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SCO's Gift to Linux
Monday, February 07 2005 @ 06:59 AM EST

Who'd have imagined at the beginning of the SCO operetta that in the third act, Linux would be singing that SCO was the wind beneath its wings? And yet, that is what has just happened.

I'm sure you will realize with what delicious satisfaction I bring you the news that OSDL's Stuart Cohen has a Viewpoint piece in the current Business Week, in which he says that we should thank SCO for greatly accelerating Linux use in the enterprise. SCO's great gift to Linux, he writes in "How SCO's Threats Rallied Linux," was that the world came to its defense and looked carefully to evaluate SCO's claims, and now Linux is now even more popular:

"The SCO litigation and surrounding media hoopla actually helped accelerate Linux's popularity -- and its legal foundation. SCO's legal offensive was effectively a wake-up call for a community, mobilizing and uniting a large but disparate group of customers and developers around a single cause. It spurred the Linux community to get its house in order. Its response revealed to the world how large that house had become and gave Linux newfound credibility.

"Linux developers, assisted by such interested parties as the Free Software Foundation, Groklaw, and my own organization, the Open Source Development Lab (OSDL), went to work to systematically examine every claim SCO put forth. As part of this grassroots effort, corporate developers and freelance contributors investigated and vetted the code from A to Z -- and back again. Offers to extract and rewrite any offending code in the Linux kernel were fielded from all over the globe."

All the lawsuits accomplished, he says, is that companies did due diligence in what turned into the most extensive internal audit and license compliance review since Y2K, with the result that Linux was vindicated and is now accepted as approved and endorsed for use by business.

"This vindication is perhaps SCO's greatest gift to the industry. The lawsuits and threatening letters literally forced customers to actively review and ultimately approve and endorse the use of Linux within their info-tech infrastructure.

"On the way to the courthouse, we can thank SCO for helping to move Linux even faster from the fringe of the computer network to the heart of the data center."

You will also enjoy reading First Monday's "The Penguin in Peril: SCO's Legal Threats to Linux," by Groklaw's Ishtiaque Omar, now an Australian attorney. He did his honors thesis on the SCO litigation, and he says the reason Linux is being sued now is simple: "With large companies now involved, these projects have become attractive targets for litigation."

Ah. The mystery solved. It's not the open source methodology, it's not that there are problems with provenance, and it's not a battle between business models. It's about money, honey. IBM has a lot of money, so it gets sued.

Omar examines the SCO legal claims and gives a very clear overview. His opinion is that SCO's claims are probably doomed. He lays some of the blame on mistakes SCO's attorneys have made.

"Boies' team has misidentified the defendant's place of incorporation, mistaken key dates in the contractual history, and had to reverse outrageous claims. It has also abandoned evidence that seemed central to one of its claims, abandoned an entire claim that was a pivotal part of the original complaint, and added a new legal theory that should have formed part of the action from the beginning.

"Given the complexity of the litigation, the long contractual and corporate history and the relative novelty of open-source licensing, Boies' mistakes have significantly injured SCO's case. At each stage, IBM has taken advantage of the inconsistencies and contradictions introduced into SCO's case."

"Boies" here stands for the entire SCO legal team the firm oversees. You'll find that, with footnotes, on page 30. On page 41, he speaks of IBM's motions for partial summary judgment related to the fact that SCO continued to distribute Linux even after bringing its lawsuit against IBM:

"F. Promissory Estoppel of and Copyright Infringement by SCO

"Two IBM counterclaims, promissory estoppel and copyright infringement, arise from one allegation: that SCO distributed Linux, necessarily under the GPL, and continued to do so after it found code that allegedly infringed its intellectual property rights. IBM argues that, having distributed Linux despite knowing that the software included SCO's copyrighted code, SCO has accepted the GPL terms of distribution and must abide by them.

"Pertinently, the GPL requires that software must be accompanied by source-code and cannot be redistributed except under the GPL. It is argued that SCO is prohibited by these terms from attempting to restrict the distribution of Linux source-code. SCO is also prohibited from distributing the code under other terms which it would be doing if it sold licences to use parts of the Linux code. IBM asserts that SCO's obligation to comply with the GPL gives rise to promissory estoppel, prohibiting SCO from attempting to pursue its current action.

"In the alternative, IBM argues that if SCO did not accept the terms of the GPL, it continued distributing Linux without licence. IBM notes that it contributed 'hundreds of thousands of lines of IBM code' to Linux, and that the only licence granted to use that copyrighted code was the GPL. Therefore, IBM argues, if SCO successfully renounced the GPL and continued to distribute GPL-licensed code, it infringed IBM's copyright. SCO 'literally copied more than 783,000 lines of code from sixteen packages of IBM's copyrighted material [that were contributed to Linux]'.

"These alternative arguments cunningly target the mistake that SCO made by continuing to distribute Linux after bringing this action. Unless the judge reaches the unlikely conclusion that SCO's continued distribution constituted an oversight in a multibillion dollar lawsuit that persisted for several months, it is difficult to see how these motions could fail."

Of course, time marches on, and there have been developments since the paper was written, like the BayStar exit, but that is unavoidable when writing about litigation that is ongoing. The collection of resources beginning on page 67 of the PDF version of this paper, the index, some 18 pages long, is quite useful in and of itself. At the end of the paper there is a discussion of the GPL, quoting a UK professor who thinks the GPL covers use, which it doesn't. But for an excellent overall look at what the SCO litigation is about, I think this is about the best and most comprehensive coverage I've seen.

He thanks Groklaw in the acknowledgments in the PDF version. "Pamela Jones, made my life immeasurably easier," he writes, "by providing in Groklaw a record of SCO-related events."

That's one of Groklaw's goals, of course, to enable scholarly work regarding this historic litigation. So it's nice to know we have reached two target goals.


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