In the case of SCO and Linux, the issue of Intellectual Property becomes so much more clouded and SCO is walking on a much thinner line than Microsoft . First, SCO has inherited a big problem. AT&T as well as Novell have written so many books and manuals about the methods of UNIX engineering for so many years that trade secrecy is shot. During my research I have yet to find a manual or book on UNIX that contains anything that says that a developer cannot use these methods or that the reader has to protect the integrity of UNIX source code. But if you find a book on Linux, all of them contain the GPL and expressly state the terms of the GPL. Also, you run into a situation like mine. I was shown the UNIX source code years ago and was not required to agree to any licensing terms, sign an NDA or anything of the such and the code was shown to my class by a USL engineer. Also, Ransom Love, the old CEO of Caldera, stated many times that he wanted to include UNIX code into Linux and many of their engineers were allowed to work on UNIX and Linux at the same time. No one that I have met yet can share with me the degree that these engineers and even Ransom himself submitted code to the Linux kernel and how much UNIX code was given to the Linux community by SCO.
IMPLIED AND EXPRESS PERMISSION
One of the smartest things I have heard from SCO came from Blake Stowell. He is absolutely right on one thing. Just because SCO ships UNIX code with Linux does not mean they have given permission for others to ship it or to use it as well. But in my opinion and the opinion of my legal counsel, SCO, while it hasn't given express permission to do so has given implied permission to do so. Express permission is when a company or individual says, " Yes, you can use my code " either publicly, like Microsoft did with Intervideo in reference to allowing Intervideo to port the Windows Media codec to Linux, or by including the necessary license whether that license is the GPL or BSD. Implied permission is when you are given the code, you use it and basically you aren't hit with a cease and desist order. SCO knew that its alleged code was being used. They did a complete audit of the Linux source code, even after they found the code they continued to ship it and allowed others to ship it for an entire 2 years. This constitutes Implied permission, they knew that the code was being used yet they ignored it and decided to try to enforce the copyright after they were in severe financial distress, well by this time it is too late. Implied Permission is just as good in a court of law as express permission. They have two options in this case. They can either reiterate that the code is not to be included or used, or they can issue a Cease and Desist and by this time its to late. What I see happening is that SCO will reiterate that their code is not to be used and they will be required to leave its alleged code as is, but they will not be required to offer any enhancements or warranty of any kind for the code.
CONCLUSION
As you can see, Intellectual Property comes in many shapes and forms and it is not just software code as some suggest. No, I do not see an IP suit from Microsoft, but just because a company does not sue does not mean an infraction has not occurred. As for SCO's Linux license here are my thoughts on that. Anyone considering paying SCO for a UnixWare license should wait before they do anything. Two points here are A) SCO does not own Linux and cannot license anything that they do not own. They have to be able to prove beyond a shadow of a doubt that the alleged code is theirs. B) Under the law SCO has to issue a cease and desist order and allow at least 30 days for people to comply. Because they have not done so yet shows me that SCO does not have as strong a case as they suggest in the media. Also what happens if SCO was to lose, would they offer a refund? I called SCO and asked that same question and no one would answer that question. What I think will happen in the case of litigation failure is that anybody that buys the license will get a free copy of UnixWare 7.1.3. This case does get more interesting by the day. What doesnt kill you makes you stronger and at the end of this whole ordeal, the GPL will survive the test of fire and will be proven to be a valid and enforceable software license. Much to the dismay of Mr. Gates and Mr. Ballmer.
About the Author:
Roberto J. Dohnert is a Unix/Linux Consultant and software developer. His first introduction to UNIX based systems dates back to NEXTSTEP. He is a member of the GNU Darwin Distribution and has made several contributions to that and other projects. His personal webpage is here.
- "Linux and IP, Page 1"
- "Linux and IP, Page 2"
