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IP, Patent

Smart Red Hat Employees

Sure, I may have had a little fun with Red Hat here, and joined a little criticism of the company here and here.  But at the end of the day, the company does have some pretty sharp guys working for it.  Last year, I mentioned one of them: Jan Wildeboer (referring to him as “clearly the most intelligent” participant in an anti-“software patent”* video created by Red Hat).   Today, I learned about Travis Kepley.  Travis posted a comment that I found far more interesting than the article itself. Speaking on the education of judges and juries about open source software, Travis notes a certain frustration derived from a bias created by large, proprietary software vendors (emphasis mine):

So they [Judges & juries, presumably] have assumptions about the tools and the concepts that are fundamentally colored and lopsided by the giants in the industry and they see it as this is just how it is. So when companies like Canonical, Red Hat, Novell etc come in that they know much less about in terms of licensing and devel models, there’s an uphill battle just to show that our way is just as viable and right as any other.

Travis is right about a couple things here.  First, it is true that most Americans are largely ignorant of what open source licensing means, creating the possibility that litigators can make allegedly “slanderous“comments about the open community to place cast their opponent in a negative light.  Of course, we all saw how well that worked out.

Second, and more interesting to me personally, is the Travis’s specific comment that “our way [open source] is just as viable and right as any other.”  The recognition here is that open source licensing is simply a different way of distributing software.  It’s not necessarily better (though it might be) or worse than a proprietary licensing model.  At its core, software (the actual lines of code) is the property of its creator, and that creator has a choice about how to distribute that software so others can use it.  Proprietary is one option, open source (a concept itself, implemented in various ways) is another.  At the risk of sounding like just another blawger writing about case law, anyone who wants more background on this should read Judge Easterbrook’s opinion in Wallace v. IBM, 467 F.3d 1104 (7th Cir. 2006).

*Why did I put “software patents” in quotes? More on that in an upcoming post …


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