Friday, December 22, 2006


(This article was part of the speech 'Open Source Software and Intellectual Property Rights' and was written at that time. The Trust has posted it separately for convenience. Out of the five suits, only one has been decided. It is also relevant to point out that this post is no reflection on the merits or demerits of any of the suits.)

Linux is the most successful and commonly known GPLed software. It is inspired by Unix, another operating system, that was developed at AT&T’s Bell Labs in the late 1960s’. At that time AT&T was a regulated monopoly and it could not sell computers. AT&T made Unix freely available along with source code to the universities and the government so that programmers could tinker with it and improve it. By early 1980s’, Unix became a powerful and popular operating system though there were competing versions of the same.

Andy Tanenbaum, a University Professor in Amsterdam, wrote Minix, a Unix clone, as a teaching aid for Unix. Linus Torvalds, a student of the University of Helsinki Finland, in order to overcome the shortcomings of Minix, started writing a programme for a new operating system, which was based on Unix. It was Linus’ Unix or simply Linux. In developing it, Linus had relied on a lot of tools that had been distributed freely over the internet—especially the GCC complier distributed by GNU, a GPLed software. Many GPled softwares were also integrated with Linux. It is for this reasons many prefer to call it GNU/Linux. I prefer the word Linux as it is shorter of the two and have mentioned the name of Linus Torvalds because he was the originator of the Linux. This should not be understood as undermining the contribution of GNU project or thousands of other programmers who are responsible for the success of Linux. It will be insructive to read 'The Joy of Linux: A Gourmet Guide to Open Source' by Michael Hall & Bian Riffitt for more information on Linux and its working.

Linux - Suits
However, one should know about the Some suits regarding use of Linux (see here) are pending. Their outcome might change the future of Linux. It is instructive to know about them.

AT&T had given one of the licenses of Unix to the University of California, Berkeley (the University) at the time when AT&T could not do computer business. The University developed and released its own version of Unix, known as the Berkeley Software Distribution (BSD). It became freely available and other companies incorporated it in their own products. In the meantime AT&T broke up in 1984 and was allowed to do computer business. It continued to improve its own Unix and released commercial versions of the same. The BSD version of Unix developed by the University became a contender to the AT&T’s version. AT&T sued the University for infringement of its IPR. The defence was that the University had the right to distribute its version of Unix as most of the subsequent work had been done by the University. In 1993 AT&T sold its Unix business to Novell who settled the suit with the University on undisclosed terms.

It is claimed that in 1995, Novell sold the unit that marketed commercial Unix software to Caldera now owned by Santa Cruz Operation (SCO). The SCO filed a billion dollar suit against IBM in Utah in 2003, alleging that IBM has,
  • breached its obligations under UNIX license agreements entered into with AT&T in 1985.
  • violated the agreement by removing substantial source code from AIX and Dynix, two UNIX-based products, and dumped that code into Linux.
  • infringed SCO's UNIX copyrights by using UNIX System V source code after SCO terminated the IBM license in 2003.
  • incurred liability for tortuous interference and unfair competition.

IBM has filed a counter claim in the aforesaid suit alleging that:
  • IBM’s Linux activities donot infringe any of SCO’s copyrights;
  • It has nor breached any agreement with SCO; and
  • It is SCO that has breached the agreement.

It is not clear as to what was sold by Novell. As according to Novell,
  • It simply sold a license to develop and then sub-license its version of Unix to other companies;
  • It did not sell any Unix-related intellectual property to SCO;
  • Novell and not SCO, owns the Unix copyrights and patents.

SCO has filed a suit in Utah against Novell, claiming that Novell is interfering with SCO’s business by publicly arguing that Novell, and not SCO, is actually the owner of the intellectual property in UNIX. The suit seeks damages in cash, to be determined in the trial. It also requests injunctions that would require Novell to assign to SCO any wrongfully obtained copyrights.

SCO has also sent notices to 1500 corporations to obtain license from it failing which legal proceeding would be taken against them. It has also required the companies to take suitable measures so that its Intellectual property rights in UNIX may not be mixed in open source software. It has filed suits against AutoZone in Nevada on March 3, 2004 alleging that AutoZone violated SCO's UNIX copyrights by running versions of the Linux operating system that contains code, structure, sequence from SCO's proprietary UNIX System V code in violation of SCO's copyrights.

SCO also filed a suit against DaimlerChrysler in Michigan on March 4, 2004 for its alleged violations of its UNIX software agreement with SCO, seeking the following reliefs that:
  • Daimler Chrysler has violated Section 2.05 of the Software Agreement by refusing to provide the certification of compliance with the "provisions" of that Agreement;
  • Daimler Chrysler be restrained from further violating the Agreement;
  • A mandatory injunction be issued requiring Daimler Chrysler to remedy the effects of its past violations of the Agreement; and
  • Award damages for an amount to be determined at trial along with the cost of the suit.

In the aforesaid suit DaimlerChrysler applied for summary disposition. It was partly granted 9th of August 20004 granting summary disposition to all claims except for SCO's claim for breach of contract for DaimlerChrysler's alleged failure to respond to the request for certification in a timely manner; thus dismissing most of the claim filed by the SCO. The remaining part of the suit was dismissed on 21st December 2004 without prejudice to bring fresh claim on the condition that in case the SCO refiles its claim for breach of contract for alleged failure to respond to the request for certification in a timely manner, the SCO shall pay DaimlerChrysler costs and reasonable attorneys' fees incurred in the instant action in defending against that claim after the Court's order dated 9th August, 2004 partly granting and partly denying DaimlerChrysler Corporation's Motion for Summary Disposition. SCO has filed an appeal against the orders.

Red Hat is a leading company selling its own version of Linux. It has filed a suit in the Delaware court for declaration that it has not infringed SCO’s copyrights in its use and distribution of Linux.

It is difficult to predict the outcome of these suits. It will depend on the evidence of the case. However, the most important suit is the first suit filed by SCO against IBM; its result may effect the remaining pending suits. Nevertheless, in order to safeguard the interests of purchasers, many vendors (including Red Hat, HP and IBM), are indemnifying the purchasers against claims of third parties (such as SCO) in case their (Red Hat, HP, IBM) open source products infringe any third parties’ rights.

Let's see, how the future unfolds.
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1 comment:

  1. Not correct. Novell sold the rights to the 'old' SCO which was purchased by Caldera. Caldera planned to unify UNIX and Linux. They later changed their name to SCO and dropped Caldera. You could now call them 'new'SCO.



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