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SCO: Tip of the Iceberg?


By Andrew Binstock
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October 15, 2003 —  (Page 1 of 2)
In an impressive show of unity, the open-source community has roundly condemned SCO's lawsuit, which alleges copyrighted source code was placed in the Linux source tree. Every pundit, analyst and user has inveighed on the topic.

However, we must do more than fulminate about the SCO problem. Consider the possibility that SCO might be just the tip of the iceberg. Given the recording industry's decision to go after users who downloaded copyrighted works, a greater enforcement of copyrights is likely to be the norm, and SCO is not a one-time problem. We need to start formulating over-arching solutions.

Three categories of problems lurk: trade secrets, patents and, of course, copyrights.

Let's start with trade secrets. Say a disgruntled programmer "contributes" a key piece of source code that reveals a trade secret. Another firm picks it up not knowing its origins and develops a successful competing product. When the original company discovers the leak, it can no longer close the barn door because the trade secret has been distributed worldwide. What can that company do? And what are the obligations of all the other companies-such as Red Hat in the case of Linux-that might have profited from the sale of products containing the code?

Patents are a different problem. They are frequently violated unintentionally, and accountability can be demanded long after the violation took place. Let us recall Unisys' pursuit of licensing fees for GIF files (due to a patent on GIF's compression algorithms) long after GIFs had become an accepted standard.

Equally astonishing was the discovery that using XOR to reverse pixels for displaying an image was a violation. But patent 4,197,590, filed in 1980 made it so. In fact, the inadvertent violation of patents and delayed enforcement are often a remedy to patent suits: The typical scenario is that someone sues IBM for patent violations, IBM responds by finding one of its 10,000 patents violated in the accuser's software, and they settle the suit by licensing the technologies to each other. However, in the case of open-source products, how would such a quid pro quo work?



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