Adam Gifford: Linux is fine, so forget lawyers

New Zealand open source advocates are gearing up for a legal challenge aimed at protecting local Linux users from the fall-out caused by failing Unix vendor SCO's US$3 billion claim against IBM.

The challenge may get its backers a brief appearance on Slashdot, the WWF of geekdom, but will it help local organisations who want to use Linux and other open source technology?

Lawyer Craig Horrocks and Open Source Society president Peter Harrison think it will.

Horrocks says SCO has underlined a problem known about for some time - "ensuring the provenance of code".

He says SCO has exploited "the need for certainty" with regard to the organic development of Linux.

Harrison says he is not worried about SCO - "IBM can deal with them".

But he sees a need to defend the intellectual property issues around Linux, particularly in areas where the upstart operating system threatens Microsoft domination.

"SCO is damaging the reputation of Linux and could be slowing the uptake of Linux by making people think twice, especially when they have to get lawyers in."

He wants the Open Source Society to try to establish "a genuine right to use Linux here".

But not everyone agrees. Asterisk head Chris Hegan, who is taking Linux into many large organisations, says he would rather wait and see how events unfold.

He says the case is not turning people away from Linux - "not a whisper of it".

It seems clear that in the United States, where SCO has been demanding people license what it says is its Unix code embedded within Linux, few if any Linux users have paid up.

The only support has come from Microsoft, which paid US$6 million for a licence, hardening suspicion among diehard penguin-heads that SCO is a Microsoft sock puppet.

What saddens as much as angers the open source community is that for most of its short life SCO was a company called Caldera, set up to make money by distributing Linux.

In 2000, the Utah-based company bought the server division of a Unix vendor called Santa Cruz Operation or SCO.

It said it was after SCO's extensive dealer channel, through which it intended to hawk Linux.

It also picked up two almost obsolete Unixes, OpenServer, which is mainly used as an operating system for cash registers, and UnixWare, which was a failed attempt to create a high-end Unix.

It soon found the business it had picked up was resolutely unprofitable and the dealer channel didn't want to switch to Linux.

But new chief executive Darl McBride decided that since the bulk of revenues came from the Unix products, the company would give up on Linux.

It needed money from somewhere to stem the losses, and McBride looked in SCO's software portfolio.

SCO bought UnixWare from Novell, which bought it from AT&T, whose Bell Labs were the birthplace of Unix.

McBride claims this gives SCO "all right, title and interest in" Unix.

SCO is suing IBM on that basis because it claims Big Blue open sourced or contributed to Linux code SCO owns, damaging SCO's Unix business.

One of the many problems SCO has in proving its case is that Unix is not a single operating system but a family of systems and protocols, developed by many firms and organisations.

For its first decade, AT&T could not sell it for anti-trust reasons, so it gave it away under broad licence terms.

Significant early development was done at the University of California at Berkeley, and most hardware vendors developed their own versions.

AT&T took on the university over BSD (Berkeley Standard Distribution) Unix and lost badly in a 1993 judgment, which said AT&T and its successors (ie, SCO) could not claim any interest in the BSD code.

At last month's SCO user group conference, McBride finally unveiled some evidence, contrasting samples of Linux and SCO Unix to show what he said was code copying.

Open source spokesman Eric Raymond said if the sample indicated the quality of SCO's evidence, "their case is dead on arrival".

He said most of the supposedly infringing code was released as open source by SCO last year.

The sample, a routine for allocating memory when running Linux on Intel's ia64 Itanium chips, came from Silicon Graphics rather than IBM or Sequent, as SCO alleges, it isn't present in 90 per cent of all running Linux distributions, and it was removed from the official version of Linux which came out in July because it was "too ugly to live".

It seems clear that without resort to litigation, SCO does not have a viable business.

Its share price has been driven up by speculators betting on IBM or some other party buying it out to kill the case.

It can't even make a profit on software it does sell, so the chance of it setting up a channel to collect money from Linux users is astronomically remote.

The open source model can protect itself without New Zealand lawyers leaping in.

Save your money to implement the software.

* Email Adam Gifford