Technology industry executives and observers often disagree on the significance of a given development or trend. However, sentiment that the infrastructure supporting open source development is becoming truly "industrial strength" is nearly unanimous.

"We're near an understanding that we're approaching an equilibrium point," says Bob Sutor, IBM's vice president of standards. "We're not in a situation where everything is proprietary or everything is going to be open source. There's a lot of need for both."

Sutor says IBM's approach to supporting Linux is a good example of open source development's new maturity and the way big software companies can use it to extend their offerings and add another dimension to a more broadly competitive landscape.

"There's no bigger booster of Linux than IBM, but we still sell middleware products that run on top of Linux and run fine," says Sutor. "But what we are seeing, and what people are understanding, is hard evidence that when you're dealing with certain types of projects and you're doing it out in the open, a tremendous amount of creativity can be garnered that you weren't necessarily able to pull together before. This equilibrium point is saying there's a lot to be done in the open community, and we need to support that to feed it even more."

However, just a year ago, open source development seemed to be suffering a public perception problem. No blockbuster consumer-level application had yet emerged to draw mass end-user attention to open source, and a potentially blockbuster legal case between IBM and plaintiff SCO Group threatened to slow Linux deployment until copyright ownership of key Unix code was established.

In the past six months, both factors changed considerably. The open source Firefox browser (http://www.mozilla.org/), developed by the Mozilla Foundation, has enticed millions of users away from Microsoft's Internet Explorer browser. The OpenOffice productivity suite (http://www.openoffice.org/) has received numerous positive reviews and is becoming a widely used, basic office suite. These two developments alone are giving open source applications much greater visibility among the large percentage of "general" end users, not apt to tinker with their desktops.

The SCO suit against IBM is also turning out to be far less critical for the Linux community at large. In early February, US District Court Judge Dale Kimball chastised SCO severely for failing to produce "any competent evidence" in its case. A wholesale dismantling of Linux's industrywide development and deployment processes appears extremely unlikely at this point, according to several analysts.

Just prior to those legal developments, IBM and Sun Microsystems also gave open source development two potentially huge boosts: IBM pledged to take no legal action against open source developers if they used technology included in 500 of IBM's patents (http://www.ibm.com/ibm/licensing/patents/pledgedpatents.pdf), and Sun announced it was going to make its hallmark Solaris Unix operating system (http://www.opensolaris.org/) open source by the second quarter of this year.

Also in early February, Columbia University law professor Eben Moglen, one of the open source community's most notable advocates, announced the formation of the Software Freedom Law Center. The center's mission is to provide pro bono legal services to eligible nonprofit open source software projects and developers. Open Source Development Labs (http://www.osdl.org/newsroom/press_releases/2005/2005_02_01_burlingame.html), a global consortium dedicated to accelerating the adoption of Linux, has raised more than US$4 million for a newly established intellectual property (IP) fund that will provide the seed money for the center, based in New York. This money is in addition to $10 million in OSDL's Linux Legal Defense Fund, which will provide legal support for Linus Torvalds and end-user companies subjected to Linux-related litigation by SCO.

"The announcement with Professor Moglen is an example of a series of assurances being provided at the legal level in general, and by very specific participants," says William Weinberg, OSDL's open source architecture specialist. "Compound that with the first anniversary of the OSDL defense fund, and you get this larger trend of acceptance of both the challenges and the risks, and finally understanding that open source intellectual property is no more horrific than proprietary intellectual property. It just bears greater scrutiny for two reasons: one, it's new and therefore threatening to some people, and two, because it's open it's subject to scrutiny in a way proprietary software isn't."

Weinberg also believes the great amount of discussion on developers' bulletin boards and blogs about the IBM patent pledge and Sun's Solaris strategy signals a new appreciation of open source—one that goes beyond the "us versus them" oversimplification of an underdog technology like Linux taking on proprietary heavyweights like Microsoft.

"I'm very pleased by the level of discussion," Weinberg says. "It represents a new height in sophistication among these developers. The fact people are asking these questions shows software licensing is no longer a background issue in people's minds."

Mark Webbink, deputy general counsel at Red Hat, agrees with Weinberg that open source issues have reached a new height of awareness from the market's major players, which may signal consensus on a confusing pastiche of IP issues.

"A number of the proprietary players, including those that have been embracing open source for some time, including IBM and Sun, are still in the midst of redefining their relationship with open source," Webbink says, "and Microsoft is seemingly coming to grips with the fact this is something that's not going to just go away. My highest hope would be that the industry as a whole can come to grips with this sort of thing—with all these IP issues that are more difficult in this industry than most—and reasonably reward companies for coming up with novel ideas and, at the same time, not end up with a system that ends up killing our software industry because it just makes it too darn difficult to operate."

One of the industry's most vexing issues has been the fear that patent holders could take legal action on any technology that even accidentally violated patent protection. IBM's Sutor says that pledging 500 patents to the open source community was intended to kick-start a "patent commons," into which companies can contribute protected intellectual property and from which open source developers can draw freely without fear of legal action.

Sutor says he would consider the patent commons idea a success if the industry were to contribute 5,000 patents within the next year.

Red Hat's Webbink says the IBM move may indeed lead to an industrywide commons and a consensus that rigid enforcement of software patents could stifle innovation in the long term. While Red Hat issued a patent pledge some time ago, he says, the heft of IBM's patent portfolio gives the movement critical mass.

"I also don't think we've seen the last of IBM on this front," he says. "They'll continue to scrutinize their portfolio and release that which they deem to hold the most value for the open source community, but will also expect active members of community to do the same thing. Eventually that will become one key element to bring about patent peace."

However, Webbink also says the global nature of open source development could render patent-protection maneuvers by proprietary software makers moot. He cited the growing popularity of OpenOffice as an example.

"I think there's a huge place for OpenOffice worldwide," he says. "First of all, the biggest threat to OpenOffice would be some Microsoft patents, but patents, unlike copyright, are jurisdictionally limited. If all of a sudden OpenOffice development is shifted—and a lot has been—outside the US, to countries where there are no patents right now or where Microsoft's reach doesn't extend, then you're going to see it continue to evolve and start to accelerate."

If the patent issue appears to be inching its way toward consensus, the new complexity of licensing open source development also suggests the irrelevance of looking for a united force of underdog developers fighting a monolithic proprietary foe. The new open source landscape will feature plenty of collaboration, but also plenty of competition and plenty of maneuvering around licensing terms. The Solaris case might illustrate this issue with clarity.

Sun chose to release Solaris under terms of the Common Development and Distribution License (http://www.opensolaris.org/license/cddl_license.txt), a modified Mozilla open source license. The CDDL approach confused some open source developers who have been used to working under provisions of the General Public License that governs Linux development.

Depending on who you read or listen to, either Sun executives made sure the CDDL is incompatible with GPL development—hence hobbling mixing Linux with Solaris—or the GPL forbids mixing code under the two licenses. Numerous developer mail lists and blogs have posted theories on what is and isn't allowed. Sun has promised to make the distinctions clear in nonlegalese, says Sun vice president of operating systems Tom Goguen, who has asked his legal team to write a simplified guide to the license.

"Parsing through the legalese is always difficult," Goguen says. "Frankly, you can read through just about any license and have the same problem. It's not clear, for example, with the GPL, how to combine even binaries from other licenses. This has never been adjudicated in a court, but a lot of people are building driver-level plug-ins into Linux distributions and keeping them proprietary. It's not clear the GPL allows for that. People are kind of out there doing things that have never really been sorted out or specified as far as GPL code goes. With the CDDL, we worked pretty hard with members of the open source community to define how to combine source code from another license with CDDL."

Goguen contends that one common perception on bulletin boards, that Sun is blocking Linux developers from combining their code with Solaris code, is backward.

"There is a broad open source landscape to begin with," he says. "Among the various licenses such as the BSD license, the Apache license, the Mozilla license, and of course the GPL—of all these licenses—there is only one that does not permit external code with code from that license, and that's the GPL. You can't mix nonGPL code with GPL. It prevents it. Maybe future versions of the GPL will allow for different combinations, and we can get it sorted out."

Industry analysts and developers have begun handicapping the odds of OpenSolaris making significant inroads on what has been a Linux world of open source operating systems.

"We have to look at it in terms of how the end user buyer looks at it," says Yankee Group senior analyst Dana Gardner, "and the right price-to-performance equation is what they're going to take out of it. A lot of Linux growth was around the hardware issue. Linux allowed people to swap out higher priced hardware for x86 hardware. Open sourcing Solaris allows Sun the opportunity to start saying, 'Look what you get for the same basic opportunity even though our license is a bit different.' The developer who is looking for the best addressable market with Solaris has both commercial and open source directions to go in, whereas if they go Linux, they only have open source."

Another analyst, Illuminata's Gordon Haff, says the open sourcing of Solaris may be the first move in a comprehensive open source offering from Sun that encompasses everything from the desktop to middleware and databases to operating systems.

"It wouldn't be realistic for Sun to expect, and I don't think they do expect, some huge overnight defection of people involved in Linux development over to Solaris," Haff says. "Over a period of years perhaps, OpenSolaris will be more broadly embraced as an open source alternative to Linux, BSD, and of course Windows, and there will be an increased level of interest in OpenSolaris in places like universities, where Sun has historical strength and interest. How much OpenSolaris will garner outside today's basically closed source Solaris community, we'll see. It's a good move for Sun. What really is the down side? Not much."

Haff notes recent news that Sun might open source at least part of Java Enterprise server. "That's actually pretty interesting," he says, "because there's an argument around OpenSolaris that we already have a very functional open source operating system, and that Solaris's advantages are incremental, essentially. But in the middleware space, the open source offerings are much less mature and much less complete."

IBM's Sutor agrees with Haff that the middleware-application server area could see the next explosion of open source deployment, between efforts such as JBoss, the Apache Foundation's Geronimo, and Red Hat. All these programs are Java-based, and while analysts and rival software executives have said that open sourcing Java code would be a boon for Sun as well as others, Goguen says the company is examining its options.

Regardless of the specifics of future open source initiatives from the major players, a new game is clearly afoot, in which respect and trash talk play together.

"Sun is clearly one of the leaders and perhaps they're Number Two with us being Number One," Sutor says. "They'll say they're Number One."

Sun's Goguen bears out Sutor's observations. The entire stack, from operating system to office suite, is now fully in play across the industry and around the world. "We are definitely looking across the board at all our software to figure out what the answer is," he says. "And just for the record, we are the largest contributor of source code now to the industry."