[linux-elitists] OSDL Q&A Addressing recent legal action by SCO Group
Thu Aug 14 11:39:45 PDT 2003
Cut/paste/lynx -dump http://www.osdl.org/docs/qa_re_sco_vs_ibm.pdf
OSDN: Q&A re: SCO vs. IBM
From OSDL RELEASES Q&A ADDRESSING RECENT LEGAL ACTIONS BY SCO GROUP
Q&A re: SCO vs. IBM
Q&A re: SCO vs. IBM by Lawrence Rosen General Counsel, Open Source
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.
Filed a few months ago, SCO s lawsuit against IBM has rankled the
Linux community and disconcerted its users. Much of the worry is
caused by press exaggeration. Not many lawsuits, and certainly not
this one, deserve to be called the trial of the century.
SCO vs. IBM should not be over-rated. It is a contract dispute
between two companies with deep pockets, both of whom are prepared
to send their attorneys into battle to protect their reputations
and their economic interests.
SCO is seeking lots of money from IBM and IBM refuses to pay. SCO
obviously wants to force IBM's hand, and that accounts for at least
some of the tactical moves being undertaken by SCO and its allies
to stir up fear among Linux customers. IBM has responded with a
countersuit, and now Red Hat has entered the fray to defend Linux
and the right of the open source community to distribute that
operating system to users worldwide.
The entire situation must seem very murky to those of you not
following it intently. These questions and answers may help you
understand what's happening.
Q: Is this a lawsuit against Linux?
A: No. This is a lawsuit by SCO against IBM, with counterclaims by
IBM against SCO. SCO claims money damages for breach of
confidentiality and the disclosure of its Unix-related trade secret
information to the public. IBM and SCO had an agreement to work
together on IBM's AIX operating system. SCO alleges that, when IBM
changed its business strategy and refocused its efforts on Linux,
IBM disclosed SCO's confidential technical information. That
confidential information, they assert, ultimately found its way
IBM denies all of SCO's material allegations. Recently IBM filed a
countersuit against SCO alleging, among other things, that SCO is
infringing some IBM patents, a move on IBM's part to put its
strategic patent portfolio to defensive use.
As this Q&A paper is written, the SCO vs. IBM litigation is still
in its early stages. If this were a typical federal civil lawsuit,
it would probably continue for 12-18 months and then settle before
trial. But this case is such a public event that it may linger for
a while before resolving itself at the end with either a defense
judgment or with money changing hands.
This lawsuit, with its claims and counter-claims, is at heart a
legal dispute between those two companies over money. The Linux
operating system itself, and its contributors, distributors and
users, are not parties to this litigation and cannot be directly
affected by it. But the indirect effects are being felt. The real
problem for Linux and open source is not the lawsuit itself, but
that the SCO vs. IBM case is creating confusion and doubt among
Q: How is Linux involved?
A: SCO claims that IBM took SCO s confidential information about
Unix and the AIX operating system and improperly contributed it to
Linux. The Linux operating system, they assert, was infected with
SCO's confidential information and, because Linux is open source,
that confidential information has been disclosed to the world. Now
that Linux is replacing Unix in the operating system marketplace,
SCO has lost business. It claims over $1 billion in damages.
Just because two parties enter into a confidentiality agreement and
exchange so called confidential information doesn't mean that there
really are trade secrets involved. Sometimes the secrets are
already out. In most jurisdictions, confidential information loses
its trade secret status when it becomes a matter of public
knowledge through no fault of the recipient, or was known to the
recipient before it was disclosed, or was independently developed
by the recipient without the use of the discloser's confidential
Unix operating systems have been in widespread use for many years.
How Unix works is not a trade secret -- it hasn t been a trade
secret since long before SCO and IBM started to work together on
AIX. In other words, there may have been some trade secrets
exchanged between SCO and IBM, but there weren t that many secrets
left for them to exchange that could relate to Unix and Linux
Furthermore, SCO needs to prove that those trade secrets were
actually copied into Linux. Linus Torvalds, working alone in his
home in the early days on his Linux program, didn t have access to
SCO s trade secrets. Nor did thousands of other programmers around
the world who have made contributions to Linux software. Their work
is original work based on commonly understood operating system
principles and they didn t need to know SCO s trade secrets to
write that software.
But let's assume the worst. Suppose the jury, in its wisdom after
hearing all the evidence, concludes that there are a few of SCO s
trade secrets that ended up in Linux. This worst-case-scenario
exercise will help us set the outer limits of risk to Linux and to
Not surprisingly, given my work with Linux and the open source
community, I conclude below that the risk is very small indeed. But
don't trust my judgment. I'm not trying to give you legal advice.
Ask your own attorney to read these Qs and As and form your own
judgment based on his or her advice.
Q: Does SCO have a copyright on Linux?
A: Perhaps. SCO can register a copyright in any software it wrote
or modified or that it distributed as a collective work. So can
Linus Torvalds, and Red Hat, and SuSE, and Debian, and so can
anyone (including IBM) who contributed more than a trivial bit of
code to Linux. Any of those people or organizations in the U.S. can
send $30, and a form, and 50 pages of their source code to the
Library of Congress and get a certificate of copyright registration
suitable for framing. The procedures are described at
www.loc.gov/copyright. There are similar procedures in other
Registering a copyright is only a ticket to get to court.
Registration itself isn t proof of anything important.
Of course, registration doesn t give SCO ownership rights to the
original versions of the software it modified or re-distributed.
Nor does SCO have any copyright ownership in software that is
independently written by others, even if that software is based on
ideas learned from SCO.
Because copyright law only imperfectly applies to software, SCO has
an even bigger hurdle to jump before it can assert its copyrights.
Here s where the copyright aspects of this case will be a thrill
for those of us who enjoy puzzles or metaphysics. The parties will,
through expert witnesses, help the court undertake a somewhat
mysterious abstraction, filtration, comparison test to remove the
functional elements of SCO's copyrighted software and isolate the
expressive elements. The law says that only the expressive elements
of the software deserve copyright protection. And the doctrine of
merger also applies, which denies copyright protection to
expression necessarily incidental to the idea being expressed. This
legal analysis will keep the parties busy in court for many months.
Ultimately, after these tests and the merger doctrine are applied
to SCO's software, far less will be legally copyrightable by SCO
than the code they submitted to the Library of Congress along with
their $30 check.
And finally, SCO has to prove actual copying or modification of its
copyrightable code. Linux s history is not secret. Linux source
code is published for all to see, with copyright notices
throughout. SCO can find who wrote Linux and ask them, under oath,
to describe how they wrote their code. Many Linux programmers are
already asserting publicly that they implemented their own software
without input from SCO and that SCO's claims are exaggerated. It
could take years for SCO to complete the depositions of programmers
around the world who contributed to Linux and, when that s all
done, SCO will probably not have much copyrightable code left to
assert against Linux.
Suppose though, after leaping those hurdles, SCO manages to
convince the court that IBM improperly copied or modified some
portion of SCO s trade secret copyrightable work and contributed it
to be part of Linux. The Linux development community is prepared to
address this risk head-on, if necessary, by re-implementing any
portion of Linux that was written by SCO.
SCO has refused so far to reveal which portions of Linux are
derived from their software. If they did, the open source community
would immediately start to design around those portions. I know
Linus Torvalds, and I know a fair number of open source programmers
who work on Linux worldwide. They are the best operating system
engineers available anywhere. It is a safe bet that, whatever
infringing software is ultimately found in Linux -- if any at all
it will be replaced within weeks by non-infringing versions.
That s one of the strengths of open source software development.
Like the automatic re-routing that makes the Internet such a robust
network, the open source community can quickly route around
software that doesn't belong because of third-party copyright
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
Whatever IBM may be forced to pay will presumably compensate SCO
for its damages. It would be astonishing if, after IBM paid 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.
Q: What is the effect of the Red Hat lawsuit against SCO?
A: Some of the major players in the open source community in
particular Red Hat have finally had enough of SCO's efforts to
disrupt the progress of Linux and to spread fear among its users.
Red Hat has now sued SCO for unfair business practices.
The stakes for SCO are now much higher. It is one thing to start a
contractual dispute with IBM and to seek economic damages
appropriate for the injury supposedly suffered. It is yet another
thing to disparage the reputation of an operating system that was
independently designed and developed by open source contributors
worldwide, and to instill unreasonable fear in Linux customers
about the possible consequences of using that operating system.
The Red Hat lawsuit is one of a number of steps being taken by
leaders of the open source community to respond to SCO's tactics
Meanwhile, development of Linux continues unaffected. You may
continue to use Linux without fear.
* Attribution Notice: Lawrence Rosen is founding partner of
Rosenlaw & Einschlag, a technology law firm, with offices in Los
Altos Hills and Ukiah, California (www.rosenlaw.com). He serves
also as general counsel and secretary of Open Source Initiative
(www.opensource.org), which reviews and approves open source
licenses and educates the public about open source issues. While
this paper is written by an attorney, you are not my client and I
am not intending this to be legal advice. You are encouraged to
show this article to your attorney and obtain his or her
independent advice about how to proceed. This paper was written at
the request of the Open Source Development Lab (OSDL). The content
of this paper and the opinions expressed herein are solely those of
the author and do not necessarily represent those of OSDL or its
© Copyright 2003 Lawrence Rosen. Licensed under the Open Software
License version 2.0 (available at www.rosenlaw.com/osl2.0.html).
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