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Oh, Woe is SCO

As this month's issue of Linux Magazine goes to press, the SCO fear and uncertainty dreadnought continues to strip-mine the landscape of Linux. Each day of the last week brought more SCO allegations and threats. SCO even took Linus' approach to developing the kernel to task, practically calling the massively collaborative model near-willful infringement. But while dung spewed from Utah, IBM shrugged it all off. In fact, Big Blue looks Very Cool Blue so far.

As this month’s issue of Linux Magazine goes to press, the SCO fear and uncertainty dreadnought continues to strip-mine the landscape of Linux. Each day of the last week brought more SCO allegations and threats. SCO even took Linus’ approach to developing the kernel to task, practically calling the massively collaborative model near-willful infringement. But while dung spewed from Utah, IBM shrugged it all off. In fact, Big Blue looks Very Cool Blue so far.

Unfortunately, and due to a lack of specifics, the media, including me and this magazine, have been unable to provide analyses, expertise, or prognoses. Instead, outlets have had to resort to the “SCO said, IBM said, Eric Raymond said, Linus said” play-by-play form of news reporting. Even the experts I’ve spoken to — some who make their living at the intersection of software and litigation — are stupefied. So, there’s much ado about what Linux advocates call nothing. Or, so we hope.

For a moment, let’s assume that Linux and AIX does contain some of SCO’s proprietary code. What damages should SCO be entitled to? I’d say that depends largely on the egregiousness of IBM’s alleged violations.

In press and analyst briefings, SCO’s been flaunting an 80-line snippet of code from the Linux kernel that it says is proprietary to SCO. And SCO says it has more. That amount of code appears inconsequential. But as one famous case demonstrated, value isn’t always determined by “weight.” In fact, in intellectual property law, value is largely determined by novelty.

In April 1983, the news magazine The Nation published an article containing excerpts from President Gerald Ford’s memoirs, “A Time to Heal,” published later that year by Harper & Row. In particular, in its review of the Ford book, The Nation reprinted a paragraph in which Ford explains why he pardoned former President Richard Nixon. When The Nation was published, Harper & Row sued, claiming that The Nation infringed their copyright by using novel and valuable material without permission or license. The Nation defended itself under the First Amendment, claiming fair use.

The Nation’s argument seemed plausible enough, but ultimately, Harper & Row won. Why? Because The Nation took too much. The Nation reprinted the seminal paragraph from the entire memoir. In effect, The Nation leaked the equivalent of the surprise ending of “The Sixth Sense” and the key reason to buy Ford’s book.

So, did IBM consciously take a seminal portion of SCO’s UNIX and put it in Linux? Well, no one knows yet, but SCO wants everyone to believe IBM did just that. Of course, SCO also wants IBM and us to be ashamed — and fork over cash as our penance.

So, what will SCO walk away with after all is said and done? Millions? Billions? The key to Armonk City Hall? A precious permanent injunction?

I doubt SCO will get very much of anything, and I think the impact on Linux will be negligible. Certainly, a permanent injunction precluding the sale of AIX is out of the question.

My prediction? The only thing SCO will get is their comeuppance.

And thanks to all of you for reading. See ya in thirty… or stop by and say hello at LinuxWorld.


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Martin Streicher, Editor

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