On April 5, Bruce Perens, author of the "open source"
definition, gave his annual "State of Open Source" press conference
at the LinuxWorld Expo and Conference in Boston. In an animated discussion,
Perens presented his views and analysis of the impact recent
events have had on open source. As LinuxWorld was my first opportunity
to attend a conference representing TUX Magazine,
I was happy that this was my first press conference. It's difficult,
though, to remain unbiased and impartial when I witness someone
sharing information on a subject he clearly cares about deeply. What makes
it even more difficult is that I have grown to care deeply about
the subject as well.

That being said, it strikes me that the core of Peren's message is one that should
be of great interest to the leaders of all open-source projects. Many of
the developers I've met within the Open Source community, although perhaps concerned about the state of software patents,
don't see the broader perspective of their efforts. In addition,
I sometimes wonder if the larger Open Source community grasps the importance of seemingly
unrelated events, including the resignation of Peter Quinn and the NTP/Rim
patent violation case.

In a project I ran for two years, we were fortunate to have Peter Quinn,
ex-CIO for the Commonwealth of Massachusetts, present at two different
activities. I've spoken at length with him both before and after his
resignation, and he is an example of someone working hard on something
for which he has great passion. Fortunately for us all, his passion
was focused on preserving the historical record of electronic documents
for the future. For his passion and belief that open standards were the
best way to protect that electronic record, Quinn became the subject
of investigation and subtle harassment. To insulate himself and his
family, Quinn reluctantly resigned at the end of last year. The fallout
of this situation, as reported by Perens, has worsened the prospect of
other leaders in government speaking out in support of the Open Document
format issue. They now know that Microsoft will do its best to end their
careers if they even try. I surmise that their fear extends beyond
the Open Document Format issue and now includes open source in general,
specifically any support for an open-source office suite.

In his best-selling books Crossing the Chasm and
Inside the Tornado, Geoffrey Moore clearly points
to the important role industry leaders have in aiding technology move from
early adoption to mass market adoption. For me, government holds a
special role in open-source adoption. Just as DARPA's need to develop
a robust self-healing network led to people being able to look up
information instantly on the Internet, I feel government needs to look to
open source and embrace it to reduce costs and dependence
on proprietary software. However, it falls upon us in the community to
be agents of change to help government leaders understand the value of
open source. In this capacity, the community is fortunate to have Perens
working on the critical task of influencing government.

Hearing Perens bring together the various elements of political
action, litigation, patents and legislation leaves one wondering
about the risks for open source. The NTP vs. RIM Systems case brings
new worries to software innovators everywhere. Regarding this court
case, Perens states clearly, "This case sends a signal to get-rich-quick artists
everywhere; it's not even necessary for your patent to be valid. Become
a troll, extort, litigate, be rewarded! When you're done, take 10%
of your plunder and become a philanthropist for the tax shelter;
the man on the street will consider you a hero and a leader."

Although
Steve
Ballmer recently raised the ever-present threat of a patent attack
against Linux, Perens indicated that every day Microsoft fails to file a
suit against Linux, the Linux community gains a better defense. Perens
claims this is true due to the Doctrine of Laches, which stipulates that if you
hold off on filing a patent suit while waiting for the market to grow,
you lose. Although the standard interval for Laches defense is six years,
there have been successful defenses with a period of as little as one year.

One can see how easy it is for members of the Open Source
community to miss the impact these situations have on themselves and their
projects. However, in a siren call to all projects and developers, Perens
pointed out the large disparity that exists in the ability to contest
a patent claim through litigation. Open-source participants,
in many cases, are individuals who cannot sustain a single day in court,
where it can cost three to five million dollars to prosecute or defend a single
case, according to the American IP Association's Economic Survey. Perens
concluded his speech with this recommendation: "Only by moving the process
of contesting a patent out of the courts does it appear that we can
grant justice to the poor as well as the wealthy." He emphasized this
point by noting that the Open Source community needs to achieve
change by creating a political action committee that can educate and lobby about
the perils to innovation that the current patent system allows.

Kevin Shockey is the Editor in Chief of
TUX
Magazine.