SCO vs.
The Linux Market
The
law suit SCO filed against IBM for its unlawful use of SCO-licensed
code in Linux becomes more complicated to understand (or to make
sense of) every day. In
recent developments:
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Novell’s CEO wrote to SCO claiming that when Novell sold
the rights to UNIX to SCO (actually to Caldera, but who’s
counting), they did not also transfer the patents or
copyrights to UNIX and that SCO obviously knows this because
they’ve been trying to get Novell to transfer the copyrights
for several months. A
key to understanding Novell's position may be that the new
Novell is no longer strictly a Utah Valley native, but is run
by Bostonians with a different point of view towards the
firm's assets.
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SCO
held a press teleconference in which its CEO Daryl McBride
claimed that (a) Novell doesn’t hold the patents and
copyrights (b) its lawyers will deal with Novell’s lawyers
about that and (c) its law suit with IBM (and others) is based
on contractual agreements, so whether it actually holds the
patents and copyrights isn’t relevant.
(Are you still following this?)
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Once
again, SCO offered to show some infringing (copied) code in
the Linux kernel (this week), under NDA.
I’m not sure who could usefully choose to do this.
What’s the point of seeing purportedly copied code if
you can’t say anything about it?
I would think the whole point would be for SCO to show
it to a group of appropriate experts who would then say yes
it’s copied or no it’s not.
Sounds like they’re avoiding that confrontation for
now.
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They
have also been carefully avoiding answering any questions about what
happens next. But
we’ve been asking around (IBM, the Linux and open Source
community, some lawyer pals) and this is what we think is likely to
happen:
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SCO
and IBM will go to Federal Court in Utah.
IBM will ask for a change of venue to New York or
Delaware. They
might get it. Hard
to predict. In any
case, this court date is mainly for the Federal Court to set
schedules for the parties to take depositions and collect other
information.
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SCO
might ask the Federal Court at this hearing for an injunction
against IBM continuing to sell AIX without a license (because,
they will claim, IBM is in breech of contract), but IBM will
point out that they do not believe they are in breech of
anything and how can someone be in breech of a perpetual
contract anyway? SCO
is unlikely to get an injunction.
If they did, IBM would appeal it immediately and (our
lawyer pals tell us) would be likely to win on appeal.
Likely outcome: court
says SCO will have to wait to get in front of the judge and/or
jury.
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Much
time passes, with continuing name calling, but not much else.
At any time, IBM or anyone else with about $30-50 million
could buy SCO lock, stock, and barrel, give the UNIX code to the
open source community, and be a hero.
If things get too painful, that might happen.
IBM has little or no incentive to do this as long as it
can continue to sell AIX and customers continue to buy AIX and
Linux.
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Eventually,
there will be a day (many days) in court.
Half the open source community is likely to show up to
testify against SCO. Unless
the idea of open source has been otherwise changed or tainted
(not likely) between now and then, it’s going to be very hard
to come up with sufficient cogent arguments for why Linux should
somehow be disenfranchised because long after the fact one of
Linux’s proponents decided that since it couldn’t succeed it
should try to throw a wrench into the works.
The
fact that Linux is managed by the public for anyone to use and can
easily be changed should it infringe on SCO’s intellectual
property (if it, in fact, has some) would clearly be an important
issue.
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Of
course, it’s possible that there really is infringing code in
Linux. In that
case, we will eagerly await SCO’s proof that someone else, not
SCO, is the cause of that infringement.
Stay
tuned. The fun has only
just begun.
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Entire contents © 2001 by Amy D. Wohl. All rights reserved. Reproduction of this publication in any form without prior written permission is forbidden.
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