How SCO's Claims On Linux Might Affect Users - InformationWeek

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How SCO's Claims On Linux Might Affect Users

For companies nervous over SCO Group's challenge of the general public license, the legal foundation for Linux, the general advice by experts is don't panic.

The Lindon, Utah, software vendor rocked the high-tech world last month by launching a direct legal challenge of the GPL, saying the open source software license "violates the U.S. Constitution, together with copyright, antitrust and export control laws."

The attack came in court papers filed in SCO's $3 billion lawsuit that claims IBM violated its contract with SCO by moving Unix technology to Linux, and thus making the copyrighted code available to anyone for free. SCO holds the copyright patent to the Unix operating system, and, along with its suit against Big Blue, has demanded royalties from 1,500 enterprises using Linux.

The GPL was created by the Free Software Foundation, a leader within the open source movement. The GPL stipulates that using software covered by the contract means the code, if redistributed, must be free, including any modifications.

Legal experts agree that portions of the GPL are vague, particularly when it involves mixing open source code with proprietary software.

"There are provisions that are ambiguous and subject to interpretation," David Byer, intellectual-property attorney and partner at the law firm Testa Hurwitz & Thibeault LLP in Boston. "The provisions about modifying the program and including it in your own program are certainly not perfectly transparent. There's a lot of debate about what some of those provisions mean."

So what should enterprises do while SCO's suit winds its way through the courts, a process that, including appeals, could take several years? George Weiss, analyst for high-tech researcher Gartner, advises companies using, or deploying Linux, to keep a low profile and avoid publicizing their use of open source software.

While advising companies not to approach SCO for licensing Linux, Gartner also sees no reason for a company to get in SCO's sights.

"I would expect them to continue ratcheting up the pressure to get (Linux) users to pay license fees," Weiss said. "If you want to be in the crosshairs and you don't mind threatening letters, then you can be more public about your use of Linux."

Attorney Byer, of course, advises companies to talk to a lawyer. Any legal advice would depend on a variety of factors, including where the code the company was using came from and whether the organization was compliant with the terms of the GPL.

"At the same time, it's worth it for everybody to acknowledge that there's this storm that's going on outside the window and it makes sense to discuss any code that might be implicated by the SCO lawsuits," Byer said. "It's part of the typical risk analysis that you would perform for any client in these circumstances."

Many experts agree that whether SCO or IBM wins, the GPL will never be the same. "I would guess that the creaky, old original GPL will be changed after this suit in response to the result," Gary Glisson, intellectual property attorney for Portland, Ore., firm Stoel Rives LLP, said in an email response to questions. "Those changes themselves are likely to be a point of great dispute and discussion, but they will happen."

While it's impossible to predict the new GPL, Glisson said, "My guess is that whatever the change, it will be written in clearer terms that the present GPL language."

Glisson's firm represents IBM in other legal matters, and has represented SCO in other cases.

Gartner expects the suit to have little affect on the adoption of Linux worldwide. "Linux is expected to be the predominant, or near predominant, operating system in the Unix space, and one of the major operating systems in most enterprises by 2006," Weiss said.

As to SCO's challenge, experts have been left scratching their heads over what the company means in claiming the GPL violates the U.S. Constitution.

"(SCO) has mystified a lot of people in how they've characterized their defenses, for example, the unconstitutionality of (the GPL)," Byer said. "It's not clear what that means and I know there's a lot of folks in the industry who are curious as to what SCO means by that."

FSF attorney and Columbia Law School professor Eben Moglen, however, said the claim had no legal standing.

"There is nothing that I have ever run into in my life that gives the slightest color or substance to a claim that this particular form of copyright permission some how comes into conflict with the Constitution of the United States," Moglen said. "It's not even a claim that can be met with a straight face."

SCO officials declined comment, saying only that they would present more detailed arguments in court. IBM also would not discuss the case, but said it "looks forward to trying its case in the court of law."

The FSF, however, believes SCO is trying to have the GPL ruled invalid to eliminate an obstacle in its attempt to extract licensing fees from Linux corporate users. After all, there can't be two licenses for Linux.

In addition, SCO's threats to Linux users have helped boost its stock value, because investors see SCO as benefiting financially if it wins in court.

"GPL undermines SCO's threat against users of free software," Moglen said. "If it weren't for the threat against users of free software, SCO would be a tiny little company suing IBM on contract claims, and the market would look at that and think, 'You're a tiny, little company suing IBM on contract claims, so you're not worth much.'"

While the suit may have significant impact on IBM and SCO, it is not expected to end the free software movement represented by the open-source community, which is comprised of thousands of grass roots programmers, public and private companies and people in academia.

"What does not kill the open-source community will make it stronger," Glisson said. "Regardless of the outcome of this specific case, I think the open-source community will survive and continue to proliferate."

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