We just keep going further down the rabbit hole, and the lawyers haven't even started discussions yet. I'm referring, of course, to NetApp's patent infringement lawsuit against Sun, which Sun has dismissed as "factually incorrect" and, interestingly, driven by fear of open source. ZDNet posted this from Sun:
NetApp's legal attack against Sun's open source ZFS solution which is freely available in the marketplace is a clear indication that NetApp considers Sun technology a threat, and is a direct attack on the open source community. ZFS is the fastest growing storage virtualization technology in the marketplace, and NetApp's attempt to use patent litigation to inhibit the meteoric rise of open source technologies like ZFS is tantamount to being unhappy with gravity. As Sun knows well, and NetApps' customers obviously recognize, innovation works better than litigation.
As Dan Farber surmised, I bet Jonathan wrote that himself. Whatever the truth in this dispute, I actually like the open way in which it is being discussed. There aren't many lawsuits that get waged over blogs, rather than in courtrooms. :-)
And while Sun wouldn't be allowed to open source someone else's technology that it allegedly infringed, I do think that we will see more such lawsuits designed to forestall the open sourcing of code for which competitors hope to continue charging monopoly rents (whether actually infringing or not, and almost always "not").
Open source is the new frontier of software capitalism, and lawsuits will be the old world's attempt to prevent the future.