SCO: Threat to Torvalds overstated

Responding to a portion of a Wednesday story by CBS Marketwatch that has generated intense criticism from the Linux community, McBride told CNET News.com that targeting Torvalds is unlikely.

"Virtually we see no reason why that would ever happen," McBride said. "We're not trying to go down that path."

McBride's comments were meant to address a portion of the story that stated, "McBride added that unless more companies start licensing SCO's property, he may also sue Linus Torvalds, who is credited with inventing the Linux operating system, for patent infringement."

While he would not completely rule out the possibility of suing Torvalds, McBride emphasized with News.com that "I wasn't even talking about patents."

A CBS Marketwatch reporter did not immediately respond to a request to respond to McBride?s comments.

Torvalds, meanwhile, said he sees legal action against him as ineffectual but not inconceivable. "I don't see what (SCO) would expect to gain from suing me, but they don't seem to be acting very rationally," he wrote in an e-mail interview.

And while Torvalds said he agrees with some of the criticisms SCO's actions have triggered on Linux-friendly online forums such as Slashdot, he also called for restraint and maturity in dealing with SCO. "I hope this doesn't incite anybody to (launch a denial-of-service attack against) the SCO Web site or something silly like that," he said.

SCO's actions, including legal threats and assertions that Linux programmers couldn't have built high-end features into the operating system on their own, have indeed inflamed the passions of many Linux advocates. SCO's Web site was crushed by such an attack earlier in May; the specific attackers were unknown, but SCO was quick to blame Linux proponents.

SCO sued IBM for more than $1 billion in March, alleging Big Blue illegally incorporated Unix intellectual property that is owned by SCO into Linux. Initially, SCO said it wasn't going after Linux, but it changed its stance when three separate investigations found Unix source code copied into Linux, the company said. SCO has declined to reveal the specific code that was allegedly copied.

The copying of source code could potentially expand SCO's legal actions beyond IBM through copyright infringement claims, but McBride said contracts provide a stronger legal case.

"Our code is showing up inside the Linux kernel. Given the rights we have, where does that take us? The most logical place is the guys we have contracts with," McBride said.

Novell, which owned Unix rights before selling at least some of them to SCO's predecessor in 1995, on Wednesday disputed that SCO has copyrights and patents for Unix. It didn't dispute that SCO holds the contracts under which Unix is licensed to others.

SCO said it will reveal in June the Unix code has been copied into Linux, but only to select people, such as independent analysts who have signed nondisclosure agreements. It won't share that code publicly, saying the Unix code is proprietary.

SCO says it has more than 6,000 Unix licensees, including companies and universities, and that its direct contracts with companies such as Hewlett-Packard, IBM or SGI require that sublicensees protect the Unix code. A sublicensee is a business that has purchased hardware or software with Linux from IBM, for example.

"They sign up for the fact that they may not misappropriate the code," McBride said. Unix is used at the majority of the 1,500 large companies to which SCO sent letters alerting them to legal risks of using Linux, he said.

Contrary to Novell's assertion, SCO contends it does have Unix copyrights and could base legal action on them. "I think it's perfectly clear we have the rights to enforce copyright claims," McBride said. "Clearly copyright is a path you can be taking a hard look at."