Not just IBM's problem [LWN.net]

The Ottawa Kernel Summit managed to get through its agenda with almost no discussion of SCO, despite the fact that SCO had just told those developers that they need to purchase a binary licence in order to be able to run their own code. The IBM employees present were, without exception, entirely quiet on the whole situation - but they also radiated a sort of calm confidence that was impossible to miss. In general, at both the Summit and OLS, it was difficult to find anybody who was genuinely worried about SCO and its actions.

There are exceptions, of course, but it appears that much of the Linux community has come to the conclusion that IBM's lawyers will make the whole SCO problem go away. There are certainly reasons to feel that way. IBM's legal team inspires fear in many, especially when intellectual property issues are at stake. And IBM's interests align reasonably well with the wider community's interests in this case. IBM wants a commodity operating system platform which is free of external proprietary interests; with such a platform, IBM is well positioned to sell its hardware, services, and proprietary add-ons. So it would suit IBM to see SCO defeated in a manner that would strongly discourage any other enterprising bandits from attempting the same sort of heist.

Still, IBM is not the Linux community, and its interests are not exactly the same. It is conceivable (though unlikely) that IBM could eventually reach a settlement with SCO that ends the case, but leaves a number of users and developers in an uncertain legal position. And IBM has no particular incentive to defend Linux users against any future copyrights suits filed by SCO - especially if the victims are not IBM customers.

We all have high hopes for IBM's defense in this case. But the Linux community has a problem with SCO that is different from IBM's problem, and expecting IBM to fix it for us could prove to be a big mistake. We need to find ways of ending SCO's constant attacks on Linux developers and users. SCO's attempt to hijack and put a tax on Linux cannot be allowed to succeed.

The challenges which have quieted SCO in Germany (and, with luck, will have the same effect in Australia) show one way forward. SCO's attacks on Linux are slanderous, and its attacks on Linux developers head toward libel. The company needs to be made to put up its evidence or back down from its claims. This especially needs to happen in the U.S.

SCO also continues to distribute the 2.4 kernel - get your copy here. LWN downloaded a copy of this kernel on July 30, 2003; the date on SCO's server is May 9. This kernel lacks some of the disputed developments (e.g. RCU), but SCO has made it clear that it objects to code in all of the 2.4 kernels. So what we have here is SCO distributing code over which it claims proprietary rights as a derived product containing a great deal of uncontested, GPL-licensed code. That is, of course, a clear violation of the GPL. One can only hope that SCO's attitude toward copyright and licensing will come up at the IBM trial. But the situation would certainly be helped if one or more developers with copyrighted code in the kernel would bring an infringement case against SCO. That would be a counteroffensive which would attract some attention.

SCO is not just IBM's problem; the company has made it clear that it plans to cast its legal net far more widely than that. So it is important that IBM not be SCO's only problem. If we sit back and wait for IBM to clean up this mess, we may not get the thorough and complete job that we truly need.

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Not just IBM's problem

Posted Jul 31, 2003 10:01 UTC (Thu) by jdthood (guest, #4157) [Link]

> But the situation would certainly be helped if one or more
> developers with copyrighted code in the kernel would bring
> an infringement case against SCO.

The problem is that there is no proof that SCO _is_ distributing
the code under a non-GPL license. Imagine a developer bringing
suit against SCO for GPL violation. Some months later, IBM and
SCO settle. Then SCO simply says that it was always distributing
Linux under the GPL, and if some people misinterpreted certain
remarks -- well that's too bad for them. IANAL but I suspect that
SCO would have to make claims with very clear implications for the
license under which it distributes Linux, and make them in court
(or perhaps even win a case on the basis of such claims -- I don't
know), before SCO could be nailed for GPL infringement.

Not just IBM's problem

Posted Jul 31, 2003 13:37 UTC (Thu) by DaveK (subscriber, #2531) [Link]

But has this not already happened in the instance of them demanding a license fee, or 'protection money' as some would allege, to run a binary copy of the Linux Kernel?
Whatever they claim that license to be, it IS contrary to the GPL unless they identify exactly which part(s) they are licensing (which they refuse to do, (hence the actions in Germany and Oz), and that said component(s) must become a separate add-on module, and fall under the category of 'mere aggregation' as I believe the GPL calls it.

This is my interpretation, but IANAL.

Not just IBM's problem

Posted Aug 1, 2003 3:31 UTC (Fri) by giraffedata (subscriber, #1954) [Link]

Did SCO demand license fees from people who got Linux via SCO's distribution of Linux? If not, then there is no GPL violation. SCO can distribute Linux under GPL, including SCO-copyright code, while also demanding license fees for the same SCO-copyright code that a user got another way.

In case this isn't clear, here's a simpler example: If I download a Linux kernel from kernel.org and place my own scheduler in it, I can then distribute the modified kernel to Joe under GPL, giving Joe the right to redistribute without owing me anything. And I can simultaneously sell Mary a copy of just my scheduler code with no right to redistribute it to anyone. If Pedro copies and uses Mary's copy, he owes me royalties too. But if Pedro copies my scheduler code from Joe, Pedro owes me nothing.

Create Open Source Law Suite fund

Posted Jul 31, 2003 16:29 UTC (Thu) by umesh (guest, #3692) [Link]

There have been several attacks on Open Source community in past and this just happened to be the next. Although this is the biggest so far. It will impossible for developers to defend themseleves (e.g. in case of Linux DVD playes). Although, it is wasteful of resoures if we have to fight this battle with one Linux enterprise at a time. Everyone knows that IBM has resources to defend itself on its own but that can hardly be said about smaller enterprises with Linux interest.

I think we need a Open Source community fund, funded by organizations with Linux interest (Redhat, IBM, Mandrake, Oracle, Ximian,....) to defend Linux community against such attacks. The fund and its management can take up issue case based on common interest involved and can also be used for forcing different Open Source Licenses.

Create Open Source Law Suite fund

Posted Aug 2, 2003 20:29 UTC (Sat) by cross (subscriber, #13601) [Link]

> we need a Open Source community fund ... to defend [the] Linux community
> against such attacks

Sounds like a job for Linux International.
From their website: "Linux International is a non-profit association of groups, corporations and others that work towards the promotion of growth of the Linux operating system and the Linux community."
Surely removing obstacles to growth comes under the remit of promoting growth?

Regards,
Chris R.

Not just IBM's problem

Posted Jul 31, 2003 20:25 UTC (Thu) by dwalters (subscriber, #4207) [Link]

I would urge every kernel developer who holds copyrights to Linux code, register those copyrights without delay. All it will cost you is $30, and you'll at least be in a better position to take legal action under U.S. copyright law if you later choose to do so. Under U.S. law, if some person or company is misappropriating your copyright work (e.g violating the terms which you dictated for them to distribute your work), having the copyright registered will make enforcement in court easier.