In my very first column for CIO Insight ("The Last Refuge," January 2005), I described the efforts of software maker SCO Group to win through litigation what it failed to win through competitionvictory over Linux, the popular open source operating system. SCO claims to be the rightful owner of the competing Unix operating system, and argues that large chunks of Unix source code have been illegally incorporated into Linux.
The Byzantine litigation took an interesting turn last month when U.S. District Court Judge Dale Kimball ruled that Novell and not SCO owns the Unix source code. SCO says Novell sold it the copyrights, but Kimball disagreed. If this ruling stands, SCO's infringement claims against Linux developers and users will disappear and a significant legal cloud over Linux's pedigree will lift, making it more attractive to corporate users as an alternative to Unix and Windows.
The technology press and hundreds of bloggers were quick to seize Kimball's 102- page opinion as a resolution of the four-yearold conflict. "The ruling," The Wall Street Journal proclaimed, "is a boon to the 'open source' software movement and to Linux."
Hardly. First of all, it's not a win. Interim rulings by district courts are almost never the last word in lawsuits, especially complex, well-funded intellectual property disputes. Aspects of the case will have to be resolved by trial. Then there will be at least one if not two levels of appeals, which may lead to remands or outright reversal of some or all Kimball's rulings.
In most cases, the parties reach a settlement before the litigation process ends. While a favorable ruling from the trial judge certainly weighs in the negotiations, it is no more definitive than the first estimate you might get for a car repair or a kitchen remodel.
More to the point: Even if Novell's ownership of Unix is ultimately affirmed, potential Linux users still have cause for concern. Novell supports Linux these days, but strategies change, companies merge and assets can be sold. If Linux really does include large chunks of Unix or other proprietary source code, copyright infringement claims might reappear some day, rising like the Phoenix. The real problem, of which the SCO litigation is only a symptom, is the absurd level of protection copyright law affords source code.
It may surprise you to learn that until 1976, there was no copyright at all for software. But in an ill-advised shift, Congress that year extended to programmers the same rights previously given only to authors of books, music and artwork. Among other protections, programmers have the exclusive right to reproduce their code during their lifetime plus another 70 years.
The commercial value of any code written thus far in software's short history will end long before their copyrights expire, but as we move increasingly to computing architectures that encourage reusability, portability and compartmentalization—prominent features of Web services, for example—a program's potential to live longer than a few years increases.
Congress' mistake will have the unintended consequence of ensuring that many more SCOlike moles pop up out of the dirt.
SCO may have been whacked this time but the game is just starting, and at least so far, there have been few calls to change the rules.