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Sun: Patent use OK beyond Solaris project

Firm addresses concerns that there are severe limits on how patents it's unfettering in conjunction with open-source Solaris can be used.

Sun Microsystems has begun fending off concerns that there are severe limits on how programmers may use 1,600 patents it's unfettering in conjunction with its open-source Solaris plan.

The company said last week that it would permit open-source programmers to use the patents when working on the OpenSolaris project. What several influential observers found unclear is whether programmers in other areas--most notably in Solaris competitor Linux--would have to fear legal action from Sun.

The server and software company clarified its position somewhat on Monday. "Clearly we have no intention of suing open-source developers," said Tom Goguen, head of Solaris marketing. However, he added, "We haven't put together a fancy pledge on our Web site" to that effect.

Some kind of pledge is possible, Goguen said: "We're definitely looking into what would make sense and what would make the community feel more comfortable with the patent grant we have made available."

The issue isn't a mere philosophical-legal curiosity. It could influence whether Sun technology may be incorporated into Linux and how other companies might choose to liberate their own patents. And it might help Sun burnish its reputation with open-source fans, a reputation that--despite considerable contributions of open-source software--has been tarnished by Sun's refusal thus far to make its Java technology open source.

Among those who'd like to see Sun clear up the patent situation is Dan Ravicher, executive director of the Public Patent Foundation, a group that seeks to change patent laws and overturn patents it believes were wrongly issued. Ravicher also conducted a study that found Linux could infringe as many as 283 patents, including 27 by Linux foe Microsoft.

"The legal language does not comport with what the executive intent has been," Ravicher said Friday of Sun's position. From his reading of the Community Development and Distribution License, or CDDL, that governs OpenSolaris, the only patent license Sun grants "is to practice that patent in the version of Solaris that is in Sun's release, not in any other operating system."

Others who raised concerns about Sun's patent move are Bob Sutor, vice president of standards at IBM; Richard Stallman, founder of the Free Software Foundation that provided much of the legal and technological foundation for the open-source movement; Eben Moglen, the attorney who also represents the Free Software Foundation; and Bruce Perens, a prominent open-source advocate.

Sun's move follows IBM's release of 500 patents earlier in January for open-source use and a pledge by Linux seller Red Hat to permit all its patents to be used in open-source software. The potential of such moves is that there could be a freely usable pool of patents to match the freely usable software itself.

Sun's messages
It's not surprising that there's been confusion.

Sun itself has given mixed messages. Sun President Jonathan Schwartz said in November, "It is not our intent to say, 'Here is our intellectual property and we'll sue you.'" A company representative said Tuesday that Sun wouldn't sue Linux users for using the patents.

But Sun's published statement position is less generous. The company's press release said, "OpenSolaris developers and customers alike no longer need patent protection or indemnity from Sun and other participants in the OpenSolaris community for use of Solaris-based technologies under the CDDL and OpenSolaris community process."

And in its frequently asked questions, Sun said nothing about other open-source projects: "The CDDL provides an explicit patent license for code released under the license, as well as provisions to discourage patent litigation against open-source developers."

Sun and others believe the terms of the CDDL and the General Public License--GPL--that governs Linux prohibit mixing code from either operating system project with the other. In Moglen's professional opinion, "the CDDL is a GPL-incompatible free software license," he said in an e-mail interview.

But freely granted patents could permit higher-level sharing. Though Linux programmers might not be permitted to copy and paste Solaris source code, an explicit patent grant could let programmers mine Solaris for ideas.

Critics speak out
Sun rival IBM was quick to speak out about Sun's patent plans.

"They are only making them available under CDDL, which really means, today, 'for those who work on OpenSolaris.' If you want to use these on Linux, you are out of luck," IBM's Sutor said in a Tuesday blog posting. "Sun has made things more open, but by restricting things to CDDL they have not gone the whole 10 yards to support the open-source use of these. This is a shame, because it was a good opportunity to do so."

Moglen said he concurs with Ravicher's position--sent in an open letter to Sun on Friday.

In that letter, Ravicher said, "The announcement was so broad in comparison to the related legal documents that serious questions now exist regarding what rights the public has to Sun's patents."

Ravicher said in the interview that he preferred IBM's approach--an explicit list of its patent-sharing policy. He wasn't completely satisfied, though: Even better would have been a much larger collection of patents.

In an opinion piece at open-source news site Newsforge, Stallman took a similar view.

"Outside Solaris, few or no free software packages use that license (the CDDL)--and Sun has not said it won't sue us for implementing the same techniques in our own free software," Stallman said. "Perhaps Sun will eventually give substance to its words, and make this step a real one like IBM's."

IBM also took an earlier step that lacked a written pledge. It was in August when IBM declared it wouldn't take legal actions in cases where the Linux kernel at the heart of the operating system violates its patents.

And on Monday, Schwartz also criticized in his blog the relevance of some of IBM's patents. All the Sun patents have to do with software and operating systems, but IBM's include tamper-proof set screws.

The flap over Sun's patents might have been handled better, but Ravicher still sees plenty of good news. "These are steps in the right direction," he said.