SCO
vs. IBM And Linux: An
Update
Where
shall we start? When
last we left SCO and IBM, SCO had amended its filing to focus on the
notion that anything based on UNIX was a derivative work and
therefore belonged to SCO. That
meant all of Sequent’s and AIX’s high end features (like NUMA
and enterprise style processing) somehow now belong to SCO.
In case you’re wondering IBM doesn’t agree.
IBM
plans to play the GPL card (the one that says that since SCO was a
Linux distribution itself it can scarcely claim that it is owed
royalties on that which it agreed to freely distribute).
OSDL Provides Some Help
In
this it is now joined by the OSDL (Open Systems Development Labs),
which has recently provided an opinion by its attorney, Lawrence
Rosen, an expert on open source licenses.
The opinion does not attempt to give advice, but rather to
answer questions about the situation.
It
looks at the involvement in Linux by SCO and IBM, who (if anyone)
controls the copyright to Linux, and provides an assessment of the
impact SCO vs. IBM may have on Linux users.
Rosen
points out, by the way, that should SCO prevail against IBM, it
would be extremely unlikely that SCO could then collect licensing
fees from individual Linux users, since that would in a sense by
collecting twice, and the law does not generally support this type
of unfair reward. (That would seem to indicate that Mr. Rosen thinks
Linux users can safely ignore SCO’s demands for license fees.)
At
the OSDL site, you may also read a paper by Eben
Moglen, a professor at Columbia University, Questioning SCO: A
Hard Look at Nebulous Claims. (You
can see where that’s going from the title.) These papers and other
information about OSDL and Linux are located at www.osdl.org.
More Secret Documents
IBM
may also plan to rely on a series of letters from Novell, previously
unrevealed, that show that Novell retained certain rights in UNIX
when it sold the operating system to SCO (the company now known as
Tarantella) in 1995. This
included its right to waive any rights against IBM, which Novell
chose to exercise and duly informed SCO it was exercising.
This may give IBM a very nice Ace in the hole.
(SCO quickly noted that any waiver from Novell, if it
existed, wouldn’t apply to Sequent, not a part of IBM when it
signed its original contract with AT&T.
That may mean it just acknowledged that Novell could waive
the rights against IBM.)
The GPL Card
SCO
is now claiming (from its Forum in Las Vegas) that it can’t wait
to address the GPL since it is illegal and is against the copyright
law.
While
this startled (and I think scared) some Open Source developers and
users, Eben Mogel (see above) quickly
poured water on that fire. An article in yesterday’s Wall Street Journal, quoted
SCO’s legal counsel with the claim that
SCO would challenge the GPL's "legality" on the ground
that the GPL permits licensees to make unlimited copies of programs
it covers, while copyright law only allows a single copy to be made.
SCO seems to believe the GPL is preempted by federal copyright law.
Eben Mogel notes that this is a
frivolous argument and that he believes it would be a violation of
professional obligation for SCO’s attorney or any other lawyer to
submit it to a court. If it were true, no copyright license could
permit the licensee to make multiple copies of the licensed program,
even if the copyright owner chose to grant that right.
You will find Mogel’s comments at http://www.fsf.org/philosophy/sco/sco-preemption.html
.
But Life Goes On
In
the meantime, SCO has continued to threaten Linux users with law
suits if they don’t sign up for licenses, claiming that two
unnamed Fortune 500 firms have now signed for some number of
licenses. This would
sound more interesting with names and numbers, of course.
They have even hired a new VP of SCOSource to be in charge of
their IP Licensing. I
think I don’t envy him.
Meanwhile,
life continues. IBM is
still selling lots of AIX and Linux – as is HP, Red Hat, SuSE, and
others. Apparently,
customers are certain that whatever happens, the disappearance of
Linux is not at hand.
SCO Holds Its Own Annual Forum
SCO
itself is holding a customer event this week, with announcements
mainly focusing on both its own new products as well as the
anti-Linux law suit. There
is a clear focus on bringing SCO into the modern computing
environment: web
services via a partnership with Ericom and the SCOx web services
initiative, a new release of the UnixWare Office Mail Server, and
enhanced support for Microsoft’s Active Directory.
SCO
seems to be using the Forum to plead its case against IBM and Open
Source to its own community. Some
Open Source representatives have been on hand, using the Forum to
seek an audience with SCO, putting them on notice that if the Open
Source community is not given an opportunity to see the infringing
code and remove it, it will be because SCO chose not to provide the
opportunity for this remedy.
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