March 3, 2004 6:45 PM PST
Torvalds, Linux users unfazed by SCO suits
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Legal experts expect many Linux customers to grow more nervous as a result of SCO's suits against AutoZone and DaimlerChrysler, but Howard Feiock, systems administrator for Baraboo, Wis.-based dairy cooperative Foremost Farms USA, is not among them.
"I don't think that SCO has a case. I am just waiting for the case to be thrown out and for SCO to subsequently go out of business," said Feiock, whose business uses Linux for screening e-mail for viruses and is testing Oracle business software. "For our organization, we have no plans to discontinue use of Linux in our environment whatsoever."
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SCO unleashed its Linux user attacks this week, suing car parts retailer AutoZone on Tuesday and automobile manufacturer DaimlerChrysler on Wednesday. SCO accuses AutoZone of infringing SCO's Unix copyrights by using Linux, but the other suit accuses DaimlerChrysler only of failing to certify that it has complied with its Unix license with SCO.
Linux is a close relative of Unix, working identically in many ways. But where open-source Linux may be scrutinized, changed and redistributed by anyone under the terms of the General Public License (GPL), proprietary Unix must be kept secret.
Linux, which runs well on inexpensive Intel processor-based servers, has become increasingly popular despite SCO's actions. Linux has even spread to the Web site of the U.S. District Court in Nevada, where SCO filed its suit against AutoZone, according to site monitoring firm NetCraft.
The suits are taking a toll on Linux, even if it's still growing, said Sanford C. Bernstein financial analyst Charles Di Bona Jr. in a report Wednesday. "The implicit costs of intellectual property protection have largely been overlooked in early assessments of Linux's total cost of ownership, and such incremental up-front costs will inevitably further weaken one of the key drivers of Linux adoption, its apparent cost advantage over Windows," Di Bona said.
SCO expects its lawsuits will start educating Linux customers in the same way the Recording Industry Association of America's lawsuits against alleged music sharing got file swappers' notice.
But thus far SCO's attention-getting methods haven't carried the day with customers. Of the 3,000 Unix licensees to whom SCO sent letters in December demanding they detail their compliance with their software agreements, fewer than half have responded, SCO Chief Executive Darl McBride said Wednesday.
Show the code
Linux enthusiasts have been pressuring SCO to release details of its claims that Linux infringes Unix copyrights, and in the AutoZone suit, SCO came a step closer to meeting that demand. It listed a number of detailed operating system processes--schedulers, threads, file system technology, and input-output methods, for example--used by Unix. The company asserted in the legal filing that Linux infringes on SCO's copyrights by also using them.
Torvalds said that technology is hardly exclusive. "The things mentioned are definitely not unique to Unix and Linux. Kernel threads and virtual file system layers--they must be joking. The only thing that makes any ounce of sense is their claims about somebody using (Unix) System V libraries," he said. Libraries are supporting software packages that operating systems and higher-level software rely on.
But some things are changing, even among Linux enthusiasts such as Sam Ockman, founder and chairman of Linux server seller Penguin Computing. "If a customer asked (about the SCO actions), in past we told them it was primarily a contract thing between SCO and IBM, but obviously it's much broader now," he said. Overall, though, "I really don't think at the end of the day anyone's not going to use Linux because of it."
One unruffled Linux user is Don Buchholz of iMove, a Portland company that makes high-end surveillance cameras. "I doubt SCO has any significant case against Linux," he said. "I suspect they can't really touch us," he added, because SCO's cases thus far all have involved companies that have license agreements with SCO, and iMove doesn't have any.
Chief Executive Don MacAskill, whose company, Smugmug, uses 11 Linux servers and "relies heavily on Linux," also yawned.
"We're not worried in the slightest by SCO's actions today or at any time in the past," MacAskill said. Among the reasons: "SCO has distributed Linux themselves. By doing so, even if there's a remote chance some of their code got copied into the Linux kernel, they've essentially given it away under the GPL. They can't rescind or revoke that right later, after the fact," he said.
SCO, which owns a disputed amount of Unix intellectual property, inherited the agreements by which inventor AT&T and its successors licensed the operating system to IBM, Sun Microsystems, Hewlett-Packard, Silicon Graphics, numerous universities and others. SCO has sued IBM for more than $5 billion in damages, alleging that Big Blue violated its Unix contract by moving Unix technology to Linux that it should have kept secret.
IBM denies wrongdoing and has countersued SCO for patent infringement. Meanwhile, Novell, a previous Unix owner, claims that it owns Unix copyrights, forcing SCO to sue to establish ownership. And Linux seller Red Hat has sued SCO to try to establish that Linux doesn't violate SCO copyrights or trade secrets.
Linux enthusiasts also chimed in Wednesday.
Eric Raymond, an open-source software advocate and author of The Cathedral and the Bazaar, said SCO's actions were without merit, adding that Linux enthusiasts already are "urging everybody to go buy something at AutoZone, even if it's as trivial as an air freshener."
Added Stuart Cohen, CEO of the Open Source Development Labs industry consortium, "I don't think it has any effect on the acceleration of Linux, any effect on people deploying Linux."
Cohen told AutoZone of OSDL's legal defense fund on Wednesday. "They (SCO) have an issue with IBM and Novell, and I think they should leave the Linux users out of it. If they're going to do this, we're going to stand against their legal actions and support users," Cohen said.
The waiting game
Intellectual-property attorneys, many of whom have respect for SCO's attorney, David Boies, are not so sanguine as Linux fans.
"I think people will wait" for legal results before signing SCO intellectual property licenses, "but it's going to make people nervous," said Mark Radcliffe of law firm Gray Cary.
Jeffrey Osterman of Weil, Gotshal & Manges said SCO no doubt will use the AutoZone case "to induce other commercial end users to take SCO's licenses at what I'm sure will be characterized as very reasonable rates." Companies will likely perform a calculation that weighs its potential legal costs against the license fee and the message that signing it sends to anyone else thinking of suing.
But Osterman pointed to legal challenges SCO will face. SCO will have to prove that Linux copied not just actual Unix ideas, but specific expressions of those ideas. And it will have to prove that it didn't provide a license to use Linux already by virtue of the fact that it sold the operating system itself.
Added David Byer of Testa, Hurwitz & Thibeault, "It's fair to say that most the world has been sitting on the sidelines watching the big fellas duke it out," not asking many questions about how the suit affects them. But with SCO's new suits against Linux users, "My guess is more people are going to be asking those questions."
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