OpenSolaris, Sun’s open-source take on its Solaris operating system, has finally arrived. Some people, like Jason Perlow at ZDNet think that this is great news and that Sun’s latest operating system will give Linux a real challenge.

Maybe it will, maybe it won’t. I’m inclined to doubt it simply because OpenSolaris has failed to develop a strong developer community. For more on that see Ted Ts’o, noted Linux developer and CTO of the Linux Foundation, blog posting, What Sun was trying to do with Open Solaris. T’so wasn’t playing OS religious wars, he was pointing out that while “OpenSolaris has been released under an Open Source license,” it doesn’t have “an Open Source development community.”

That’s a real problem. OpenSolaris’ biggest trouble is that while it’s taken three years for OpenSolaris to reach a point where general techie sorts will get it a try, the Linux distributors, especially Red Hat, Novell/SUSE and Ubuntu, has been moving in strength both to the public and to enterprise customers.

Still, all that said, I think OpenSolaris could survive, and possibly even thrive, if it wasn’t for one sad, simple fact. Sun may not have the IP (intellectual property) rights to open-source Solaris in the first place.

Sun claims that it has owned the right to open-source Solaris from its first Unix contract with AT&T. In the fall of 2003, Jonathan Schwartz, then Sun’s executive VP for software and now its CEO said, “We took a license from AT&T initially for $100 million as we didn’t own the IP. The license we took also made clear that we had rights equivalent to ownership. When we did the deal with SCO earlier this year we bought a bunch of drivers and when we give money to a company oftentimes we get warrants, which is part of the negotiations.” Sun has continued to maintain that it all the IP rights it needed to open-source OpenSolaris.

SCO CEO Daryl McBride, in 2005, when Sun reveals its plan to open-source Solaris said that Sun open-sourcing OpenSolaris was fine with SCO. Since then, SCO, which relies upon its ownership of Unix’s IP for its cases against Linux companies, has had its rights to Unix’s IP thrown out. Novell, instead, owns Unix’s IP.

Now, the question is, exactly what rights does Sun have to the Unix IP? Novell, immediately after it beat SCO, stated it had no plans to sue anyone over Unix’s IP.

In the recently concluded Novell/SCO trail, however, Novell’s attorney’s focused a great deal on the Sun’s deal with SCO. You don’t need to read between the lines to see that Novell may be having second-thoughts about letting Sun’s assertion that it had the rights to open-source Novell’s Unix code in OpenSolaris.

Greg Jones, Novell’s VP of Technology Law, testified that SCO’s 2003 agreement with Sun “allows Sun, then, to release Solaris as open source under an open source licensing model, which they have done in a project called OpenSolaris. So it poses a direct competitive challenge to Linux and, certainly, to Novell, given that Linux is an important part of Novell’s business. We are a Linux distributor.”

Jones also said that had Novell known what SCO were up to, it would have stopped it, because, “It simply would not have been in Novell’s commercial interests. In the fall of 2002, Novell had acquired Simeon, a Linux desktop company. We were exploring ways to get into the Linux market so enabling a competitor to Linux simply would not have been in Novell’s interests. In the manner in which they entered this agreement, when they did it, they kept all the money. I assume that would have been their proposal but, fundamentally, it simply would have been contrary to Novell’s business interests to enable something like this.”

In Novell’s closing arguments, Novell attorney Eric Acker, expanded on this point. Acker said, “It could not be more clear that what the Sun agreement was doing in 2003 is restating the earlier agreement, the SVRX (System V Release X) agreement between Sun and Novell.” Acker went on to state that, “Mr. McBride admitted the 2003 Sun license allowed Sun to open source its Solaris product, OpenSolaris.” Shortly thereafter Acker continued, “So, what Sun has done is they have taken 4.0, which is listed on the APA (Asset Purchase Agreement)” and “Sun has built their operating system on that code, Your Honor. For them to go in and rip it all out, it has huge commercial value to them.”

It looks to me that OpenSolaris has a much bigger problem that developers, Linux’s dominance, or whether it will appear under the GPLv3. Sun and OpenSolaris’ real trouble is that after Novell finishes grinding SCO into the ground, they’ll be next on Novell’s list. Short of Sun cutting a deal with Novell-and I don’t see that happening-OpenSolaris has finally been released just in time to die.