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Could a New Type of Legal Entity Help Underground Open Source Development?

Could a New Type of Legal Entity Help Underground Open Source Development?

Sometimes it's the things you don't plan that seem to have the most impact.

Today was one of those days. I'd been talking with Bruce Perens earlier in the day after attending a talk he gave on a bunch of issues including software patents and the dangers they pose to the Open Source community ­as well as to individual open source developers. It was a fascinating talk that covered a host of issues - including his take on the current SCO debacle. (I've gotten his permission to reprint the talk in the next issue of LinuxWorld Magazine.)

A bit later, I ran into Zak Welch. Zak is Chairman of the Board of The Zynot Foundation,­ a group of open source developers that are working on a new Linux distribution that has been forked from the Gentoo distribution.

The Zynot Foundation booth was over in the ".org Pavilion" of the LinuxWorld show floor. This is the area where all the open source developers and non-profits like the Electronic Frontier Foundation and the Free Software Foundation hang out. Zak's area was filled with a bunch of hard-core coders. There were ideas flying everywhere and acoustic guitars stashed in the corner. The place was a hotbed of innovation.

Zak is setting up this new group and has a bunch of innovative ideas on how to structure his project so that developers can make money from their work and also be protected from software patent lawsuits. He's incorporated as a 501(c)3 corporation and even has a lawyer on his board of directors.

So I got talking to Zak about some of Bruce's ideas on protecting the open source community and individual developers from patent lawsuits and that got him even more excited. We arranged to get together and meet Bruce later to discuss it more.

Later, when we got together with Bruce, what followed was a really interesting and cutting-edge discussion on what open source groups (and the companies that benefit from their work) can do to protect themselves from patent lawsuit liability and ensure they aren't knocked out of business by some deep-pocketed corporation using patent law to shut down competition from the open source community.

Of course, it all needs to begin with the developers themselves making sure they aren't violating patents with the work they're doing. Zak's approach to that is to come up with a "commiter's agreement" that all commiters sign saying they won't do so. In addition, both Bruce and Zak agreed that incorporation as a 501(c)3 corporation provides at least some "shield" for developers themselves.

But corporations need to play a part in this as well. In today's world, the amount of open source software in use in corporations is staggering. If this free resource were to be suddenly threatened, it could literally cause billions of dollars of damage to economies around the world. Even if you are outside America, if an American corporation's lawsuit shuts down an open source project that you use software from, you're going to be impacted.

Bruce indicated that there is a recently passed Volunteer Protection Act that may be able to protect members of a non-profit group. He indicated that it hadn't been tested, but that it should protect developers as long as they and their project meet the criterion set out in the bill.

Zak is convinced, however, that the existing laws governing the structure of non-profits don't fit the model of open source software groups. He's concerned that by having to "shoe-horn" his business into one of the models provided, it will cost more money than necessary­ and that none of the types of non-profit structures available really fit with the organization he's trying to build.

We recorded the whole conversation and it can be found (all 20 minutes of it) in MP3 format. If you have further interest in this topic, then it will be there for you to listen to.

It was a dialog bristling with ideas that are all critical for the open source community at this point in time. If you think your open source group doesn't need to worry about patent lawsuits, think again. Just listen to the MP3.

And the best thing was that the discussion was all on the spur of the moment. That's what happens when you hang out in the “.org pavilion” area: you don't have to look far to find innovation in the .org pavilion; it finds you

More Stories By Kevin Bedell

Kevin Bedell, one of the founding editors of Linux.SYS-CON.com, writes and speaks frequently on Linux and open source. He is the director of consulting and training for Black Duck Software.

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