IP attorney: Why SCO has no case

IP attorney Thomas Carey shoots down SCO's cases against Linux, Linux users, IBM and Novell, but predicts that SCO will follow Hitler's example and go on fighting a losing battle.

IT directors shouldn't worry about SCO Group's latest sallies in its legal war on Linux vendors IBM Corp. and Novell

Inc., says attorney Thomas Carey. It's just more posturing, or as Shakespeare said, a tale "full of sound and fury, signifying nothing."

In this interview, Carey explains why SCO has no case, predicts the open source legal fields of battle for 2006 and discusses SCO's claims against Novell. Carey chairs the Business Practice Group of Bromberg & Sunstein LLP, an intellectual property law practice in Boston, Mass. Carey's IT background includes a stint as a programmer for the city of New York.

What's the linchpin of SCO's anti-Linux legal battle?

Thomas Carey, attorney

Thomas Carey: The key to the case is that IBM specifically negotiated with SCO a clause that permitted it to use the same programmers who saw the Unix code to make competing products. This was documented as part of a transaction in which SCO was paid lots of money. SCO conveniently left that clause out of its explanation of the facts. But in the long run, it will not be able to hide from that concession.

The result is, absent literal copying of meaningful amounts of Unix into Linux, SCO has no case. None. Nada. Zilch.

Is there any significance to the timing of SCO's renewed activity in its anti-Linux lawsuits?

Carey: [It's] quite possible the renewed activity results from the recent completion of a PIPE [Private Investment in Public Equity] offering by SCO, giving it the funds to proceed more vigorously than before.

Has SCO actually shown that its UnixWare System V code exists in SuSE Linux or another distribution?

Carey: SCO has not shown that its code exists in Linux. SCO now seems to be grounding its case on 'unauthorized disclosures', which is a very different kettle of fish than copied code.

What are the implications of SCO's suit against Novell for Novell/SuSE customers?

Carey: The implications are generally the same as they are for Red Hat customers, except that Novell has some superior legal standing because of their presence in the chain of title to Unix.

But this really misses the main point, which is that SCO's lawsuit is a lost cause. The implications for Linux users are rather like the implications for passengers on an ocean liner of a seagull diving into the water nearby. A physicist might be able to measure the perturbation, but the passenger feels nothing.

SCO went after, with lawsuits, Linux customers before. Do you foresee this happening again?

Carey:This might happen again. Hitler fought World War II until the Allies had nearly overrun his bunker. As long as investors are willing to provide the cash, SCO will sue because that is their business model. They will likely go after smaller companies as a means of controlling the cost of litigation.

Last summer, it came out that an outside consultant, Bob Swartz, conducted an audit for SCO that showed that no SCO code was used in Linux. Why do you think that CEO Darl McBride still proceeded with lawsuits against IBM and Novell?

Carey: The facts concerning this analysis are not very clear. The consultant apparently did find some overlapping code, but came to the conclusion that it was not significant. You can understand how opinions on this might differ. In addition, the audit may have been inadequate to determine whether or not there were derivative works contained in Linux.

I think that the strategy behind SCO's legal actions was to generate recurring licensing revenue from thousands of Linux users who would pay up on the theory that the license fee would be cheap insurance against a lawsuit. The strategy failed.

When will SCO's suits come to a conclusion? Why are they taking so long?

Carey: A trial date has been set for February, 2007. There may be more delays. The factual investigation associated with the development of so many lines of code is very time-consuming.

What does the Novell case mean to other Linux vendors and to corporations using Linux?

Carey: It means much less than the IBM case. Novell presents an interesting, but far-fetched, reason why SCO might have little right to pursue the claims it is pursuing. The IBM case is likely to determine that the claims themselves are baseless; not because IBM didn't contribute ideas found in Unix to Linux. That is a factual question about which I am agnostic. The claims are baseless because IBM had a clear right to copy the ideas embedded in Linux under its agreements with SCO. I strongly suspect that IBM did no more that that, and thus SCO is out in the cold.

What are your predictions for legal activity in the open source arena in 2006?

Carey: The skirmishing will revolve around version 3.0 of the GPL, and the extent to which it attempts to GPL code that is dynamically linked to it; or to otherwise clarify the mysterious "lesser GPL". Also the Massachusetts drive for open source file formats will be interesting.

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