Guild Companies--Is SCO's Attack on the GPL a Bluff, Or Is It in the Cards?

So is The SCO Group really going to take on the GNU General Public License in its $3 billion lawsuit against IBM? Or is this a bluff, like its plan to start sending bills to Linux shops to license Unix intellectual property that it asserts it owns and that it says are inside the guts of Linux? That is a good question, and one SCO did not answer when it filed an answer to IBM's amended complaints in the case last week.

In the lawsuit, which was filed in March, SCO alleged that IBM had inappropriately moved Unix technologies under SCO's control into the Linux operating system, and that that violated IBM's license to Unix. IBM says it did no such thing, and that its Unix license (which covers some of the code in its AIX operating system) is irrevocable. IBM has stated further that SCO has violated some of Big Blue's copyrighted and patented intellectual property in its Unix products and is in violation of the GNU General Public License, or GPL. SCO filed its answer to IBM's amended counter claims on October 24 and seems to be taking on the GPL itself, saying it violates the U.S. Constitution and other laws of the land.

If the GPL gets destroyed, it will be hard to assign blame to either IBM or SCO. So we may as well get ready to start blaming Microsoft, which will benefit the most if the GPL is somehow invalidated by lawyers and judges. Two months after SCO filed its case against IBM, Microsoft stepped up to the plate to pay SCO to license Unix intellectual property, thus giving it the money to stay with the lawsuit.

IBM is the one that brought the GPL into the argument when it essentially stated in its legal filings that when SCO was Caldera International, it was a commercial Linux distributor and was thereby bound to the terms of the GPL, like other Linux distributors and many other open source programs. So we might want to blame IBM. But the situation is more complex.

In the filing made last week, SCO's lawyers seemed, at first, to be pulling out the big guns. "The General Public License ("GPL") is unenforceable, void and/or voidable," they argued in the answer to the complaint. "The GPL is selectively enforced by the Free Software Foundation such that enforcement of the GPL by IBM or others is waived, estopped or otherwise barred as a matter of equity." And then out came the big gun that could just get this case into the Supreme Court: "The GPL violates the U.S. Constitution, together with copyright, antitrust and export control laws."

SCO also appears to be readying a First Amendment argument against the claims that IBM is making in its legal filings, too. SCO is also going to argue that IBM has selectively enforced the copyrights and patents that Big Blue claims SCO has violated. The lawyers on both sides are throwing in the pots, pans, and kitchen sink now, so they have all the tools to cook up their cases when the lawsuit comes to trial in April 2005. Yes, that is a long time from now. And by then none of this will matter much except to the people who are investing in SCO and to the people who may get sent bills for Unix intellectual property if SCO prevails against IBM.

Some are saying that SCO is just raising the GPL issue now because, if it doesn't, it won't be able to do so later at trial. IBM probably brought the GPL into it because, by some ways of thinking, SCO condoned the distribution of Unix technologies in Linux when it sold Linux under the GPL. The question that no one is really asking--and which should come out in trial--is whether SCO knew about the Unix content that was distributed when it was a Linux distributor. Presumably it did not, and the burden will be on IBM's lawyers to prove otherwise.

IBM and various Unix luminaries already believe that the code SCO thinks it controls is not under its control but is part of the early open source Unix community from the 1980s. There will be plenty of arguing about who owns what. The licensing and cross-licensing agreements are messy and, more important, identifying the source code creators is not going to be easy. And, finally, the SCO-IBM lawsuit will probably test the law over derivative works. The question will be, more or less simplified, whether Linux is a derivative work of Unix or a bunch of stolen Unix code that got put into Linux with or without the knowledge or consent of parties in control of that code.

You know, someone ought to compare FreeBSD with Unix, to see how clean it is. It may be easier to make FreeBSD scalable than to deal with this bunch of yahoos. It probably wouldn't be that tough to get it to run inside of a VMware virtual machine on an Intel-based server, or inside of a logical partition inside a big RISC-based Unix or proprietary server.