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.