Open-source experts critique SCO lawsuit against IBM

Computerworld - PORTLAND, Ore. -- The escalating legal battle between The SCO Group Inc. and IBM probably won't be resolved anytime soon, but SCO's four-month-old allegations continue to churn lively controversy in the open-source community.
The latest public review of the case came here yesterday at the fifth annual O'Reilly Open Source Convention, as several hundred Linux and other open-source users gathered to listen to a panel of IT experts weigh in on what has become a very public fight.
Essentially, panel members said, the $1 billion lawsuit filed against IBM in March by Lindon, Utah-based SCO is most likely a case of a former Unix market player looking to go after the richest target it could find to try to win a court award and fill its cash-starved coffers (see story). The lawsuit has since been amended by SCO to ask for more than $3 billion in damages.
The problem, according to panelist Lawrence Rosen, a technology attorney at Rosenlaw & Einschlag in Ukiah, Calif., is that the case is still far from going to trial, meaning that much of what has so far been discussed about its merits is "way premature."
"We need to wait until the evidence comes out" and then allow the case to unfold through motions, briefs and an eventual ruling from the court, Rosen said.
Even with that caveat, Rosen and the other panelists -- Alan Nugent, chief technology officer at Provo, Utah-based Novell Inc.; Bradley Kuhn, executive director of the Boston-based Free Software Foundation; and Chris DiBona, vice president of marketing at game software maker Damage X in San Francisco -- took turns talking about the SCO suit.
"We're committed to helping the open-source community get over this," said Novell's Nugent. "We believe it is groundless."
For Novell, the case against IBM hits close to home. Novell, which had previously acquired the Unix systems business of AT&T Corp., broke up and sold its Unix properties in 1994 and 1995. One of those deals was with the former Santa Cruz Operation Inc., which was bought by Caldera International Inc. and later became The SCO Group. In May, Novell's CEO and president, Jack Messman, publicly called on SCO to lay out its alleged evidence that IBM had illegally put protected SCO Unix code into Linux (see story).
Because of the lawsuit and his company's past dealings with Unix, Nugent said he couldn't discuss all of the details of the complex transactions that had taken place between Novell and SCO years ago. But, he quickly added, "the things that are probably most important are not necessarily things that will help SCO's position."
Last month, SCO carried out its lawsuit-related threat to pull IBM's Unix license, because IBM failed to comply with SCO's demands to meet the alleged terms of its licensing agreement (see story).
The Free Software Foundation's Kuhn said that as recently as early May, SCO was still offering copies of its own Linux distribution on its FTP Web site, which he said negates SCO's claim that Linux has been illegally offered with protected SCO Unix code. "If it turns out that SCO has a claim [in the IBM case] ... then they have themselves released that very software under the GPL [General Public License]," Kuhn said. "There's really no claim whatsoever."
Also troubling, Kuhn said, was last month's announcement that Microsoft Corp. paid an undisclosed amount of money to SCO for a Unix license, the result of Microsoft's stated desire to ensure that its products comply with SCO's intellectual property claims regarding Unix (see story). Microsoft in the past has "identified the GPL as their biggest competitor and enemy," Kuhn said.
The licensing deal, he argued, was less about wanting to suddenly assure compliance with SCO's Unix claims as much as an attempt to "make things look bad for the GPL. We still think Linux is pretty solid as it stands," Kuhn said.
Damage X's DiBona stressed that for SCO, the merits of the case were unimportant from the start. "This lawsuit came because of financial reasons," DiBona said. "They sued IBM because IBM has the money."