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Glyn Moody's look at all levels of the enterprise open source stack. The blog will look at the organisations that are embracing open source, old and new alike (start-ups welcome), and the communities of users and developers that have formed around them (or not, as the case may be).

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SCO What? It's Patently over for Copyright

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Remember SCO? It's a once-important company that developed a death-wish by suing IBM in 2003. As Wikipedia explains:

On March 6, 2003, the SCO Group (formerly known as Caldera Systems) filed a $1 billion lawsuit in the US against IBM for allegedly “devaluing” its version of the UNIX operating system. The amount of alleged damages was later increased to $3 billion, and then $5 billion.

SCO claimed that IBM had, without authorization, contributed SCO's intellectual property to the codebase of the open source, Unix-like Linux operating system. In May 2003 SCO Group sent letters to members of the Fortune 1000 and Global 500 companies warning them of the possibility of liability if they use Linux.

Actually, this doesn't do really justice to the utterly suicidal nature of SCO's action. Here's what SCO put in the original complaint:

82. Linux started as a hobby project of a 19-year old student. Linux has evolved through bits and pieces of various contributions by numerous software developers using single processor computers. Virtually none of these software developers and hobbyists had access to enterprise-scale equipment and testing facilities for Linux development.

Without access to such equipment, facilities, sophisticated methods, concepts and coordinated know-how, it would be difficult or impossible for the Linux development community to create a grade of Linux adequate for enterprise use.

83. As long as the Linux development process remained uncoordinated and random, it posed little or no threat to SCO, or to other UNIX vendors, for at least two major reasons: (a) Linux quality was inadequate since it was not developed and tested in coordination for enterprise use and (b) enterprise customer acceptance was non-existent because Linux was viewed by enterprise customers as a “fringe” software product.

84. Prior to IBM’s involvement, Linux was the software equivalent of a bicycle. UNIX was the software equivalent of a luxury car. To make Linux of necessary quality for use by enterprise customers, it must be re-designed so that Linux also becomes the software equivalent of a luxury car.

This re-design is not technologically feasible or even possible at the enterprise level without (1) a high degree of design coordination, (2) access to expensive and sophisticated design and testing equipment; (3) access to UNIX code, methods and concepts; (4) UNIX architectural experience; and (5) a very significant financial investment.

85. For example, Linux is currently capable of coordinating the simultaneous performance of 4 computer processors. UNIX, on the other hand, commonly links 16 processors and can successfully link up to 32 processors for simultaneous operation.

This difference in memory management performance is very significant to enterprise customers who need extremely high computing capabilities for complex tasks. The ability to accomplish this task successfully has taken AT&T, Novell and SCO at least 20 years, with access to expensive equipment for design and testing, well-trained UNIX engineers and a wealth of experience in UNIX methods and concepts.

86. It is not possible for Linux to rapidly reach UNIX performance standards for complete enterprise functionality without the misappropriation of UNIX code, methods or concepts to achieve such performance, and coordination by a larger developer, such as IBM.

"Linux was the software equivalent of a bicycle" - talk about poking someone in the eye with a sharp stick....

Just in case it had slipped your mind, the SCO case at the time was widely interpreted by the more paranoid (or maybe just the more malicious) as the end of Linux: irrespective of whether it contained any infringing code, the logic went, companies would be so frightened that they might be sued themselves that nobody would touch open source thereafter.

Well, it didn't quite work out like that. Claim after claim of SCO was annihilated in court; with every-increasing desperation, SCO came up with new claims, or modified claims, and these were gradually knocked down in turn. And yet, amazingly, the ludicrous game is still going on:

The SCO Group of Lindon has filed an appeal reasserting its ownership of the copyright of Unix computer operating system software, a move officers believe will get it back on track to pursue claims against IBM in a case that has riled the open source software community.

In a brief posted Friday by the 10th Circuit Court of Appeals, the software company seeks to overturn rulings by U.S. District Judge Dale Kimball in Utah.

Last year, Kimball held that Novell retained certain copyrights to the Unix system after it was sold in 1995 to a California company and that was subsequently purchased by The SCO Group. Left standing, that decision could prove fatal to SCO's claim against IBM over code in the popular Linux system.

SCO has been repeatedly vilified by advocates of software that is open for use and alteration by the public since it launched its legal attack on IBM six years ago this month. SCO claims IBM used Unix code owned by SCO as the basis for a feature in Linux that made it a commercially viable product.

Since then, SCO has seen its revenue fall, and blames the losses on competition from Linux. It sued Novell after Novell claimed it and SCO owned the Unix copyrights.

But in August of 2008, Kimball granted Novell's request for summary judgment. After a trial, he also awarded Novell about $2.5 million, plus interest in licensing revenue.

What's interesting is that unlike six years ago, nobody thinks that SCO stands a chance; even more tellingly, nobody is even *interested* any more. SCO is fighting a zombie case: it's dead but somehow still moving.

One service that SCO has done for the open source world is to demonstrate finally and irrevocably that there is no copyright infringement in Linux – because if there had been, SCO would certainly have found it by now.

It's utter inability to do so despite its desperate need for such “proof” is perhaps the strongest test we could have wished that the Linux code is clean from a copyright point of view.

However, as we have seen with the Microsoft case against TomTom, that still leaves the thorny area of software patents, at least in jurisdictions that accept their existence.

Allegations of copyright infringement against Linux or other free software are very unlikely to fly in the future for the simple reason that open source's code is out there, and has always been out there; there's no way that somebody who's been looking for it for years is suddenly going to discover an alleged infringement, at least not in old code (it's always theoretically possible in new contributions, but that's another matter.)

Allegations of patent infringement, by contrast, are all-too plausible, because the patent system itself is fundamental broken, handing out intellectual monopolies on things that are unoriginal or obvious, and which are incredibly broad in their application.

With copyright threats largely out of the way, the next step in protecting free software around the world is to redouble efforts to ensure that the patent systems everywhere are reformed – ideally to exclude software entirely.

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