Rx for Linux: Part 2 - SCO, Patents, and Money

Rx for Linux: Part 2 - SCO, Patents, and Money

Summary: This is a fair trade: one that lets IBM retire honorably from the field without admittingfault, gets the lawyers out of the game, and lets SCO continue in business.

Right now a person with a bright new programming idea and a full time job that doesn't involve commercializing bright new programming ideas for the employer faces a tough problem.

How tough it is depends on where the person is, because licensing and patent issues will affect his choices quite differently in different parts of the world - everything from the finders-keepers attitude state officials enjoy in Communist China to cronyism and a resurgent class of above the law families in Europe and Canada.

In the United States, where most of the world's innovation takes place, the combination of patent law abuse and the transition from fairness based license interpretation to legal interpretation are creating enormous barriers to individual action -thus favoring the big commercial players in ways almost exactly opposite to what was intended when the patent office was first created.

Imagine, for example, that you are an American or European with a great programming idea. Now what? Sink a couple of hundred thousand bucks you don't have into a patent search and application that may not produce a definitive answer? Quit your day job to ahead and do the work in the hope that the people who later come out of the woodwork to sue you on patent infringement can be greenmailed into writing a check to you instead of their lawyers? Release some early diagrams and thinking as a journal article both to get some feedback and to establish a primacy claim?

Suppose you did develop a prototype that worked, would you then release it under GPL or a BSD license in hopes of getting some smarter people to write production quality code for you? If so, what's in it for them -or you- when a big player, like IBM or Microsoft, uses your code to build a better marketed competitor and tells you to go ahead and sue them?

With barriers like these, why even try? The bottom line is that the patent system, worldwide, now works against innovation by individuals or small organizations - in fact I suspect you're down to choices:


  1. if you are willing to trade off low cost against high risk and have the contacts to get past the automated defences, trying to sell your idea to a couple of the biggest players you think likely to attack you after it succeeds, creates legal barriers that could stop them dead in their tracks if you later develop and release something that works; or,


  2. if you prefer low risk with high costs you could go and get a (usually low paying) job at a University or other public institution with the right kind of research support commitment and try to shelter your idea under their legal and innovation support umbrella.

So how do we fix this mess to bring greater freedom, and the potential for greater rewards, to the Linux coding community?

The long term answer is legal reform on patents and software licensing. In the United States the software industry has basically missed the boat on piggybacking its concerns onto medical liability reform, but the process obviously doesn't end there and other reform opportunities will arise. Once reformers succeed in the U.S., change will percolate from there to the rest of the world, but we can expect this to take from years to decades.

In the medium term Sun's openSolaris community offers a useful workaround. Develop your hot new product within its patent umbrella and you get both partial protection and a ready market. Look closely at their community development license and what you see is a mutual non aggression pact among signatories combined with the best of the BSD approach and what's left of the GPL when you strip out the political and economic agenda.

That's great, but there's a downside for the Linux community in that Sun's CDDL motivates developers to leave Linux for Solaris.

The answer for Linux, of course, is to copy it - use the OSDL or any other group willing to volunteer to create a similar license and patent umbrella for Linux, and look forward to eventually merging with the OpenSolaris community to support some kind of patent reform legislation, first in the United States and then elsewhere.

I don't believe there is a short term answer - but there is a palliative step that could be taken to reduce the rate at which we're sliding into licensing and patent nihilism: reverse the impact of the SCO/IBM precedent.

The numbers involved in the SCO lawsuit are huge - and their effect on the legal community could be likened to that of blood in shark infested waters or red meat placed in front of starving wolves. Such a comparison might be exaggerated, of course, but anyone familiar with billing presures in law firms will probably agree that most of the industry now salivates at the thought of either defending or pressing a software centered lawsuit.

Although most of the community disagrees with me on this, I think the basic SCO claim is a no brainer: strip away the absurdities perpretrated by lawyers using their client's money (and corporate goodwill) to go after their billion dollar contingency, and the basic claim is just that some IBM people allowed some contractually protected Unix system code to leak into the Linux development tree. Well duh, the issue here isn't whether it happened, but why IBM's senior people opted to fight rather than settle before the matter got so far out of hand.

There's a simple fix - one that would go a long way to taking the oomph out of the growth of the American software litigation business: a no fault settlement in which IBM pays SCOsource to to work with it on open sourcing all contractually covered Unix code - for everybody, including patents and any copyrights either party, including proxies like Novel, owns.

This is a fair trade: one that lets IBM retire honorably from the field without admitting fault, gets the lawyers out of the game, and lets SCO continue in business. Most importantly, however, it would remove much of the basis for the consequent litigation now threatening the Linux community regardless of who wins or loses in court.

Tomorrow: part three - licensing.

Topic: Legal

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  • ...except that's not what happened.

    ".. the basic claim is just that some IBM people allowed some contractually protected Unix system code to leak into the Linux development tree. Well duh, the issue here isn't whether it happened ..."

    Well, DUH, that's exactly the issue. What you think is a "duh" ACTUALLY DIDN'T HAPPEN. That's why IBM hasn't opted to settle. It didn't happen, IBM knows it didn't happen, and they're going to prove it.
    • I have to agree...

      Why should IBM pay off a company looking for a huge sum of money, for something that did not happen?

      SCO saw IBM as the first step of many in suing everyone who uses Linux, thinking "we topple IBM and everyone else will fall in line with our blackmail."
      Except IBM saw what SCO was doing and decided to stop them in their tracks.

      More importantly SCO has yet, as far as I know, to show any code that was supposedly introduced into Linux by the programmers.
      SCO rolled the dice on a long shot, and it came up snake eyes.

      However, I must agree the the patent system is crushing the smaller innovators in this country.
      • IBM is on the right tack

        You don't negotiate with terrorists.
    • Quite right

      "the basic SCO claim is a no brainer"

      So far that's how it looks. That is, its a no brainer that there is no stolen code.

      If there is even any actual apparently copied code can SCO prove they didn't copy code from Linux into Unix?

      IBM are defending this for the same reason that many of us would like to defend when we're legally attacked by dishonest people - they firmly believe they are right and lucky for them they have the money to exercise their belief.

      So far the SCO case has been nothing more than a floudering company looking desperately for a way to enrich itself.
  • You had to spice it up...

    I think your comment regarding IBM programmers using patented, copy protected UNIX code in Linux is absurd. But you have a right to your opinion and the article was boring so you had to spice it up. Since you don't know all the facts of the case (no matter how closely you are following it). No one outside of IBM, SCO, their lawyers and the courts know for sure. However the judge who has seen and heard everything (pre and post discovery) was quite candid in his remarks that SCO lacked any real evidence. I'm confused why you feel otherwise. But this explains why IBM fights these acusations.

    Ask yourself this; if you knew you were innocent, would you support a blackmailer by paying them off? Not only would that be wrong on all kinds of levels. But it would have a negative impact to your reputation, your business and the Linux community as a whole. That's just not an option.

    All in all the article was correct regarding the patent system that's in place. It is just wrong that a "garage" programmer cannot make a living without paying huge fees for patent searches and such.
    Physco Dude
    • What's wrong with a Win-win situation

      You Linux guys, you're all about the "Evil Company of the Day." First Microsoft, now SCO, next who, Joe's Bargain Proprietary Software? Why not let IBM be the Good Guy (TM) and work with SCO to release all this "disputed" code? Keep SCO running, allow them to "reform" and themselves become a Good Guy, all the while IBM becomes the "White Knight" for Linux (not in the takeover sense, mind you). Good PR for IBM, good PR for SCO, good PR for Linux, since now there isn't any (or at least is much less) perceived risk in using the OS for a big company (i.e., one with enough cash to be sued). And while they're at it, why not start a concern which keeps track of open source/GPL/whatever licensed code and notes any open issues with particular packages, at least the big stuff, so little guys like me can know with authority what is covered by what and what isn't?

      Companies make these "no fault" settlements all the time, it seems they must budget for X dollars of legal time, then when the cash runs out, they pull out a ready "no fault" agreement to propose to the other party, the CEOs shake hands and release press statements that they are happy/overjoyed to go back to their business of making the world better, and everybody comes away with something (sometimes even the end user).

      Let it go, breathe in deeply, breathe out, forget all this "evil" stuff. It'll just push you to a heart attack.

      JMHO. YMMV.
      • Its Not A Win-Win Situation

        SCO didn't even go to the table and try to get settlements before suing. In the case of SCO v DC case they sent notice to an old address which was not valid for DC, as they had moved.

        Keep in mind also that SCO is not oldSCO the Unix Company (Which was bought by SUN) but rather a Linux company known as Caldera. Further they are suing their own customers. Furthermore SCO may not even own the copyrights to UNIX- Novel is arguing in court they don't. Not to mention that a lot of UNIX is public domain - see the BSDi case and settlement (Released through the Sunshine Acts). Finally take into account that SCO's theory is that anything that ever touched UNIX belongs to SCO, JFS for example, so IBM's work belongs to SCO. and that answers your question.

        If IBM would have settled it would have encouraged other companies to try the same thing in order to get bought out by IBM, IBM would have lost face with other Linux firms and the community, and not to mention IBM had already spent $1,000,000,000 pushing Linux.
      • Case brought with good cause?

        You usually settle when you think you might lose.

        If SCO has real evidence, not enough that they can definitively prove their claim, but enough that the case could go either way, then IBM might settle and SCO might agree.

        If SCO has the smoking gun they claim, then they would decline settlement because there is more money to be made by winning the case in court assuming they can afford to keep the case going.

        If SCO has no decent evidence then there is no reason to settle in their favour - in this case I'd have my lawyer offer them the option of conceding and paying my legal fees so far plus whatever compensation they owe me, allowing them to probably have some money over to avoid going out of business immediately; or they could fight and I'd gleefully bury them.

        If IBM were to concede the message would be clear regardless of whether they admit fault - "We stole SCO's code and used it in Linux". If they fight and win the message is that if you want to make a similar claim against Linux/IBM you had better have facts to back your claim and not be on a gold digging expedition.
      • SCO? good?

        it's well known that all SCO do is try and sue other companies for "patent infringement". these patents that SCO own are non-existant. firstly, novell sued SCO and established that they owned half the rights to UNIX. they are now suing for full control. SCO also leaked a memo that says they KNOW linux contains no copyrighted OR patented code. they are simply suing companies to scare them into huge cash settlements.
        Scott W
  • Continue your story.

    Let's say that your idea is so brilliant that no IP issues will arise.

    You get your software working well.

    And then... you start in the center of town, going door to door asking if anyone wants to buy it.

    Okay, you don't do that.
    You go from office to office trying to interest someone in marketing the product for you.

    But software distribution and marketing is a rare specialty, and you don't have the money to pay someone to do the work.

    So let's say you start your own business and build it up slowly. You'd like to be rich from your good idea.

    A large company sees your idea and knows it could sell. You license your patents to him for a huge fee, and do whatever interests you for the rest of your life.
    The company sells billions of copies of software with your ideas incorporated, and fortunes are made by shareholders and employees and (the largest flaw in the system) executives.

    This is a phase of the development of an industry, not (just) the evil schemes of large companies.
    Anton Philidor
    • not always

      in the current patent system in the US, the big companies have wide reaching patents with terms that are very confusing. add to that, they own thousands of patents. because of this it is hugely expensive to file patents, and there is a good chance your idea has already been patented. rather than licensing they will just threaten to take you to court. if you are treading on their patents you will be screwed. most small businesses don't have the money to take on the big boys, so if they come knocking you might as well give up on the off chance that they might just be right.
      scenario 2: you actually get the patent. there was a case of a man trying to license his idea to MS, but they refused. sometime later they included his idea in their software (excel i believe). he took them to court and won. he was given a few million in damages. however, MS still use this patent and have no reason to pay him another penny. MS could be reaping in billions from this idea and this man is missing out. how great is the patent system now?
      Scott W
  • The long and short, pick Solaris over Linux

    Forget IBM and SCO, the outcome won't really mean a thing to the average programmer. The fact remains that when the EFF hired professionals they found 280+ possible patent infringements in Linux. Bill Gates has said with no doubt Linux infringes upon some Microsoft patents. (Maybe, maybe not, but you and I don't have the resources to find out and challenge it in court.)

    Every *nix expert I know says Solaris is the BEST *nix on the planet and it's scalability beats Linux hands down, it's not even close. When Sun released (on going) Solaris as true open source (doesn't have the encumberance of Linux) they protected the developer by making certain there were no patent infringements and then promised to protect the developer if something came up in the future.

    When you add it all together Solaris is BETTER than Linux in functionality, developer protection, and removes the GPL encumberance. Simply put, it's all the things Linux hopes to be when it grows up...
    • It's free!

      Means that so long as you keep it off Sun hardware and don't pay for anything ancillary you don't have to give Sun anything for the best Unix going.

      But don't worry about it, they'll be fine.
      The worrisome part is that the people who believe that Sun's best course is to lay off everyone in R&D are getting more insistent as the stock continues to tank.

      But even if Sun fails to keep improving Solaris, people can get at the code, and they'll produce far better versions than anyone at Sun ever did.

      What does Sun know about Solaris that the person who runs your Linux server doesn't?
      And you give him a lot of spare time he could use to keep Solaris spiffed up in the years to come.
      Anton Philidor
      • See my post


        How Sun can turn it into a real positive.
        • Getting software used...

          ... is not the same as making a profit from it. If everyone used Solaris every day but did not pay Sun for any product, then the company would have to close down.

          If Solaris can be used without a Sun server or even with an inexpensive, low profit margin Sun server, then the company has made little on the sale.

          If Solaris is used with applications not sold by Sun on non-Sun hardware, then Solaris is still not making money.

          Solaris was a potential profit center. Making it open source significantly reduced the available profits from existing users on the software itself. Hard to think of a good reason to be sanguine about what happens next.
          Anton Philidor
          • Again, follow Apple's lead.

            Apple is switching over to x86 PCs, but they are being very smart in that there will be hardware locks in place to make certain it can run OS X. (Can't run it without the hardware.) I see no reason this could not be done with Solaris just as easily.

            Also keep in mind that while IBM offers Linux, they really see it as an entry level OS and do all they can to move the client "up" to AIX for which they do recieve a few bucks. <g>

            It also occures to me that Sun could charge for the "enhanced" version of Solaris (enhanced in that it looks and acts like OS X). Look how much Apple has been able to charge the faithful for each new version of OS X...
          • Now that's not bad.

            Sell a version of Solaris with more and better features. Good idea. Though you do realize that Mr. Schwartz announced his company's intent to make all, that's all Sun software free and open, right?!

            They have apparently foresworn at least some, maybe all software profits.

            Somebody should make a for-profit Unix that does what Windows does (for user and developer) better and cheaper. Solaris would be a good base for such a Unix.
            If Linux would only get out of the way, that might yet happen.
            Anton Philidor
          • support

            most companies make their money through support. they don't sell the software but they charge for training staff and supporting the software (tech support, maintennance etc).
            Scott W
          • This is about developers, not short term dollars

            If you look at the history of the Vax you can get an abject lesson in what opensolaris is about and why free makes sense.

            Dec sold the PDP and vax lines into the science applications market, mainly to academics and spin-off companies created by academics. Unix grew up on their gear and they offered big discounts to research oriented academic users -even giving away gear like 750s to people with interesting software proposals. Out of that they got a big lead on major applications which, in turn, gave them a lot of commercial sales three or four years later and made them, by about 1987/8, IBM's biggest competitor.

            Then they withdrew R&D support for Unix in academia.. three years later almost all worthwhile new apps ran on Sun, and DEC had to choose between reversing course on (Unix) developer support or trying to perpetuate VMS thorugh a deal with MS - they made the wrong choice (as HP did later) and now they're long gone.

            So that's what opensolaris is about: developer loyalty - and an applictaion lead over IBM/MS in 2008-10.
          • The big lead on "major applications"...

            ... wasn't obtained by Vax, and never concerned academic uses, in the sciences or otherwise.

            As discussed in connection with the network effect, a lead in applications became significant when Microsoft and cheaper hardware multiplied the number of users so substantially that fortunes could be made from huge numbers of sales.

            The developers of the applications were pleased to have one operating system to work with, and that operating system maintained by a company which was very responsive to them.

            The Microsoft model is mass market, with software doing everything. The Unix model is... different.

            In order to have the same effect, Solaris would have to be in wide distribution, and to be as dedicated to making life easier for developers as it is to reducing the skill level needed by those using the operating system.

            But this is a Unix we're talking about here.

            So the questions that come to mind promptly are, who are these developers to be attracted, and what software will they be providing to what eagerly waiting group of buyers?

            Oh yes, and what Sun products will these developers and their customers be buying?

            It's always about what products are being sold, to whom, and why these products have the advantage over the competition.
            Anton Philidor