Battle Over Linux: When a Win May Not be a Win

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 competition—victory 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.

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