OpenSolaris Backed by Sun's Solaris Patents
by Timothy Prickett Morgan
When Sun Microsystems paid $92 million a few months ago to settle a patent disagreement with Kodak over code inside Java, Sun's chairman and CEO, Scott McNealy, said the company had "taken a bullet" for the Java community so the developers who work on Java wouldn't have their own "Kodak moment" in the courts. As Sun this week begins rolling out OpenSolaris, the open source implementation of Solaris, it's giving that community its own bullet: Sun's patent portfolio.
During the formal announcement of OpenSolaris yesterday, McNealy said the company is donating to the OpenSolaris community 1,672 patents related to operating systems. McNealy explained that there is a lot of confusion surrounding software patents right now, with The SCO Group's $3 billion lawsuit against IBM and the related suits involving commercial Linux distributors Red Hat and Novell. The patent issue is also a hot item right now because the European Union is considering the establishment of U.S.-style software patents, which is enraging the open source community but pleasing closed-source software developers, like Microsoft.
McNealy said that Sun's intent in allowing its Common Development and Distribution License to extend amnesty to developers working on OpenSolaris, and its opening of Solaris-related software patents to that community, is to give OpenSolaris something that Linux does not have: patents with which it can fight companies that claim OpenSolaris violates their patents. "This allows all of that ambiguity to be taken out of the system," he said.
McNealy said further that individuals, companies, and countries that want to participate in open source development but are worried about the legal hazards of software patents (no one wants to be sued by a deep-pocketed, closed-source commercial software developer) would be put at ease by what Sun has done for OpenSolaris. This move by Sun, he said, allows organizations to jump the "IP divide," a barrier between those that have software patents and those that do not. McNealy also quipped that, unlike Sun, many companies have taken products at the end of their lives and made them open-source as a means of fomenting developers to volunteer to tweak the code, of generating services income, and of seeming to be generous to the open source community. But, he said, Sun was unique in that it was taking the crown jewel--its Solaris Unix code and the patents that go along with it--and setting it free. McNealy said that he "had to work it through the board a little bit" to get them to see the sense in this approach, and John Loiacono, who run's Sun's software business, said that those competitors in the software business who were saying this will not work were saying so for good reasons. "Companies that just borrow from the open community and go with that to create commercial products are the ones that feel most threatened."
"Nobody else in the open source community is doing what we are doing," McNealy said, adding that Sun's executives have done everything they can think of to eliminate barriers that will hinder the acceptance of OpenSolaris by the developer community. Of course, now it is time to do this for Java and its related technologies, as well as for the Java Enterprise System middleware stack. And, given Sun's goals, these will probably be the next moves the company makes, starting with the Java Enterprise System.
The open-source Linux operating system has no patents, and the nature of the GNU General Public License, under which Linux is created and distributed, is viral, which means you can't comingle GPL code with open source code that is not under GPL, and that you can't mix GPL code with closed source code in order to create a product. Solaris has nearly 10 million lines of code that was created by Bill Joy at the University of California at Berkeley (that's the BSD heart of Solaris), or by Sun decades ago, or through an AT&T-Sun joint venture to merge Solaris with AT&T's Unix System V in the mid-1990s. McNealy also said Sun has had 24 years of putting out open source code, and, with this move, the company is now the single largest donator of code, even surpassing Berkeley. He also said that Sun has two licensing agreements with the prior owners of Unix intellectual property and that it has done due diligence in ensuring that it has absolute free and clear rights to the code inside Solaris to take it open-source. He added that Sun does not own some of the binaries inside the commercial version of Solaris 10, the version that will be taken open-source in the second quarter, and these will not be included. But all the core features--the Solaris kernel and libraries, plus the new stuff such as DTrace, the ZFS file system, and Solaris container logical partitioning--will all be set free for community development.
Loiacono was asked if Sun had vetted its open source plans with SCO, and he replied that, as Sun understood its licenses, it was not required to do so. And when Loiacono was asked what made Sun's position on SCO different from the one IBM faces with its lawsuit, he put it bluntly and simply: "We have a license agreement. IBM didn't."