With registered copyrights in hand, SCO has extended its litigation beyond IBM to include any user of Linux kernel 2.4 and beyond, claiming that the most recent kernel releases infringe on the company's intellectual property in Unix System V and its derivatives. SCO CEO Darl McBride pointed to the source code for running high-performance, symmetrical multiprocessor implementations of Linux as a key evidence of infringement, and invited interested parties to the company's Linden, Utah headquarters to view the offending code.
"We expect SCO to be compensated for the benefits realized by tens of thousands of customers," SCO CEO Darl McBride said yesterday during a call with press and analysts. "Though we possess broad legal rights, we plan to use these carefully and judiciously."
McBride did not spell out what "carefully" and "judiciously" mean, but proposed that Linux users purchase a license for a run-only, binary version of SCO's UnixWare 7.1.3 as a way to indemnify themselves and their businesses against prosecution. UnixWare 7.1.3 runs both Linux and native Unix applications. He did not specify any pricing, other than to say that it would be based on the number of servers running Linux. The full, enterprise version (50 user license) of UnixWare 7.1.3 sells for $4,999. Expect SCO to price the run-only, binary UnixWare more like a tax for using Linux at some fraction of the full-blown server license.
What if a business chooses not to buy a license to UnixWare, which is a logical choice for now? SCO's legal counsel David Boies, from Boies, Schiller & Flexner LLP, said that a possibility exists for some case-by-case litigation. "It's unlikely we would have to try very many cases before a resolution is complete," Boies said.
You have to wonder which big companies running or selling Linux they would prosecute first--and win a favorable judgment--to try to bring the others in line. Other than Sun and Microsoft, who are not the biggest fans of Linux, no other major vendor so far has paid SCO for a Unix license. SCO could go after almost any Fortune 500 company or Red Hat or SuSE as a test case for its claims.
When asked about Red Hat, Boies said that under the copyright law SCO could sue Red Hat, or others, for infringement and contributory infringement. Red Hat spokesperson Leigh Day countered: "We haven't been contacted by SCO. Our code is not in violation of anyone's IP [intellectual property], and the SCO's license is unnecessary."
IBM continues to call SCO's suit "baseless."
Eric Raymond, president of the Open Source Initiative maintains that SCO's claims are a "crude shakedown."
"They [SCO] shipped a Linux distribution under GPL. Under GPL clause 7, they are therefore barred from bringing copyright, patent, or trademark actions against anyone using that code," Raymond said. "It's also far from clear that Novell had any legitimate copyrights to assign to SCO. In 1993, the judge in the lawsuit Novell mounted against BSDi found that it was doubtful that AT&T/USL/Novell had legitimate copyrights in System V, and declined to issue a TRO [temporary restraining order] on that basis."
You have to wonder how SCO can start asking for compensation without producing any proof beyond what they claim some individuals who have viewed the code have to say. In fact, why isn't SCO providing documentation to the public about the allegedly offending code and the assessments made by experts, including those from the commercial software, open source and academic communities?
SCO is basically encouraging companies to take out an insurance policy, in the form of paying its Linux tax, to avoid the possibility of litigation. It could generate some revenue for SCO from smaller companies that simply don't want the hassle or uncertainty. If SCO fails to prove its case, it could end up being forced to rebate those users, if it still has a viable business.
Corporations and users should take a wait-and-see attitude. This could be a long and drawn out affair. If the situation gets dire, IBM may be forced to buy out SCO to protect its customer base. In the meantime, however, Linux users are exposed because they are not indemnified by their Linux providers. As my colleague Charlie Cooper wrote this week, "When it comes to the indemnification question, the Linux crowd is ducking the issue. Not SuSE Linux, not Red Hat--not even IBM, the biggest Linux reseller of them all--says it plans to extend an indemnification umbrella to its customers."
What's clear is that a huge amount of money will be spent on lawyers litigating the arcane details of an operating system and software development ecosystem that has been a breeding ground for innovation from thousands of programmers over the last 40 plus years. SCO has a top-notch lawyer, who bested Bill Gates but failed to save Al Gore. But the deep pockets of the software industry and their legal hired guns will ensure that SCO doesn't have a slam dunk win.
But let's suppose, for a moment, that SCO succeeds with some of its claims. Does that mean Linux is dead or thoroughly marginalized? I doubt it. The open source movement has proven itself a viable model for software development. Infringing code can be rewritten over time, and a lawsuit is a great motivator for the open source community to become even stronger.
The possibility also exists that other open source code, such as MySQL and Mozilla, could be opened up to similar copyright and patent infringement charges by other claimants. You can bet that opponents of open source will be looking to exploit SCO's tactic.
Certainly intellectual property should be protected. It may be that SCO can prove some of its claims legitimate beyond doubt. But if the technology industry becomes further consumed by copyright and patent litigation, innovation and the value the open source software brings will be greatly compromised.
A good way to avoid the SCO scenario is for the open source community to take more responsibility for ensuring that its code doesn't violate established patents and copyrights. In an interview with News.com, Linux founder Linus Torvalds said it's not the responsibility of engineers to look up patent information. He's right, but someone other than the engineering crew supporting the open source community will need to provide some oversight. It's part of the maturing of Linux and open source: We have our copyright and patent lawyers, they have theirs.
Use TalkBack to let your fellow ZDNet readers know what you think. Or write to me at dan.farber@cnet.com. If you're looking for my commentaries on other IT topics, check the archives.
