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OSDL Q&A by IP Attorney Lawrence Rosen:
Thursday, August 14 2003 @ 01:55 PM EDT

OSDL Q&A by IP Attorney Lawrence Rosen:
"You May Continue to Use Linux WIthout Fear"

There is a new position paper by technology law and intellectual property expert Lawrence Rosen in which he addresses the indemnification FUD as well as whether there is risk in using Linux:

"Q&A re: SCO vs. IBM

"by Lawrence Rosen, General Counsel, Open Source Initiative

"The following questions and answers were prepared by the author at the request of the Open Source Development Lab (OSDL) as a result of intellectual property issues arising in the wake of SCO Group's lawsuit against IBM. This position paper is intended by the author to calm some of those uncertainties.

"Q: Can SCO demand license fees to use Linux?

"A: Sure. But just because someone demands money doesn't mean you should pay them. SCO has sued only IBM, remember, not you, and is demanding at least $1 billion in economic damages. IBM didn't reach for its checkbook yet. Why should you? SCO already licensed Linux to you royalty-free when it distributed Linux under the GPL license. Although SCO purported to suspend its Linux distribution after the commencement of this lawsuit, SCO continued to make Linux code available for download from its website. By distributing Linux products under the GPL, SCO agreed, among other things, not to assert certain proprietary rights - such as the rights to collect license fees - over any source code distributed under the terms of the GPL. Some people complain about the absence of indemnity in open source licenses, including the GPL license used currently for Linux. The economic equation is simple: Because the software is given away for free, no open source licensor can afford to offer indemnity. I don't believe indemnity matters anyway in this case, because of the way SCO has structured its complaint. Assume, for example, that SCO wins its case against IBM and IBM pays $1 billion in damages to compensate for the use of SCO's confidential code in Linux. (Again, this is a worst case scenario helpful only to assess risk to Linux users.) How then could SCO turn to Linux users and ask for the same damages all over again. That double-dipping isn't fair in law or in equity. Courts usually don't allow that.

Simply by being an interested and aggressive defendant with deep pockets, IBM is now effectively shielding Linux users from damages, even without an indemnity provision in the GPL.

"Q: What is my risk if I continue to use Linux?

"A: Assume the very worst: Assume SCO wins its case against IBM and IBM writes a big check for damages. Assume SCO proves that some portion of Linux is a copy or derivative work of its trade secret software. Assume SCO gets an injunction to prevent anyone from using any version of Linux containing infringing code. As I previously assured you, long before that happens there will be a new open source version of Linux omitting any SCO code. Non-infringing Linux will be readily available for everyone's free use because the open source community is entirely committed to Linux. Whatever IBM may be forced to pay will presumably compensate SCO for its damages. It would be astonishing if, after IBM p aid SCO some huge damage award, a court would let SCO go after users as well for the same damages. For these reasons, the SCO vs. IBM lawsuit is not likely to have any real impact on Linux users. It is a battle of big companies that will be resolved in due course by the court, perhaps by the payment of money. In the meantime, and forever, Linux is available for free."

OSDL's press release says Lawrence Rosen is founding partner of Rosenlaw & Einschlag, a technology law firm, with offices in Los Altos Hills and Ukiah, California ( ). He also servers as general counsel and secretary of Open Source Initiative ( ), which reviews and approves open source licenses and educates the public about open source issues. Another release here.

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