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Legal commentators weigh SCO's chances

And find them slim to none
Tue Jul 29 2003, 15:14
THE SCO WAR might go down as the first Open Source lawsuit, in a couple of senses. First, because the GNU General Public License, or GPL, might be legally tested for the first time. Secondly, SCO has probably sealed its defeat by ticking off many intelligent Open Source users.

It's quite probable that the GPL will be tested in court. If not in the SCO vs IBM case, then in other litigation, either by or against SCO.

IBM recently issued a memo, as reported by C|Net here. The IBM memo explicitly refers to SCO's prior distribution of Linux under the GPL as invalidating its claims of Linux copyright infringement. Whether or not this implies that IBM will employ the GPL as an element of its defense is uncertain, but it's possible.

If SCO actually carries out its threats to sue Linux developers, vendors or users, the GPL will certainly be tested in court in any such case. Or it could well turn out that Linux kernel developers may have solid legal grounds to sue SCO for copyright infringement, if it's seen that SCO has violated the GPL. Or a Linux distribution vendor could decide to sue SCO for interference with its business, if it can show real commercial harm. Or, if SCO singles out any Linux user, that user might decide to sue. In any of these circumstances the GPL's validity could come up in court.

Linux and Open Source advocates should be hoping to see this happen. Any nagging worries about the GPL's strength in court would be dispelled.

More importantly perhaps, SCO's drumbeat of irresponsible and escalating statements denigrating the Linux community, and the insults to the Linux developers appearing in its Complaint against IBM, have had a remarkable effect. Certainly, SCO has succeeded in making lots of very smart people extremely angry. This isn't a great strategy in almost any situation. In SCO's case, its strategy will likely result in SCO's eventual defeat.

As often happens when confronted by a common enemy, the various arguing factions in the Free Software and Open Source communities have suspended their differences to focus on understanding the threat and to defeat it. The Free Software Foundation (FSF) and Open Source Initiative (OSI) have not traded barbed comments publicly in months. Once common disagreements over which Linux vendor builds the best distribution have subsided. Even those sometimes obstreperous KDE and Gnome desktop groups recently seem to have stayed closer to their respective knitting. There seems to be a generally pervasive understanding that such petty squabbles can wait.

Even more remarkably, people are contributing research outputs, analysis programs and scripts, historical documents, as well as commentaries and ideas. And the power of all their contributions and efforts is becoming apparent in resources that have been assembled, with visible results.

I've mentioned the SCO vs IBM informational Wiki previously, and that is here, providing starting references and analyses. If anyone has additional materials, that's a good place to submit those.

Paralegal Pamela Jones writes the scrupulously researched Groklaw web log. Her entries are detailed, interesting, and clearly instructive about the relevant legal doctrines and points of argument on both sides of the several disputes that might arise. Ms. Jones' crisp and spirited commentaries are easy to read and her essays alone are totally worth the trip. Her awesome Groklaw dissection of the SCO War can be found here.

Even the sometimes, erm, uneven MozillaQuest has moved beyond its earlier frustrated, repetitive rants to post a disciplined, well written series of analyses lately, including an accessible article that presents succinct legal commentaries culled from interviews with a few attorneys who appear well versed in the issues that are likely to be decisive. The most recent MozillaQuest installment containing these discussions is here. The consensus of the lawyers' opinions in that article is that SCO's legal case will collapse like a house of cards.

SCO's scheme is already unraveling. Now, after suing IBM when it refused to pay up or buy it out, hitting up Microsoft for a so called "license" for $10 million (that it probably didn't need) and mugging Sun for about $8 million in "protection" (likely a wash versus the cost of a lawsuit), SCO has apparently run out of big Unix vendors. HP and SGI aren't saying but they must have told SCO to take a hike. As have the largest Japanese Unix and Linux vendors, Fujitsu and NEC. So SCO has threatened big Linux users with potential lawsuits in a desperate ploy to replace flatlining Unix revenues. But most IT pundits and the users aren't buying SCO's FUD act. And the reason for this is vocal grass roots Open Source opposition from the Linux developer community and thousands of individual users. It is not what SCO expected when it launched its license extortion scam.

I could probably go on at length about this, but perhaps you already get the point. SCO has attacted a lot of attention with its assaults on IBM, Unix, GNU/Linux, the GPL, and the Free / Open Source Software community, as well as the equally shared commons of publicly available intellectual property that Open Source contributors and users develop and deploy. But aside from a few shills for proprietary software at the vendor supported publications and IT industry analyst firms, most reactions and responses are inimical to SCO. Judging from its statements, SCO did not anticipate that Linux developers and users would oppose its schemes so passionately and publicly. But it should have known that it couldn't attempt to steal the work of thousands of people with impunity. SCO has miscalculated -- attacking Open Source will prove its undoing in the final reckoning. µ

 

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