Saturday, August 09, 2003

Linux's lucky lawsuit

by Wynn Quon

Alarm bells are ringing throughout the open-source software world. SCO Group has filed suit against IBM, accusing it of illegally incorporating SCO's Unix code into the Linux operating system. Some analysts are predicting an onslaught of legal attacks that will kill Linux.

The alarm is overdone. While no one relishes the prospect of going to court, this lawsuit is actually a good thing for Linux in the long run.

The story behind the lawsuit goes like this: In 1995, SCO Group purchased the code for the Unix System V operating system from Novell. IBM has a contract with SCO to use this code as part of its own operating system, known as AIX. (An outside observer would be forgiven if he thought this lawsuit is all about a bunch of acronyms suing each other). SCO charges that IBM violated the contract and stole SCO's trade secrets by incorporating SCO software into the hugely popular Linux operating system. SCO claims a whopping US$3-billion in damages. Linux defenders accuse SCO of being a gold-digger, a two-bit player trying to exploit Linux's success for money.

At the centre of the lawsuit, Linux has its own interesting tale. Linux doesn't belong to any one company. Instead it was created through a fascinating process known as open-source development. A team of talented volunteer programmers led by Linus Torvalds collaborated over the Internet and built a stable, spiffy and very cheap operating system. In less than a decade it has become Microsoft's most dangerous rival. The operating system is now deployed on 14% of servers and its market share is growing at a torrid pace of 60% a year.

Four years ago, IBM recognized Linux's strength. It put 250 of its own engineers to work on it and integrated Linux into its products. The bet has paid off handsomely: In the fourth quarter alone, IBM shipped US$160-million worth of Linux servers.

And there lies the rub. Linux is now big business. It powers products for Dell and HP. It is finding its way (albeit at a slower pace) on to desktops and consumer electronics gear. Linux was born out of a warm and fuzzy let's-work-together idealism that is typical of all open-source projects. Today it finds itself front and centre in a world where market share projections and $800-an-hour litigation lawyers count for as much as spiffy code.

Software analysts worry that SCO's lawsuit will put the big chill on Linux development. This would be a bad thing, not least because it would leave Microsoft in a stronger position than ever. But there's another, more stout-hearted way of looking at it: SCO's legal action is the first harbinger of the corporate makeover of Linux. Open-source advocates are outraged at the audacity of the lawsuit. They should instead be thankful. Linux must inoculate itself against the nasty legal toxins that are endemic in the corporate environment. And if we were to perversely pick a poison, the SCO suit has a lot going for it. SCO is strong enough to provoke a strengthening of Linux's defences but not so strong that it poses any real danger.

What makes the SCO action the ideal first-time lawsuit for Linux is this: First, it is directed at IBM rather than directly at Linux customers. This means there is no immediate threat against the deployment and continuing use of Linux.

Second, the substance of SCO's claims appears weak. Eric Raymond, who heads the Open Source Initiative (OSI) advocacy group, has been a vocal debunker of SCO's charges. According to Raymond, it is unlikely there were trade secret transfers from SCO code to Linux. The codebase owned by SCO is an old and creaky one, a jalopy compared to the Formula One technology found in Linux. Furthermore, SCO itself had made its codebase freely available for public downloading, making its trade secret claim somewhat dubious.

Thirdly and perhaps most significantly, IBM is no pushover. It is no stranger to the court system, having successfully fought a decade-long antitrust suit with the government as well as countless intellectual property suits. It has a massive portfolio of patents for countersueing SCO. SCO on the other hand has had little support aside from a limp handshake from Microsoft in the form of a purchase agreement for a Unix licence. In the meantime, it hobbles along on a mere US$70-million in annual sales and has now earned the enmity of a large part of the software community. In the upcoming court battle, SCO is a toad facing a steamroller. IBM has already launched its counterattack, charging in a suit on Thursday that SCO is in violation of four IBM patents.

Despite SCO's dim prospects, there is no room for apathy. After filing suit against IBM, SCO went one step further. It sent letters to 1,500 large commercial users of Linux, warning them they could be liable for intellectual property violations. SCO claims code fragments in Linux are directly copied from the Unix codebase. Although no litigation is planned against Linux users, it raises the spectre of licensing fees.

Will it be able to enforce such demands? SCO's position is wobbly. For one thing, SCO was once itself a Linux developer. As such, the Linux licensing agreement that explicitly disallows such fees binds it. On top of that, the suspected code fragments have so far been trivial. Removing them would be easy for Linux programmers.

But wobbly or not, SCO is doing the Linux community a favour. The most valuable gift the SCO attack gives to the Linux community is time. While the legal battle plays out in the courts, the Linux community has a chance to gird itself for future conflict.

For a start, the Linux community should move quickly on the following issues:

- Anyone who packages Linux in their products should indemnify their customers from any intellectual property issues. This would remove a significant part of the FUD (fear, uncertainty and doubt) factor that arises whenever lawsuits are launched. System suppliers would be leaving themselves open to legal attacks but the alternative, exposing the end user to such attacks, is the greater evil.

- Tighter copyright control is needed on Linux software. One of the great strengths of open-source programming is the reliance on reuse of software. Unfortunately, if the reused software is proprietary, this creates a grave problem. Linux designers should formally declare that any code they submit into the Linux code base is original work. Other copyright issues need examination as well. The copyright to Linux code is widely distributed among the programmers who have written the code. This raises interesting succession questions. If a Linux contributor were hit by a bus tomorrow, his or her copyright would be part of their estate and could potentially be inherited by antagonistic outsiders more interested in the fast buck than in community-based software. Similar succession issues surround Torvalds' ownership of the Linux trademark.

- Perhaps the most dangerous intellectual property issue is patents. While copyright violations can be swiftly remedied by rewriting the affected pieces of software, patent violations are a different matter. Patents cover algorithms, capabilities and features. If Linux were found to be in violation of a patent, it would either have to remove that particular feature (thus weakening the software) or agree to whatever licensing the patent owner requests. So far the Linux community has taken a passive stance toward patent rights. It is relying on the legal firepower of its corporate friends to shield it from attack. The more expensive alternative is to set up a stand-alone body that actively pursues patent protection for Linux. This has the advantage of helping Linux maintain a certain independence.

Running a gauntlet of lawsuits is often the price of success in the corporate world. But with its powerful allies and with proper stewardship of its intellectual property issues, the future of Linux remains outstandingly bright. SCO may be the first in what could be a long line of legal assaults. But Linux will most assuredly get stronger with each attack, and that is hardly a cause for alarm.

Wynn Quon is chief technology analyst at Legado Associates. (