Comment Articles

Inside the Linux arcana

David Berlind ZDNet.com

Published: 17 Mar 2004 15:25 GMT

In her 2 March, 2004, order, Judge Wells directed SCO "to identify with specificity all lines of code in Linux that it claims rights to." She hasn't yet asked SCO to substantiate those rights. If the code is eventually proven not to be SCO's, or if it is but the court doesn't side with SCO on its enforceable rights against Unix licensees (both significant milestones), then the code itself may end up being irrelevant to the lawsuits against IBM.

The relevancy of other alleged code-related improprieties and the degree to which SCO has enforceable rights over non-Unix licensees such as Linux-kernel chaperones Linus Torvalds or Andrew Morton, may be different. So far, SCO hasn't sued them.

BSD: The potential short circuit to SCO's case
If there's an opportunity for the cases to proceed out of order, it's because the IP rights (IPR) that go with Unix might never have been enforceable in the first place. In other words, the copyrights might not have been enforceable, even back in the 70s and 80s when AT&T owned them. If AT&T's IPR wasn't enforceable, then it stands to reason that the IPR of all other subsequent owners (Unix Systems Laboratories, Novell, the old SCO, Caldera, and now the new SCO) weren't enforceable either.

If the IPR turns out to be useless, it will turn out that Novell bought the Brooklyn Bridge as well and subsequently passed it along to SCO. Worse for SCO, if there's essentially no IPR to own, then the ownership issues underlying the suits are moot.

As I noted earlier, the answer to the question of enforceable IPR 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).

By 1992, almost two decades had passed since UC Berkeley, AT&T's Bell Labs, and others began an open source-like collaboration on the development of Unix. According to a passage written by Marshall Kirk McKusick (from the book Open Sources: Voices from the Open Source Revolution), who was deeply involved in Unix development during its embryonic years, "BSDi was formed to develop and distribute a commercially supported version of [BSD Unix]." The initial version was almost entirely based on the most recent release (at the time) of a version of BSD Unix known as Networking 2 (Net/2) that had advanced networking features (for the time) and that its developers believed to have no USL-based encumbrances.

Up until that point, the only commercially available versions of Unix came from USL licensees. According to McKusick, the USL lawsuit was prompted by BSDi when it "began selling their system including both source and binaries in January 1992 for $995 (£549). They began running advertisements touting their 99 percent discount over the price charged for [AT&T's Unix] System V source plus binary systems. Interested readers were told to call 1-800-ITS-Unix."