Is Google's open-source advocacy a patent-busting scheme?

Google contributes to open-source projects for a variety of reasons, but Gartner analyst Brian Prentice suggests a new one that could change software competition forever.

Open source means different things to different people. It can be a software development methodology, a distribution technique, or a marketing gimmick. Could it also be a way to minimize patent infringement damages?

Brian Prentice, a research vice president with Gartner's Emerging Trends and Technologies Group, speculates that it just might be. Google has been actively developing open-source alternatives to leading proprietary products, like Google Wave to compete with Microsoft Outlook and SharePoint. As Prentice indicates, Google has also been publicly advocating passage of the Patent Reform Act of 2009, which might have a lot to do with its open-source strategy.

Here's why.

The proposed legislation alters the way damages are calculated in infringement suits to be "calculated as the price of licensing a 'similar non-infringing substitute in the relative market.'" Now if that alternative is a free, open-source piece of software, then damages drop to zero, as Prentice notes:

Does that mean that free open source products can now be considered substitutes in a relative market? I've been trying to play the scenarios out in my head. If Google Wave, hypothetically, infringes a patent that IBM holds and they're found guilty of doing so, could they simply claim that the relative market value is zero because there are existing free OSS mail and IM solutions? Once Google Wave is shipping, can other organizations infringe on patents Microsoft holds relative to Exchange comfortable in the knowledge that Wave creates a zero dollar relative market value for collaboration?

This is incredibly insightful on Prentice's part, and amazingly shrewd if, in fact, Google is playing this game. It takes open-source advocacy to an entirely new, Sun T'zu-esque plane.

Martin Fink of Hewlett-Packard first started talking about the value of using open source to commoditize a competitor's core offering through open source back in his 2002 book "The Business and Economics of Open Source." But Prentice's idea takes Fink's argument and runs with Usain Bolt speeds.

If true, The Register's question--"Is Google spending $106.5m to open source a codec?"--calls up a different response than the author of that article gives. Maybe $106 million is cheap compared to the cost of getting hit with video compression patent suits (from Microsoft, Apple, and others), if Google open source's On2's video compression codecs.

Google contributes to open source for a variety of reasons, not the least reason being that it recognizes open source is an efficient way to create community around its products. But perhaps Google has this more subtle, and sophisticated, reason as well?


Follow me on Twitter @mjasay.

Tech Culture
About the author

    Matt Asay is chief operating officer at Canonical, the company behind the Ubuntu Linux operating system. Prior to Canonical, Matt was general manager of the Americas division and vice president of business development at Alfresco, an open-source applications company. Matt brings a decade of in-the-trenches open-source business and legal experience to The Open Road, with an emphasis on emerging open-source business strategies and opportunities. He is a member of the CNET Blog Network and is not an employee of CNET. You can follow Matt on Twitter @mjasay.


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