Comment Articles

Inside the Linux arcana

David Berlind ZDNet.com

Published: 17 Mar 2004 15:25 GMT

If the SCO Group has any hope of prevailing in its core cases with Novell and IBM, those hopes are pinned on the following findings sequentially falling into place: establishing what Unix intellectual property (IP) it owns, to what extent it owns the IP (the Novell case may prove that it's shared in some way), what enforceable rights the company is entitled to by virtue of that ownership, and then how those rights may have been violated.

Considering all the chips that must fall in SCO's favour, and the order in which they must fall, the company has several milestones to get past before it can begin singing, "we will, we will rock you." It's a slippery slope, and the legal experts I've interviewed agree that the tipping point may reside in a sealed settlement to a 1992 case that was brought against both the University of California at Berkeley and Berkeley Systems Design (BSDi) by Unix Systems Laboratories (USL), an AT&T spinoff of which AT&T was still the majority stakeholder.

Although the settlement is sealed, one of the most widely held beliefs about it is that it privately acknowledges a significant dilution of AT&T's copyrights and trademarks because of the contributions to Unix that were made by UC Berkeley. Should the settlement be unsealed and the language proven to undermine the integrity of the SCO's IP claims, SCO's case could be significantly weakened - if not finished.

In addition, to the same extent that the sealed settlement may call into question the integrity of the IP in question, it could also turn out that a 1994 agreement between Sun and USL (very shortly after USL was acquired by Novell) holds more evidence of the same sort of IP dilution. It's just a hypothesis at this point, but it could turn out to be a powerful "smoking gun" that influences the outcome of the various suits brought by SCO. Before further addressing the issues of sealed documents and potential secret deals, it's useful to outline current events and to go over some background history.

The cases have a lot of milestones and, as indicated by the orders issued two weeks ago by US District Court (Utah) Magistrate Judge Brooke Wells, those milestones may not appear to follow the logical order that I have just described. As part of the due diligence needed for the case against IBM to proceed, SCO must show the court a smoking gun -- Unix-related code from which Linux was improperly developed or derived and memos from IBM executives that indicate complicity with, if not authority over, certain Linux development decisions. If the judge were to see enough smoke emanating from the gun's barrel to proceed with the case, the pendulum will have swung in SCO's direction, but it does little more than guarantee that the company will get its day in court.