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Putting open source on trial

CNET News.com's Charles Cooper says the open-source community should prepare itself for the disturbing possibility that SCO may be right.

I suppose the folks running SCO Group have pretty tough hides by now. After raising questions that go to the heart of open-source software development, they have been accused of being everything from low-rent hustlers to shameless flunkies for Microsoft.

But what if SCO is right?

That's clearly not the politically correct view these days, which is to dismiss SCO's lawsuit against IBM--alleging breach of contract and misappropriation of trade secrets--as the frivolous invention of congenital scalawags. After examining earlier this month what SCO claims is offending code, however, I think the open-source community better prepare itself to face tough criticism of its practices and ethics.

The unauthorized incorporation of intellectual property (IP) is an obvious no-no in the real world, where laws and rules of behavior govern the limits of fair use. In contrast, the open-source world is a veritable swap mart where source code remains freely distributed and available to the general public. With the General Public License (GPL), anyone can see, change and distribute an application's source code, so long as they publish any changes they make before distributing it.

So far, that's worked out nicely and helped create the conditions for Linux's explosive growth. But it also leaves the door wide open for a code jockey version of Jayson Blair to rip off somebody's IP and disseminate it without permission.

Open-source defenders say that this is all a pig in a poke and that there are stringent review processes in place to prevent mischief. What's more, they say the code is open for anyone to examine.

I'm not so convinced it's that open-and-shut. In fact, SCO is planning to force the courts to examine whether open-source developers can--or are willing to--police themselves. E-mail exchanges quoted by SCO portray Linus Torvalds giving that notion very low priority in his interaction with other programmers--Linux's, that is. In an e-mail exchange with CNET News.com, Linux's progenitor said he still objects to patents as a matter of principle and refused to back away from his earlier quoted comments.

SCO is planning to force the courts to examine whether open-source developers can--or are willing to--police themselves.
"It is a fact that I do not encourage engineers to look up patent information, for example," Torvalds said. "You ask any lawyer about it, and they will tell you that I'm right. It's not the job of an engineer to try to find out about (others') patents, since that just taints them."

I'd love to get his reaction after SCO produces documents with keystroke-by-keystroke copies of proprietary IP--including typographical mistakes--which subsequently made its way into the open-source community. (SCO claims the IP was filched from its own UnixWare, though the accuracy of the claim can't yet be proven or refuted.)

You can argue that it's just as easy for Microsoft to put bad code into its software--and maybe even easier to get away with, since you need a court order to force open the books.

But plagiarism is a universal concern that all software companies have had to deal with since time immemorial.

Meanwhile, SCO's case hits the docket at a time when Linux software is becoming a serious contender in corporate data centers. But IT managers are a conservative lot, and the specter of potential litigation may scare off many would-be Linux users. (And just to further ram home the message, SCO has sent out letters to 1,500 companies raising the possibility of corporate liability if they use Linux.)

Maybe airing out all these issues will serve a greater cause by shining a spotlight on the GPL and examining how it has shaped the way open-source software gets coded.

There's relatively little case law regarding what's kosher and what's not when it comes to open source--perhaps the time has come to change that.

One of the biggest strengths of the open-source community is the sharing of code and the building of ideas, one on top of the other. That's why it's so interesting. I'd hate to see this phenomenon stopped cold in its tracks by becoming identified as little more than "The Open Blair Project."