In a presentation at Linux.conf.au 2004 in Adelaide, specialist Australian IT lawyer Jeremy Malcolm said that while it was widely anticipated in the open source community that SCO's lawsuit against IBM for alleged copyright infringement would eventually collapse, the case had drawn attention to the relative lack of control over copyright and patent infringement within many projects.
"The open source community has been quite lucky not to suffer an attack like SCO has brought sooner," Malcolm said.
SCO is expected to release details of the code it says has been illegally included in Linux on January 23. However, the trial is not due to take place until April 11 2005. "In between those two dates, there's a lot of uncertainty for the open source community," Malcolm commented.
One of the biggest potential risks for developers is unwitting infringement of patents. "The fact that you don't copy any code doesn't necessarily clear you," Malcolm said. "You have to honour patents that you may not even have heard of."
To ensure that development projects don't fall apart over legal concerns, Malcolm recommends ensuring contributing developers sign a document certifying that their contributions are original.
"The best protection for an open source project against liability is to make the developers the ones who have the liability on their shoulders," he said. Developers who have worked for former employers on software and later decide to contribute to similar open source projects should also seek permission from those employers to avoid potential issues, Malcolm added.
Patent laws were invented to encourage and enable innovation. They are now being used to stifle it. Developers have to be aware of every patent relating to software technique? Even if they have independently come up with the same solution? Surely that would put the original patent in the category of "obvious solution".
Commercial interests are behind this sort of bullshit. The legal institution has become a cancer on the scoiety it is meant to serve, and by delaying the SCO case they have enabled the SCO parasites to lever the maximum FUD gains from it. shame on SCO, shame on the legal business. Open Source threatens immoral profits. Freedom threatens power. </rant>