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When patent troll Acacia (s actg) sued Red Hat (s rht) in 2007, it ended with a bang: Acacia’s patents were invalidated by the court, and all software developers, open-source or not, had one less legal risk to cope with. So, why is the outcome of Red Hat’s next tangle with Acacia being kept secret, and how is a Texas court helping to keep it that way? Could the outcome have placed Red Hat in violation of the open-source licenses on its own product?

The suit in question — Software Tree LLC v. Red Hat, Inc. — claimed that JBoss, the well-known Java web software, infringed upon U.S. Patent No. 6163776 (PDF), which essentially claims invention of the object-relational database paradigm. In that paradigm, an object in an object-oriented software language represents a database record, and the attributes of the object represent fields in the database, making it possible for programmers to access a database without writing any SQL. It’s a common element in most web programming environments today.

The patent was originally filed by Software Tree Inc., a database software vendor. Acacia acquired Software Tree’s patent portfolio (with terms undisclosed) and formed the Acacia subsidiary Software Tree LLC, which pursues lawsuits against other companies and does not produce any products. Most of the press was misled by the similar names of the two companies and provided links to Software Tree Inc. in their reporting.

Soon after the judge produced a finding on claim language, a first step in such cases, Acacia filed a press release announcing that the parties had settled, while Red Hat gave a terse acknowledgment. But a month later, there has been no announcement of the terms of the settlement by either party. Open-source developers are especially concerned, because the license on the JBoss software, the Lesser General Public License (LGPL), contains language that prohibits one party from licensing a patent unless that license is available to all developers of the software.

Is Red Hat now violating these terms? Although Red Hat owns much of the JBoss copyright, it doesn’t own the whole thing, and is thus subject to the LGPL terms. They won’t say. I think they can’t say.

A month after the conclusion of the case, there isn’t any court paper about its conclusion. The only likely explanation is that Red Hat accepted that the case be sealed as part of the terms of its settlement with Acacia. Sealing a case is very common in such settlements; the parties agree to keep the specifics of the case quiet, and the judge enforces this with a court order binding both sides to secrecy for a lifetime. I’ve been subject of such an order as part of my expert witness practice: because my customer agreed to seal, there is an open-source case I can’t ever talk about without courting jail time. But it’s important to note that Red Hat, as defendant, would have had to agree to seal this case knowing its legal partners in the development of JBoss, the open-source community, would be forever kept in the dark regarding whether their own licenses were being violated.

Is the Open Source Community in Peril?

Should Acacia decide to prosecute the patent against them, open-source developers’ own standing has likely been damaged by Red Hat’s action. According to Heather Meeker, author of The Open Source Alternative: Understanding Risks and Leveraging Opportunities and A Primer on Intellectual Property Licensing, “Once Red Hat settles and pays for a license for the patent, any subsequent defendant will find it more difficult to convince a court that the patent should not be enforceable.”

So, it seems that Red Hat has left the open-source community that produces its product in the lurch. Not only would the JBoss developers be at increased risk, so would users of PHP, Ruby on Rails, and, indeed, most open source and proprietary web platforms. Perhaps Red Hat’s attorneys felt that things would be even worse for the community if they fought the case to its conclusion and lost. But we don’t know that, because it appears that they agreed not to tell us.

Perhaps this will come as a wake-up call to an open-source community that has been historically complacent about the elephant in its living room: Patent holders can shut down open source at any time, simply by bringing claims against individual developers and small companies that can not afford to defend themselves. The commercial success of Linux increases the likelihood of such action, especially in mobile telephony and other hotbeds of patent litigation. It is an unfortunate fact that there are so many software patents granted, on so much fundamental art, that all significant programs, open source or proprietary, are likely to exercise technology claimed in multiple software patents currently in force.

What Can Be Done?

There are litigation funds said to be available to protect open source developers, but they were not made available in Jacobsen v. Katzer, one of the few cases so far in which an individual open-source developer and his non-profit project, rather than a corporation, was subjected to a patent claim. That developer came very close to losing his job, and is still coping with the debt created by his successful effort to protect his project. The amount said to be available to defend open source developers is only sufficient for a handful of cases. At upward of $5 million per case, according to the American Intellectual Property Law Association’s Economic Study, it might be that the community can only sustain two or three cases.

Richard Stallman has said, “There’s no way to cure malaria by swatting mosquitoes — you have to drain the swamp.” Meaning that the solution is to fundamentally change the law so that free software and open source are protected from software patenting. But even Stallman’s legal counsel, Eben Moglen, acknowledges this is a lofty goal: “We can’t drain the swamp in the near future. So we need effective public hygiene that isn’t based on draining the swamp. What it will take is careful, constant, expensive, and difficult attempts to make the patent system part of the coexistence between freedom and business instead of a constant irritant and threat.”

For leaders like Moglen to discourage direct lobbying against software patenting probably won’t help to drain the swamp, either. The open-source community must start to take the problem of software patenting seriously, and must hold its commercial partners responsible to invest more of the profits made from open source into protection of the right to produce it.

Disclosure: Bruce Perens sat on the board of Telkel, the previous attempt at a JBoss company by JBoss founder Mark Fleury, and advised the company on its choice of open-source license. Perens realized no income from Telkel, and the company has been dissolved, but it is possible that he holds some fractional ownership interest in its copyrights.

Bruce Perens is a co-founder of the open-source movement in software, and the creator of the Open Source Definition, the rule-set for open source licensing. Today, he advises companies and law firms on issues regarding open source.