Thought for the day: Keep your cash stashed

Do offer to pay SCO, but don't part with a single penny until you're offered a money-back guarantee, Gary Barnett advises.

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Do offer to pay SCO, but don't part with a single penny until you're offered a money-back guarantee, Gary Barnett advises.

To some commentators, it is a protection racket - to SCO it's a business model. The company wants you to pay it money to protect yourself from prosecution in the event that it proves its case against IBM.

Some industry watchers have bought into the fear, uncertainty and doubt that SCO is putting about. They suggest that you rush across town and speak to your lawyer about it.

I think that the notion of talking to your lawyer today about the threat that SCO poses is nonsense. The only notion that is more ridiculous is that your organisation pays SCO for something that it may, or may not own, before that ownership is proven in court.

If you are genuinely concerned, my advice is to offer to pay SCO; but do not pay them a dime unless the company offers a money-back guarantee in the event that its case fails, or is settled in some other way. Given SCO's future prospects as a business if the case does fail I would also insist that your money be held in a trust until the case is decided.

Speaking to a lawyer about the SCO case will be a complete waste of time for a couple of reasons. To begin with, your standard corporate lawyer is not going to be able to advise you on the intricacies of intellectual property law. You will have to find an expert.

This expert is not going to come cheap: you will pay as much as $600 (£370) an hour in order to have a very, very long hypothetical conversation about a hypothetical lawsuit and the hundreds of hypothetical outcomes that might transpire at some unknown time in the distant future.

Now let's imagine that SCO does hit the jackpot and manages to prove that IBM stole its intellectual property and put it into Linux. For me that requires quite a deep suspension of belief but let's assume that this scenario does come to pass.

How does it then become your fault? Did you conspire with IBM to steal SCO's intellectual property when you rolled out your Linux server? Or did you install Linux in good faith, believing it to be composed of genuine code? Who would be to blame for SCO's loss: you for installing Linux or IBM for putting SCO's code into it?

Taking this unlikely scenario further, just imagine a few of the millions of potential remedies that a court could order which would result in SCO's complaint being addressed without you incurring any liability for innocently installing Linux.

A judge might order that the offending code be removed from Linux within a certain time. He might order that IBM pays compensation to SCO for its misdeeds. The judge might even find that SCO was so negligent in distributing its own intellectual property each time it allowed people to download Linux from its own servers that no remedy is justified.

There are literally thousands of possible remedies and millions of combinations and the majority of them do not give SCO the right to sue you for compensation. The company is trying to scare you into paying it money on the basis of threats.

The likelihood is that those threats are empty, so instead of losing sleep or paying lawyers for their time, spend the money on something else. A lottery ticket perhaps?

What do you think?

Are you worried by SCO's demands?  Tell us in an e-mail >> reserves the right to edit and publish answers on the website. Please state if your answer is not for publication.

Gary Barnett is IT research director at analyst firm Ovum

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