What if SCO wins?
Published: 29 May 2003 13:20 BST
I was all set to do another article on .Net, but the media turbulence surrounding SCO's recent raising of the stakes in its apparent battle with the entire Linux world scotched that idea (it'll appear at a later date, an event I'm sure all of you will await with bated breath).
The SCO suit isn't the first legal challenge of an open-source product by supposed owners of intellectual property used therein, but it is arguably the most important one. Linux is rapidly becoming the centre of the Unix programming domain, and the number of companies adopting Linux and/or developing products for the platform grows by the day. Billions of dollars are at stake, as an entire industry has arisen around an operating system that seemingly came from nowhere to challenge the business models of proprietary companies, Unix-based or otherwise.
The merits, or lack thereof, of this case have been analysed to death by a number of people. So, let's ignore all the legal splitting of hairs and peer a few years into the future. We all know what would happen if SCO loses. What would happen, however, if SCO won?
Can an IP encumbered Linux be distributed?
This is the first issue which would need to be resolved. The GPL explicitly forbids distribution of GPLed code if it is found to be IP encumbered.
If, as a consequence of a court judgment or allegation of patent infringement or for any other reason (not limited to patent issues), conditions are imposed on you (whether by court order, agreement or otherwise) that contradict the conditions of this License, they do not excuse you from the conditions of this License. If you cannot distribute so as to satisfy simultaneously your obligations under this License and any other pertinent obligations, then as a consequence you may not distribute the Program at all. For example, if a patent licence would not permit royalty-free redistribution of the Program by all those who receive copies directly or indirectly through you, then the only way you could satisfy both it and this License would be to refrain entirely from distribution of the Program.
Note that it doesn't say that existing users have to stop using IP-encumbered GPLed code, just that no one would be legally allowed to distribute the GPLed code to new users.
There are two possible solutions to this problem. The open-source community can pull out the portions found to be owned by SCO. This may or may not take very long, dependent on what IP SCO is found to own (as SCO is keeping the details close to the vest, no one can really estimate what this would involve). Alternatively, the open-source community can choose to allow the code to be distributed, anyway, with end-users expected to pay a licensing fee for the portions found to be owned by SCO. This is really up to the people considered to hold the copyright on Linux. Who, exactly, would legally be allowed to change the licensing terms of Linux? Linus Torvalds?
Assuming there is a solution to the IP issue, and that solution doesn't take too much time to implement, what effects would a successful outcome for SCO have on the industry?
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