Standing on shaky foundations

SCO's arguments risk being exposed as wishful thinking

SCO suddenly isn't faring so well in its lawsuit against IBM.

The company recently dropped claims that Big Blue had misappropriated its trade-secrets by placing them in Linux. This leaves the SCO argument resting upon two copyright infringement claims.

When IBM began building the AIX Unix system, it purchased a licence from A&T, the company that created Unix. A&T's Unix business was later sold to Novell, which subsequently sold part of that business to SCO.

SCO subsequently contended that under the terms of the Unix licence, any software written by IBM and then added to AIX would automatically become SCO's property. In other words, it could not legally be added to Linux.

It is not a new argument.

In 1985, concerned Unix customers asked A&T to clarify that particular term of the licence. A&T agreed and published the licence change in the Echo newsletter that got sent to all Unix licensees in August of that year.

Explaining the change, A&T wrote that the sentence was added to assure licensees that the company would claim no ownership in the software that they developed -- only the portion of the software developed by A&T.

SCO conveniently overlooked this change when it decided to sue IBM. As A&T's successor in interest, SCO is legally bound to honour the contract and publicly stated interpretation of A&T's terms. That's why I think SCO's major claim against IBM and Linux will fail. The remaining copyright infringement claim is that Linux makes use of the Unix API (application program interface), and that copies of several header files defining that API were included in Linux.

SCO should know there is ample case law asserting that APIs can't be restricted and are available for all to implement under "fair use" in copyright law. But even if such a precedent did not exist, the Unix definition still can't be claimed as SCO's property. When Novell exited the Unix business, it transferred the Unix API, definition, and trademark to The Open Group, which maintains it today as their Single Unix specification.

SCO was only sold some rights to the Unix implementation. The Open Group asserts that anyone can implement the Unix API without any copyright encumbrance. So much for SCO's remaining copyright-infringement claim.

And if for some reason all this was not sufficient, there is yet more evidence to prove that the Unix API has been released for unencumbered implementation on four other occasions related to standards organisations. What's more, lawyers can point to a previous court case , as well as the release by Caldera, which now calls itself SCO, of old Unix code under an open-source licence in 2002. More recently, SCO told the court that it could not show the court what code is infringing until its lawyers are allowed to go through the AIX source code. This is because SCO claims IBM's work on AIX as its own, but has never seen that work.

The presiding judge in the case then issued a discovery order requiring SCO to deliver a report precisely listing what software it claims is infringed in Linux. After IBM delivers copies of the AIX source code, SCO will then get just two weeks to conclude its examination and make any additional claims. All the while, SCO has watched its stock soar from fifty cents to over twenty dollars while making claims that now appear dubious.

When a company makes unfounded assertions for a month or two, it can be dismissed as a mistake or wishful thinking. When the distortions continue for a full year, that suggests a less innocent conclusion. There are hard questions about what's going on -- especially when deceived stockholders are liable to left in the lurch.

Bruce Perens is co-founder and director of Software in the Public Interest, an open-source development organisation. He operates an independent consultancy and is a senior research scientist for open source at George Washington University's Cyber Security Policy and Research Institute.