The SCO Lawsuit: More Conspiracy Theories Than The JFK Assassination

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 proven.

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 vendor.

- 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.

- This week, Eric Raymond, the Al Sharpton of the open source community, released a memo that he claimed showed that Microsoft had arranged for $82 million -- or more -- in funding to go to SCO, including a $50 million investment from BayStar Capital.

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 rumors alive.

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 headline, "SCO 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 business.

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 speculation.

P.S. My colleague, InformationWeek editor-in-chief Bob Evans, has a different perspective. Read his editorial, in which the word "kerfuffle" is used.

(This piece appeared in the Linux Pipeline Newsletter for Tuesday, March 9, 2004. It has been edited for the web.)

Added 3/10/2004: Well, well, well, how's this for irony? Yesterday, I published an editorial scolding Linux users for jumping to conclusions about the SCO lawsuit. I said, "It ain't the things you don't know that hurt you, it's the things you know that ain't so." I attributed that expression to being: "one of those things you imagine being said by cornpone-drinkin' wise old coots sitting by the woodstove in the general store." I said this because I know that cornpone is another word for illegal, homemade whiskey made from corn, a/k/a corn-likker or moonshine. The centerpiece of numerous Snuffy Smith comics where Snuffy uses his shootin arn to protect his still from low-down revenoors. Several readers wrote in to correct me: Carolyn Meinel: "I'll bet I'm the only one to write to you about this. You can't drink cornpone. It's fried corn meal mush." Rob Edwards: "Cornpone is a food, not a drink - if you're going to crack on the rural south, please at least be accurate." The moral of this story is: it ain't the things you don't know that hurt you, it's the things you know that ain't so.