To get my bosses to okay our Linux database migration, we need to present some compelling arguments about why SCO's suit is flawed. Knowing what we do at this point of the SCO game, what are those compelling arguments?

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There are a variety of people who participated in creating Unix, or portions of it, and who are absolutely certain that none of the statutorily protected code has found its way into the Linux kernel or related applications. Some of these people have been consulted by IBM as part of IBM's defense against the SCO claims. In addition, the litigation initiated by Novell strongly suggests (but obviously does not decide) that some of the rights SCO relies on in its lawsuit against IBM were not transferred when Novell sold its rights in Unix to SCO's predecessor, Caldera.

Having said this, however, based on the pleadings in the SCO litigation filed recently, I am confident that the evidence of the strength of SCO's claims is found in the Unix source code that is protected by either patent or copyright and the applications developed and distributed by IBM. In light of the protective order entered in the case that prevents the world from seeing this code, among other things, it is unlikely that anyone will be able to provide more than conjecture about the likelihood of success on the merits in either direction, at least in the foreseeable future.

It strikes me that the salient question is not whether SCO's claims are strong or weak, but whether a Linux user needs to insulate himself from any result in that litigation and, if so, whether it can do so effectively and efficiently. The answer to the first question is not necessarily; the answer to the second question is yes.

Until recently, SCO's case against IBM essentially involved the breach of a joint venture agreement between IBM and SCO's predecessor and the resulting claims for breach of contract and infringement of trade secret. If SCO succeeded with these claims, it would recover from IBM. Now, SCO has added a series copyright infringement claims essentially intended to respond to the copyright and patent infringement claims asserted by IBM against SCO in September. If SCO is wildly successful with these claims, the first source of recovery for SCO will still be IBM. While such a result will impact IBM's open source customers, it is likely that the impact will be in the form of prospective licensing fees, not retroactive licensing fees or penalties against those customers.

The litigation between Novell and SCO is a fight about the scope of SCO's rights, as opposed to the scope of the rights of someone that is distributing what SCO alleges is its property. I am unaware that Novell continues to distribute any portion of Unix or related systems that would fall outside of any license it has to do so, which would mean that, at least for now, there appears to be little downside for Novell customers.

For those organizations that want to be prepared for the possibility of a SCO victory, there are a variety of vendors, including Red Hat, HP and IBM, that will agree to indemnify their customers against claims that the open source products delivered by those vendors infringe on the statutory rights of third parties such as SCO.

This was first published in February 2004

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