May 19, 2003

Sue Me? Sue You? SCO, Linux & Unix

- by Steven J. Vaughan-Nichols -

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 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.

This story was originally published by Practical Technology.
The opinions it contains belong solely to its author and
may or may not be shared by NewsForge staff or OSDN management.

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