SCO vs. Open Source

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SCO vs . Open Source

Anyone who has read the earlier section on standing will quickly recognize the incongruity of the title "SCO vs. Open Source." SCO is shorthand for The SCO Group, Inc., a Delaware corporation. Open source is a software development, business, and licensing model. Open source does not have standing to be a defendant in a lawsuit. Neither SCO, nor any other plaintiff, can sue an entire movement ”particularly one that is so thoroughly grounded in intellectual property and contract law ”over any cause of action worth litigating .

As this is written, The SCO Group is a party to several rancorous lawsuits against certain specific software companies, including IBM, Novell, and Red Hat, over intellectual property rights in the flagship open source product, Linux.

Initially, SCO's complaint alleged that it had licensed certain proprietary software to IBM and that IBM had then improperly contributed that software to open source Linux. The original lawsuit was framed in traditional breach of contract terms as a dispute over an agreement between IBM and SCO that purportedly required IBM to maintain the trade secret status of certain software licensed to it by SCO. IBM denied all material allegations and then, in turn , cross-complained against SCO, alleging breach of contract and patent infringement. SCO has since broadened its complaint to include allegations about the GPL under which Linux is licensed.

Then Red Hat sued SCO, alleging unfair business prac-tices, among other business torts. Finally, SCO and Novell disputed the terms of the original contract under which SCO's predecessor-in-interest bought certain rights to UNIX from Novell.

The SCO litigation may be resolved by the time you read this book, in which event use the following opinion as a way of evaluating my prescience: The SCO cases are a legal mess, an unfortunate opportunity for companies to spend millions of dollars in attorneys ' fees to defend their intellectual property and contractual rights and to argue about enormous damage claims. But they don't directly affect open source. All the licenses described in this book and all the software licensed under those licenses ”with the possible exception of some small portion of Linux ”will remain valid no matter what happens in the SCO lawsuits. As to that small portion of Linux, it may turn out after litigation to be no portion of Linux at all.

Like any other person, SCO has rights only to copyrightable works that it authored or acquired by assignment or license. The independently created copyrightable works of others, such as the contributions to Linux by Linus Torvalds and thousands of other programmers worldwide, are not owned by SCO. Nor can SCO own the unpatented ideas embodied in Linux. Given what I know about the history and evolution of operating systems (including UNIX and Linux), it is inconceivable to me that significant portions of Linux are copies or derivative works of any SCO software. Most Linux experts reassure me that, when the dust of this litigation settles, the courts will determine that SCO owns little or nothing of the intellectual property in Linux.

The SCO lawsuit reveals some interesting open source ironies. SCO itself distributed Linux open source software and, even after SCO had filed its first complaint against IBM, li-censees could still obtain Linux under the GPL from an SCO website. I'm not aware of any important case ”and Linux software is important in this sense ”where commercially sophisticated licensors have been allowed to disavow their own licenses for the very software under dispute.

SCO's public arguments challenging the constitutionality of the GPL are particularly intriguing. (See the Open Letter from Darl McBride, president and CEO of SCO, dated December 4, 2003.) It would be truly exciting news if U.S. courts allowed a company to challenge the constitutionality of its own license.

But suppose the courts finally do step back from this entire open source phenomenon and ask, in the context of a legitimate lawsuit by parties with standing: "Is this licensing scheme to build a commons of open source software constitutional? Should licensors be allowed to turn copyright on its head this way, conditioning a license to software on a reciprocal obligation to contribute?"

There is absolutely no legal basis to argue that this scheme is unconstitutional. It is a basic legal principle that licensors can do what they wish with their intellectual property and set conditions for its use.

The public excitement about the SCO cases proves the point I've hinted at throughout this chapter. Litigation about open source software will be rare; if it were a common occurrence the public would be bored with the rather hysterical SCO litigation claims by now. The uniqueness of the SCO litigation, and its multi-billion dollar damage claims, makes it stand out.

The SCO litigation against Linux also marks a maturation of the open source movement, which is finally a big enough phenomenon for its software to be the object of a big lawsuit. Put simply, open source software is now important enough to sue over. The popularity and success of open source software and of Linux in particular inevitably draw litigation because there are important and valuable economic interests at stake.

The SCO litigation is an aberration. It is a big lawsuit about what most knowledgeable attorneys believe is a small issue between particular companies. It will eventually be resolved ”and Linux and open source will continue to evolve . This too shall pass.

Many open source advocates have secretly longed for test cases so that the courts can clearly articulate the laws of open source licenses. There have thus far been very few such cases. Open source parties argue mostly about breach of contract, trademark infringement, occasionally patent infringement, and whether a derivative work has been created. Most such arguments are resolved informally, as is true for almost all commercial disputes in most civilized countries . Why would open source licensors and licensees sue each other if they can work out differences in a spirit of open source generosity?

It is difficult to imagine an important case where open source licensors and licensees will litigate about free software. As long as open source projects act as responsible custodians of intellectual property, keeping careful track of the software they receive and the software they create, then licensees can rely on the continued availability of that software under open source rules. And as long as licensees honor the conditions of the licenses for software they accept, there is little reason to fear it will be taken away through litigation.

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Open Source Licensing. Software Freedom and Intellectual Property Law
Open Source Licensing: Software Freedom and Intellectual Property Law
ISBN: 0131487876
EAN: 2147483647
Year: 2004
Pages: 166

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