Is Proprietary Software Doomed?

When I spoke to Darl McBride, SCO's CEO, the other day, he insisted that SCO's lawsuit against IBM isn't really aimed at Linux, but if "the Linux punch has been tainted, it's been by IBM."

When I spoke to Darl McBride, SCO’s CEO, the other day, he insisted that SCO’s lawsuit against IBM isn’t really aimed at Linux, but if “the Linux punch has been tainted, it’s been by IBM.”

Well, Linux may not be the target, but if SCO were to win, the collateral damage would be devastating. And, I can’t find anyone, outside of current SCO employees, who doesn’t think that Linux would be seriously harmed — even though McBride insists that their resellers are firmly behind them.

Now, were SCO to win, which I doubt, Linux would be in real trouble. SCO, according to McBride, would offer licensing deals, but there’s no telling what the cost would be, and a dangerous precedent would be set. I have no doubt that similar law suits targeting IBM, HP, Oracle, and other well-off companies that use Linux and open source, would soon follow.

So, regardless of the merits or demerits of the SCO-IBM case, a lot of people are worrying that lawsuits about proprietary intellectual property time bombs hidden inside open source would wreak havoc on both Linux and the Open Source movement.

But I don’t think so. Essentially, everything I know about the history of Unix, SCO, and Linux — and without false modesty, that’s a lot — tells me that there’s no real case here. As Tom Carey, a partner at Bromberg & Sunstein, a Boston intellectual property law firm, says, SCO is playing a game of Hearts using the tactic of “shooting the moon, which is a very low possibility, high reward strategy.” For a good introduction to many of the reasons I think SCO can’t win in the courts, read the comments of Eric Raymond, wearing his hat as president of the Open Source Initiative, at http://www.opensource.org/sco-vs-ibm.html.

No, perhaps instead of worrying about what proprietary software owners can do to Linux and open source, perhaps it’s time to try the shoe on the other foot. In short, that it’s time for proprietary software users to start worrying about the inclusion of open source code in their proprietary programs.

Now, sometimes, as with the Berkeley licenses, that’s OK. But with the GPL, the short version is that if you include GPL code in a program, that program is also GPL.

I strongly suspect, after having been a programmer and knowing programmers for twenty plus years, that many a developer of proprietary programs has “borrowed” GPL code for their projects. Let’s face it: Many programmers are lazy and given a choice of writing their own code and borrowing someone’s else’s, they’ll borrow. That’s especially true of what I call “reinventing the bicycle” projects, where the programmer is just creating, for the one-millionth time, say a basic text copy and paste function.

And so, with perhaps just a few dozen lines of code in a million-plus lines of code project, a proprietary program instantly becomes GPL. Now would that be a hoot? Not to mention a legal and business nightmare.

This isn’t just me wondering idly. I bring this up because some law firms have been asking their independent software vendor clients that exact question. The firms are warning their customers that if they’re using open source, they’re opening themselves up for lawsuits that’ll rival those asbestos lawsuits. For those of you who aren’t lawyers, we’re not talking about the mere billion dollars that SCO is suing IBM for; we’re talking lots and lots and lots of billions. When an attorney says “asbestos,” corporate counsel starts downing aspirins and gobbling Tums.

You see, it wouldn’t just be, oh just for giggles, say Microsoft, in legal hot water if Word 2002 turned out to have GPL code hidden inside it. Everyone who uses Word 2002 could potentially be sued. And, we’re not talking those idle law suits that we Americans are so fond of, we’re talking, “We’ll see you in court” law suits.

Perhaps that’s why Microsoft, and other champions of proprietary software, aren’t out cheering for SCO. No, it’s not that I really think Microsoft has GPL code in Word 2002. But, even if Microsoft audits their software for that kind of thing, we’re talking millions and millions of lines of code, written by thousands of programmers. Does any company, except in the clearest possible cases of intellectual property theft, want to open this can of worms? I doubt it.

If SCO wins, perhaps everyone who develops and uses software, and not just the open source community, loses. A long time ago, Ray Noorda, who then owned the intellectual property rights to Unix, stopped fighting with the Berkeley developers, saying he’d prefer to compete in the marketplace instead of the courts. The more I think about the SCO lawsuit in its larger context, the more I think everyone, except SCO, would like to compete in the marketplace and in developers’ offices instead of in the courts.

Steven J. Vaughan-Nichols is a long-time Unix guru and technology writer. He can be reached at sjvn@vna1.com.

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