decoration decoration
Stories

GROKLAW
When you want to know more...
decoration
For layout only
Home
Archives
Site Map
Search
About Groklaw
Awards
Legal Research
Timelines
ApplevSamsung
ApplevSamsung p.2
ArchiveExplorer
Autozone
Bilski
Cases
Cast: Lawyers
Comes v. MS
Contracts/Documents
Courts
DRM
Gordon v MS
GPL
Grokdoc
HTML How To
IPI v RH
IV v. Google
Legal Docs
Lodsys
MS Litigations
MSvB&N
News Picks
Novell v. MS
Novell-MS Deal
ODF/OOXML
OOXML Appeals
OraclevGoogle
Patents
ProjectMonterey
Psystar
Quote Database
Red Hat v SCO
Salus Book
SCEA v Hotz
SCO Appeals
SCO Bankruptcy
SCO Financials
SCO Overview
SCO v IBM
SCO v Novell
SCO:Soup2Nuts
SCOsource
Sean Daly
Software Patents
Switch to Linux
Transcripts
Unix Books
Your contributions keep Groklaw going.
To donate to Groklaw 2.0:

Groklaw Gear

Click here to send an email to the editor of this weblog.


To read comments to this article, go here
Sun and Brand X Open Source
Tuesday, September 28 2004 @ 10:38 AM EDT

How quickly they forget. It was May of 2003 when Sun and Red Hat entered into a "global partnership agreement" and Sun put out a glowing press release about their new life together, their President Jonathan Schwartz, then executive vice president, saying this:

"The combination of Red Hat Enterprise Linux with Sun's x86 systems affirms our commitment to the open source community. This relationship is the first of many efforts we expect to drive together with Red Hat on the Linux and Java front. . . .The combination of Java and Linux gives customers a compelling, cost-effective, and reliable alternative to proprietary offerings from Microsoft."

Maybe it's not altogether fair to quote from the past. Things happen. We move on. Some of you probably have some old emails from when you first met your now-ex-wife that don't match your current feelings. It's often another woman that derails promises of eternal love and fidelity, and in Sun's case, sure enough, it's that hussy, Microsoft, with her elegant furs and chauffeured limousines that broke up the partnership.

And so Red Hat just got thrown out of a running car, hitting her head with a howl on the pavement, and the rest us, who attended the wedding with hope, are left having to decide which friend to drop when planning a party.

Sun said that the partnership represented its commitment to open source, so what does it mean when that same man only a year or so later, says Sun is going after Red Hat, that Red Hat is a proprietary company, and that Red Hat is Sun's enemy? We read articles that begin, "Sun and Microsoft are using a common strategy to attack a common enemy--Red Hat."

The plan reportedly is that both companies will attack Linux by attacking Red Hat. Schizo Sun will also sell Linux to anyone confused enough to buy it from a declared enemy. And, in fact, Sun's attacks on Red Hat have begun, in a blog war. Sun started it. Back on September 1, Sun's Schwartz said this:

"Sun is not a threat to GNU/linux. Innovation is not a threat to GNU/linux. dTrace is not a threat to linux. Nor is Solaris 10, nor Janus. Nor is our new comp plan. They are a problem for Red Hat. And Red Hat is not linux, despite what they say, and despite what the media (and IBM's ads) seem to conflate. To my friends in the media, you are confusing a social movement with a single company - that social movement is all about choice, innovation and freedom. Not dominance or dependence. In that light, no innovation Sun delivers, in comp models or bits, can be anti-linux. Let's get specific. Let's start calling a distro a distro."

I have another suggestion. How about we start calling a patent covenant with Microsoft a patent covenant with Microsoft? When some noticed with concern Sun's "Limited Patent Covenent and Stand-Still Agreement" with Microsoft, filed by Sun as an exhibit with their most recent 10K, whereby Open Office was not protected from patent infringement lawsuits by Microsoft but Star Office was, Mr. Schwartz believes they are just anti-Sun loonies, as he graciously put it on his blog on September 16, in a message to the "Open Office Community":

"Please do not listen to the bizarro numbskull anti-Sun conspiracy theorists. They were lunatics then, they are lunatics now, they will always be lunatics. We love the open source community, we spawned from it. We'll protect that community, that innovation, and our place in it, with all our heart and energy. . . . OpenOffice matters. Moreso every day."

All right. If Exhibit 10.109 doesn't mean what it says, then what does it mean? One possibility is that it means that Sun doesn't want to be legally responsible for work it doesn't control. OK. Why not cover the parts they do and did control? Why not at least cover everything up to the present? And if they don't control it, how come they hold a dual copyright with the Open Office project? They can't have it both ways. If it's theirs, why didn't they protect it along with Star Office? And if it isn't theirs, on what basis do they claim copyright rights? These are not rhetorical questions.

As Red Hat VP Michael Tiemann pointed out, they couldn't bargain for better than this? "You get what you negotiate for. Sun is showing us they care not at all...about the OpenOffice.org community." If IBM can pledge not to attack Linux with patents, despite not controlling the kernel, so could Sun stand behind Open Office.

Tiemann replied to Schwartz on his blog by writing that Sun's words might not be so trustworthy and we should go by Sun's deeds instead. Red Hat should know, should it not, just how much Sun's declarations of undying love for open source are worth?

"If you won't open source Java, you won't take the right positions on software patents, and you keep doing things that benefit nobody but Microsoft, why should [w]e trust what you ask us to do?"

Why indeed? Sun and Microsoft evidently have figured out from the SCO wars -- and it surprised them no end, I bet -- that attacking the FOSS community is suicide. So they have a new strategy: they will isolate Red Hat from the GNU/Linux herd, and they are now stalking it with the clear intent to destroy it. Meanwhile, they tell the community that this isn't about Linux? I think it is.

Clearly, Schwartz has his own definition of open source, one that nobody else uses, but what does he care about a bunch of loonies? Actually, he does care, because Sun needs the community. They very much want programmers to help them build a community around Solaris. And then what is the plan? To dump Linux, the kernel, I hear, and run GNU/Linux applications on top of Solaris.

It's the same old plan that Caldera had and that SCO formed its own twisted version of. Run Linux apps on the Unix kernel. That way, they get to hem you in to a sorta-almost-open part-proprietary world and make a buck off of you. And they kill off Linux or send it to academia and then Microsoft is happy. As I seem to remember SCO's CEO Darl McBride saying once, the money is in the operating system, not the applications. Why do you think everybody wants you to dump Linux the kernel and use absolutely anything as long as it isn't the GPL?

What about Sun's licenses? What is their track record? I suggest you read about Sun's "Community Source License Principles". Or if you don't have time, read this assessment from the Report of the Software Licensing Committee of the American Bar Association's Intellectual Property Section:

As the open source movement has gained credibility in the marketplace, however, the term has been applied to many projects that do not fit within the foregoing parameters. For instance, Sun Microsystems has introduced a "Community Source License Agreement" that is an attempt to capture some of the spirit and momentum behind open source initiatives, but contains significant restrictions that make it substantially different from the "classic" open source licenses such as the GPL and BSD-style licenses. The Sun license in some instances requires the licensee to pay Sun a fee; it also contains restrictions on modifications that do not pass a large set of conformance tests, and purports to treat the source code as "confidential information," even though it is available for download from the Internet.

The application of the term "open source" to projects licensed under proprietary models, such as the Sun Community Source License, could help lead to reducing the term "open source" to a marketing gimmick and to confusing developers about the rights associated with various programs available under the "open source" banner. Software developers must ensure their lawyers have an opportunity to review the license agreements associated with "open source" programs before they download and use these programs in their own projects, and that their lawyers carefully review the licenses that accompany programs billed as "open source" software to ensure the licensing and other contractual restrictions are consistent with the expectations, goals and risk tolerances of individual clients."

Words to live by. Ask your lawyer to review any license before you so much as sneeze in the direction of the code, let alone download it and work with it.

Sun explains what Open Source means to them on their SunSource page:

Sun also continues to believe that the appropriate license should be used for each business and customer situation. We still believe that Community Source is appropriate when intellectual property sharing and compatibility are important, that Standards Source is appropriate when there is an established standard for the software, and that proprietary licenses make sense for high value situations.

You can read about Standards Source here and you, or your lawyer, can read the Sun Public License here. It includes this clause, 2.2(d):

(d) notwithstanding Section 2.2(b) above, no patent license is granted: 1) for any code that Contributor has deleted from the Contributor Version; 2) separate from the Contributor Version; 3) for infringements caused by: i) third party modifications of Contributor Version or ii) the combination of Modifications made by that Contributor with other software (except as part of the Contributor Version) or other devices; or 4) under Patent Claims infringed by Covered Code in the absence of Modifications made by that Contributor.

With all the talk about Sun open sourcing Solaris, it's good to remember that a great deal depends on what license they release it under. It doesn't look like it's going to be the GPL, judging by a Sun Solaris kernel guy, Eric Schrock, who wrote this on his blog:

". . . [T]he GPL doesn't align with our corporate principles. . . . Because we own our intellectual property, we can make a licensing decision that reflects our corporate goals. And because we've put all the engineering effort behind that IP, we can instill similar beliefs into the community that we spawn. These beliefs may change over time: we would love to see a OpenSolaris community where we are merely a participant in a much larger game. But we'll be able to build a foundation with ideas that are important to us, and fundamentally different from those of the Linux community."

Psst. I have a word for you. If it's fundamentally different from the ideas of the Linux community, it probably isn't Open Source.

Someone wrote that if they choose some Brand X Open Source license that isn't compatible with the GPL, for example, all they will be offering you is the chance to help them improve their products for nothing, to which Eric wrote in response:

"If we do end up being GPL-incompatible, the only downside will be that you cannot use the source code in Linux or another GPL project. But why must everything exist to contribute to Linux? I can't take Linux code and drop it into FreeBSD, so why can't the same be true with OpenSolaris? Not to mention the many benefits of being GPL-incompatible, like being able to mix OpenSolaris code with proprietary source code. . . .

If you contribute, you will helping improve your software, which you can then use, modify, or repackage to your heart's content. You will be part of a community. Yes, it won't be the Linux community. But it will be a community you can choose to join, either as a developer or a user, as alternative to Linux.

Sun is hoping that making source code available will cause a community as large, as diverse and as enthusiastic as that around Linux to gather around Solaris. . . .

Clever people have already noticed that we have begun a (invite only) pilot program; several open source advocates are already involved in helping us shape a vision for OpenSolaris."

Sun says they will "create an open-source project around its Solaris 10 operating system by the end of the year". It all raises some questions that need answering. Microsoft would, no doubt, like to isolate GPL code and cut off its air supply, but should they have community help in accomplishing their dream? Sun and Microsoft have already announced that they have discussed "areas of technical integration, such as the file system in Solaris and Windows". If that is the plan, the GPL is not likely to be a part of that.

So it's good to be clear. Even loonies need to know when it's raining, so they can pack an umbrella. And with patents being the next battlefield, the deeper question is, might it perhaps be time to reevaluate what qualifies as a true open source license?

It all comes down to how you define Open Source, and while Sun is free to set up any type of community it wishes, don't call it Open Source unless it truly is. Find your own phrase. It's unseemly to misappropriate a title and twist it to suit. Call it Brand X Open Source, if you like, if the shoe fits.

And as the old song says, there ain't nothing like the Real Thing.

Update:

Scott McNealy:

"'Every state and local government builds its own one-off, best-of-breed custom jalopy' for a data center or e-government portal, and 'it digs a deeper hole by going open source,' Sun Microsystems Inc. chairman Scott McNealy says."


  View Printable Version


Groklaw © Copyright 2003-2013 Pamela Jones.
All trademarks and copyrights on this page are owned by their respective owners.
Comments are owned by the individual posters.

PJ's articles are licensed under a Creative Commons License. ( Details )