Comment Articles

Standing on shaky foundations

Bruce Perens ZDNet.com

Published: 09 Mar 2004 15:35 GMT

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.