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
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
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
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 (http://www.rosenlaw.com ). He also servers as general counsel and secretary of Open
Source Initiative (http://www.opensource.org ), which reviews and approves open source
licenses and educates the public about open source issues. Another release here.