COMMENTARY--SCO suddenly isn't faring so well in its lawsuit against IBM.
The company recently dropped claims that Big Blue had misappropriated its trade-secrets by placing them in Linux. This leaves the SCO argument resting upon two copyright infringement claims.
When IBM began building the AIX Unix system, it purchased a license from AT&T, the company that created Unix. AT&T's Unix business was later sold to Novell, which subsequently sold part of that business to SCO.
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It is not a new argument.
In 1985, concerned Unix customers asked AT&T to clarify that particular term of the license. AT&T agreed and published the license change in the Echo newsletter that got sent to all Unix licensees in August of that year.
Explaining the change, AT&T wrote that the sentence was added to assure licensees that the company would claim no ownership in the software that they developed--only the portion of the software developed by AT&T.
SCO is legally bound to honor the contract and publicly stated interpretation of AT&T's terms.
SCO should know there is ample case law asserting that APIs can't be restricted and are available for all to implement under "fair use" in copyright law. But even if such precedent did not exist, the Unix definition still can't be claimed as SCO's property. When Novell exited the Unix business, it transferred the Unix API, definition, and trademark to The Open Group, (http://www.opengroup.org/austin/papers/single_unix_faq.html), which maintains it today as their Single Unix specification.
SCO was only sold some rights to the Unix implementation. The Open Group asserts that anyone can implement the Unix API without any copyright encumbrance. So much for SCO's remaining copyright infringement claim.
And if for some reason all this was not sufficient, there is yet more evidence to prove the Unix API has been released for unencumbered implementation on four other occasions related to standards organizations. What's more, lawyers can point to a
previous court case , as well as the release by Caldera, which now calls itself SCO, of old Unix code under an open-source license in 2002.
SCO has watched its stock soar from fifty cents to over twenty dollars while making claims that now appear dubious.
The presiding judge in the case then issued a discovery order requiring SCO to deliver a report precisely listing what software it claims is infringed in Linux. After IBM delivers copies of the AIX source code, SCO will then get just two weeks to conclude its examination and make any additional claims. All the while, SCO has watched its stock soar from fifty cents to over twenty dollars while making claims that now appear dubious.
When a company makes unfounded assertions for a month or two, it can be dismissed as a mistake or wishful thinking. When the distortions continue for a full year, that suggests a less innocent conclusion. There are hard questions about what's going on--especially when deceived stockholders are liable to left in the lurch.
biography
Bruce Perens is co-founder and director of Software in the Public Interest, an open-source development organization. He operates an independent consultancy and is a senior research scientist for open source at George Washington University's Cyber Security Policy and Research Institute.
