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
and the proposed response
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:
A complete, working UNIX plus GNU tools plus X is now available for
around $60 --- *with sources*. Your prices have to drop by an
order of magnitude, or your service has to get a whole hell of a
lot better, if you're going to try and compete with that. Adapt or
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
- 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
- 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
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.
Comments (7 posted)
[This article was contributed by Joe 'Zonker' Brockmeier]
If at first you don't succeed... Rep. Zoe Lofgren
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
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:
The broad exemptions to the DMCA proposed by Representative Lofgren
would undermine the core purpose of the Act and violate the protections
that serve as the foundation of innovation and discovery for legitimate
copyright owners. In the digital age, broadly accepted technological
measures must be available and adhered to by consumers and enterprises
to curb piracy and its economic consequences...
Of particular concern, provisions of this legislation allowing the
disablement of technological protection measures on copyrighted
materials would provide safe harbor for pirates who could easily claim
that the 'intent' of their actions were legal even if it resulted in
knowingly unlawful infringement and economic loss to copyright owners.
Interestingly, while the BSA comes out against the BALANCE Act, some of its
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
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)
Page editor: Jonathan Corbet
Inside this week's LWN.net Weekly Edition
- Security: Red Sheriff; Bind 9.2.2; new vulnerabilities in ethereal, qpopper, ...
- Kernel: Improving interactivity; 32-bit dev_t; edge-triggered interfaces; BK-CVS gateway; driver porting
- Distributions: News from Debian, Red Hat, Slackware and SuSE plus new distributions Orange Linux and rpm-livelinuxcd
- Development: Choosing a Python ternary operator,
ALSA 0.9.1, JACK 0.61.0, SAP DB 7.4.03.14, GSview 4.32 beta,
MidCOM 1.0, Mojolin released, RTMix 0.7, Galeon 1.3.3,
Workrave 1.2.0, GNOME System Tools 0.24.0,
Apocalypse 6, Squeek 3.4.
- Press: SCO sues IBM, Unity for the Linux desktop, Red Hat plans,
Asian Linux surge, Testing SMP Kernel Modules with UML.
- Announcements: IBM Web Services Kit, MySQL certification, digital piracy myth,
ifrOSS License Center, CeBIT 2003,
GCC Developer's Summit, php|architect Grants.
- Letters: SCO; defending RPM