SCO loses again

It has been just over seven years since the "SCOSource" initiative showed its true colors and filed suit against IBM asking for $1 billion in damages. Much has happened in that time; the nature of the charges has evolved considerably, the price tag has increased, other companies have been pulled in, and SCO has gone into bankruptcy. In the process, SCO attack has, like a vaccination, served to strengthen the community's legal defenses considerably. It has been a wild show to watch.

One of the most surprising developments came when Novell abruptly announced that, in fact, it (and not SCO) was the owner of the Unix copyrights upon which much of the litigation was based. SCO responded with a "slander of title" lawsuit which has been a convoluted multi-year affair in its own right. But, on March 30, a jury in US District Court ruled that, in fact, no copyrights had been transferred to SCO and that Novell remained the owner of Unix.

This outcome was far from guaranteed. SCO's claims against IBM and the Linux community have been repeatedly shown to be without merit, but the Novell litigation was different. That was all based on a vague "asset purchase agreement," twice amended, which was seemingly written by lawyers who were not doing their job. What SCO purchased was truly unclear, and there was no telling what a jury might decide. Now, perhaps, we have some clarity.

It is tempting to see this ruling as the end of the story; rightfully it should be. But anybody who has watched this case for any period of time knows better. The SCO affair is kind of like a bad zombie movie; the plot is implausible, the acting is horrible (ask any of us who sat though all those "Chris and Darl show" conference calls back at the beginning), and, even though you know the good guys must win in the end, that obnoxious zombie just keeps coming back and ruining the party. SCO, which has just obtained a $2 million loan from Ralph Yarro (one of the original architects of this whole mess), may well appeal. Or perhaps it will find a willing buyer for the lawsuit out there. It does not seem like SCO to slip quietly into Chapter 7 bankruptcy at this point.

One should also remember that the Novell case was a sideshow; IBM is the main event. Losing the ownership of the copyrights clearly cannot help SCO's case, but it has long since been shown that there's nothing covered by those copyrights in Linux anyway. Much of the dispute was over code clearly owned by IBM, but which SCO claimed could only be distributed under the proprietary Unix terms. SCO might just choose to pursue its breach of contract (and related) claims. The fact that Novell claims the right to issue "get out of jail free" cards with regard to Unix licensing will complicate matters, and could prove fodder for extensive legal maneuvering in its own right.

Meanwhile, as long as some shred of SCO remains, one can only imagine that IBM will not be in a mood to forgive, forget, or drop its counterclaims. IBM has clearly put many millions of dollars into this fight; its chances of getting any of that back would appear to be approximately zero, but IBM is unlikely to want to leave SCO in a position to plan another attack.

SCO has long since ceased to be a threat to Linux, of course; at this point, most of us can afford to sit back and watch the remainder of the show. But we should not forget that SCO set out to kill our community. The attack was baseless and clownish, but it still created considerable uncertainty and expense. The sad fact of the matter is that, when companies lose in the market, they try to win in the courtroom, especially in the US. There will be other attackers, and at least some of those attackers will not make so many silly mistakes.

In the past, LWN has asked Novell to clarify what it intends to do with the Unix copyrights that, once again, it seems to clearly own. Those copyrights cannot have much - if any - commercial value at this point. It would make great sense for Novell to release all of that code as free software, optimally under a permissive license. Until that happens, those copyrights will be a temptation to those who think they can somehow use them in litigation. That zombie, at least, can be definitively killed.

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