The Linux community must get ready for a significant increase in legal challenges on intellectual property grounds, experts have warned.
The warning comes amid fears that operating systems supplier SCO is planning litigation after appointing an attorney to protect its Unix intellectual property from possible violations by Linux suppliers.
"This is just the beginning - there's going to be a lot more of this," said Eric Raymond, president of the Open Source Initiative, a non-profit corporation that promotes the concept of open-source software, such as Linux.
Open-source software is, in general terms, that for which source code is available to users. By contrast, most commercial software suppliers, such as Microsoft, rarely, if ever, disclose the source code of their programs, and normally forbid users from freely modifying, copying or distributing them.
Some call this a "proprietary" approach to software licensing, to distinguish it from the approach of the open source and free software movements which, while disagreeing on some things, concur that software ought to be free for users to copy, share, modify and redistribute. Neither the open-source movement nor the free software movement demands that software be free of charge.
"What surprises me is that I thought the first assault would come from Microsoft. I didn't expect it would be some of our guys who would go over to the dark side," Raymond said, referring to the fact that SCO also sells Linux software.
The legal challenges could affect how Linux is developed, marketed, licensed, sold and used, implications of concern to Linux users, developers and suppliers.
So why do some predict Tux, the official Linux penguin mascot, is headingfor court? Some point to Linux's rising popularity, which could draw elements wanting to profit from its success by claiming intellectual property misuse.
"As anything becomes more popular in an industry, it's going to open itself up to and become more of a potential target to holders of intellectual property," said Brian Ferguson, partner at law firm McDermott, Will & Emery. "The Linux situation is a prime example of that."
But SCO and others point back at the Linux community, saying it suffers from a largely ignored, yet significant problem of intellectual property violations which, they say, hurts Linux's development.
"If the Linux community is really going to continue to grow, we can't keep ignoring this problem of intellectual property violations. We need to address it head on," said Chris Sontag, senior vice-president of SCO's operating systems division.
In its statement two weeks ago, SCO billed itself as "the majority owner of Unix intellectual property" and chief executive Officer Darl McBride said sternly SCO "has full rights to license this technology and enforce the associated patents and copyrights".
To that end, SCO hired Boies and created SCOware, an intellectual property division. It's telling that the first, and so far only, SCOware licensing program addresses Linux.
Called SCO System V for Linux, the program will allow clients to license SCO's Unix System Shared Libraries to allow Unix applications to run on Linux. Previously, SCO had not made these shared libraries available outside of its operating systems, and it had come across cases of clients and developers using these libraries without permission, Sontag said.
Sontag admitted SCO, as a Linux supplier, was in a conundrum. "We want to see Linux succeed and grow," he said. "But we also have a significant amount of intellectual property in Unix and, in a number of cases we've seen so far, there's been some inappropriate use of our Unix technology."
All agree SCO has the right to protect its proprietary commercial products. However, they say that if SCO gets litigious with the Linux community, which now includes big guns such as IBM, it stands to lose much more than it will gain, by way of animosity, bad blood and lengthy, costly court fights.
For starters, SCO will get hit with a mighty legal counteroffensive, courtesy of some of Linux's newer friends, which have deep pockets and many lawyers.
"You can be certain that IBM and some of the larger companies will fight tooth and nail if they are approached on this, and they certainly have the legal army to do that. A company the size of IBM will come out with all cannons blazing," said Ray Lupo, partner at McDermott, Will & Emery.
The Open Source Initiative’s Raymond put it more bluntly.
"There's a lot of big money and big guns who are going to find it in their selfish corporate interest to line up with the open-source hackers," he said.
"I predict that if SCO attempts to levy patents or seek restraining orders against any of the Linux distributions, there will be a mob with pitchforks and torches at its door."
This was first published in February 2003