Picture this. You can't use your mobile phone anymore because someone has unearthed a patent that is critical to your mobile phone service provider, who is refusing to compromise and pay out the billions required. What do you do? Get walkie talkies, landlines, wi-fi phones?
This scenario is not actually that far-fetched, especially if you happen to be a user of Research in Motion’s (RIM) Blackberry’s mobile email service in the US. RIM is being sued for infringing patents and the case, which is still going on, could result in its US network being closed down.
An article in Now Here Is The City has compared open source and the concept of SAS (software as service), asking whether this scenario could have been avoided if an open source solution had been used. The author points to several key distinguishing points between RIM's Blackberry, as a closed proprietary architecture, and open source as a whole.
RIM is a well defined entity, whilst open source is more a nebulous, except for the bigger projects out there. It is not as clear cut as it seems though. If all the patents and applications for patents in the world were readily enforced, I doubt whether some of the exciting technology out there would ever have existed.
Many every day technologies, from ringtones to hypertext, have had applications for patents issued. The traditional way of patenting items has come under fire lately with, companies and technology experts questioning the way the system works.
But for now, it seems that although both free and open source software (FOSS) and closed and proprietary software (CPS) are both vulnerable to litigation – even Microsoft is not immune - there are a few factors which appear to have shielded open source from costly lawsuits up until now.
As of today, there are nearly 130,000 open source projects registered by Sourceforge.net. Only the most visible one, Linux, has had a rough time recently, with SCO claiming the open source operating system breaches its intellectual property.
Regarded by some as the software industry’s equivalent to the fruitless hunt for Weapons of Mass Destruction, the patents battle has proved to be a costly one for SCO in terms of reputation and goodwill. Its licensing scheme was a failure and the company has been seen its share price decrease from £25 to £4.22 in a couple of years.
In a world where perception counts for so much, being seen as a bully can lead to your goodwill being severely battered. This is one of the reasons why Microsoft has not yet started a legal war with FOSS. It is possible the software giant sees it as a weapon to be used as a last resort only.
Over the past few years, the open source market has grown tremendously and is now worth very big money but, unlike CPS, the FOSS community enjoys some sort of fellowship; attack one of them and you attack them all. Ask the CEO of SCO Linux licensee EV1 how his customers took it when he became the first SCO licensee.
Also, like the Internet itself, open source has resilience built in. When SCO wanted to sue everyone using Linux, experts quickly pointed out that replacing the offending code would not be that difficult as code, like a news article, can be written and re-written.
In addition, since the code lines of popular projects, are under constant public scrutiny, the ability for proprietary code to sneak in is remote. If ever proprietary code was found, developers would probably recode it even before any lawyer could notice it.
It should, however, be pointed out that this is not foolproof as patents can cover ideas and processes not just the code itself. For example, some experts speculate that any software workaround by RIM could still leave it open to a renewed lawsuit under the patent.
Last but not least, there are always open source alternatives out there. Can't get Mambo CMS, try Postnuke instead, Don't like Openoffice, try Abiword etc. This is something that can also be found on the proprietary software market.
What differentiates FOSS from CPS is that the former tend to use open structures such as CSV, XML or HTML as file structures to keep data and processes as open and as visible as possible, whereas CPS works with closed formats. Therefore, it is often much easier to migrate from one software package to another when using FOSS than CPS.
Although it may cost you more in the long run, if possible, try to get a worse case scenario and be ready if there is any problem. I wonder how many RIM users actually do have other alternatives at this very moment. Not many I guess.
Oh and by the way, if you are looking for a good, open source replacement for your RIM Blackberry, you are well advised to check Funambol which produces open source client and server product for the mobile email push market. It is distributed under the GPL 3.0 license and already includes Nokia and Computer Associates as partners.