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Sue Me? Sue You? SCO, Linux & Unix


On May 12, 2003, SCO tried to break all ties with its Linux past and declared war on the entire Linux community. Specifically, underneath the legal language, SCO claims Linux includes Unix code stolen, or directly developed, from their SCO Unix code. “Therefore legal liability that may arise from the Linux development process may also rest with the end user.” Therefore, “Similar to analogous efforts underway in the music industry, we are prepared to take all actions necessary to stop the ongoing violation of our intellectual property or other rights.”This is a complete turn around from March when SCO CEO Darl McBride said SCO’s IBM law suit had nothing to do with Linux or open source. Right. The long and short of it now is that SCO is coming after Linux companies and users with hammer and tongs.”

McBride immediately backed off, saying, according to an Information Week report, that SCO doesn’t really want to sue Linux users and it wants companies to voluntarily comply with SCO’s intellectual property requirements. As for the language in the May 12th letter? That’s only there because their in-house counsel and their law firm, Boies Schiller & Flexner, made them do it. “We’re the messenger in this case.”

Most people will see this as a difference that makes no difference. While McBride was trying to make nice with users, Chris Sontag, SCO’s VP and general manager of SCOsource was busy on the interview circuit, serving notice to Linux companies, particularly SuSE and Red Hat, that they’re next. In particular, Sontag has made a point of saying that, despite the UnitedLinux agreements, after reviewing SCO’s SuSE agreements, “I would not characterize them in any form whatsoever as providing SuSE with any rights to our Unix intellectual property.”

SuSE is telling its customers not to sweat SCO’s threats. Joseph Eckert, SuSE’s VP of corporate communications, says “the UnitedLinux code base — jointly designed and developed by SuSE Linux, Turbolinux, Conectiva and SCO — will continue to be supported unconditionally by SuSE Linux. We will honor all UnitedLinux commitments to customers and partners, regardless of any actions that SCO may take or even allegations they may make.”

Eckert goes on, “SCO’s actions are again indeed curious. We have asked SCO for clarification of their public statements, SCO has declined. We are not aware, nor has SCO made any attempt to make us aware, of any specific unauthorized code in any SuSE Linux product. As a matter of policy, we have diligent processes for ensuring that appropriate licensing arrangements, open source or otherwise, are in place for all code used in our products.”

The SCO Splash

Few people expect SCO to win in the courts. Tom Carey, a partner at Bromberg & Sunstein, a Boston intellectual property boutique law firm, who doesn’t expect the case to even make it to court, says, “If you’ve ever played hearts, there’s a tactic called ‘shooting the moon.’ That’s what SCO is trying to do. This is a very low possibility, high reward strategy that has a ripple effect that goes far beyond IBM and impacts the Linux community as well.”

What kind of impact? Dan Kusnetzky, IDC vice president for system software research, observes, “Typically when you talk about FUD it’s about one vendor talking about another product to get them to buy their product. This is the first time that I know of where a vendor basically put out notice that they’re coming after everyone: Hardware, software, and customers.”

The result of this, he believes, will be to “slow down the adoption of Linux in the US. The main winner will be Microsoft, or possibly Sun with Solaris on Intel or the BSD community.” The big loser will be Linux.

Linux users see all of this too. And, they’re outraged. Indeed some of them are challenging SCO to sue them too.

Sue Me? Sue You!

They’re looking at this the wrong way. I expect that in a few days or weeks SCO will reap what they’ve sowed and be sued over and over again by other companies.

I am not a lawyer, but SCO has just told their UnitedLinux business and technology partners that the distribution they made together, based primarily on SuSE Linux with considerable help from SCO German Linux developers who had moved from SCO to SuSE, is illegal. And, clearly, SCO is threatening them with legal action. If you were in their shoes, wouldn’t you consider suing first?

But there’s more. SCO has also threatened Red Hat, Penguin Computing, HP, Dell, Sun, and dozens of other Linux-related companies’ customers. Given this, I won’t be a bit surprised if one or more of these Linux companies got SCO to court first.

Who did what with the code?

But there may be more reasons that SCO will be looking at legal troubles. Even before Caldera bought out SCO’s Unix, SCO was adding Linux functionality to UnixWare.

Specifically, SCO added Linux compatibility to its Unix properties with operating system packages like UnixWare’s Linux Kernel Personality (LKP). The LKP enables UnixWare to run Linux binaries.

So SCO was adding Linux functionality to its own Unix products, and was also considering bringing Linux functionality to its older OpenServer Unix. Given SCO’s own reasoning, could all this Linux functionality be added to Unix without introducing Linux code into Unix?

Look at the history. When Caldera first bought SCO in August 2000, it suggested that it was going to open source a good deal of Unix. That never happened.

But what Caldera did do, as described in a Caldera white paper dated March 8, 2001, with the then new tag-phrase of “Linux and UNIX are coming Together” by Dean R. Zimmerman, a SCO writer, was to try to merge the best features of both operating systems. Early on there’s a line that fits perfectly with open source gospel. “For a programmer, access to source code is the greatest gift that can be bestowed.” And then, getting straight to the point, Caldera declares: “Caldera has begun the task of uniting the strengths of UNIX technology, which include stability, scalability, security, and performance with the strengths of Linux, which include Internet-readiness, networking, new application support, and new hardware support. Caldera’s solution is to unite in the UNIX kernel a Linux Kernel Personality (LKP), and then provide the additional APIs needed for high-end scalability. The result is an application ‘deploy on’ platform with the performance, scalability, and confidence of UNIX and the industry momentum of Linux.”

Isn’t this exactly what SCO is accusing IBM of doing? In SCO’s March 2003 filing, SCO states, “Prior to IBM’s involvement, Linux was the software equivalent of a bicycle. UNIX was the software equivalent of a luxury car. To make Linux of necessary quality for use by enterprise customers, it must be re-designed so that Linux also becomes the software equivalent of a luxury car. This re-design is not technologically feasible or even possible at the enterprise level without (1) a high degree of design coordination, (2) access to expensive and sophisticated design and testing equipment; (3) access to UNIX code, methods and concepts; (4) UNIX architectural experience; and (5) a very significant financial investment.”

Isn’t this what SCO had said they were doing? I don’t see any significant difference. Do you?

Who really owns the Code?

Clearly, before its latest management team arrived, SCO was striving to merge the best of Unix and Linux together. Before former CEO and co-founder Ransom Love left the firm, SCO made a point of telling the world that they were an active open source contributor to Linux; one of the founding members of the Linux Standard Base, a group dedicated to Linux distributions and application comparibility; and, of course, they were a major player in the creation of UnitedLinux.

So, given SCO’s cross-breeding of Linux and Unix, is it not possible that if there is GPL code within Unix? This remains unproven, but if it turns out to be true, couldn’t that code have been put there by SCO programmers? After all, SCO still refuses to say exactly what Unix code was incorporated into Linux.

But what about putting the shoe on the other foot? How much did SCO borrow from GPL protected Linux for their Unix operating systems? UnixWare, at the least, was given the power to natively run Linux programs with the LKP.

Is that a violation of the GPL? I don’t know. No one has ever claimed it was. But then, until recently SCO wasn’t claiming that that Linux was using Unix’s intellectual property. By opening up this can of worms, it’s possible that SCO may, in the end, find that instead of controlling Linux’s intellectual property rights, they’ll find themselves out of business and Unix’s intellectual property rights under the GPL.

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