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SCO: Tip of the Iceberg?


By Andrew Binstock
October 15, 2003 — 
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?

In the SCO case, I think it's likely that code copyrighted by SCO found its way into Linux. It could have happened in any one of a dozen ways, many of them devoid of nefarious intent. But this begs the larger question: Who else's private intellectual property is in Linux, or potentially other open-source projects?

The question of commercial code in open source has been around since the movement's earliest days. Anyone familiar with the contentious dispute between Jim Gosling and Richard Stallman over the display code in GNU emacs will recollect how long this argument has gone on. In those days, however, the issue was not money. There was no money in open-source software; the Free Software Foundation's thread-bare finances bore mute testimony to this point. As a result, money was not the form of remedy typically sought. Simple correction of code was sufficient. (Gosling's code was removed from Stallman's emacs in v. 16.56 and the issue went away.)

The dynamics of the Linux market, though, have changed irreversibly as big companies derive direct commercial benefit from open-source products-which is why SCO sued IBM, but not Linus Torvalds.

As a result, the question of ownership of code and algorithms now hangs over the open-source community. And the community will need to come to grips with it, if new suits are to be avoided.

One possible solution lies with the newly formed Open Source Development Lab (OSDL) in Beaverton, Ore., which aims to be the "center of gravity for Linux." This group, funded by a variety of vendors interested in promoting Linux, may be the ideal party to formulate policies for the submission of code and the verification of code that is accepted.

For example, OSDL might seek to work with SCO to obtain a copy of

the Unix codebase in exchange for legal immunity with the proviso that it do a line-by-line comparison to remove any code that overlaps with the Unix sources. (That, of course, assumes that SCO is seeking to remove its intellectual property from Linux.) Likewise, OSDL might need to patent some Linux innovations and make them bargaining chips if it is sued for inadvertent patent violations.

Whatever the solution, I think that if the open-source community does not respond proactively to these issues with new policies as to how code is submitted and accepted, the SCO case will be remembered not as an unpleasant anomaly but the beginning of an unfortunate trend.


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