SCO, Novell: Grokking Where Credit is Due

The verdict is in: Novell owns Unix copyrights, not The SCO Group.

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...And about 12:30 MDT Tuesday, it was over. The great SCO debacle, which spanned a large portion of the first decade of the 21st Century, ended when a US District Court jury decided in favor of Novell in the case of SCO v. Novell.

The key decision, of course, was whether The SCO Group actually owned the copyrights to Unix--a claim they tried to use to their advantage by claiming that anyone who worked on or even used Linux would need to cough up some dough.

First they sued IBM for violating trade agreements, then later copyright violation. Then the Utah-based company, former producers of Caldera Linux and SCO Unix, decided to go into the litigation business, setting up a licensing division called SCOsource to "[introduce] the SCO Intellectual Property License Program to make binary run time licenses for SCO's intellectual property available to end users. The license gives end users the right to use SCO intellectual property contained in Linux, in binary format only. End users who purchase this license will be covered for their use of SCO's intellectual property in binary format in Linux distributions on the licensed system. The license applies to all commercial users of Linux."

In other words, if you use Linux, pay us.

Surprisingly (well, not really), some companies actually purchased licenses from SCOsource. Remember them? Sun Microsystems and Microsoft were two of the more prominent licensees. Glad that worked out so well for them.

When the rest of the planet laughed at SCOsource, they started suing other companies, notably AutoZone and DaimlerChrysler. Red Hat jumped in with a preemptive strike of its own, but all the lawsuits came to a screeching halt when Novell raised its metaphorical hand and said something to SCO along the lines of:

"Er, guys? We never sold you the Unix copyrights."

That was in 2003.

Today's unanimous jury decision invalidated SCO's claim to the Unix copyrights, so pretty much every one of these other cases will get tossed out, except for the countersuits SCO's targets launched. I have a sneaking suspicion that a whole slew of new lawsuits could come out of the woodwork, particularly from those suckers customers who actually bought a license from SCOsource.

Or maybe they'll be too embarrassed to try.

SCO, ever the optimists, have indicated through their lawyers they may continue the IBM lawsuit based on some alleged contract violations, so they're still twitching. But, as nearly every observer of this case's conclusion has pointed out, there is no longer any danger SCO can pose to Linux.

I have to wonder though, how things might have worked out if things has gone SCO's way.

Remember, when this all started in 2003, Linux as a commercial venture was still (endlessly) classified as "upstart" at best. There were a lot of players in the Linux sector, but with the exception of IBM and perhaps Red Hat, there wasn't a really strong player in the market at the time.

In fact, in an effort to square off against the growing power of Red Hat, SUSE Linux, Turbolinux, Conectiva, and Caldera Systems formed a consortium to create the common distribution known as United Linux to an effort to attract independent software vendors.

Caldera Systems, you may recall, would soon change its name to The SCO Group.

Whoops.

Looking at this environment, the executives at SCO must have concluded that the Linux community was too diverse to meet a calculated litigious assault via licensing programs and legal action. Only IBM, which had a couple years later invested billions in Linux development, stood to become a problem, and SCO demonstrated pure chutzpah going after them first. After all, if this David could make a serious run at Big Blue Goliath, then what chance would other Linux vendors and users have?

I have a theory about how things were expected to go. Given the presumption they owned the Unix copyrights and had convinced several analysts and industry observers that there was Unix code in Linux, SCO expected they would have to launch just a handful of lawsuits before one of two things happened: the rest of the Linux community rolled over and bought the licenses (making SCOsource lots of money) or customers abandoned Linux (opening up a big opportunity for SCO Unix sales). Either way, SCO was poised to win, and win big.

I think, had events gone in that direction, they could have done a nice, quiet deal with Novell when they would eventually come forward about the ownership of Unix copyrights. After all, in early 2003 Novell hadn't bought SUSE Linux GmBH yet--Novell was just starting to publicly move towards Linux. I am 99 percent sure that at some point SCO must have tried to cut a closed-door deal with Novell that would have cut Novell in on a piece of the licensing action and made both companies a bunch of money.

But two things happened to diffuse this hypothetical chain of events: Novell itself, which surely was already planning to expand its business with the acquisitions of Ximian and SUSE Linux, decided to take the high road and publicly challenge SCO's claims instead of going along with SCO's plan. (Again, it's my speculation that they were even invited, but given the potentially billions of dollars at stake, I have trouble believing that SCO wouldn't privately try to hedge their bets just in case Novell had a valid claim.)

The next thing that ruined SCO's plans? Groklaw.

Had things stayed in the boardrooms and courthouses, I do believe that the outcome of all of these cases might have turned out differently. Facts would have stayed buried. Companies might have been tempted to settle. The sheer arrogance of SCO might have been hidden behind friendly sounding press releases.

That, I'm sure, is the way SCO wanted it to happen. And again, looking at the Linux community in 2003, that's what very likely could have happened. Remember, there was no central Linux organization to respond to this sort of thing. SCO would have quietly maneuvered its way through all of these lawsuits, even the claims made by Novell, and they may have had a better chance.

But Pamela Jones and the community she built at Groklaw was the Linux response. Writing tirelessly alone at first, then gaining incredible volunteer support and contributions, Jones was able to build an incredible repository of information surrounding all of the cases involving SCO. Now, when claims were made, their veracity would be publicly examined and then confirmed or denied.

I have to admit, I am not always in agreement with Jones. I have an old-school journalist's sense of fair play that would get rankled sometimes at the energy Jones and the Groklaw community would throw against SCO, even if I personally believed SCO deserved it. However, I have always felt free to discuss differences in opinion with Jones, and I believe she would say the same.

I write this because she's about to disagree with me again. She will very likely send me an e-mail saying that it was a team effort that made Groklaw what it is today.

Pamela, with great admiration, I say "shush."

Yes, Groklaw is a team effort, but every great team has a great coach. The efforts you have devoted to Groklaw have been staggering--physically, mentally, emotionally. Today Groklaw is more than a mere "SCO watcher"--it is one of the best legal watchdog sites in the world, with expanded coverage of all legal challenges to Linux, free software, and open source software.

I would to extend public congratulations from myself and (I suspect) quite a few members of the Linux and open source community for a job well done. You, your site, and the community that surrounds Groklaw demonstrates what it truly great about open source: that the positive collaboration of ideas and skills will always lead to something greater than its makers ever intended.

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