LWN.net Weekly Edition for March 13, 2003

The first big Linux lawsuit

As most LWN readers have doubtless heard by now, SCO has filed a $1 billion lawsuit against IBM, claiming that IBM has misused SCO's proprietary Unix technology in Linux. LWN posted a look at SCO's complaint on the day it was released. Since then, more detailed analyses (and rebuttals) of SCO's claims have come out. See, for example, Karsten Self's commentary and the proposed response on the opensource.org site. Both are currently in draft form. Rather than try to add to those well-researched responses, we'll take this space to try to ponder some of the implications of this case.

But first, it's worth pointing out that there is some real amusement to be found in Eric Raymond's buyer's guide for Unix on PC hardware, dated 1993. He had a warning for SCO and other proprietary systems vendors:

The message clearly was not heard. But, thanks to the net, it still exists to show to anybody who believes that SCO's entitlement to the x86 Unix market was unchallenged until IBM came along.

It remains to be seen how this case will be resolved. What seems like an obvious answer to the technical community sometimes comes across a little differently to a court. Nonetheless, IBM is equipped with relatively fearsome weaponry for the intellectual property battlefield. SCO will not have an easy time of it.

In the mean time, what can we expect?

• SCO claims that this suit has nothing to do with the Linux community - it is simply a contract dispute. But that is clearly not true. By claiming that Linux could not have reached a useful state without an illegal stream of proprietary technology provided by IBM, SCO has insulted the Linux community. The alleged ineptitude of those who hack on Linux is at the core of SCO's case. Linux, they say, is a bicycle compared to a luxury car; it is only suitable for hobbyists and non-profit organizations. This display of contempt will not be quickly forgotten.

• SCO's Unix business is doomed - they say so themselves in their complaint: "Plaintiff stands at imminent risk of being deprived of its entire stream of all UNIX licensing revenue in the foreseeably near future." (Paragraph 119c). The company has slammed Linux - and its development community - to the point that it is hard to imagine how SCO will attempt to sell Linux-based products and services with a straight face. SCO, in other words, has just signalled its exit from the operating system business. SCOsource is evidently supposed to be the future of the company - if its management sees any future at all.

• It is hard to imagine the UnitedLinux consortium remaining intact under this sort of stress. Whether the other members find a way to ease SCO out, or whether the whole thing will simply fragment, remains to be seen.

• This case may well affect the Linux market in the near future. People choosing technologies for their businesses have a certain, rational aversion to lawsuits and disputed technology. How big the effect will be depends, certainly, on the perception of SCO's chances of success.

  So far, the general view seems to be that (to put it charitably), SCO has an uphill battle ahead of it. Investors have brought about a slight rise in SCO's stock price, but the market capitalization of the company remains under $30 million. That is not the capitalization of a company that has convinced investors it will be receiving a $1 billion judgement. If this perception does not change, the effect of this lawsuit could be relatively small.

• If the complaint is to be believed, SCO's biggest grievances have to do with the JFS filesystem and the Omniprint drivers. If Linux were to lose these technologies, it would be a poorer system. But, honestly, the lives of most Linux users would not be affected all that much.

• We have been reminded of the dangers of code contamination. Anybody who signs an agreement to view proprietary code, then goes on to work on free software, risks (being accused of) contaminating that software with proprietary technology. That risk exists whether the proprietary code is Windows, Solaris, or something belonging to SCO. Anybody who is contemplating such an agreement should think long and hard about the consequences.

This is the first of the big Linux intellectual property lawsuits; we should not expect it to be the last. Free software is too big a change, and it threatens too many interests, for things to go any other way. We are fortunate that the first attack was against a defendant with the resources and interest to defend itself - though the defendant could conceivably disagree. The burden of defending the next suit could well fall on somebody less able to shoulder it.

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Going for BALANCE

[This article was contributed by Joe 'Zonker' Brockmeier]

If at first you don't succeed... Rep. Zoe Lofgren (D-Calif.) reintroduced the awkwardly-named Benefit Authors without Limiting Advancement or Net Consumer Expectations (BALANCE) Act last Monday. The bill was shot down last year in committee. Rep. Rick Boucher (D-Va.) is co-sponsoring the bill. Boucher has been outspoken on the need for reform of the Digital Millennium Copyright Act in the past, though he seems to be taking a back seat on this one (perhaps because he has a DMCA reform bill of his own on the table).

The BALANCE Act does not do away with the DMCA, as many in the Linux community would like to see. Instead, it attempts to amend the DMCA to allow for the exercise of fair use. The act notes that the DMCA "failed to give consumers the technical means to make fair uses of encrypted copyright works."

Not surprisingly, the Business Software Alliance (BSA) and the Motion Picture Association of America are against the BALANCE Act. Jack Valenti is quoted in the Mercury News as saying that the legislation "puts a dagger in the heart of the Digital Millennium Copyright Act," which is pretty much what everyone outside the entertainment and proprietary software industries would like to do.

The BSA's press release says that Lofgren's proposed exceptions go too far:

Interestingly, while the BSA comes out against the BALANCE Act, some of its member companies (i.e. Intel and HP) have been quick to endorse it and other bills like it that seek to undo some of the damage of the DMCA and the entertainment industry's relentless attempts to disallow fair use.

A reading of the bill shows that the BSA's position is a stretch, at best. The bill would ensure rights to "reproduce, store, adapt or access the digital work" for archival purposes or to "perform or display the work, or an adaptation of the work, on a digital media device, if the work is not so performed or displayed publically."

Circumvention of copyright protection would be allowed only if "such an act is necessary to make a noninfringing use of the work" and if "the copyright owner fails to make publically available the necessary means to make such noninfringing use without additional cost or burden to such person." In short, the bill seems to say that somebody could legally use or create something like DeCSS only if the movie studios do not provide, free of charge, a way for them to play DVDs on their devices.

The BSA is right about one thing: the BALANCE Act may very well hinder shrinkwrap licensing, which the software industry loves so much. The act would not allow enforcment of "nonnegotiable license terms...to the extent that they restrict or limit any of the limitations or exclusive rights" under the act. In other words, movies studios and software companies could not apply shrinkwrap licenses that disallow backup copies or circumvention that allows fair use. It's hard to see how that would "stifle industry growth and limit consumer choices."

So far, however, the DMCA hasn't been used to "promote continued innovation." It's been used to stifle competition and prevent fair use. Right now, the bill is in committee. The odds of passing the bill are a long shot, but one can always hope that this bill, or one very much like it, will make its way through Congress soon.

Comments (2 posted)