Tangled Webs

    A Streetcar Named Caldera
Issue 8.2
Jun 6, 2003

The Scene is Set

Years ago The Santa Cruz Operation, now called SCO, was the belle of the ball. SCO was the owner of an enviable body of Unix know-how and was one of the few independent Unix companies left standing after the Microsoft juggernaut had finished. By the late 90s, SCO was no longer the player it once was, but was in business. It was winning customers, servicing accounts and making money.

Along came Linux, and suddenly Unix was cool again. People were using it. Business were using it. Buckets of investment money were being dumped on anything even tangentially related to it. Companies headed by twenty-something computer engineers were trying to bring Linux to the enterprise market, but didn't know where to start. The question on everyone's mind was how these new companies could demonstrate enough stability and know-how to crack the lucrative business market.

Many eyes fell on SCO with their decades of experience, impressive client list and the real-word ability to make money selling and servicing enterprise Unix. SCO suddenly became a beautiful debutante besieged with with suiters. Granted, she had not yet fully embraced Linux, but she was unquestionably a catch. Rumors flew regarding impending acquisitions by RedHat, IBM or other major Linux players.

But it didn't happen. Perhaps SCO valued herself too dearly, perhaps she simply waited too long, perhaps there were cultural issues that prevented these deals from going through. We'll never know exactly why, but SCO never found her perfect match, and in 2001 what was left of SCO's Unix operation was purchased by Caldera, a struggling second-tier Linux distributor who took SCO's name after the deal.

SCO's market share continued to slip, and in 2002 she teamed up with other Linux vendors to release a unified version of Linux. An announcement in March, however, confirmed that SCO had completed her descent into insanity.

I don't want realism.
I want magic!

SCO claimed that IBM had stolen key components of SCO's proprietary UNIX operating system and placed them into the Linux kernel, thus making them available to everyone for free. SCO claims that this has resulted in irreparable damages and is now suing IBM for over one billion dollars.

This is one of the largest and strangest intellectual property claims in history. IBM has been a long-time SCO customer, and such disputes are usually resolved through negotiations. SCO however, not only shows no interest in negotiating, but is refusing to tell IBM or anyone else exactly what code was allegedly misappropriated.

Chris Sontag, a SCO senior vice president has promised that in June they will show SCO-selected "independent experts, under a non-disclosure agreement, the evidence behind SCO's allegations," but the people who are supposedly responsible and the general public will be kept in the dark until the court hearings.

The biggest problem with SCO's claims, however, is that SCO themselves have already released the Linux kernel in question under the GPL license. According to SCO's court filing "Any software licensed under the GPL (including Linux) must, by its terms, not be held proprietary or confidential, and may not be claimed by any party as a trade secret or copyright property." Years ago when SCO published their own Linux distribution under the GPL, they formally renounced all claims to the intellectual property.

SCO recently announced that it will no longer be shipping Linux or participating further in Linux development, but the company cannot simply take back the intellectual property that it already released into the public domain.

The Kindness of Strangers

SCO's actions can most charitably be described as a desperate cry for help. SCO's days as force in the Linux market or a provider of integration services are numbered, and the entire industry knows it. The decision to focus on licensing their intellectual property is rational under such circumstances, but basing a business on extorting your clients is not. Ironically, the only reason SCO can sue IBM is that IBM was a SCO customer and thus had access to SCO code.

If this were a legitimate intellectual property dispute, IBM would crush SCO. IBM has been developing operating systems since the 50s, and they sit atop a mountain of patents. IBM's lawyers could undoubtedly find dozens of ways that SCO is infringing on IBM intellectual property. But of course, SCO probably won't be in business long enough to worry about

Up in Redmond, Bill Gates in dancing a jig over the fear and doubt these shenanigans are causing in the Linux market. Last month Microsoft announced that they had agreed to a licensing arrangement with SCO in order to "respect their intellectual property." Both the terms and the amount of the agreement are being kept secret. However, the agreement most certainly contains language to protect Microsoft from the kind of attack IBM is currently under, and considering the PR value of the arrangement, the license payments should probably be coming out of the marketing budget.

Having made so little headway, SCO recently escalated its attack. Last month, SCO sent letters to 1,500 corporations informing them they they might be in violation of the law if they are using Linux. But perhaps the biggest surprise in this legal posturing has been the viciousness with which SCO has turned on the Linux community. For example, SCO's website features horribly out-of-context quotes from leading open soruce proponents making it sound as though they advocate outright theft and disdain the whole concept of intellectual property.

Perhaps if SCO keeps causing more and more disruption and damage in the Linux market, someone will find it more cost effective to just acquire them; effectively paying them to go away. So far, this is not happening. Suing IBM was not enough. Threatening to sue companies using Linux was not enough. Disparaging the Linux development community of which they used to be a part was not enough. There are now rumors that SCO plans to sue other Linux distributors, but I doubt that will change the landscape much. The Linux market is now mustering forces against SCO. Injunctions are being filed and Novell now claims that it, not SCO, owns the copyrights in question.

Neither corporate Linux users nor the Linux industry seems to be taking SCO's legal threats seriously, and how can SCO expect them to? SCO formally placed its Linux-related intellectual property in the public domain when it released its own version of Linux under the GNU license years ago, and SCO continued to distribute Linux even after filing the lawsuit against IBM. No amount of legal posturing and fist-shaking belligerence will change that now.

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© Copyright 2003, Tim Romero, t3@t3.org
This article first appeared in the June 4, 2003 edition of The Japan Times.
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