intellectual property,” Ferrell said.

Schwarz himself has criticized the U.S. patent system, but at the same time, he has applied for a patent on Sun’s per-person, per-year pricing.

Sun plans to announce open-source licensing details in the next 45 to 60 days, according to John Loiacono, Sun’s executive vice president for software. Solaris 10 itself will go on sale by the end of January, Loiacono said.

The cathedral and the bazaar
Intellectual-property issues are only one part of Sun’s attempt to lure developers to Solaris and highlight the operating system’s differences with Linux. The company also wants to build a better community than Linux possesses.

Sun long has been criticized by open-source advocates, including Red Hat, for not releasing its Java software as open source. Sun is unapologetic–and believes the Java Community Process governance system is more inclusive than that of Linux.

The JCP has “900 participants out there who are happy,” Schwartz said, whereas with Linux, there are companies that aren’t happy with Linus Torvalds being the gatekeeper who decides what components are added to the mainstream Linux kernel published at