Monthly Archives: March 2005

We could thank SCO for highlighting the unclear legal status of software, both in terms of the copyright of source code or in terms of the abuse of patents. Alternatively we could curse them for “darkening the sky with lawyers”. Take your pick.

SCO could be dubbed the “Santa Claus Operation” because its business model is akin to writing letters to some legal Santa Claus in the hope of getting a stocking full of legal awards for Christmas. What will Santa bring?

There were three legal points at issue in SCO v IBM.

The first had to do with violation of copyright – the claim that IBM had generously thrown heaps of Unix code owned by SCO into the Linux source pool. SCO seems to have dropped this one. It ought to be easy enough to prove. After all, SCO does have the source code that it claims to own and Linux is, after all, Open Source. You need but a simple comparison program and a copy of both sources to divine whether this happened or not. My guess is “not”.

The second legal point has to do with contractual obligations. SCO has a contract with IBM over the use of Unix and the ownership of “derivative works”. SCO claims that IBM breached this. Last Friday, IBM filed a motion in the U.S. District Court in Salt Lake City seeking a dismissal of SCO’s contract claims. In legal terms the motion is for “summary judgment. IBM is claiming that SCO’s claims directly contradict the language of IBM’s original Unix contract with AT&T (the originator and original owner of Unix) and also the understanding of the parties involved in drafting it.

To be specific, the motion states; “The individuals who executed the licenses and were involved in their negotiation, on behalf of both AT&T and IBM, have offered unequivocal testimony that the agreements were not intended and should not be understood to preclude IBM’s use and disclosure of homegrown code, and contemporaneous documents reflect this interpretation of the licenses.”

The motion refers to some analysis carried out by an MIT computer scientist, Randall Davis, who analyzed Linux code that SCO claims is infringing its Unix rights. Davis concluded that “such code does not contain any portion of source code from Unix System V and is not substantially similar to any source code in Unix System V.” If this is so, then SCO’s second request to Santa Claus is unlikely to be granted.

The third legal point has to do with patents and here we have an issue that the Open Source community is going to have to take seriously.

In spirit, the law that relates to patents is a little muddy when it comes to software. One thing is clear, which is that you cannot patent a mathematical algorithm. Mathematics is deemed to be part of the “Open Source” heritage of mankind and let no man dare to try to change that. However you can patent the specific commercial use of an algorithm to fulfill a business purpose. This is where the water gets muddy.

Let’s say that I find a good solution that addresses a problem in clustering servers together. I cannot patent the mathematics of it, but I can pattern its use in clustering servers. So the question is “does Linux infringe any such patents?” and the answer is “yes”. Actually Linux has been examined in a study commissioned by Open Source Risk Management (OSRM), and the conclusion is that the Linux OS probably infringing 283 patents, including 27 that are held by Microsoft.

How bad is that?

Well, before Linux fans get panicky about this, it is worth noting that probably every OS and indeed many other software products probably violate a big bundle of patents. The only difference with Open Source is that such violations are on display for anyone that wants to search for violations, because the source is open.

It would, in my view, be unreasonable to penalize Open Source for its inherent honesty, but the fact is that you can go looking for patent violations in Open Source. If you own a patent, you will probably not get away with asking any suspected violators to send you a copy of their source as they will claim, quite reasonably, that their code contains intellectual property that they need to protect. Nevertheless, you can walk right in to Open Source without a warrant, in search of “a smoking gun”.

As regards those 283 “Linux” patents; they may have been issued, but none of them has yet been validated by court judgment. Patents are only really good commercial weapons once the courts have had their say. IBM has the largest number – it holds 60 of them. But IBM is, of course, unlikely ever to take action against Linux. Neither are Red Hat, Cisco Systems, Hewlett-Packard, Intel, Novell, Oracle and Sony, all of whom own patents and are declared friends of Linux.

However, Microsoft may get legal on this, as Linux is doing serious damage to Microsoft’s de facto monopoly. Sadly, something actually has to be done, because someone somewhere is going to bring a legal case sometime anyway. And if such a case is successful them we can look forward to an avalanche of such cases. In fact if you hold patents the whole of the IT sector could turn into a kind of “legal soccer league” where everyone sues everyone else, both at home and away. I don’t think this would be good for IT, but the law needs to be clarified.

In the meantime, OSRM is selling insurance against having to fight patent suits in court. It may turn into a good business and I believe that maybe OSRM should get together with the Open Source community and establish an interim fund for fighting all such disputes. Fighting patent disputes is expensive and as far as I can tell, the Open Source community is not ready to meet this challenge.

As for SCO, sadly Linux doesn’t seem to infringe any SCO patents. So this third legal possibility for SCO seems doomed. Indeed it looks to me as though SCO is not going to have much of a Christmas. Perhaps Santa Claus has decided that SCO CEO, Darl McBride, simply has not been a good enough child this year.

Radioactive SCO?

Incidentally, SCO is a known acronym in the nuclear industry for something that is radioactive. It stands for Surface Contaminated Object.