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Did SCO open Unix source code?

Several groups argue that SCO Group's shipment of a Linux product undermines its attack on the OS's intellectual-property underpinnings, but SCO says the argument is baseless.

Several organizations argue that SCO Group's shipment of a Linux product undermines its current attack on the operating system's intellectual-property underpinnings, but SCO says the argument is baseless.

SCO says proprietary source code underlying Unix has been illegally copied into the Linux kernel. SCO critics argue that because the company shipped a Linux product under an open-source license, that Unix code no longer is proprietary.

But SCO, which has staked its future on its Unix intellectual property and how it's licensed, believes opening the source code would require a deliberate act the company didn't in fact undertake.

The issue has put the spotlight squarely on the key tenet of the General Public License (GPL) that governs the kernel, or heart, of Linux. That license permits anyone to freely read, modify and redistribute a program's underlying source code on the condition that they make any changes public if they distribute the changed software.

The issue isn't just of interest to intellectual-property lawyers eager to see the arrival of legal case law around the GPL. It could affect IBM, which SCO sued for more than $1 billion in March after Big Blue allegedly broke its contract with SCO and was accused of misappropriating trade secrets when moving technology from Unix into Linux. And the case could affect large companies such as Lufthansa, Deutsche Bank, Panasonic and Daimler Chrysler that use Linux.

The issue isn't as clear-cut as either SCO or its opponents would have it, said John Ferrell, an intellectual-property attorney with Carr and Ferrell. "If anybody tells you they have the definitive answer, they're crazy," he said.

But he'd give the edge to SCO in the situation, not because of its interpretation of the GPL, but because of a legal principle stemming from the 1887 sale of a pregnant cow in Michigan. That case established the so-called doctrine of mutual mistake, under which a contract can be nullified if two parties--in this case SCO and a company using Linux--misapprehended the true nature of what was in the contract.

Mark Radcliffe, an attorney with Gray Cary, also believes SCO has a case. On the argument that the company opened the Unix code, he said, "I think that's a tough argument to make. The fact that distributing software with proprietary code in it turns it into open source--I think a court would have difficulty swallowing that one," he said. "This may be a test of the open-source license."

Among those arguing that SCO's moves would have made public whatever portions of Unix code may appear in SCO's Linux products--products it stopped shipping May 14--are Eben Moglen, the attorney for the Free Software Foundation that created the GPL; Richard Seibt, chief executive of Linux seller and estranged SCO business partner SuSE; and LinuxTag, a German Linux group that has threatened SCO with legal action based on its Linux moves.

In May, SCO sent 1,500 letters to the world's largest companies warning that they could face legal action for using Linux because Unix code had been copied into Linux. On Friday, Chris Sontag, head of the SCOsource effort to increase revenue from the Unix intellectual property the company says it owns, said the copied Unix code appears in version 2.4 and 2.5 of Linux that's downloadable from kernel.org and in products sold by Red Hat and SuSE. SCO's Linux product was based on SuSE's version.

That copying, if it in fact took place, could violate not just the law but also the philosophy of the collaborative open-source movement, which prides itself on an independent development process. SCO said Friday that it has begun disclosing the allegedly infringing code to industry analysts under nondisclosure agreements to prove its assertions.

"What we have is a clash between two different philosophies," said Gartner analyst George Weiss, referring to the proprietary software on the one hand and the free software and open-source software movements on the other. "I happen to believe there's room for both."

Coming clean
But open-source advocates will have to resolve the issue about whether Linux has been tainted, he added. "Open source (programs) will be used more and more in the future, but they've got to have a clean bill of health," Weiss said.

SCO's claims of Unix ownership haven't gone unchallenged: Novell, which owned Unix rights before selling some to SCO's predecessor, initially said it never sold SCO the Unix copyrights and patents, but it backtracked this week when SCO produced an amendment to the original contract.

But SCO's arguments would be undermined if it turned out the company's own Linux product made public Unix code that once was proprietary, as some believe has happened.

"They delivered the product. Just because of that, they have made that code GPL," Seibt said in an interview.

And LinuxTag said in a statement, "Until a few weeks ago, SCO itself distributed the Linux kernel...as a member of the UnitedLinux alliance. Thus, even if SCO owns parts of the Linux kernel, it has made them into Free Software by distributing them under the GPL."

Not so, counters SCO's Sontag.

"The GPL requires the intentional act of the legal copyright holder to affirmatively and knowingly donate the source code to the GPL," Sontag said. "You can't inadvertently GPL your code."

SCO ceased sales of its own Linux product in May. Sontag said the move was prompted not because of the argument that it would open the Unix source code, but because the company is "trying to provide leadership in terms of recognition of intellectual property and making sure mechanisms are in place" to ensure that property isn't infringed.

As evidence that putting software under the GPL must be a deliberate act, Sontag points to section zero of the GPL, which states, "this license applies to any program or other work which contains a notice placed by the copyright holder saying it may be distributed under the terms of this General Public License."

But Moglen disagrees with SCO's position. "I find these statements from SCO irresponsible," he said. The act of packaging, advertising and marketing a Linux product means SCO's actions were anything but inadvertent, he said. What SCO is arguing seems instead to be that it didn't know what it was packaging.

Moglen likened the situation to selling a book. SCO's argument would be like a publisher saying, "Sorry, had we read the novel we would have known it was a good novel and would have charged more for it," Moglen said.

But Ferrell said that with the doctrine of mutual mistake, SCO could employ to its advantage an argument that it didn't know what exactly was in the Linux product. "If neither party knew what it was getting under the contract, it may be possible for SCO to avoid the terms of the contract," the contract in this case being the GPL.

The doctrine of mutual mistake dates back to the sale of a cow named Rose the Second, the center of a legal case called Sherwood v. Walker. In the case, Rose was sold under the assumption that she was barren, but it turned out she was pregnant and thus worth much more. "She was not a barren cow, and, if this fact had been known, there would have been no contract," the Michigan Supreme Court ruled in the case.

How the SCO case is resolved will affect how the computing industry treats open-source software and its underpinnings, Ferrell said.

"This particular issue is really important to the GPL, and (its resolution) is just inevitable," Ferrell said. "At some point we're going to need to have a judge sit down and sort it all out."