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By Steven J. Vaughan-Nichols
Contributing Writer

It's no longer just about IBM. SCO has now officially declared war on all business Linux users.

SCO announced today that all commercial Linux 2.4 and higher users must buy a UnixWare 7.1.3 license tailored to support run-time, binary use of Linux for all business uses or face the possibility of a law suit. In a company agrees to buy this license, SCO will allow them to continue to use Linux in a run-only, binary format and will not seek damages from the Linux customers against their past copyright violations for their use of Linux.

Specifically, Darl McBride, SCO's president and CEO, says that, "For several months, SCO has focused primarily on IBM's alleged Unix contract violations and misappropriation of Unix source code," but starting "Today, we're stating that the alleged actions of IBM and others have caused customers to use a tainted product at SCO's expense. With more than 2.4 million Linux servers running our software, and thousands more running Linux every day, we expect SCO to be compensated for the benefits realized by tens of thousands of customers."

The copyright claim is an important one. As has been expected, since it became clear that while SCO had obtained Unix's intellectual property (IP) rights from Novell it had never registered the Unix copyrights, SCO finally officially registered their US copyright to its Unix System V source code to further its Unix intellectual property claims. With this move, David Boies, SCO's lead attorney, says, SCO can now sue companies that use Linux, which refuse SCO's offer.

As he explained during the press conference, this means that if you use any Linux based on a 2.4 or higher kernel-SuSE, Red Hat, Mandrake or whatever-in a business, you are violating SCO's copyright rights and you, as an end-user are liable for damages.

SCO isn't blaming Linus Torvalds for this situation. But, McBride said, "We aren't saying he created the problem, but now he's inherited it." Thus, seemingly opening the door a little wider for the possibility of legal action against Torvalds.

Specifically, McBride claimed hundreds of files had been stolen from Unix and placed in Linux to give version 2.4 and above its advanced enterprise level capabilities such as Symmetric Multi-Processing (SMP) and Non-Uniform Memory Access (NUMA).

Indeed, McBride claims that "If all the copied code was removed, Linux would have little multiprocessing capability and no enterprise capability." He went on to say that there had been literal copying of SCO's code, literal copying of SCO Unix derived code, and nominal copying of code that had been clearly derived from SCO's copyrighted Unix.

Of course, SCO has not proved yet in any court of law that there has been in fact any copying or copyright violation in Linux. As Trink Guarino, Director of IBM Media Relations, says, "IBM is not aware of any Unix System V Code in Linux. SCO needs to openly show this code before anyone can assess their claim. SCO seems to be asking customers to pay for a license based on allegations, not facts."

Joseph Eckert, SuSE's VP of Corporate Communications, couldn't agree more. "SCO still needs to prove the copyright infringements at least once--don't they?"

Leigh Day, Red Hat spokesperson, says that, "SCO still hasn't contacted us and while we've asked them to show us the offending source code, they haven't shown us any source code. So, Red Hat continues to maintain that we are not in violation of any IP rights. Red Hat Linux falls completely under the GPL and SCO's license is simply not necessary for our customers."

SCO's CEO, Darl McBride, response to such arguments is that those who have seen the code samples provided by SCO in their Linden, Utah offices, under a strict non-disclosure agreement (NDA) which prevents the viewers from describing exactly what they've seen, believe that there are intellectual property problems with Linux and are seeking a way to continue to use Linux while honoring SCO's IP rights. McBride did not, however, cite any companies which agreed with this claim.

SCO's answer to these hypothetical corporate customers is to offer them the right to use Linux, as a binary, with the purchase of a UnixWare license. A UnixWare Business Edition license currently runs $1,399, while the UnixWare Enterprise Edition, which includes 4-way SMP support, costs $4,999.

SCO is not ready to announce pricing for the Linux version, but McBride did say that SCO would be trying to make up for revenues lost by UnixWare to Linux and that pricing would be based both on volume purchases and upon the number of Linux servers a company is currently using.

Legally Speaking

Eben Moglen, professor of law at Columbia University and general counsel to the Free Software Foundation (FSF), though says there is absolutely no reason for anyone to buy SCO's license. "Users don't need a license to use copyrighted programs anymore than they need to pay a copyright fee before reading Gone with the Wind. If you copy, distribute, or modify copyrighted material, then you can be in copyright violation."

But, he adds, if a distributor, such as Debian, were to agree to SCO's license, they would then be in violation of section 7 of the Gnu General Public License (GPL). This section specifies that if legal "conditions are imposed... that contradict the conditions of this License" you cannot distribute GPL protected free software.

Boies claims, however, that the proposed SCO license refers only to Linux binaries and not the source code, which is protected by the GPL. Moglen, while respecting Boies' ability as a lawyer, finds it hard to see how this could be the case and that, in any case, he doesn't see why any corporate customer should pay SCO for a UnixWare license to continue to use Linux.

"Even if SCO IP is in the Linux kernel, which has not been proved, an end-user could still not be held responsible for the copyright violation," Moglen argued.

McBride insists though that IBM, in particular, has made the end-users vulnerable to legal actions based on copyright. Neither he, nor Boies, explained though exactly how this worked.

Curiously, though, SCO is not, at this time, going after Linux distributors--nor did they suggest that they would be adding copyright infringement to their IBM lawsuit. Moglen thinks that "SCO is simply trying to scare people about using free software by making irresponsible comments." He notes that, until recently, SCO itself was distributing the code they now claim violated their own copyrights.

One reason why SCO may be hesitating about going after the Linux distributors, even though they would be the natural target for copyright violations since they've actively engaged in copying and distributing Linux source code may be because, SCO is still in the Linux distribution business.

As Paula Hunter, general manager of UnitedLinux, notes, "UnitedLinux LLC is a private company equally owned by the four partners. These are Conectiva, the SCO Group, SuSE Linux and Turbolinux. And, "SCO is still a member of UnitedLinux."

Still, Moglen believes that, "If SCO really wishes to enforce these claimed copyright rights. I would suggest that they sue a Linux distributor. If the FSF distributed Linux, I would welcome such a lawsuit." And, speaking for himself and not the FSF, "I have renewed my offer to assist free software developers who may feel the need for legal assistance" because of SCO's recent actions.

As for the FSF itself, it will continue to support the cause of free software and the legal rights of developers to create free software.

And as for SCO, McBride says that while the bulk of SCO workers are still in software development, SCO's revenues will rise with their IP claims and that the company will be announcing revised financial forecasts next month.

Regardless of how the current court case against IBM turn out, or any future copyright based cases, SCO's IP claims are helping its bottom line and its stock price jumped over 10% to a 52-week high of $13.32 on the news of SCO's copyright claims and proposed remedy for Linux customers who may, or may not, be violating them.

Related Stories:
internetnews.com: SCO Escalates Linux Battle(Jul 21, 2003)
InfoWorld: SCO Readies New Linux Licensing Program(Jul 21, 2003)
Raleigh News & Observer: Lawsuit Casts Cloud Over Red Hat(Jul 16, 2003)
CNET News: Sun Expands Unix Deal with SCO(Jul 11, 2003)

Index Mode   |   Flat Mode   |   Thread Mode   |   Thread Flat     Talkback(s) Name  and Date   My Opinion    Nicholas Holowaty Jul 22, 2003, 13:54:26     Target: Debian    g@ Jul 22, 2003, 14:19:06     Pay Attention to Me! .... Not!    Nicholas Donovan Jul 22, 2003, 14:22:01     I sense a large foot......    Nicholas Donovan Jul 22, 2003, 14:26:40     Need court injunction.    g Jul 22, 2003, 14:38:35     A new law principle?    Torsten Zirzlaff Jul 22, 2003, 14:42:04     Transaction Tax    csbruce Jul 22, 2003, 14:50:22     investing blindly    Wendell Cochran Jul 22, 2003, 14:52:54     Consider IBM / AIX    Brent Jul 22, 2003, 15:12:44     Why they are not going after vendors    chemicalscum Jul 22, 2003, 15:18:36     Re: I sense a large foot......    DrStupid Jul 22, 2003, 15:24:59     SCO usurps rights of contributors    W in B-More Town Jul 22, 2003, 15:28:23     Pust the market the other way    DaveT Jul 22, 2003, 15:33:08     Definition of RICO    superdude Jul 22, 2003, 15:41:18     Re: Target: Debian    I R A Darth Aggie Jul 22, 2003, 15:44:56     Re: Transaction Tax    Daniel Jul 22, 2003, 15:53:43     I don't understand Moglen's logic    joe blow Jul 22, 2003, 16:06:34     Re: Re: Transaction Tax    shorty Jul 22, 2003, 16:10:41     Section 12 GPL    Fred Jul 22, 2003, 16:14:02     Long term capital gains    Alan Krause Jul 22, 2003, 16:24:33     Flaming garbage    Eric Laffoon Jul 22, 2003, 16:27:19     SCO Suit    Le Taggs Jul 22, 2003, 16:27:25     Re: I don't understand Moglen's logic    Sam Jul 22, 2003, 16:31:54     Re: investing blindly    Rufus Polson Jul 22, 2003, 16:36:35     Re: Why they are not going after vendors    Rafael J. Jul 22, 2003, 16:40:13     Re: I don't understand Moglen's logic    Colin Jul 22, 2003, 16:49:42     Who has the most to loose    Mark Chastain Jul 22, 2003, 16:50:16     Re: I don't understand Moglen's logic    Rufus Polson Jul 22, 2003, 16:51:56     This is why open source has to prevail    Eric Brown Jul 22, 2003, 16:56:59     take note    codez Jul 22, 2003, 16:57:21     Re: A new law principle?    voiceofreason Jul 22, 2003, 17:18:27     Re: Target: Debian    vic Jul 22, 2003, 17:20:32     What makes it really silly    Rufus Polson Jul 22, 2003, 17:23:05     Class action agains SCO    George Jul 22, 2003, 17:27:28     It isn't that complicated after all    loki Jul 22, 2003, 17:39:43     Bre-X    Tony Lai Jul 22, 2003, 17:42:51     What Kind of Logic Is This?    C. Whitman Jul 22, 2003, 17:43:19     Re: Target: Debian    Jeff Jul 22, 2003, 17:45:11     Re: Target: Debian    Mark C Jul 22, 2003, 17:49:12     Boies    Barney Jul 22, 2003, 17:51:45     Re: Flaming garbage    Anil Wang Jul 22, 2003, 17:54:24     What about home users of Linux?    john Jul 22, 2003, 17:57:54     Re: investing blindly    Carlos Cesar Jul 22, 2003, 18:10:17     Re: Consider IBM/AIX    Stephen J Jul 22, 2003, 18:49:40     why not just sue sco?    scomustpay Jul 22, 2003, 19:03:57     Hedging Bets    Dan Cieslak Jul 22, 2003, 19:13:59     sue 'em back    nobody Jul 22, 2003, 19:26:43     Stock price spike is the purpose?    m Jul 22, 2003, 19:45:28     Re: I don't understand Moglen's logic    Steven J. Vaughan-Nichols Jul 22, 2003, 19:54:15     M$ Business Model?    Gary Virene Jul 22, 2003, 20:09:38     Re: why not just sue sco?    Daniel Jul 22, 2003, 20:12:51     FYI: SCO still distributes linux source    Bastiaan Jul 22, 2003, 20:21:11     Next move    codeboy Jul 22, 2003, 20:21:43     There is one true realization out of this    Jamie Conlon Jul 22, 2003, 20:33:18     Re: What about home users of Linux?    codez Jul 22, 2003, 20:53:12     Re: investing blindly    flacco Jul 22, 2003, 21:06:43     Re: There is one true realization out of this    Cassandra Jul 22, 2003, 21:49:07     Call for class action suit!    dc Jul 22, 2003, 21:50:02     SCO v GPL    gumout Jul 22, 2003, 21:59:09     Target Google???    Sjaak Zomer Jul 22, 2003, 22:14:16     Unixware License    jeffrey l koehn Jul 22, 2003, 22:25:53     To: Torsten Zirzlaff    Chii-Shen Yang Jul 22, 2003, 22:37:47     SCO in denial, Linux users in clear, me just havin    Bojan Smojver Jul 22, 2003, 23:26:17     Re: Boies    Cassandra Jul 23, 2003, 00:18:05     Re: Pay Attention to Me! .... Not!    J. Krough Jul 23, 2003, 02:50:00     Re: SCO in denial, Linux users in clear, me just h    Bojan Smojver Jul 23, 2003, 05:00:18     Re: Unixware License    Rainer Weikusat Jul 23, 2003, 06:01:10     Don't forget    Guy Jul 23, 2003, 08:55:21     Is there Microsoft Behind SCO???    Giobbe Jul 23, 2003, 09:29:33     M$ First    Jaagut Jul 23, 2003, 10:38:07     Governments and the Military use Linux and AIX    Mad Nad Jul 23, 2003, 14:34:29     Re: What about home users of Linux?    Steven J. Vaughan-Nichols Jul 23, 2003, 17:05:01     All Governments should bar SCO to do business at t    Benedict Low Jul 24, 2003, 00:11:46     Re: Is there Microsoft Behind SCO???    neo Jul 24, 2003, 08:01:15     Legalise    Steve Wheeler Jul 25, 2003, 00:45:57     Increased Profits    Gerald Jul 26, 2003, 20:42:34     SCO Unixware GPL violations    Norman M Aug 3, 2003, 23:53:35     Home | Search Talkbacks | Customize View    Top of Page   Enter your comments below: * Your Name: * Your Email Address: * Subject: CC: [will also send this talkback to an E-Mail address] * Comments: Tags allowed:<I>,<B> and <U>. See our talkback-policy for more about talkback content. Fields marked with * are required!