The SCO Lawsuit: More Conspiracy Theories Than The JFK Assassination
There's an adage, one of those things you imagine being said by corn-likker-drinkin' wise old coots sitting by the woodstove in the general store: It ain't what you don't know that hurts you, it's what you know that ain't so.
We're now seeing that adage acted out in the Linux community, where many people are certain they know two things that just ain't so.
There's an adage, one of those things you imagine being said by
cornpone corn-likker-drinkin' wise old coots sitting by the woodstove in the general store (see correction):
It ain't what you don't know that hurts you, it's what you know that ain't so.
We're now seeing that adage acted out in the Linux community, where many people
are certain they know two things that just ain't so. The more serious
misconception, which I'll deal with momentarily, is that the Linux community is
certain to win the legal attacks brought against it by SCO.
The Linux community is as sure of victory in the SCO lawsuits as Howard Dean
supporters were in their efforts.
Another misconception is that we know for sure that Microsoft is backing SCO.
I'll deal with it first because it's more timely.
SCO: Microsoft's Sock Puppet
Almost from the very beginning of the lawsuit, a year ago, some members of the
Linux community have been convinced that the lawsuit is being funded by
Microsoft -- that SCO is, as a matter of fact, a mere sock puppet with a hand
attached to an arm attached to a shoulder in Redmond, Wash.
A rational person puts this theory in the category of: intriguing, but not
Certainly, Microsoft isn't above doing this kind of thing. Certainly, they have
the motivation, and the money, and the sneakiness. Microsoft likes sneaky.
But where's the proof?
This is what we know:
- Microsoft used to be a major investor in SCO. But that was a long time ago --
and, as a matter of fact, SCO was a different company entirely then. The old
company sold its name and intellectual property to the current SCO; the company
now known as SCO was then called Caldera; it was (ironically enough) a Linux
- Microsoft hates Linux. Bill Gates gets up in the morning and, before he even
brushes his teeth, he blows his nose into a photo of Linus Torvalds.
- Now here's the really interesting part: Microsoft did, in fact, license SCO
technology last year, the deal was valued at $16.6 million, 21 percent of SCO's
total revenue in fiscal 2003. But note that Microsoft signed the first part of
the deal in May, two months after the initial lawsuit against IBM was filed.
We know that Raymond is a leader of the open source community because he
frequently tells us so. He wrote a book called "The Cathedral and the Bazaar"
which is much-loved by the kind of teen-aged computer enthusiasts who write
letters to editors criticizing the editors for using the word "hackers" to
describe computer criminals.
The SCO e-mail came from a financial consultant who worked for SCO; SCO and
Microsoft both issued statements saying the e-mail was authentic -- meaning the
guy actually did work for SCO, and did send the e-mail -- but wrong. Or,
kind of wrong: the statements about the accuracy of the information in
the memo are the kind of carefully-worded corporate-speak that leave careful
readers scratching their heads.
Microsoft, meanwhile, is keeping
the rumors alive by failing to specify just how it plans to use the
technology it's licensing from SCO.
So what's up here? We don't know. It's clear that a win by SCO can only be good
for Microsoft, but that doesn't necessarily mean that Microsoft is funding or
directing the suit. And just because the two companies haven't denied their
cooperation in terms as vehement as we would like, doesn't mean that they are,
in fact, cooperating. Maybe the companies simply see an advantage in keeping the
SCO: Born To Lose
A more serious misconception by the Linux community is the sure knowledge that
SCO can't win.
We in the Linux community have been treating the problem of the SCO lawsuit as
we would treat any other problem: the community rallies around, members organize
themselves into groups and ad hoc committees to solve the problem, and then set
out to fix it. If this was a software problem, we'd be writing code and
documentation, but since the problem is legal, we're instead gathering evidence
and doing legal research.
And the effort has had significant rewards: the community has gathered a lot of
evidence which should undercut some of SCO's major claims that significant
elements of Linux came from SCO-owned Unix. The Linux community has apparently
been able to demonstrate that the relevant code in both Unix and Linux came from
other sources, and are perfectly legitimate to be used in open source software.
That's a major victory for the Linux community - if the community can get the
relevant judges to agree. And that's a big "if."
But the copyrights of individual elements of the code are not all that SCO's
case is resting on. As intellectual property attorney Mark Radcliffe notes, SCO
can also win on issues of patent, contract law, and possible copyrights
pertaining to the overall structure and organization of Unix. SCO can also win
by successfully challenging the legitimacy of the General Public License
underlying Linux. Is the GPL legal? We don't really know. Thanks to SCO, we're
going to find out.
SCO could win this one. Don't be sure they can't.
That's not what I thought last week, when I wrote an editorial with the
Jumps The Shark." But I've been doing some interviews with Radcliffe and
other industry experts over the past week, and I've had my mind changed on the
subject. We'll be writing an article based on those interviews over the next
few days. If I were a betting man, I'd put the odds on the outcome of the
lawsuit at 50-50. The Linux community does have a strong case, but so does SCO.
So what should you do? Boy, I wish I could give you some good advice. I wish I
could even give you interesting advice. But my advice is the same
boring caution that I've been giving all along: talk to your lawyer. And make
sure your lawyer is familiar with intellectual property issues; most likely,
your regular corporate counsel isn't, unless you're already in the software
After receiving legal advice, decide what you think the likelihood is that your
company could be damaged by an SCO victory, and then act accordingly. Linux is
still cheap, reliable and versatile -- in many cases, you'll find it's worth the
risk to deploy Linux despite the legal uncertainty surrounding it.
But make sure your decision is an informed one. Don't rely on rumors and
P.S. My colleague, InformationWeek editor-in-chief Bob Evans, has a
different perspective. Read his editorial, in which the word "kerfuffle" is
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