The state of open source: Issues and opportunities

11 leaders from the open source and vendor communities discuss the current open source climate and outline the challenges and opportunities ahead.

What do you see as the most pressing challenges and opportunities for open source given the current tech climate?

Bruce Perens: Creator of the Open Source Definition and Co-founder of the Open Source Initiative

The biggest problem facing open source, and software in general, is software patenting. Copyright is sufficient to protect the proprietary software folks, but they are threatened by software patents, too, as you can see from all of the court cases reported about them. As the situation exists today, it's very easy to get a software patent for something that isn't really an invention at all. What happens to the companies that have to defend themselves from an unjustly granted software patent? It can easily cost them US$7 million in legal fees to win -- that figure is from the American Intellectual Property Law Association's Economic Survey. That's bigger than the entire funding of most startups and many ongoing concerns. So winning isn't economically viable for them, and their only real choice is to settle for whatever the plaintiff wants, whether there is any justice to that or not.

It is not possible today for a nontrivial program to be noninfringing on software patents granted in the US. There are just too many granted patents, on too many general principles that everyone uses. If enforcement of all of those patents was complete, there would not be a software industry in the US at all.

The problem is even worse for open source developers, who aren't necessarily getting any income from their software and thus have no funds to pay lawyers and patent royalties. Tech experts and economists both understand there's a need for reform, but we haven't been able to make it happen politically yet. Part of the problem is that pharmaceutical companies are on the other side of the argument, not because they like software patents but because the law doesn't distinguish software from drugs or any other kind of technology. Of course, the pharmaceutical companies have lots of money to fight for what they need. We need to decouple software patenting from pharmaceutical patenting to win this fight.

This has started to be a real problem for open source developers. The big guys aren't the only ones being sued. There's a developer who makes, of all things, open source model railroad software (JMRI: Java Model Railroad Interface) who is a defendant in a patent case.

Obviously, open source is a new and very effective means of doing innovation. As a nation or world, we can't afford to throw out this new and powerful means of innovation because it conflicts with a bad law. We've got to fix the law.

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