<nettime> Update: Linux strikes back... III

[". __ ." <mail_box@gmx.net>]

Sometimes one can find things on findlaw. I think that the attack against
Open Source must be dealt with in an exemplary way so that other companies
do not even dream of repeating this farce...

As long as companies benefit from this sort of thing and it is possible to
attack anything for the sake of a smile of confidence from your
shareholders, something is severely wrong... what is next?? It can't be
that companies alone decide what's going on - only because of IBM, Linux
and the Open Source Community do have a chance - otherwise there would be
nobody to finance the defense...

That's why an active community is needed (although some individuals did do
something) - not only in this case...

so that was enough... ;-)

Cheers,

g



http://writ.findlaw.com/commentary/20030626_chander.html 


----
Penguin on Thin Ice?
Why IBM Should Win in the Fight to Save Linux
By ANUPAM CHANDER 
---- 
Thursday, Jun. 26, 2003

Earlier this year, SCO, a Utah-based software company, filed a
multi-billion dollar unfair competition lawsuit in Utah federal court
against IBM, one of the world's leading information technology companies.

The suit arose because IBM has made a strong push towards using the ever
more popular Linux operating system for computers. (It's not alone; Linux
is used by millions of people the world over, in companies, government
offices, and private homes.) But SCO claims - astonishingly - that Linux
is an illegal derivative of software SCO acquired from others years ago.

Though IBM is the only defendant, SCO's suit threatens Linux as well.
Thus, the suit has captured the attention of the computing industry.
Indeed, it has even inspired comedy - in the form of
<http://lwn.net/Articles/34848/>a parody of SCO's CEO set to a Gilbert and
Sullivan tune. But at the same time, it has also generated FUD--"fear,
uncertainty, and doubt"--among Linux users.

SCO has benefited from its decision to file the suit. During the last
year, its share price had dropped to as low as $0.60 a share. Since the
day its suit was filed in March, SCO's stock has traded up, currently
trading above $10.00 a share.

But that rise in stock price may be illusory, for it seems unlikely that
SCO's suit has any true merit. Rather than unfair competition, what likely
occurred between SCO and IBM was healthy competition - the kind that helps
consumers, and the economy, by pushing quality up and prices down, and
increasing efficiency.

A Brief History of Operating Systems, from AT&T to the Penguin

To understand this suit, it's necessary to review a bit of computing
history that now seems quite ancient.

Three decades ago, AT&T created a computer operating system called UNIX to
run its telecommunications network. (An operating system is a computer
program that allows one to run other, more specialized, computer programs.
Microsoft Windows is today's popular example.) UNIX was widely adopted by
corporations and other institutions. For the most part, AT&T and
subsequent groups developed UNIX in a proprietary form--claiming exclusive
rights to it.

Then, about a decade ago, a young Finn named Linus Torvalds introduced an
operating system (named Linux, after its creator) that did some of what
UNIX did. Linux proved remarkably successful. The community of Linux users
adopted a mascot--the penguin - as a sort of trademark.

Unlike UNIX, Linux was open and free. Anyone the world over could examine
its code and improve on it. A key to Linux's success was that its license
(dubbed a "copyleft" instead of a "copyright") required users also to give
away their own modifications to the software for free.

The joint collaboration of programmers around the globe, most of whom
would never meet, created a powerful operating system.

In 2000, rather than fight Linux, IBM decided to embrace it, committing
one billion dollars to developing the software. It installed Linux (not
Microsoft Windows) on many of the personal computers it sold and Linux
(not UNIX) on its large mainframe computers.

Meanwhile, over time, SCO acquired certain rights to other companies'
versions ("flavors" in the lingo of techies) of the original, proprietary
operating system UNIX. And even as it was developing UNIX itself, IBM
licensed some of these flavors from these companies.

Finally, to further complicate matters, IBM also collaborated with SCO on
yet additional enhancements to UNIX. But in 2001, IBM decided to abandon
that collaboration.

SCO's Suit Against IBM: The Proof of the Pudding Is In the History

All these facts provide the background for SCO's current lawsuit.

SCO's theory is as follows. When IBM originally licensed UNIX, it signed
contracts with companies such as AT&T. But IBM violated those contracts,
later, by using information it gained working on UNIX to improve Linux.

Why does SCO care if IBM violated its contracts with AT&T and other
companies? Because SCO claims that it is a "successor in interest" under
those contracts. While it did not write UNIX, it claims to have acquired
rights to the operating system over time from other companies.

Is SCO correct? Only close scrutiny of all the relevant history and
relevant contracts can determine that question. Meanwhile, several legal
principles make the situation even more complex.

Several Key Legal Principles May Undermine SCO's Case

The first principle - which is also common sense - is that one cannot sell
(or give away) a proprietary interest that one no longer possesses.

So even if companies purported to give UNIX rights to SCO, their supposed
grant of interest would be void if they earlier had given the same rights
to IBM or if they had otherwise relinquished them. You can't sell what you
no longer own.

The second principle is that a party's rights can be affected by its later
conduct - which can constitute a "waiver," giving away rights. Until
recently, SCO was a willing player in the Linux movement, releasing code
under the open source ("copyleft") license. Everything that happened to
Linux was in the open. Yet SCO delayed in suing.

That delay triggers not only the waiver doctrine, but also similar
equitable doctrines such as laches. Indeed, SCO may run afoul of the
relevant statutes of limitations as well.

The third principle is that what's good for the goose is good for the
gander. Here, IBM is not the only one who has to abide by its contracts;
SCO does too. This may cause SCO problems.

When it used Linux in software it released, SCO - like everyone else - had
to agree to Linux's "copyleft" licenses. In doing so, SCO arguably gave up
prior rights: "Copyleft" licenses, as noted above, gave everyone the right
to copy code freely, and to make improvements on it.

The fourth principle is that a suit must not only establish a right, it
must also show the defendant violated it. The court must ask: Even if SCO
had extensive rights to UNIX and never waived them, did IBM actually
violate those rights by supporting Linux?

Again, the answer lies in the history and contracts, but a certain degree
of skepticism seems warranted. Would IBM really have agreed to give up
developing other operating systems, in exchange for being able to work on
UNIX? IBM is, after all, the pioneer of such operating systems as OS/2.

Could Linux Only Have Come From UNIX Know-how? It Seems Unlikely.

Meanwhile, at the crux of SCO's suit is its claim that its predecessors -
the companies from which it says it purchased rights to UNIX - had crucial
know-how. Indeed, it says this know-how was so crucial that it was
necessary to Linux's success.

In its complaint, SCO claims, in essence, that without its UNIX contracts,
IBM was nothing, and without IBM, Linux was nothing. But both of these
claims, like SCO's allegations, are dubious.

First, let's look at Linux: Was it nothing before IBM? Of course not.
Engineers collaborating through the open source movement created extremely
sophisticated work even without a major corporate patron.

SCO alleges that "as long as the Linux development process remained
uncoordinated and random, it posed little or no threat to SCO...." But in
truth, Linux was always coordinated - just by many different hands. Linus
Torvalds himself calls the Linux development process
<http://kerneltrap.org/node.php?id=11&PHPSESSID=79f4b8bb7a33a40f5d09ecc5fc318335>"directed
mutation."

Second, let's look at IBM: Was it nothing without the know-how it gained
through its UNIX development contracts? Hardly.

IBM is hardly a novice when it comes to systems engineering. It has
extensive experience with Intel-based microcomputers (SCO's original
specialty). Indeed, more than two decades ago, IBM introduced the personal
computer based on the Intel microprocessor. Plainly, IBM's engineers are
quite capable of invention and advancement, even without SCO's assistance.

>From A Policy Perspective, Closed Software Is Perilous

How does the suit fit into the open software versus closed software
debate? I believe the answer is that it demonstrates the virtues of open
software.

Some would disagree, however. On its website, SCO quotes a suggestion that
computer "[s]ystem administrators must be admonished to submit open-source
code to inspection for potential violation of patents."

And Microsoft has recently been arguing that the SCO case proves that open
source software is bad policy for software corporations. According to
Microsoft, open source software may lead to repeat patent violation: After
all, as the SCO suit shows, you can never be sure where a piece of code,
contributed by a volunteer, came from.

But in truth, it is closed, proprietary software that is the real villain
here. After all, partnering with SCO and its predecessors on UNIX projects
was what got IBM in trouble in the first place. It's the proprietary
claims over UNIX that form the basis of SCO's suit.

More generally, companies trying to derive more revenue from their
intellectual property portfolio may lash out at licensees. But licensees
of open source software distributed under a permissive license do not have
to worry about this possibility.

For instance, might Microsoft someday claim that software using Windows
"derives" from Windows and unfairly competes with Microsoft's business?
Because Windows software is proprietary, the possibility never can be
fully ruled out.

Proprietary interests, especially in intellectual property, tend to breed
confidentiality - as anyone who ever signed a nondisclosure agreement with
a fledgling dotcom with a "brilliant business idea" well knows. And
confidentiality, in turn, breeds conspiracy theories, and allegations of
theft - or unfair competition, or breach of contract, or the like.

In contrast, if there is something amiss in open code, it will be more
difficult to hide. Thus, Linus Torvalds retorted, "I allege SCO is full of
it and that the Linux development model is the most transparent process in
the whole industry." Torvalds himself has provided the most compelling
reason SCO's suit must fail: Had information truly been misused in Linux's
open source software, everyone and his brother - and his foreign penpal -
would have been well aware of it.

The final policy argument in favor of open source software is, of course,
societal. At some point, information that is widely studied in
universities, reprinted in college textbooks, and advanced through
academic scholarship must be considered public domain.

For this reason, SCO's claims that its intellectual property rights extend
to basic computing features of large operating systems cannot be allowed
to stand. Otherwise, there will be no such thing as truly open, free
software - and as a consequence, there will effectively be an
economy-dragging tax on information technology.

Anupam Chander is Professor of Law at the University of California, Davis,
School of Law. A graduate of Yale Law School and Harvard College, he
specializes in cyberlaw and international law. Chander refers readers
interested in following the SCO saga further to
<http://www.slashdot.org>Slashdot.org - itself a demonstration of the
power of dispersed individuals working together.  rna





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