The penguin in peril
First Monday

The Penguin In Peril: SCO’S Legal Threats To Linux



Abstract
This thesis reviews the novel licences employed by open source developers. The paper examines how the success of the open source Linux operating system has led to conflict with traditional closed source software firms through the case study of SCO v. IBM, currently before the United States Federal District Court. Apart from exposing weaknesses in open source licensing, the case highlights the need to consider the intellectual property laws governing inputs into software development. The thesis further explores future intellectual property legislation that may forestall open collaboration. It is argued that proponents of such development methods must engage in policy discussions to limit the exclusionary authority of intellectual property licensors, by ensuring broad user rights to protected works.

Contents

I. Introduction
II. Reactions to proprietary enclosure of software: The open–source movement
III. Challenges For a disruptive technology: The SCO v. IBM litigation
IV. The future of open–source software: Embracing and extending the law
V. Conclusion

 


 

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I. Introduction

Software pervades every aspect of modern life [1], and the importance of laws governing its use and development has grown accordingly [2]. As with most emerging areas of law [3], there is considerable consternation about the legal theories regulating software production, particularly licensing and the competing interests of users and developers. The conflict between these interests is brought into sharp relief by the latest phenomenon in software development, the open source revolution [4].

"Open source" describes a software development method that allows users to see, modify, and redistribute the human–readable source code of a computer program [5]. It emphasises open collaboration and iterative improvement. This conflicts with traditional closed source development, and incumbents have been lobbying for laws favouring the original developer’s right to exclude others.

Throughout the 1980s and 1990s, as the market for pre–packaged, mass–produced proprietary software exploded, the bounds of copyright were tested. Judicial development slowly clarified that protected expression existed in unique code used to achieve a unique solution [6]. Monopoly rights were not granted for existing ideas expressed in software code. This changed in 1994, with the acceptance by the American judiciary of the concept of software as a patentable invention [7]. Under patent doctrine, software was conceived of as a tool created to solve a problem [8]. Thus, it was held, for instance, a business method could be patented if "implemented" in software [9].

The open source movement is a reaction to these strictures. Open source software is treated as a public good that can be used for downstream business and research, creating significant social benefit. The first section of this thesis reviews the licences used by open source developers. These range from the Berkeley Software Distribution licence, permissive of any use of the licensed software, to the GNU General Public License, which requires derivatives based on the software to also be open sourced. Both have engendered spectacularly successful projects. IBM’s adoption of the Linux operating system is examined as a watershed in legitimising open source software. The chapter also describes how the success of open source software has created a conflict with the dominant closed source methodology [10]. The story of the SCO Group is illustrative — attempting to combine both open and closed source software in a single solution, SCO found itself unpopular in both camps and faced collapse.

SCO is now suing IBM for contributing SCO’s proprietary code to Linux, which SCO itself helped develop and distribute [11]. The second chapter explores this litigation. The main claim is that the code IBM contributed is derived from SCO’s copyrighted Unix operating system [12]. The contractual history of Unix’s ownership, however, is complex, and SCO’s right to control Unix derivatives is questionable. SCO also relies on competition and trade secrets arguments to bolster its proposed pecuniary remedies. It is contended that SCO’s action is muddled and sometimes spurious or misguided. It does, however, highlight the need for the open source community to focus on the bases for open source software as well as future development.

It is argued in the third section that broader threats to open development are presented by legislative barriers being proposed by incumbent software firms and other institutional intellectual property holders. Recent legislation allows copyright holders to wrap their works in technological protection measures that cannot be circumvented, even for purposes allowed by copyright law [13]. Patent law now facilitates proprietary control of fundamental software components [14].

The thesis asserts that bounds to the exclusionary power of intellectual property owners, and broad user rights, are fundamental to the viability of open source software. It is argued that open source proponents must become more politically active and secure a balanced intellectual property regime. Without sustained lobbying, the proprietary enclosure of software may result in significant losses to society, as private firms erect "tollbooths on all roads leading to [open source software]" [15].

 

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II. Reactions to proprietary enclosure of software: The open source movement

Prior to the 1980s, the market for pre–packaged software was limited. Programs were written for crude hardware designed to perform specific tasks [16]. Software was distributed to users together with human–readable source code, usually without licence terms restricting redistribution of code. Most users were technically proficient and many would improve the software’s performance, stability, or functionality. These improvements were then shared with the original author and other users [17].

As hardware improved and became standardised, mass–produced commercial software rapidly increased. Software firms rising to prominence in the 1980s kept their source code secret and began imposing increasingly wide–ranging licence restrictions on software use and modification [18].

Proprietary "closed source" software was unwelcome to many users [19]. While corporations like Microsoft began to assert dominance over the computer industry, several disparate "open source" projects attempted to avoid the restraints of the emerging proprietary enclosure movement. Open source developers pursued several licensing strategies with the common goal of disseminating human–readable source code and allowing software to be freely shared and modified [20].

The BSD project at the University of California at Berkeley ("Berkeley"), attempted to create a free variant of the Unix operating system originally co–developed with AT&T. Massachusetts Institute of Technology (MIT) researcher Richard Stallman began a one–man crusade against proprietary software with his own Unix–clone project, GNU. Stallman’s project was later complemented by Finnish university student Linus Torvalds’ Linux project, which created the essential "kernel" that powers GNU.

Open source software has steadily improved in quality, and garnered significant interest. Corporations such as Red Hat and SCO (formerly Caldera) were specifically formed to provide packaged open source solutions and support [21]. Established companies like IBM and Intel have embraced open source as a means of avoiding Microsoft’s stifling influence on their businesses [22].

The increased interest in open source has also led to legal frictions. As with proprietary software, there has been academic debate about the use of licensing terms to modify the default intellectual property law [23]. There has also been debate about the interaction of proprietary and open source software and the effects of various licences upon each other [24]. These debates recently spilled into the judicial system. In 2003, failing Unix/Linux distributor SCO sued IBM for contributing its proprietary software to the Linux project in breach of licence terms [25]. SCO v. IBM exposes the conflicting legal doctrines underpinning both open source and proprietary software licensing and marks the point at which the two modes of development have come into direct conflict.

The Berkeley Software Distribution: Genesis of open source

The open source movement began almost as an unconscious act. It started with the distribution of software developed at Berkeley under a licence enshrining the usual conditions for sharing software in academic communities. The software was developed by the Berkeley Computer Science Research Group, one of many university groups collaborating with AT&T on its Unix operating system. AT&T had a monopoly in telephony when the collaborations began, and was restricted from competing in other fields of commerce. Primarily interested in the software for internal use, it paid little attention to Unix licensing terms or enforcement [26].

The open source movement began almost as an unconscious act.

By the mid–1980s, however, AT&T divested many of its telephony operations, freeing it to undertake previously forbidden enterprises [27]. Around 1984, AT&T released Unix Version 7 under extremely restrictive licences and began distributing it to other corporations at very high prices [28]. Large technology companies licensed Unix on terms allowing them to alter the software and resell the improved product as proprietary systems, often tied to particular hardware. Thus, for instance, IBM sold AIX, Hewlett–Packard sold HP–UX and Sun sold Solaris.

AT&T continued to charge universities a nominal amount for Unix, but began requiring academics to sign non–disclosure forms before allowing them to view the source code [29]. Many researchers improved Unix in the course of their work and AT&T reaped the benefit. Academics were essentially paying for the privilege of helping to develop lucrative software, with little reciprocal benefit.

The Berkeley group decided to release those parts of Unix it had exclusively created free of charge. The only restriction placed on any redistribution of the software, whether modified or not, was that such redistributions should carry a copyright notice acknowledging the original authors [30]. This Berkeley Software Distribution (BSD) licence became one of the two most famous open source licences [31]. By 1991, Berkeley researchers had rewritten most of the AT&T code and that year the University released BSD Net/2 — a complete, free, and freely modifiable operating system [32].

A year later, however, Berkeley and Berkeley Software Design Inc. (BSDi), the company it established to commercially distribute Net/2, were sued by AT&T for breach of copyright and contract [33]. As questions arose about the software’s survival, the project began to lose momentum [34]. The action was eventually settled in 1994 on terms very favourable to BSDi and Berkeley [35], but development had stalled, and open source programmers around the globe were focusing on other projects, including GNU and Linux.

The GNU General Public License: Open source becomes conscious

At the same time AT&T was commercialising Unix in 1984, MIT academic Richard Stallman began to feel the effects of the broader proprietary software movement. Stallman viewed restrictions on sharing code as power–grabs by proprietary firms. Understanding the potential for software to create social wealth, Stallman believed software ought to be treated like water, air, or public roads, a common resource to be used for the benefit of society [36].

Stallman perceived intellectual property restrictions upon the free dissemination and adaptation of software as a fundamental harm to society [37]. Furthermore, Stallman believed keeping source code secret resulted in an unnecessary duplication of development effort, resulting in more expensive, lower quality code [38]. Indeed, commercial Unix variants began to suffer from this exact problem in the ensuing decade, allowing Microsoft to make significant inroads into the operating system field [39].

Stallman decided he would "put together a sufficient body of free software [such that he would] be able to get along without any software that is not free" [40]. He called his project "GNU" — a recursive joke which means "GNU’s Not Unix." He also established the Free Software Foundation to act as a focus for GNU development [41].

By the time BSD Net/2 was released in 1991, Stallman and his collaborators had nearly completed GNU. The missing part of the operating system was the "kernel." The kernel is a crucial part of the operating system, performing the most fundamental functions such as scheduling access to processor time and shared memory for other software [42].

To ensure continued freedom to use, modify, and redistribute GNU and free software, Stallman developed the GNU General Public License (GPL). Unlike the BSD licence, the GPL has two requirements for software use: firstly, any redistribution must be accompanied by the source code, including code to improvements [43]; secondly, the GPL must continue to apply to the redistributed software and its terms may not be changed or added to [44]. These restrictions guarantee future users can continue modifying and redistributing software licensed under the GPL and its derivates.

Curiously, the GPL is like proprietary licences from companies such as Microsoft in that it restricts users in certain ways. The GPL protects future users’ rights rather than the software developer’s rights, but it may raise similar issues regarding the way in which licence terms are being used to alter the balance of rights created by intellectual property laws [45].

Linux: The last piece in the open source puzzle

Stallman’s GNU project was eventually completed by a Finnish university student Linus Torvalds. In 1991, Torvalds began experimenting with a rudimentary operating system kernel [46]. His aim was simply to learn about operating systems. He was also interested in exploring his new computer’s Intel 80386 microprocessor, one of the x86 line of processors Windows operated on, and which were becoming the de facto standard for personal computers. Like Stallman, Torvalds modelled his work on Unix, the most easily available operating system specification at the time.

In September 1991, Torvalds publicly released Linux 0.01, together with source code [47]. Although rudimentary, Linux attracted significant attention, and Torvalds received a flood of suggestions for improvement. Some people even sent improvements they had authored themselves. Excited by the response, Torvalds began releasing updates at increasingly regular intervals. During his most vigorous period of development, Torvalds was releasing new versions more than once a week [48]. The rapid releases and Torvalds’ responsiveness to suggestions were popular with users, and Linux quickly gathered thousands of users and co–developers. Some commentators have suggested the Linux kernel’s success is due not to its technical merits, but rather to the development method Torvalds pioneered [49].

Although it eventually formed the centre of the GNU system, the Linux kernel was not originally licensed under the GPL. Torvalds’ original licence, though allowing free copying and redistribution, entirely prohibited any for–profit activities related to Linux [50]. It was only with version 0.12, released in January 1992, that Linux’s burgeoning popularity prompted Torvalds to licensed it under the GPL, which allowed recoupment of distribution costs and profit from ancillary services [51].

The popularity of Linux, now symbolised by the pudgy penguin mascot "Tux," is such that the GNU/Linux combination is routinely referred to as Linux, and it has matured to the point it rivals Microsoft’s Windows [52]. Key to this development has been the rise of the pre–configured distributions. These distributions package Linux with software like GNOME, which offers a graphical user interface similar to Windows, and OpenOffice, an alternative to Microsoft’s Office suite. One hundred Linux distributions are now available from independent software providers [53].

The most successful commercial distributions have been SuSE [54], Red Hat, and Caldera [55]. The SuSE distribution was started in 1992 by four German university graduates. Originally a Unix software development and consultancy business, SuSE soon branched into Linux. By 1997, SuSE had become the most popular Linux distribution in Europe and was expanding into the United States [56]. SuSE was subsequently bought by established software corporation Novell [57].

The Red Hat distribution was started in 1993 by Marc Ewing, who began using Linux as a development platform because it was significantly cheaper than Unix. His operation expanded significantly when he partnered with entrepreneur Bob Young, who astutely recognised the business opportunity in pre–configured, tested Linux distributions [58]. Their partnership has been incredibly successful and Red Hat is now the most successful Linux company; Peter Wayner points out that its "brand name is synonymous with Linux" [59].

Caldera/SCO: An open source Judas

The last major distribution is Caldera. Caldera Inc was started by former Novell employees Bryan Sparks and Ransom Love in 1994 [60]. They had both worked on a Linux project, "Corsair," at Novell. Although Novell now distributes SuSE, one of the most popular Linux distributions, it did not see the value of Linux then, and Sparks and Love left to pursue the business outside Novell.

In an effort to "leapfrog competitors" [61], Caldera packaged GNU and Linux with proprietary closed source applications that did not have mature open source counterparts. This move angered many in the open source community, who felt that surrounding Linux with closed source software, upon which users might grow dependant, endangered its open source nature [62].

Caldera quickly found that corporations were not interested in the short–term gains it offered. Potential customers understood that if they adopted open source solutions, they would have to establish favourable relationships with the community to secure their place in future development. Burdened with a bad business strategy, and outmatched by superior marketing from SuSE and Red Hat, Caldera faced impending failure [63].

In an effort to offer a unique and compelling solution, Caldera bought the Unix business of the Santa Cruz Operation (SCO) in late 2000 [64]. SCO’s main business had been providing low–end Unix solutions on commodity Intel hardware to medium and large corporations under the name SCO OpenServer. These solutions included point–of–sale inventory systems and other special purpose machines, used by companies such as McDonald’s and K–Mart [65]. In 1995, SCO had also bought the rights to the "ancient" Unix Version 7 code from Novell. Novell had in turn bought the Unix System Laboratories business from AT&T, re–branding the original Unix, "UnixWare" [66].

Caldera hoped its acquisition would have two effects. First, the OpenServer business would give Caldera a retail distribution network and bring brand–awareness. Second, Caldera intended to use UnixWare code to extend its existing Linux and Unix software, beyond the relatively low–powered Intel x86 systems, into the high–end Unix–dominated enterprise–computing market [67]. Enterprise computing requires systems that rarely crash and recover gracefully when problems do occur. This requires features like the ability to simultaneously use multiple processors; data recovery after interruptions such as power failure; and, the ability to coherently access and coordinate multiple blocks of memory [68]. A move into this market was a significant undertaking.

By 2002, under new CEO Darl McBride [69], Caldera was renamed "The SCO Group" to capitalise on the brand [70]. To facilitate Linux development, SCO publicly released UnixWare source code on its Web site under a BSD–like licence [71]. SCO was also involved in a joint venture with IBM to develop a new Unix variant for the upcoming Intel Itanium platform of high–end microprocessors: Project Monterey [72]. Monterey was based on the Unixware code and had been described by the old Santa Cruz Operation’s CEO Doug Michaels in 1999 as the path of future growth for Unix, filling the high–end niche that Linux was too immature for and Windows seemed unable to secure [73].

Parallel to Monterey was another Itanium project — Intel had publicly released specifications for their new architecture to allow programmers to port Linux to the hardware standard [74]. This unprecedented project involved not only the traditional Linux community, but also many new adherents, including Hewlett–Packard, Dell and SCO’s Project Monterey partner, IBM [75]. While Microsoft was mired down in monopoly abuse litigation brought by the U.S. Department of Justice [76], its hardware partners were exploring Linux as a means of escaping from their reliance on Windows [77].

SCO was also involved in the early days of the Linux Itanium project, along with rivals Red Hat and SuSE. SCO, however, was the only Linux company with competing interests. By May 2001, the Linux enterprise–computing project was far ahead of Monterey development, and IBM informed SCO it no longer intended to continue Project Monterey [78].

When Darl McBride became CEO of SCO, in June 2002, the company was facing a dire financial situation: its cash reserves would only sustain it for a matter of months and it was threatened with stock market delisting [79]. McBride did not have many options. As McBride’s long–time friend Mike Anderer put it, with SCO’s core business fast disappearing, "[i]ntellectual property was the last piece of ammunition" [80]. A year later, SCO sued IBM for breach of contract, intellectual property rights, and unfair competition [81].

McBride acknowledged that "there’s a war going on … around the future of the operating system, and whether it’s going to be free or not."

In a public address at Harvard University in February 2004, McBride described his decision to sue without any reference to SCO’s business difficulties. He portrayed SCO as the smaller business partner, cheated by "Big Blue" [82]. "We were forced into a corner where we had to fight," he said [83]. But McBride is not ignorant of his decision’s significance. In an interview with Wired, he acknowledged that "there’s a war going on … around the future of the operating system, and whether it’s going to be free or not" [84].

This is not the first time McBride has relied on traditional intellectual property licensing as a revenue source. Before joining SCO, McBride was a partner with investment company Silicon Stemcell. The company’s sole business was to acquire intellectual property and aggressively license it for profit. McBride is also familiar with litigating for profit [85]. Before joining Silicon Stemcell he sued his former employer, Ikon, reportedly securing millions of dollars [86]. It was with the help of fellow Silicon Stemcell partner Mike Anderer that McBride crafted his litigation strategy at SCO [87]. Anderer also used his industry links to arrange a licensing deal for SCO with industry heavyweight Microsoft. Licence revenue from Microsoft, and another licence bought by Sun, were the only sources of income SCO had with which to begin its litigation efforts [88].

Big Blue, big business and the open source revolution

It is ironic that SCO, a former Linux distributor, is suing Big Blue for its involvement in the open source Linux project [89]. IBM is one of the oldest remaining proprietary software companies [90], described by Moody as "the bluest of the blue chip companies" [91]. Moreover, IBM was the first technology company to use patents as a source of revenue rather than as protection for its own inventions [92], a strategy McBride co–opted several years later at Silicon Stemcell.

IBM&#8217s first experience with open source software was the adoption of the Apache Web server as the centrepiece of its Websphere suite [93]. Moody describes how "other software companies … watched first with incredulity and then with growing interest [at] IBM’s high–profile victory" [94]. IBM’s Websphere products had been designed to work with its own proprietary Web server, installed on 0.2 percent of all servers [95]. By adopting Apache, IBM could sell Websphere to 64 percent of the market, more than Netscape and Microsoft combined [96]. IBM also benefited from positive media coverage; the Apache announcement generated over a thousand news stories and made Big Blue one of the "good guys — a company that ‘got it’" [97].

IBM’s decision was one of a string of open source transitions by established proprietary technology companies [98]. The first watershed decision came from Netscape Communications. Floundering against competition from Microsoft, the Internet giant decided to open its flagship Communicator browser [99].

An important distinction is that Communicator was released under a GPL–like licence [100], whereas Apache was released under a BSD–like licence [101]. Netscape’s licence stopped competitors like Microsoft incorporating Netscape technology into rival solutions [102], but it also prohibited Netscape integrating improvements into its own proprietary software. The Apache licence, by contrast, allowed IBM to appropriate code as it saw fit. It did not require that improved code be released under the same "open source" licence [103].

After the successful Apache experiment, IBM expanded its open source strategy in 2000 [104], committing to Linux as a standard operating platform across all of its products — from portable laptops to its largest mainframes. To ensure Linux worked with its products, IBM, like other major hardware and software vendors, began contributing significant amounts of code back to the Linux project under the GPL and forged partnerships with several leading Linux vendors, including SCO, Red Hat, SuSE, and TurboLinux [105].

IBM’s decision to standardise on Linux led it to slate its AIX Unix for eventual replacement [106]. With the planned discontinuation of AIX, there was no reason to continue with Project Monterey. Although IBM continued relations with SCO long after the end of Monterey [107], SCO’s financial difficulties forced it to act. As IBM began to focus on its more successful Linux partners [108], and the leadership team at SCO changed [109], IBM became SCO’s target for litigation revenue.

Conclusion: The coming battle

Both proprietary and open source advocates have strong interests in the litigation outcome. Novell, owner of SuSE Linux and former owner of the Unix business currently owned by SCO, is claiming it never sold SCO the copyrights and patents underlying Unix [110]. Linux distributor Red Hat has sued SCO for deceptive trade practices [111]. Microsoft has licensed software from SCO, providing it with revenue, and indirectly encouraged investment in the company [112].

While Microsoft’s involvement with SCO has not been particularly close, its monopoly in the operating system field means its presence is constantly felt. It was Microsoft’s ruthless competition that forced Netscape to open Communicator, starting a wave of commercial open source decisions. Microsoft’s aggressive control over its business partners also led many hardware vendors, including IBM, to pursue Linux as an alternative to the Windows operating system.

The Free Software Foundation’s general counsel Eben Moglen suggests "[t]here’s a war between Microsoft and IBM … over what amounts to the most important question in the IT industry in the beginning of the 21st century. Will software be closed and exclusionary? Or will it be a public resource that everyone helps to make and maintain?" SCO v. IBM embodies the conflict between these fundamentally different visions of the future of software.

 

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III. Challenges for a disruptive methodology: The SCO v. IBM litigation

Moglen describes SCO v. IBM as "the moment the old business model tries to assert control again" [113]. SCO claims that IBM unlawfully disclosed SCO’s intellectual property through contributions to the Linux project. The reaction from the software community is unparalleled. Wired described the litigation as "a legal missile aimed at the heart of the open source software movement" [114], while several sources wrote of SCO’s "Jihad" against Linux [115].

SCO v. IBM is emblematic of software disputes, comprised of a morass of doctrinal arguments, spanning intellectual property, contract and competition law. In academic discourse, commentators emphasise different doctrines. Some conceptualise the field as predominantly driven by contractual arrangements. Others focus on its dependence upon intellectual property. The field is also characterised as being beset by competition law problems inherent in the monopoly rights created by intellectual property law. Some legal commentators have sought to elucidate the conflicting doctrines by arguing for each to be applied to sub–parts of a given dispute [116]. For instance, they argue, competition law issues are often misinterpreted as disputes about restrictive intellectual property licensing [117].

SCO’s desire to maintain the proprietary value of its source code is incompatible with the open source community’s wish to share code.

SCO v. IBM, crucial to the future of open source, demonstrates that separating legal issues in this way is not beneficial in many legal scenarios. Intellectual property lies at the heart of the action. SCO’s desire to maintain the proprietary value of its source code is incompatible with the open source community’s wish to share code. Despite the centrality of this conflict, it may be preempted by the contractual rights created by agreements betweeen IBM and SCO. Further, each party argues the other’s behaviour constitutes unfair competition. The interconnecting influences of the myriad legal doctrines will be the determining factor in the outcome of the dispute.

The complexity of these issues and the evidential bases for the action do not bode well for SCO. SCO is being represented by David Boies [118], the celebrity lawyer who led the U.S. Department of Justice action against Microsoft [119]. It ironic that the lead prosecutor of Microsoft has agreed to represent SCO, a company clearly aligned with the software giant [120].

Boies also represented Gore in his U.S. Supreme Court petition against the 2000 presidential election results, and defended Napster against the recording industry [121]. Unfortunately for SCO, Boies’ skill as a lawyer has led to the rapid expansion of his firm without commensurate growth in management and support infrastructure [122], and this may have a disasterous effect for the case. Boies’ team has misidentified the defendant’s place of incorporation [123], mistaken key dates in the contractual history [124], and had to reverse outrageous claims [125]. It has also abandoned evidence that seemed central to one of its claims [126], abandoned an entire claim that was a pivotal part of the original complaint [127], and added a new legal theory that should have formed part of the action from the beginning [128].

Given the complexity of the litigation, the long contractual and corporate history, and the relative novelty of open source licensing, Boies’ mistakes have significantly injured SCO’s case [129]. At each stage, IBM has taken advantage of the inconsistencies and contradictions introduced into SCO’s case.

Introduction to the issues

The arguments in this litigation can be doctrinally categorised as follows. Firstly, both IBM and SCO claim a breach of contracts and licences against each other [130]. SCO further contends IBM’s continued use of Unix, after its licences have been revoked, constitutes copyright infringement [131]. Being interdependent, the copyright and contract issues are discussed together. Secondly, both parties claim unfair competition by the other [132]. This includes doctrinally related accusations of interference with potential partners in the technology industry [133]. IBM’s case also accuses SCO of unfair and deceptive trade practices [134], and false representations [135].

SCO also alleges that IBM has unlawfully encouraged SCO customers to breach their contracts with SCO [136]. It further contends tortious interference by IBM in the contract between SCO and Novell that transferred various rights related to Unix to SCO [137].

IBM additionally alleges breach of the GPL [138] and copyright infringement as a corollary [139]. As an alternative, IBM claims promissory estoppel [140]. IBM also claims four separate patent infringements by SCO, but these are ancillary claims unrelated to the main facts in issue and are not discussed further [141].

Notably, SCO has discontinued an earlier claim that IBM had disclosed trade secrets [142]. Despite the fact that this claim is no longer being pursued, it was an integral part of the original claim and holds potential significance for future collaboration in open source by corporations.

Ultimately, SCO’s action is contingent upon the contractual claim. Without the rights it hopes to establish, it cannot control IBM’s use of the relevant code even if it holds the underlying copyright. IBM’s counterclaim cleverly rests upon two alternatives: if SCO is not bound by the GPL then, by itself distributing Linux, it breached IBM’s copyrights in Linux code; and, if SCO is bound by the GPL then it is estopped from claiming against others who use Linux under the GPL. SCO will find it extremely difficult to establish its contentions and also repel those of IBM.

Contractual and licence breaches

The fact that both IBM and SCO are suing each other for breach of contract reflects considerable confusion surrounding how the agreements between AT&T and IBM agreements and subsequent amendments are to be interpreted. The original agreement was signed in 1985 and since then "nearly 400 supplemental agreements" have been signed [143]. McBride’s friend and SCO consultant Anderer described sifting through the contracts as like "being an archaeologist given the keys to an unexplored Egyptian museum basement" [144].

SCO claims IBM was under a licence that restricted it to using the code and related information for the limited purpose of devising software for internal business purposes [145]. SCO also alleges IBM was subject to confidentiality undertakings relating to the code and associated information [146]. Pursuant to SCO’s view that IBM breached these licence terms, SCO sent IBM a letter demanding rectification and threatening termination on 6 March 2003 [147]. On 13 June, SCO further sent IBM a termination letter demanding it discontinue any use of AT&T Unix or AIX source and destroy all existing copies [148]. As a corollary, SCO maintains IBM’s continued use of the software after the licence has been revoked constitutes breach of copyright [149].

IBM denies SCO’s characterisation of the agreements [150]. IBM signed an amendment with Novell and the Santa Cruz Operation in 1996, at a time when those two corporations jointly held the rights to licence AT&T Unix. IBM claims this agreement, "Amendment X," entitled IBM to "the ‘irrevocable, fully paid–up, perpetual right to exercise all of its rights’ under the AT&T Agreements" [151]. IBM argues that SCO’s purported termination of IBM’s rights constitutes a breach of the contract post–Amendment X [152]. IBM contends the termination notice was also defective, because SCO failed to give it enough information to allow it to cure any defect in its performance of the contract [153].

Importantly, Novell claims it only sold the Santa Cruz Operation (and thereby SCO) the right to sell new licences to Unix, and that it continues to control intellectual property rights in Unix and to exercise licensor rights in relation to existing contracts such as IBM’s [154]. In response to the principal action, Novell purported to waive its rights, if any, to terminate IBM’s contract [155].

SCO labels Novell’s construction of the contract "preposterous" [156]. SCO posits that if Novell is correct, then SCO would be unable to protect its revenue stream from breaches of contract, especially if confidentiality is breached [157]. This poses a conundrum: if SCO’s interpretation is true, then Novell would find itself beholden to SCO if a licensee breaches royalty obligations. If Novell is correct, then the opposite is true. Given this apparent paradox, Novell’s argument seems less "preposterous" than SCO suggests. SCO claims Novell’s actions have been unlawfully induced by IBM [158]. If Novell’s actions are valid, however, the question of the true construction of the IBM agreement is irrelevant because SCO cannot exercise licensor rights under that agreement.

In another challenge to SCO’s claim to control the source code, IBM claims the agreement with AT&T only included rights to control AT&T source code. SCO says that, under the AT&T agreement, new works incorporating original AT&T code become "resulting materials" which are to be governed by the same terms as the original code [159]. In support of this contention, SCO argues no business would sell source code on a confidential basis, but allow purchasers to include the same code in their own derivative commercial products without restriction, and so deprive the original owner of its commercial value [160]. By contrast, IBM claims no business would buy the rights to code on the understanding that the seller would subsequently gain rights to control any subsequent code written by the purchaser [161]. Unsurprisingly, neither party notes the parallels to restrictions imposed by the GPL.

IBM presents an alternative to this dilemma in a motion for summary judgment. It argues that references to "related materials" incorporating AT&T source code should be read to allow SCO control to any parts of the original Unix system incorporated into new IBM code, but not the whole of the new code [162]. In support of this construction, IBM cites extensive supporting evidence from contemporaneous documents and former employees of AT&T who negotiated the original agreement [163].

In their current states, AIX and Dynix (another Unix variant bought by IBM) each have around 75 million lines of code, less than one percent of which is from AT&T Unix [164]. Accordingly, IBM argues, SCO cannot control all use of AIX and Dynix, but rather the one percent of code copied from AT&T Unix under licence. Further, IBM claims that none of that percent of code was contributed to the Linux project and SCO has not been able to show otherwise in discovery [165]. Thus, it believes SCO’s central contract claim to be unfounded.

SCO’s entire action depends upon its rights to control relevant parts of IBM’s AIX code. Novell’s challenge to SCO’s claim to hold copyright in Unix code could be devastating. Even if SCO succeeds in establishing copyright, it must also prove its interpretation of the contractual restrictions on IBM. IBM’s apparently more sensible interpretation of the ambiguous contractual language, combined with the "perpetual and irrevocable" rights transferred to IBM by Amendment X, makes it unlikely that SCO will succeed in this lynchpin cause of action.

Unfair competition

SCO’s unfair competition claim essentially alleges that all of IBM’s alleged wrong–doings, collectively, constitute unfair competition [166]. Consequentially, SCO claims IBM’s unfair actions have resulted in harm to SCO’s business relationships and thus constitute unlawful interference [167].

SCO is suggesting its carefully cultivated Unix business is being unfairly targeted by IBM and others through the distribution of rights–infringing Linux. This depiction is problematic. SCO was offering the allegedly confidential Unix code for free download even after the action commenced [168]. Further, the claim conflicts with SCO’s corporate history as a Linux distributor [169]. SCO was distributing versions of its OpenLinux package until August 2004 [170].

SCO is suggesting its carefully cultivated Unix business is being unfairly targeted by IBM and others through the distribution of rights–infringing Linux. This depiction is problematic.

This legal tactic bears the mark of an argument constructed by SCO’s lawyer, Boies. The Microsoft Case was a restrictive trade, or antitrust, case. Microsoft abused its monopoly power in the desktop operating system market by using its copyrighted Windows software to unfairly restrict access to the Web browser market [171]. Again, in Napster, one of Boies’ four main arguments was that the recording labels were acting as a cartel through the Recording Industry Association of America [172].

Given the large monopoly interests created by intellectual property, which exists specifically to allow the creation of artificial monopolies [173], competition law issues often surface in intellectual property matters [174]. It is likely that in this case SCO’s competition law arguments will not be successful because they are wholly dependent on the broader success of ill–founded intellectual property claims.

IBM counterclaims that SCO has engaged in unfair competition by instituting this action [175]. Intimately intertwined with this argument is the allegation that SCO is engaged in deceptive trade practices [176]. IBM’s deceptive trade practices counterclaim rests on both common law and federal statute [177]. Ironically, IBM characterises SCO as propagating "fear, uncertainty and doubt" [178]. This is amusing because the phrase (often contracted to "FUD") was originally coined to describe the activities of IBM’s marketing division [179].

Whether SCO’s use of litigation is merely FUD remains to be decided. The open source community certainly believes it is [180], but to prove the allegation, IBM will have to succeed in the overall action and also show that SCO’s claims were clearly without merit from the beginning. If this is shown, IBM argues, parallel to SCO, that SCO’s actions will have constituted unlawful interference in business relationships [181]. Given the contractual ambiguities and complexities in several decades of corporate dealings, IBM is unlikely to succeed in this claim. In any case, SCO would not be in a position to pay monetary compensation.

IBM inducements to SCO customers to breach obligations to SCO

SCO’s first contractual interference claim alleges that, by helping SCO customers to port licensed SCO software to run on Linux, IBM induced those customers to breach licensing terms [182]. The claim depends on the premise that SCO’s licences limited its customers to using SCO software on SCO’s version of Unix. This appears to be a rapidly disintegrating argument.

Two fundamental flaws can be discerned. Firstly, SCO’s action against customer DaimlerChrysler for misusing its Unix licence in this way has been substantially dismissed [183]. This casts doubt on whether IBM’s inducements, if found to exist, would be illegal. The second flaw is that SCO has failed to identify misuse of any specific software. SCO had earlier argued that SCO OpenServer shared libraries were crucial for running Unix compatible software on the Linux machines, but had not been licensed to be used separately from SCO Unix software [184]. That argument has been abandoned [185]. These flaws in SCO’s case suggest that it no longer has a strong basis to assert that IBM has "induced" SCO customers to use their SCO software in a manner that breaches licence terms.

IBM inducement to Novell to breach obligations to SCO

IBM and Novell both claim Novell retains licensor rights to IBM’s contracts. This argument is supported by patents and registered copyrights to Unix technology still held by Novell [186], though these are contested by SCO [187]. SCO has gone further than simply contesting Novell’s claims, alleging Novell’s actions are driven by inducements offered to it by IBM [188]. Specifically, SCO notes IBM invested US$50 million in Novell stock after the action began [189]. Novell used that money to purchase SuSE Linux [190]. In effect, SuSE has become a partly held subsidiary of IBM.

This fact does not, however, necessarily indicate inappropriate behaviour by IBM. For a long time, the information technology industry has been dominated by a handful of large players such as IBM, Microsoft, Intel, HP, Oracle, and Sun. With the advent of open source software many have posited that copyright– and patent–dependent software firms have lost their revenue base and will soon disappear [191]. This litigation shows, however, that the same large firms may continue to dominate the industry.

SCO is unlikely to prove IBM’s action was anything other than a prudent financial decision to protect its investments in Linux. Aside from its involvement in the Novell/SuSE deal, IBM uses Red Hat Linux for many of its server products [192]. IBM is also part of the consortium that employs Linus Torvalds, the Open Source Development Labs (OSDL) [193]. Other partners in this venture include AMD, Cisco, Ericsson, Fujitsu, HP, Intel, Mitsubishi, Nokia, and Sun. The OSDL guides development of particular aspects of Linux and, through Torvalds and his lieutenants, has some de facto control over its overall direction [194].

Promissory estoppel of and copyright infringement by SCO

Two IBM counterclaims, promissory estoppel and copyright infringement, arise from one allegation: that SCO distributed Linux, necessarily under the GPL, and continued to do so after it found code that allegedly infringed its intellectual property rights. IBM argues that, having distributed Linux despite knowing the software included SCO’s copyrighted code, SCO has accepted the GPL terms of distribution and must abide by them.

Pertinently, the GPL requires that software must be accompanied by source code and cannot be redistributed except under the GPL [195]. It is argued that SCO is prohibited by these terms from attempting to restrict the distribution of Linux source code. SCO is also prohibited from distributing the code under other terms — which it would be doing if it sold licences to use parts of the Linux code [196]. IBM asserts that SCO’s obligation to comply with the GPL gives rise to promissory estoppel, prohibiting SCO from attempting to pursue its current action [197].

IBM’s arguments cunningly target the mistake SCO made by continuing to distribute Linux after bringing this action.

In the alternative, IBM argues that if SCO did not accept the terms of the GPL, it continued distributing Linux without licence. IBM notes it contributed "hundreds of thousands of lines of IBM code" to Linux, and the only licence granted to use that copyrighted code was the GPL. Therefore, IBM argues, if SCO successfully renounced the GPL and continued to distribute GPL–licensed code, it infringed IBM’s copyright. SCO "literally copied more than 783,000 lines of code from sixteen packages of IBM’s copyrighted material [that were contributed to Linux]" [198].

These alternative arguments cunningly target the mistake SCO made by continuing to distribute Linux after bringing this action. Unless the judge reaches the unlikely conclusion that SCO’s continued distribution constituted an oversight in a multibillion dollar lawsuit that persisted for several months, it is difficult to see how these motions could fail.

Trade secrets disclosure

SCO’s trade secrets claim raised the greatest ire of the open source community. The claim was soundly criticised on the basis that the state legislation relied upon defines a trade secret as information that is not generally known, and cannot be "readily ascertain[ed] by proper means" and is the subject of reasonable efforts to maintain its secrecy [199]. By contrast, SCO (continuing from the Santa Cruz Operation before it) distributed Unix source code without charge from its Web site until after SCO launched its action against IBM [200].

Further, in an interlocutory judgment in the BSD Case, the judge noted "[n]umerous treatises, courses, graduate student theses, and research projects have investigated, expounded, and improved upon UNIX" [201]. The other possible basis for the trade secrets claim was information conveyed by SCO to IBM during the Project Monterey venture. At the same time as SCO was collaborating on this project, however, it too was contributing to the Linux Itanium project, which far outstripped Monterey’s progress [202]. IBM siezed upon this cause of action as showing SCO’s claims are generally "meritless" [203].

Conclusion

Wired journalist Brad Stone noted:

"Hopeful Linux advocates predicted that courts would quickly dismiss SCO’s claims. But the lawsuits plod along like horror–flick zombies that won’t die" [204].

To succeed, SCO must navigate several legal obstacles. First, it must establish it holds the relevant intellectual property rights. Second, that the scope of those rights extend to the code contributed by IBM to Linux, possibly including code largely authored by IBM. Finally, it must convince the Court its preferred remedies are appropriate. Together these obstacles seem insurmountable, considering the paucity of SCO’s evidence and its legal blunders thus far.

The Court is especially unlikely to agree to SCO’s preferred remedy. SCO argues the precise copied code cannot be publicly revealed because that would damage its monetary value [205]. The only alternative, however, is to require users to comply with a sealed order to which they are not party and cannot access [206]. All Linux users would pay for rights they cannot question or remove. If proprietary code has accidentally been introduced into GPL software, it is more likely the remedy will be damages for breach of copyright and mandated removal of offending code [207].

If SCO fails, it is unlikely to be able to appeal due to its precarious financial situation [208]. Its litigation is being funded almost solely by venture capital firm Baystar [209], which has expressed concern about SCO’s legal prospects, twice threatening to withdraw funding [210]. Baystar has also distanced itself from SCO’s tactics after heavy criticism about the fact it was introduced to SCO by Microsoft [211].

While Sun and Microsoft both purchased SCO Unix licences, cumulatively paying US$13.2 million [212], it is unlikely that either will be a source of future funds. Microsoft must be careful not to draw the attention of market regulators concerned about its dominance in the operating system field [213]. So it is unlikely that SCO will become Microsoft’s "sock puppet" [214]. Sun is unlikely to further invest in SCO’s action because Sun is attempting to court the open source community [215], and has its own Linux offerings [216]. It wants to avoid SCO’s fate of becoming "the most hated company in tech" [217].

SCO insists the case "is not about the debate about the relative merits of proprietary versus open source software" [218]. Yet the target of its litigation, Linux, has been described as "perhaps the single largest collaborative project in the planet’s history" [219]. Importantly, open source advocates will have learnt a cautionary lesson from SCO. The threat of future litigation on the basis of copyright and patent infringment looms large over open source development [220]. With large companies involved, these projects have become attractive targets for litigation. And due to the disruptive nature of open source, proprietary software makers such as Microsoft will readily back legal attacks if able to do so discretely.

On the other hand, major companies that have heavily invested in open source projects have a vested interest in their continuance. IBM, Intel, and others have contributed to the OSDL’s "Linux Legal Defense Fund," a multi–million dollar fund from which grants are made to Linux users if SCO sues them [221]. In addition, Linux vendors such as Novell and Red Hat are indemnifying their customers from the risk of litigation [222]. For Linux users who use alternative distributions, and for users of other open source software, the startup Open Source Risk Management (OSRM) is offering "open source insurance" [223].

The open source community has also changed its practices to avoid similar future action. The founder of the GNU project, Richard Stallman, has always insisted all copyrights be assigned to him. In May the OSDL created a submissions process in which contributors to the Linux kernel must authenticate their right to contribute specific code [224]. Moglen says "Stallman was right and Linus was wrong": the poor documentation of Linux source contributions has led to this problem [225].

Future battles also have to be fought in legislatures. Recent legislative amendments and proposals for further legislation are largely driven by groups with vested interests in the closed source model. New copyright and patent laws uniformly consolidate copyright holders’ rights to exclude others. This legislative arena is a forum in which supporters of disruptive technologies have usually had the most difficulty against incumbents [226], and so it is likely to be with open source.

 

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IV. The future of open source software: Embracing and extending the law

SCO’s vision of proprietary intellectual property ownership poses a systemic threat beyond the current SCO v. IBM litigation. SCO CEO Darl McBride, and other vocal closed source proponents, advocate laws that exclude any use of protected work not explicitly sanctioned by the licensor. The shape of such an intellectual property landscape is outlined in two "open" letters from McBride published on the SCO Web site [227].

McBride first attacks open source licences generally, claiming they are incompatible with intellectual property law. His sentiments have been echoed by other closed source advocates, and more worryingly by the U.S. Patent and Trademark Office [228]. McBride’s corporate–controlled intellectual property paradise is a bleak one, where the only forms of creativity valued or allowed are profitable forms, sanctioned by multinational companies. Open source proponents must counter such interpretations of intellectual property laws. If they are allowed to inform future legislation, new laws may exclude open collaboration opportunities. This threat is captured by the references in McBride’s letters to the latest developments in copyright and patent laws.

With regard to copyright, McBride invokes the Digital Millennium Copyright Act (DMCA) [229]. Designed to help copyright holders enforce their copyrights, this law actually broadens their control over works and associated products. The level of control the DMCA allows copyright holders to exercise with regard to use of copyrighted works has been labelled "draconian" by many [230]. Several public–interest organisations have catalogued unintended ways in which the law has been used to stifle competition, research, public discussion, and legitimate user dealings with licensed works [231].

To ensure the continued viability of open source development, advocates must intensify efforts to secure permissive laws that acknowledge the rights of users as well as creators.

The emergence of software patents also threatens open collaboration projects. McBride praises patents for protecting creators’ rights to monetarily exploit their inventions [232]. The problem is a single piece of software may include several hundred thousand software instructions [233]. Monopoly control of these basic instruction sets may be used to exclude smaller developers. Open source is particularly vulnerable since publicly available source code can be easily scrutinised for patent violations.

There has been much derision of the proprietary view that holds all intellectual property must be licensed at a cost [234]. The DMCA has been denounced as special interest legislation [235]. But only recently have open source proponents begun to lobby for change. Activists have been vocal in their opposition to the European Union’s consideration of software patents [236].

To ensure the continued viability of open source development, advocates must intensify efforts to secure permissive laws that acknowledge the rights of users as well as creators. The alternative is a stagnant software industry driven by the interests of a small group of software developers. Downstream benefits of cheap, rapidly evolving, quality software will be withheld from society.

The motive of profit

In his two open letters, McBride outlined his vision of intellectual property. Quoting the majority decision of U.S. Supreme Court in the Eldred Case [237], McBride explained the judges had held that the copyright and patent clause of the United States Constitution enshrined "the motive of profit" as "the engine that ensures the progress of science" [238]. McBride extrapolates that any intellectual property practice that does not aim to "monetize" work is counter to the vision endorsed by every U.S. legislature, from the Founding Fathers to the most recent Congress [239].

The GPL, says McBride, "violates" the U.S. Constitution [240]. This claim is mirrored in arguments made by several Microsoft executives, who have called the GPL an "intellectual property destroyer," claiming it threatens "the intellectual property of any organisation making use of it" [241]. Microsoft and SCO argue that the intellectual property system exists for the sole purpose of protecting those who would use protected works to directly generate an income stream.

Contrary to McBride’s claims, however, Eldred did not endorse "profit motives" as the foundation of the copyright clause in the U.S. Constitution. Eldred was not a limit to the scope of the intellectual property power. It rather affirmed Congress’ power to legislate as it sees fit, whether the legislation enacted favours the profit motive or emphasises the importance of easy access to existing creative works [242]. The U.S., like most industrialised nations, has in fact legislated to allow the licensing of works on whatever terms the licensor sees fit: not for profit per se.

Like SCO’s or Microsoft’s licences, open source licences such as the GPL are entirely based on intellectual property laws. McBride argues the GPL is invalid because it modifies the default balance of rights provided for by the legislative copyright scheme. Yet traditional proprietary software licences play the same function [243]. For instance, SCO claims the licence granted to IBM only allows it to create software for internal business purposes [244]. Contractually limiting IBM’s use of software licensed from SCO is essentially the same as limiting potential developers of open source software to licensing derivative works on particular terms [245].

Creative contracts

McBride’s argument that the "law of the land" is in SCO’s favour and against open source developers misconstrues the wide variety of licensing terms allowed for under intellectual property law. Innovative use of intellectual property licences has recently spread beyond software. For instance, under the slogan "Some Rights Reserved" [246], the Creative Commons (CC) project offers standard–form licences that authors and artists can use to license music, visual art, literature, and composite media such as Web pages and film [247].

A Web application on the CC Web site allows creators to select a licence with any combination of terms from a pre–defined set [248]. The licences terms may require attribution, allow or prohibit modification, allow or prohibit commercial use, and may, like the GPL, require redistribution of modified works under the same licence [249].

The CC licences are distributed in three forms: "Lawyer–Readable Legal Code"; "Human–Readable" "Commons Deed", and "Machine–Readable" metadata [250]. The Legal Code is the actual licence. The Commons Deed provides a summary of the licence terms targeted toward the lay person, allowing creators to choose a licence without recourse to expensive legal advice. The metadata is a machine–readable explanation of the permissions in the licence. This is appended to the electronic embodiment of the work. The work can then be automatically indexed by search engines and processed by software tools, allowing easy identification, retrieval and reuse of CC–licensed work using computer tools. This three–pronged approach minimises transaction costs and lowers barriers to content reuse and modification [251].

In the three years since its launch, the project has achieved considerable success. Aside from a massive body of CC–licensed work created by individuals [252], several commercial enterprises have adopted CC licences. In 2004 the BBC announced it will publish archival footage on the Internet under a CC–derived licence, creating the largest free stock–footage archive in the world [253]. In 2003 the Public Library of Science project launched its peer–reviewed journal entitled PLoS Biology, soon followed by PLoS Medicine. Both are licensed under a BSD–like CC "Attribution License" [254]. These journals have been well received by an academic community normally charged extortionate prices by traditional journal publishers [255]. A number of book publishers have also released titles under various CC licences [256].

Despite these victories, open collaboration proponents must beware of legal dangers inherent in their reliance on contracts. Although SCO’s claim appears doomed, other cases may expose flaws in open collaboration licences. An example is a recent interlocutory decision in Germany that examined the terms of the GPL [257]. Although the Court upheld the GPL’s terms, the judgment raised serious questions.

The judgment interpreted licence restrictions as "conditions subsequent" under the German Civil Code [258]. As Hoeren notes, that interpretation recasts the licence provisions, treated as restrictions in a licence to property in American law, as contractual terms [259]. Thus, redistributing software under different terms to the GPL would be remedied by contractual damages. A third–party would not have to deliver up copies of software licensed under the incompatible terms, because of contractual privity. The customer might then be free to re–license the software under its own terms.

An alternative reading, suggests Hoeren, is impossible, because European copyright doctrine includes a first–sale rule prohibiting the copyright holder from restricting distribution of work once it has been sold. There is no recognition of an inexhaustible right to "license" use of copyrighted work as one can license property use [260]. Most alarmingly, Hoeren argues that if the GPL itself is invalid, a licensor will not find a remedy in breach of copyright for use without a licence. He points out a licensor must take responsibility for the licence terms used [261].

Given the potential issues, open source and open content advocates cannot rely on licensing alone. The most promising alternative is ensuring the support of governments. A model for government support is the open access PubMed project [262].

In September 2004, the U.S. Congress’ House Appropriations Committee directed the National Institutes of Health to devise a plan to ensure public access to research funded by federal government funds [263]. The health agency immediately proposed that researchers who publish articles based on government–funded research should be legislatively obliged to make the articles available without charge via the agency’s PubMed electronic database [264]. It has been suggested that if this initiative is implemented, it will be followed by similar moves around the world [265]. The BBC Creative Archive shows the potentially wide application of publicly funded databases.

Governments from Singapore to Germany are adopting open source solutions, mandating use by government departments through executive decisions, legislation, or incentive schemes [266]. China and France have also set up an intergovernmental project to develop software based on Linux [267]. Open source projects have already benefited from government funding. BSD was developed at the University of California. Torvalds was able to spend time building Linux partly because of the free higher education system in Finland. Open source advocates need to persuade legislators of the potential further benefits of cheaply available software, including the prospective business opportunities. Arguments should be made for legislatively mandated access to software developed with government funding, akin to the open access PubMed proposal put forward by the National Institutes of Health.

Legislation and lobbying: Establishing copyright’s bounds

Although McBride is mistaken in his assertion that the U.S. copyright system is tailored exclusively to allow private parties to reap profits, he is correct that recent legislation has tended to facilitate that aim. The latest major copyright amendment, the DMCA, prohibits "circumventing" a technological protection measure (TPM) applied to a work, distributing decryption tools that could be used to avoid a TPM and removing or altering "copyright management information" [268].

The rationale for the DMCA is that it prohibits copyright infringement, "piracy," and is made necessary due to the ease of copying digital material [269]. McBride suggests IBM removed copyright notices accompanying SCO’s source code, breaching the copyright management information provisions of the DMCA. However, if IBM did indeed remove copyright information, and then contributed the source code without copyright information to the Linux project, then its behaviour constitutes copyright infringement, actionable under traditional copyright law [270]. The real utility of the DMCA is revealed by legal actions limiting use that would be allowed under existing copyright law.

The broad reading of the DMCA raises a serious barrier to entry, since a copyrighted work guarded by a TPM cannot be accessed for any legally legitimate purpose without explicit permission from the copyright holder. Users are effectively barred from fair use, time–shifting, space–shifting, or copying works after their copyright expires.

In 2000, several major movie distribution companies sued a number of individuals who had distributed the DeCSS program [271]. The program decrypts the CSS encryption used to secure DVDs [272]. The defendants argued DeCSS was designed to allow DVDs to be played on Linux computers and was within the limits of §1201(f) which allows reverse–engineering for the purpose of interoperability [273]. The Court found the exception only allows reverse–engineering to create a tool that cannot itself circumvent copyright protection [274]. Thus if a TPM directly impedes interoperability, the reverse–engineering provision is of no use. Even hyperlinking to DeCSS code, according to the Court, constituted trafficking in prohibited de–encryption tools [275].

The Court held the defendants’ intention — to allow playback of CSS–protected works on Linux computers — had no bearing on liability for circumvention [276]. Simply enabling circumvention, regardless of purpose, breaches the DMCA’s provisions. If this interpretation is correct, the DMCA seriously undermines the Supreme Court’s decision in the Betamax Case, where the Court held that the manufacturer of technology capable of "substantial non–infringing uses" cannot be held liable for contributory copyright infringement [277].

The broad reading of the DMCA raises a serious barrier to entry, since a copyrighted work guarded by a TPM cannot be accessed for any legally legitimate purpose without explicit permission from the copyright holder [278]. Users are effectively barred from fair use, time–shifting, space–shifting, or copying works after their copyright expires. The DMCA may also be used to protect non–copyrightable goods, because if substitute goods have to interact with a copyrighted work, the work cannot be used where protected by a TPM [279].

The European Union (EU) has adopted similar laws to the U.S. [280]. By comparison, Australia’s counterpart, the Copyright Amendment (Digital Agenda) Act, only prohibits manufacture or distribution of circumvention devices, not their use [281]. Although this law makes it very difficult to obtain a circumvention device [282], a user does not breach the Act unless the device is used to actually infringe copyright [283]. Even this small leeway is likely to disappear under the amendments likely to follow the Australia–United States Free Trade Agreement [284].

All three jurisdictions enacted anti–circumvention laws to give effect to obligations under the WIPO Copyright Treaty adopted in 1996 [285]. The treaty terms, however, are widely permissive. Article 11 requires signatories to "provide adequate legal protection … against the circumvention of effective technological measures that are used by authors [to protect copyrighted] works" where use is "not authorized by the authors concerned or permitted by law" [286]. The DMCA and its counterparts go further by extending copyright holders’ exclusionary powers.

The extraordinary measures were adopted due to the threat of "digital piracy" [287]. Several public–interest organisations, however, catalogue the unintended effects of the DMCA [288]. As in the case of DeCSS, the provisions are being misused to restrict perfectly legitimate uses that would otherwise be legal under copyright law. A number of proposals for amendments have been proffered. Notably, Congressman Rick Boucher’s proposed Digital Media Consumers’ Rights Act of 2003 ("Consumer Rights Bill") seeks to restore a balance of user and creator rights [289].

The Consumer Rights Bill was preceded by similar efforts that failed [290]. Pro–user bills have failed because open collaboration advocates have not convinced legislatures of the importance of favouring user rights. In 2003, Michael Petricone of the Consumer Electronics Association suggested that technologists’ attitude towards legislators was: "Let us build our ingenious products and leave us alone" [291]. By comparison, the media industry has been heavily lobbying legislators for almost a century [292].

In one short year, with increasing anti–competitive intellectual property abuse through laws such as the DMCA [293], most in the technology and consumer electronics industries have realised the importance of defending their right to innovate. In June 2004, influential technology companies including Sun and Intel announced an alliance with user rights groups like the Electronic Frontier Foundation and Public Knowledge, public–interest groups such as the American Library Association, and telecommunications companies such as Verizon [294].

The "Personal Technology Freedom Coalition," which immediately announced its support for Boucher’s DMCA amendment, is the broadest lobby group for user rights. Open source advocates must use such groups and garner the support of the large technology industry. Unless there is organised opposition to the increased restrictions advocated by media groups and closed source companies, it will become impossible to easily grant rights to modify works. It will also become impossible for open source software to interoperate with closed technologies.

A new barrier to entry: Patents pending

Arguing that open source developers are anti–intellectual property, McBride claims they have "aggressively lobbied Congress to eliminate software patents and copyrights" [295]. Open source advocates have not lobbied against copyright, since open source licences are based on rights granted by copyright [296]. They have, however, lobbied against software patents, recognised in the U.S. in 1994 [297]. Unlike copyright, which merely protects a particular expression of a software solution, patents foreclose the possibility of independent creation of alternative solutions [298]. This is a serious problem given the multitude of ways for expressing a single software instruction and the attendant scope for over–wide patents.

The threat patents pose to software innovation is unique because any software program combines an incredibly large body of patentable instructions to create a single solution [299]. Further, each instruction or instruction set can be used in a wide variety of solutions [300]. For instance, a set of instructions used to represent an image might also be used to compress documents [301]. Thus a single patented instruction or subset of instructions potentially provides a monopoly over a wide variety of areas, many unconnected to the original purpose of the patented code [302]. The problem is multiplied for larger programs. Linux kernel version 2.6 contains about 4.3 million lines of code [303]. Insurance company OSRM has estimated that this kernel potentially breaches 283 different patents [304].

Software patents thus threaten to permanently concentrate power in the hands of large institutional rights holders and raise impenetrable barriers to entry for open source developers [305]. Following IBM’s early lead [306], Microsoft is building a formidable patent portfolio and demanding payments for patented technology [307]. Given the difficulty of identifying patented methods and the costs of litigation, aggressive patent exploitation by software oligarchs has the potential to quash open source development [308]. In this battle, open source proponents cannot rely upon their corporate allies. IBM, for instance, has been one of a number of large technology companies lobbying the EU in recent years to recognise software patents [309].

Fortunately, a politically active European open source movement has responded vocally. A protest outside the European Parliament in Brussels was joined by over a thousand Web sites that replaced their home pages with a note of protest, and an online petition that collected 17,000 signatures [310]. In late 2003, the European Parliament amended patent legislation proposed by the Commission so as to explicitly exclude software and business method patents [311]. A controversial attempt by the Council of Ministers to reject these amendments was met by co–ordinated demonstrations held simultaneously in every capital city from Warsaw to Lisbon [312]. The legislation is now indefinitely stalled [313].

Conclusion: Opening up new options

The growing political awareness of open source activists is a positive sign. Proponents must continue to engage in policy arguments, or find their contractually created commons pre–empted by inflexible intellectual property laws. Beyond protesting and lobbying, open source proponents must convince policy–makers of necessity of open source solutions.

The fight to establish the importance of such open collaboration will be a long one.

Promising steps have been taken to this end. In July 2003, 59 leading scientists, technologists, and economists, including several Nobel laureates, wrote to the Director General of the World Intellectual Property Organization (WIPO) [314]. They urged WIPO to arrange a conference to discuss the benefits of "open and collaborative" models for innovation that avoid "excessive, unbalanced, … poorly designed intellectual property protections" [315]. The letter cited several open projects that had created higher–level social benefits and even engendered new fields of commerce. Examples include the technologies underlying the Internet and the Global Positioning System [316].

The fight to establish the importance of such open collaboration will be a long one. Despite an initially enthusiastic response to the letter, for instance, WIPO quickly discontinued plans for the conference [317]. Its decision was the result of a negative response to the proposal from the U.S., a member with significant political clout [318]. Lois Boland, Director of International Relations at the U.S. Patent and Trademark Office, stated any discussions seeking to "disclaim or waive" intellectual property rights were "contrary to the goals of WIPO" [319]. This misinterpretation of open source and open collaboration projects was a direct result of lobbying by groups representing companies such as Microsoft [320].

 

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V. Conclusion

Linus Torvalds described Linux as "just a hobby" in 1991 [321]. That hobby is now one of many programs challenging the dominance of the closed source industry. But the rise of open source software is not progressing unchallenged. SCO v. IBM is the first reaction from proprietary firms. McBride says he wants to "get justice without putting a hole in the head of the penguin" [322], but other closed source firms will be less generous. SCO’s model of intellectual property licensing backed by threats of litigation has been described as "the business model of the new millennium" [323].

The open source community has begun dealing with the immediate issues through initiatives such as the OSDL’s Legal Fund and new due diligence procedures. However, it is yet to deal with the broader threats posed by new intellectual property laws. Technological protection measures that restrict otherwise permissible use, and patents on fundamental coding techniques, both endanger open collaboration.

Users and developers must lobby to restore a balanced intellectual property system. Technological restrictions should only be allowed if they enforce copyright and do not extend it. Software should continue to be protected as copyrightable expression, and not be misunderstood as patentable inventions. The alternative, a system that values technological and creative works solely by their revenue potential, will eradicate the immense societal benefits offered by information and technology commons. End of article

 

About the author

Ishtiaque Omar is completing a combined Bachelor of Science (Computer Science) and Bachelor of Laws program at the Australian National University.
Web: http://omar.id.au
Blog: http://omar.id.au/blog/
E–mail: ishtiaque [at] omar [dot] id [dot] au.

 

Acknowledgments

A number of people have made this thesis possible. I would like to take this opportunity to thank them and acknowledge the help that they have provided me.

Dr. Matthew Rimmer has patiently helped me turn rambling prose into a coherent paper, and I am extremely grateful for his assistance. Pamela Jones made this paper immeasurably easier by providing in Groklaw a record of SCO–related events. My family has been very encouraging of my efforts. Janet deserves many thanks for proof–reading the work several times.

 

Notes

1. See W. Wayt Gibbs, 1994. "Software’s Chronic Crisis," Scientific American, volume 241, p. 86.

2. See, generally, Tyler Ochoa, 2003. "1984 and Beyond: Two Decades of Copyright Law," Santa Clara Computer and High Technology Law Journal, volume 20, p. 167.

3. For a contemporary example, see the area of biotechnology: Linda Judge, 2003. "Biotechnology: Highlights of the Science and Law Shaping the Industry," Santa Clara Computer and High Technology Law Journal, volume 20, p. 79. And, historically, note the emergence of corporations law: Salomon v. Salomon & Co Ltd [1897] AC 22.

4. For a history and overview of the methodology, see Chris Dibona, et al., 1999. Open Sources: Voices from the Open Source Revolution. Sebastapol, Calif.: O’Reilly.

5. "Open Source," at http://en.wikipedia.org/wiki/Open_source, accessed 17 October 2004.

6. Computer Associates International Inc v. Altai Inc, 982 F 2d 693 (2nd Cir, 1992); Apple Computer Inc v. Microsoft Corp, 35 F 3d 1435 (9th Cir, 1994).

7. Re Alappat, 33 F 3d 1526, 1537 (Fed Cir 1994).

8. David Evans and Anne Layne–Farrar, 2004. "Software Patents and Open Source: The Battle Over Intellectual Property Rights," Virginia Journal of Law and Technology, volume 9, number 10, p. 1 at p. 10.

9. State Street Bank & Trust Co v. Signature Financial Group Inc, 149 F 3d 1368, 1370–5 (Fed Cir 1998).

10. On the topic of disruptive technologies, see Clayton Christensen, 1997. The Innovator’s Dilemma: When New Technologies Cause Great Firms to Fail. Boston, Mass.: Harvard Business School Press.

11. The SCO Group Inc v. International Business Machines Corporation (Undecided, D Utah, Kimball J, filed 22 July 2003).

12. The SCO Group Inc v. International Business Machines Corporation — Second Amended Complaint (Undecided, D Utah, Kimball J, filed 4 February 2004) pp. 14–16, 27–8 and 32–50.

13. Digital Millennium Copyright Act of 1998, Pub L No 105–304, 112 Stat 2860.

14. Re Alappat, 33 F 3d 1526 (Fed Cir 1994).

15. Brad Stone, "The Linux Killer," at http://www.wired.com/wired/archive/12.07/linux.html, accessed 12 August 2004, p. 1.

16. See generally Eric Raymond, "The Magic Cauldron," at http://www.catb.org/~esr/writings/cathedral-bazaar/magic-cauldron/index.html, accessed 12 October 2004, p. 3.

17. Peter Wayner, 2000. Free for All. New York: HarperCollins, p. 33. See also Glyn Moody, 2001. Rebel Code: Linux and the Open Source Revolution. Cambridge, Mass.: Perseus, p. 1–4.

18. Wayner, above n. 17 at p. 27.

19. See, eg, Richard Stallman, "The GNU Manifesto," at http://www.gnu.org/gnu/manifesto.html, accessed 8 October 2004.

20. See "Open Source," above n. 5; Eric Raymond, "Goodbye, ‘Free Software’; Hello, ‘Open Source’," at http://www.catb.org/~esr/open-source.html, accessed 17 October 2004; Richard Stallman, "It’s Still Free Software," at http://lwn.net/1998/0219/a/rms.html, accessed 17 October 2004; Bruce Perens, "It’s Time to Talk About Free Software Again," at http://lists.debian.org/debian-devel/1999/02/msg01641.html, accessed 17 October 2004.

21. See generally Moody, above n. 17 and Wayner, above n. 17.

22. Moody, above n. 17; Wayner, above n. 17.

23. See, e.g., Mathias Strasser, 2001. "A New Paradigm in Intellectual Property Law?," Stanford Technology Law Review, volume [2001], p. 4.

24. See Evans and Layne–Farrar, above n. 8.

25. The SCO Group Inc v. International Business Machines Corporation (Undecided, D Utah, Kimball J, filed 22 July 2003).

26. Wayner, above n. 17 at p. 34. See further Trudy Bell, "The Decision to Divest," at http://www.bellsystemmemorial.com/decisiontodivest.html, accessed 10 October 2004.

27. See US v. American Telephone and Telegraph Company, 552 F Supp 131 (DC, 1982). Discussed in Joseph Kearney, 1999. "From the Fall of the Bell System to the Telecommunications Act: Regulation of Telecommunications," Hastings Law Journal, volume 50, p. 1395.

28. Moody, above n. 17 at p. 33.

29. Ibid.

30. An updated version, without even the acknowledgement clause is available — "The BSD License," at http://www.opensource.org/licenses/bsd-license.html, accessed 8 October 2004.

31. See Eben Moglen, 2004. "Freeing the Mind: Free Software and the Death of Proprietary Culture," Maine Law Review, volume 56, p. 1 at 6–7; "BSD and GPL Licensing," at http://en.wikipedia.org/wiki/BSD_and_GPL_licensing, accessed 8 October 2004.

32. Wayner, above n. 17 at pp. 44–6.

33. Unix System Laboratories Inc v. Berkley Software Design Inc, 832 F Supp 790 (DNJ, 1993) ("BSD Case").

34. Wayner, above n. 17 at pp. 48–50.

35. Ibid., at p. 52.

36. Stallman, above n. 19.

37. Ibid.

38. Ibid.

39. Moody, above n, 17 at pp. 140–4.

40. Stallman, above n, 19.

41. See generally Richard Stallman, 1999. "The GNU Operating System and the Free Software Movement," In: Chris Dibona, et al., Open Sources: Voices from the Open Source Revolution. Sebastapol, Calif.: O’Reilly, p. 53.

42. See, further, William Stallings, 2000. Operating Systems: Internals and Design Principles. 4th edition. Upper Saddle River, N.J.: Prentice–Hall, pp. 57, 81 and 97. Also, Wayner, above n. 17 at p. 56.

43. "GNU General Public License," Second edition, at http://www.gnu.org/copyleft/gpl.html, accessed 9 October 2004, [2]–[3].

44. Ibid. at [4].

45. See, generally, Strasser, above n. 23. See also Pamela Jones, "Copyright Preemption — Explaining the ‘GPL is Unconstitutional’ Claim," at http://www.groklaw.net/article.php?story=20031030001345454, accessed 17 October 2004, discussing The SCO Group Inc v. International Business Machines Corporation — Answer to Amended Counterclaims (Undecided, D Utah, Kimball J, filed 24 October 2003) pp. 16–17. The modified argument is presented in The SCO Group Inc v. International Business Machines Corporation — Answer to Second Amended Counterclaims (Undecided, D Utah, Kimball J, filed 23 April 2004) p. 20. The history of this argument is explained in Steven Vaughan–Nichols, "SCO Still Contends the GPL is Unconstitutional," at http://www.eweek.com/article2/0,1759,1581586,00.asp, accessed 17 October 2004.

46. See generally, Wayner, above n. 17 at p. 47; Moody, above n. 17 at p. 44–6.

47. Moody, above n. 17 at p. 44.

48. Ibid., at p. 67.

49. Wayner, above n. 17 at p. 63–4; Eric Raymond, "The Cathedral and the Bazaar," at http://www.catb.org/~esr/writings/cathedral-bazaar/cathedral-bazaar/, accessed 12 October 2004.

50. Linus Torvalds, "Birthday," at http://groups.google.com/groups?selm=1992Jan29.231426.20469%40klaava.Helsinki.FI, accessed 10 October 2004.

51. Chris Short and Carri Short, "History of Linux," at http://www.shortfamilyonline.com/tech/unix/history-of-linux/, accessed 9 October 2004.

52. Eugenia Loli–Queru, "Unix’s True Competition: Linux?" at http://www.osnews.com/story.php?news_id=3649, accessed 10 October 2004; Eugenia Loli–Queru, "Gates: In Ten Years, it’s a Windows and Linux Game," at http://osnews.com/story.php?news_id=8448, accessed 10 October 2004.

53. See, eg, Wayner, above n. 17 at pp. 10–11 note 1; "Page Hit Ranking," at http://distrowatch.com/, accessed 10 October 2004

54. Pronounced "Soo–sza".

55. Moody, above n. 17 at pp. 223–4.

56. See, generally, Lenz Grimmer, "The SuSE Linux FAQ," at http://lwn.net/1998/0903/susefaq.html, accessed 10 October 2004; Moody, above n. 17 at pp. 234–5.

57. SuSE Linux, "Novell Announces Agreement to Acquire Leading Enterprise Linux Technology Company SuSE Linux" (press release, 4 November 2003).

58. Laurie Zuckerman, "Bob Young and His Fellow Red Hatters," at http://www.businessleader.com/bl/jan00/cover.html, accessed 10 October 2004; Moody, above n. 17 at pp. 97–8.

59. Wayner, above n. 17 at p. 249; see also pp. 249–51.

60. Moody, above n. 17 at p. 99; Steven Vaughan–Nichols, "Ransom Love Speaks about UnitedLinux, SCO and Where He’s Going Now," at http://www.practical-tech.com/business/b10012002.htm, accessed 4 October 2004.

61. See Moody, above n. 17 at p. 229.

62. Justin Maurer, "Caldera in the Spotlight," at http://linux.omnipotent.net/article.php?article_id=7100, accessed 16 October 2004; Andrew Grygus, "SCO — Death Without Dignity," at http://www.aaxnet.com/editor/edit032.html, accessed 17 October 2004.

63. Stephen Shankland, "Red Hat Holds Huge Linux Lead, Rivals Growing," at http://news.com.com/2100-1001-245203.html?legacy=cnet, accessed 10 October 2004.

64. Steven Vaughan–Nichols, "Caldera Buys SCO Unix and Professional Services," at http://www.practical-tech.com/business/b08022000.htm, accessed 4 October 2004.

65. The SCO Group Inc v. International Business Machines Corporation — Second Amended Complaint (Undecided, D Utah, Kimball J, filed 4 February 2004) p. 10.

66. See Eric Raymond, "OSI Position Paper on the SCO v. IBM Complaint," at http://www.opensource.org/sco-vs-ibm.html accessed 10 September 2004.

67. Steven Vaughan–Nichols, "Ransom Love, Co–founder of Caldera and SCO, Speaks of Unix, GPL and the Lawsuit," at http://www.eweek.com/article2/0,1759,1492264,00.asp, accessed 4 October 2004, p. 1.

68. Raymond, above n. 66.

69. Caldera, "Caldera Names Darl McBride as New CEO" (press release, 27 June 2002).

70. Caldera, "Caldera to Change Name to The SCO Group" (press release, 26 August 2002).

71. See Raymond, above n. 66.

72. Michael Lattig, "Intel and Unix: A Marriage Made in Santa Cruz," at http://www.cnn.com/TECH/computing/9908/18/scoforum.idg/, accessed 10 October 2004. On 64–bit computing, see Jon Stokes, "An Introduction to 64–bit Computing and x86–64," Ars Technica, at http://arstechnica.com/cpu/03q1/x86-64/x86-64-1.html, accessed 10 October 2004.

73. Lattig, above n. 72.

74. Dan Neel, "Intel Uncloaks Itanium, Woos Linux Developers," at http://www.infoworld.com/articles/hn/xml/00/05/10/000510hnitanium.html, accessed 16 October 2004.

75. Moody, above n. 17 at p. 286–8.

76. US v. Microsoft Corporation, 87 F Supp 2d 30 (DC, 2000).

77. Stacey Cowley, "HP Memo Warned of MS Assault on Open Source," at http://www.computerweekly.com/Article132130.htm, accessed 16 October 2004; Wayner, above n. 17 at pp. 185–7.

78. The SCO Group Inc v. International Business Machines Corporation — Second Amended Complaint (Undecided, D Utah, Kimball J, filed 4 February 2004) pp. 13–14.

79. Stone, above n. 15 at p. 1.

80. Ibid., at p. 2.

81. The SCO Group Inc v. International Business Machines Corporation (Undecided, D Utah, Kimball J, filed 22 July 2003).

82. "Big Blue" being a colloquial term for IBM, derived from the colour of its logo — "IBM," at http://foldoc.doc.ic.ac.uk/foldoc/foldoc.cgi?ibm, accessed 30 October 2004.

83. Darl McBride, "Defending Intellectual Property in the Digital Age," (speech delivered at the Harvard Journal of Law and Technology Symposium: Will Intellectual Property Kill the Software Industry? (Cambridge, 23 February 2004). See also reports of the speech: Hiawatha Bray, "Mr Unpopular," at http://www.boston.com/business/technology/articles/2004/02/04/mr_unpopular/, accessed 21 July 2004; Mary Bridges, "SCO v IBM: Questioning the Kernel," at http://cyber.law.harvard.edu/briefings/sco, accessed 21 July 2004.

84. Stone, above n. 15 at p. 1.

85. Ibid., at p. 2; Peter Key, "Firm Seeks to Protect Ideas," at http://philadelphia.bizjournals.com/philadelphia/stories/1999/09/06/story6.html, accessed 17 October 2004.

86. Stone, above n. 15 at p. 2; Daniel Lyons, "What SCO Wants, SCO Gets," at http://www.forbes.com/2003/06/18/cz_dl_0618linux.html, accessed 12 August 2004.

87. Stone, above n. 15 at p. 3.

88. Ibid.

89. See commentary in Patti Waldmeir, "Reality Bytes," at http://news.ft.com/servlet/ContentServer?pagename=FT.com/StoryFT/FullStory&c=StoryFT&cid=1078381752587, accessed 30 March 2004.

90. Andrew Leonard, "How Big Blue Fell for Linux," at http://www.postfix.org/salon.200009/index.html, accessed 12 October 2004, p. 1.

91. Moody, above n. 17 at p. 205.

92. Stone, above n. 15 at pp. 2–3. See also Kevin Rivette, 1999. Rembrandts in the Attic: Unlocking the Hidden Value of Patents. Boston, Mass.: Harvard Business School Press, p. 58.

93. IBM, "IBM Enhances and Expands WebSphere Product Line in Collaboration with Apache and NetObjects" (press release, 22 June 1998). Discussed in Moody, above n. 17 at pp. 205–10.

94. Moody, above n. 17 at p. 210.

95. Ibid.

96. Ibid., at p. 130.

97. Ibid., at p. 210.

98. Ibid., at p. 182 and pp. 213–17.

99. Ibid., at pp. 182–204.

100. Netscape Communications, "Netscape Public License," at http://mozilla.org/MPL/NPL-1.0.html, accessed 11 October 2004.

101. Apache Foundation, "Apache License Version 2.0," at http://httpd.apache.org/docs/LICENSE, accessed 11 October 2004.

102. Discussed in detail in Moody, above n. 17 at pp. 197–8.

103. See discussion in Joseph Kendrick, 2004. "Does Sound Travel in Cyberspace?," Journal of Small and Emerging Business Law, volume 8, p. 39 at 64.

104. Moody, above n. 17 at pp. 289–92.

105. See Leonard, above n. 90, at pp. 2 and 4; Moody, above n. 17, at pp. 220 and 223.

106. Stephen Shankland, "IBM: Linux is the ‘Logical Successor’," at http://news.com.com/2100-1001-982512.html?tag=fd_lede2_hed, accessed 17 October 2004.

107. See, e.g., Caldera, U.S. Securities and Exchange Commission Form 10–K (31 October 2002).

108. See, e.g., IBM, "IBM Delivers Total Linux Solutions to Wall Street" (press release, 20 July 2002).

109. Grygus, above, n. 62.

110. The SCO Group Inc v. Novell Inc (Undecided, D Utah, Quinn J, filed 4 January 2004).

111. Red Hat Inc v. The SCO Group Inc (Undecided, US District Court — Delaware, Robinson J, filed 4 August 2004).

112. Letter from Mike Anderer to Chris Sontag, 12 October 2003, available at http://www.opensource.org/halloween/halloween10.html, accessed 6 March 2004. See also Steven Vaughan–Nichols, "Microsoft–SCO Connection," at http://www.practical-tech.com/business/b05212003.htm, accessed 21 May 2004.

113. Stone, above n. 15 at p. 1.

114. Ibid.

115. See, e.g., Dan Gilmor, "SCO’s Linux Jihad," at http://weblog.siliconvalley.com/column/dangillmor/archives/001019.shtml, accessed 12 August 2004; Timothy Butler, "It’s Official: SCO Declares IP Jihad on Linux," at http://www.ofb.biz/modules.php?name=News&file=article&sid=230, accessed 12 August 2004.

116. F. Scott Kieff and Troy Paredes, "The Basics Matter: At the Periphery of Intellectual Property," (Working Paper number 275, Stanford Law School, John M. Olin Program in Law and Economics, 2004; see http://olin.stanford.edu/workingpapers/). See also, Frank Easterbrook, 1996. "Cyberspace and the Law of the Horse," University of Chicago Legal Forum, volume [1996], p. 207 at 207.

117. See Kieff, above n. 116.

118. SCO Second Amended Complaint at p. 1; Stone, above n. 15 at p. 1.

119. United States v. Microsoft Corporation, 87 F Supp 2d 30 (DC, 2000). On Boies’ celebrity status, see John Heilemann, "David Boies: The Wired Interview," at http://www.wired.com/wired/archive/8.10/boies.html, accessed 28 September 2004.

120. See, e.g., Pamela Jones, "SCO Falls Downstairs, Hitting its Head on Every Step," at http://www.groklaw.net/article.php?story=6, accessed 15 September 2004. Regarding SCO’s involvement with Microsoft, see Letter from Mike Anderer to Chris Sontag, above n. 112. See also Vaughan–Nichols, above n. 112; Gavin Clarke, "Microsoft Linked to SCO Funding," at http://computerwire.info/cgnews/DD442A49A6734CFA88256E4E0007C6C0, accessed 6 March 2004. See also Boies’ comments in Heilemann, above n. 119 at p. 4.

121. A&M Records Inc v. Napster Inc, 284 F 3d 1091 (9th Cir, 2002); Bush v. Gore, 531 US 98 (2000).

122. Hzeilemann, above n. 119 and "Like Wild Fire," at http://www.law.com/special/professionals/amlaw/2003/wild_fire.shtml, accessed 15 September 2004; Nathan Koppel, "Growing Boies," at http://www.law.com/servlet/ContentServer?pagename=OpenMarket/Xcelerate/View&c=LawArticle&cid=1043457917200&live=true&cst=1&pc=0&pa=0, accessed 15 September 2004. And see Pamela Jones, "Robert Silver — Who and Why," at http://www.groklaw.net/article.php?story=20040709055844798, accessed 15 September 2004.

123. The SCO Group Inc v. International Business Machines Corporation — Complaint (Undecided, D Utah, Kimball J, filed 22 July 2003) ("SCO Complaint") at p. 1.

124. See, e.g., SCO Amended Complaint 12; cf. SCO Second Amended Complaint at p. 11.

125. The SCO Group Inc v. International Business Machines Corporation — Answer to Amended Counterclaims (Undecided, D Utah, Kimball J, filed 24 October 2003) at p. 16–17; cf. The SCO Group Inc v. International Business Machines Corporation — Answer to Second Amended Counterclaims (Undecided, D Utah, Kimball J, filed 23 April 2004) at p. 20.

126. See, e.g., arguments about the centrality of SCO libraries to Linux–Unix interoperability: SCO Complaint at pp. 9–10.

127. SCO Amended Complaint at pp. 43–4.

128. SCO Second Amended Complaint at pp. 50–2.

129. See, e.g., Eblen Moglen, "SCO: Without Fear and Without Research," at http://www.fsf.org/philosophy/sco/sco-without-fear.html, accessed 19 September 2004; Eben Moglen, "SCO Scuttles Sense, Claiming GPL Invalidity," at http://www.fsf.org/philosophy/sco/sco-preemption.html, accessed 19 September 2004; Steven Vaughan–Nichols, "SCO Backs Off GPL Claims," at http://www.eweek.com/article2/0,1759,1580242,00.asp, accessed 19 September 2004.

130. The SCO Group Inc v. International Business Machines Corporation — Second Amended Complaint (Undecided, D Utah, Kimball J, filed 4 February 2004) ("SCO Second Amended Complaint") at pp. 14–16 and 32–50; The SCO Group Inc v. International Business Machines Corporation — Second Amended Counterclaims (Undecided, D Utah, Kimball J, filed 29 March 2004) ("IBM Second Amended Counterclaim") at pp. 14–15 and 27–8.

131. SCO Second Amended Complaint at pp. 50–2.

132. SCO Second Amended Complaint at pp. 52–5; IBM Second Amended Counterclaim at pp. 23–4.

133. SCO Second Amended Complaint at pp. 60–1; IBM Second Amended Counterclaim at pp. 30–1.

134. IBM Second Amended Counterclaim at pp. 15–20 and 32–3.

135. Ibid., at pp. 15–20 and 28–9.

136. SCO Second Amended Complaint at pp. 55–6.

137. Ibid., at pp. 56–60.

138. IBM Second Amended Counterclaim at pp. 27–8.

139. Ibid., at pp. 29–31.

140. Ibid., at pp. 28–9.

141. Ibid., at pp. 31–5.

142. Cf., The SCO Group Inc v. International Business Machines Corporation — Amended Complaint (Undecided, D Utah, Kimball J, filed 22 July 2003) ("SCO Amended Complaint") at pp. 43–4.

143. SCO Second Amended Complaint at p. 15.

144. Stone, above n. 15 at p. 3.

145. SCO Second Amended Complaint 32–5 (referring to Appendix A [2.01], [2.05] and [7.10]).

146. Ibid., at pp. 35–7 (referring to Appendix A [7.06(a)] and Appendix C); 42–6.

147. Ibid., at pp. 3–4.

148. Ibid.

149. Ibid., at pp. 50–2. Cf., IBM Second Amended Complaint 38–40, requesting declaratory judgment that SCO’s copyrights are invalid and unenforceable.

150. The SCO Group Inc v. International Business Machines Corporation — Answer to Second Amended Complaint (Undecided, D Utah, Kimball J, filed 26 March 2004) at pp. 13–14 and 15–16.

151. IBM Second Amended Counterclaim at p. 5.

152. Ibid., at pp. 27–8.

153. Ibid.

154. See IBM Second Amended Counterclaim, Exhibits O–T. And further, The SCO Group Inc v. Novell Inc (Undecided, D Utah, Quinn J, filed 4 January 2004).

155. IBM Second Amended Counterclaim at pp. 20–3.

156. SCO Second Amended Complaint at p. 59.

157. Ibid., at pp. 59–60.

158. Ibid.. See also The SCO Group Inc v. Novell Inc (Undecided, D Utah, Quinn J, filed 4 January 2004).

159. SCO Second Amended Complaint 32–4 referring to Appendix A [2.01] and [2.05].

160. Ibid., at pp. 39–40.

161. The SCO Group Inc v. International Business Machines Corporation — IBM Redacted Memorandum in Support of Its Motion for Partial Summary Judgment on Eighth Counterclaim (Undecided, D Utah, Kimball J, filed 16 August 2004) at p. 20.

162. See generally Ibid.

163. See especially Ibid., at pp. 25, 30–1 and 62.

164. Ibid., at p. 2.

165. Ibid., at p. 63.

166. SCO Second Amended Complaint at pp. 52–5.

167. Ibid., at pp. 60–1.

168. See Letter from Caldera (as SCO was then known) to "Unix enthusiasts", 23 January 2002 available at http://www.tuhs.org/Archive/Caldera-license.pdf, accessed 14 August 2004; also Pamela Jones, "Ancient Unix Released Under What Terms?" at http://radio.weblogs.com/0120124/2003/08/23.html, accessed 4 September 2004.

169. See Raymond, above n. 66, text accompanying n. 45.

170. See The SCO Group Inc v. International Business Machines Corporation — IBM Redacted Memorandum in Support of its Motion for Partial Summary Judgment on Eighth Counterclaim (Undecided, D Utah, Kimball J, filed 16 August 2004) at pp. 5–6.

171. See United States v. Microsoft Corporation, 87 F Supp 2d 30 (DC, 2000). For analysis, see Adam Macluckie, 2002. "United States v. Microsoft: A Look at the Balancing Act Between Copyright Protection for Software, Intellectual Property Rights and the Sherman Antitrust Act," Houston Business and Tax Law Journal, volume 2, p. 415.

172. A&M Records Inc v. Napster Inc, 114 F Supp 2d 896, 923 (Cal, 2000). See also Heilemann, above n. 119 at p. 5.

173. Daniel Gifford, 2003. "Antitrust’s Troubled Relations with Intellectual Property," Minnesota Law Review, volume 87, p. 1695; MacLuckie, above n. 171 at pp. 423–4, especially 424.

174. Gifford, above n. 173. See also Kieff, above n. 116.

175. IBM Second Amended Counterclaim, at pp. 29–30.

176. Ibid., at pp. 15–20; 28–9 and 32–3.

177. Ibid., at pp. 28–9 and 32–3.

178. The SCO Group Inc v. International Business Machines Corporation — IBM Memorandum in Support of Motion to Compel Discovery (Undecided, D Utah, Kimball J, filed 1 October 2003) at p. 3.

179. Regis McKenna, 1998. Who’s Afraid Of Big Blue? Reading, Mass.: Addison–Wesley, at p. 23.

180. Jim Kerstetter, "The Most Hated Company in Tech," at http://www.businessweek.com/magazine/content/04_05/b3868104_mz063.htm, accessed 18 September 2004.

181. IBM Second Amended Counterclaim at pp. 30–1.

182. SCO Second Amended Complaint at pp. 55–6.

183. The SCO Group Inc v. DaimlerChrysler Inc (Unreported, 6th Cir, Chabot J, 21 July 2004).

184. The SCO Group Inc v. International Business Machines Corporation — Amended Complaint (Undecided, D Utah, Kimball J, filed 22 July 2003) at pp. 10–11.

185. Cf., SCO Second Amended Complaint at pp. 55–6.

186. See, e.g., Novell, "Novell Challenges SCO Position, Reiterates Support for Linux" (press release, 28 May 2003).

187. SCO Second Amended Complaint 60. See also The SCO Group Inc v. Novell Inc (Undecided, D Utah, Quinn J, filed 4 January 2004).

188. SCO Second Amended Complaint at pp. 59–60.

189. Ibid. And see Novell, United States Securities and Exchange Commission Form 10–Q (30 April 2004) at p. 6.

190. SCO Second Amended Complaint at p. 60.

191. E.g., Patrick Bobko, 2001. "Open–Source Software and the Demise of Copyright," Rutgers Computer and Technology Law Journal, volume 27, p. 51; Moody, above n. 17 at pp. 4, 97–8 and 104–5; Yochai Benkler, 2002. "Coase’s Penguin, or, Linux and the Nature of the Firm," Yale Law Journal, volume 112, p. 369. Also John Dvorak, "The Importance of Being Linux," at http://abcnews.go.com/sections/scitech/ZDM/open_source_software_pcmag_040623.html, accessed 18 September 2004. For more cautious conclusions, cf. Klaus Schmidt and Monika Schnitzer, 2003. "Public Subsidies for Open Source? Some Economic Policy Issues of the Software Market," Harvard Journal of Law and Technology, volume 16, p. 473 at 499–501; Joseph Miller, 2002. "Allchin’s Folly: Exploding Some Myths About Open Source Software," Cardozo Arts and Entertainment Law Journal, volume 20, p. 491.

192. IBM, "IBM and Red Hat Announce Global Alliance to Deliver Enterprise Linux Solutions" (press release, 16 September 2002).

193. John Spooner and Stephen Shankland, "Linux Lab Lands Torvalds," at http://news.com.com/2100-1016_3-1018057.html, accessed 19 September 2004.

194. See "Members," at http://osdl.org/about_osdl/members/, accessed 16 September 2004.

195. "GNU General Public License," above n. 42, [3] and [5].

196. IBM Second Amended Counterclaim at pp. 6–8. See also, Moglen, "SCO: Without Fear and Without Research," above n. 129.

197. IBM Second Amended Counterclaim at pp. 6–8 and 34–5.

198. The SCO Group Inc v. International Business Machines Corporation — IBM Redacted Memorandum in Support of its Motion for Partial Summary Judgment on Eighth Counterclaim (Undecided, D Utah, Kimball J, filed 16 August 2004) at p. 1.

199. Uniform Trade Secrets Act, 13 UTAH CODE ANN 24–2(4) (1989).

200. See, e.g., Raymond, above n. 66. See also Eblen Moglen, "Questioning SCO: A Hard Look At Nebulous Claims," at at http://www.fsf.org/philosophy/sco/questioning-sco.html, accessed 19 September 2004.

201. Unix System Laboratories Inc v. Berkley Software Design Inc, 832 F Supp 790, 793 (DNJ, 1993).

202. Raymond, above n. 66.

203. IBM Second Amended Counterclaim at pp. 14–15.

204. Stone, above n. 15 at p. 1.

205. Andrew Colley, "SCO Code to be Protected in Closed Court," at http://www.zdnet.com.au/news/software/0,2000061733,20281957,00.htm, accessed 19 September 2004.

206. Cf., Pamela Jones, "Darl Goes to Harvard," at http://www.groklaw.net/article.php?story=20040202204801978, accessed 19 September 2004.

207. Jonathan Zittrain, "Writing the Rules of War Between Free and Proprietary Software," (speech delivered at the Comparative IP and Cyberlaw Symposium, Ottawa, 4 October 2003).

208. See Yvonne Lee, "Big Losses Force SCO into Action," at http://sdtimes.com/news/111/story1.htm, accessed 2 October 2004.

209. Bob Mims, "SCO Closes Ongoing BayStar Stock Deal," Salt Lake Tribune (Salt Lake City, Utah) (26 August 2004); Bob Mims, "Bank cuts financial tie to SCO," Salt Lake Tribune (8 May 2004).

210. See Bob Mims, "Baystar Hits SCO with Call for Loan Repayment," Salt Lake Tribune (17 April 2004) and, Bob Mims, "Baystar May Be Deserting SCO Deal," Salt Lake Tribune (27 July 2004).

211. Letter from Mike Anderer to Chris Sontag, above n. 112; Vaughan–Nichols, above n. 112; Clarke, above n. 120.

212. James Maguire, "Sun Revealed as SCO’s Secret Licensee," at http://www.newsfactor.com/perl/story/21894.html, accessed 18 September 2004.

213. Stephen Shankland, "Microsoft–SCO Tie–up Comes to Light," at http://www.silicon.com/software/os/0,39024651,39119120,00.htm, accessed 18 September 2004.

214. Stone, above n. 15 at p. 4.

215. Ashlee Vance, "Red Hat Opens Losing Propaganda Offensive Against Sun," at http://www.theregister.co.uk/2004/09/24/redhat_sun_blogwar/, accessed 30 September 2004. Ong Boon Kiat, "Sun Warms to Open Source for Solaris," at http://news.com.com/2100-7344_3-5224473.html, accessed 18 September 2004; Michelle Delio, "Sun Dabbles in Open Source," at http://www.wired.com/news/infostructure/0,1377,64002,00.html, accessed 18 September 2004; Ashlee Vance, "SCO Trumps Sun’s Open Source Solaris Bid," The Register, at http://www.theregister.co.uk/2004/06/09/sco_nogpl_solaris, accessed 28 September 2004.

216. "Sun’s Linux Offerings," at http://wwws.sun.com/software/linux/, accessed 18 September 2004.

217. Kerstetter, above n. 180. Though cf. George Colony, "Sun’s Plans … and How They Could Go Wrong," at http://comment.zdnet.co.uk/0,39020505,39167442,00.htm, accessed 25 September 2004.

218. SCO Second Amended Complaint at p. 3.

219. Gary Rivlin, "Leader of the Free World," at http://www.wired.com/wired/archive/11.11/linus.html, accessed 14 September 2004, p. 1.

220. See, e.g., David Berlind, "OpenOffice: A Legal Trojan Horse — But for Whom?" at http://news.zdnet.com/2100-3513_22-5375070.html, accessed 22 September 2004; Stephen Shankland, "Group: Linux Potentially Infringes 283 Patents," at at http://news.zdnet.com/2100-3513_22-5291403.html, accessed 22 September 2004.

221. Steve Lohr, "Fund Planned to Defend Users of Linux," New York Times (12 January 2004), p. 8. And see further "Linux Legal Defense Fund FAQ," at http://www.osdl.org/about_osdl/legal/lldf/lldf_faq.html, accessed 17 September 2004.

222. Novell, "Novell Linux Indemnification Program," (press release, 12 January 2004); Red Hat, "Red Hat Announces Open Source Assurance to Safeguard Customer Investment," (press release, 20 January 2004). See also HP, "HP Indemnifies Customers Against SCO Lawsuit," (press release, 24 September 2003).

223. See Steven Vaughan–Nichols, "Open–Source Insurance Is Arriving," at http://www.eweek.com/article2/0,1759,1550916,00.asp, accessed 17 September 2004.

224. Open Source Development Labs, "OSDL to Support Enhancements to Linux Kernel Development Process," (press release, 24 May 2004).

225. See Stone, above n. 15 at p. 6. On Torvalds’ attitude, see Maureen O’Gara, "SCO Cites Torvalds in IBM Suit," at http://www.linuxworld.com/story/35150.htm, accessed 19 September 2004; cf. Spooner and Shankland, above n. 193.

226. See Lawrence Lessig, 2004. Free Culture. New York: Penguin, pp. 3–7.

227. Letter from Darl McBride to "The Open Source Community," 9 September 2003, available at http://ir.sco.com/ReleaseDetail.cfm?ReleaseID=117587, accessed 25 October 2004; Darl McBride, "Open Letter on Copyrights," at http://www.sco.com/copyright/, accessed 25 October 2004.

228. See, e.g., Steven Vaughan–Nichols, "Red Hat CEO: Tired of Microsoft’s Linux Whining," at http://www.zdnet.com.au/news/business/0,39023166,20205505,00.htm, accessed 25 October 2004; William New, "US Official Opposes ‘Open Source’ Talks at WIPO," at http://nationaljournal.com/pubs/techdaily/pmedition/tp030819.htm#1, accessed 21 October 2004.

229. Digital Millennium Copyright Act of 1998, Pub L No 105–304, 112 Stat 2860.

230. See, e.g., F. Gregory Lastowka, 2001. "Free Access and the Future of Copyright," Rutgers Computer and Technology Law Journal, volume 27, p. 293 at 311; Jeffrey Sullivan and Thomas Morrow, 2003. "Practicing Reverse Engineering in an Era of Growing Restraints Under the Digital Millennium Copyright Act and Other Provisions," Albany Law Journal of Science and Technology, volume 14, p. 1 at 51.

231. "Cases," at http://anti-dmca.org/docs.html, accessed 26 October 2004; "Digital Millennium Copyright Act (DMCA) Archive," at http://eff.org/IP/DMCA/, accessed 25 October 2004.

232. McBride, "Open Letter on Copyrights," above n. 227.

233. Barry Boehm, 1981. Software Engineering Economics. Upper Saddle River, N.J.: Prentice–Hall, pp. 58–9, 65.

234. See, generally, Lawrence Lessig, 2001. The Future of Ideas. New York: Random House; Lessig, above n. 226.

235. See Mark Plotkin, 1999. "The Times They are a Changin’," Vanderbilt journal of Entertainment Law and Practice, volume 1, p. 46 at 52.

236. See, e.g., John Leyden, "EU Braces for Software Patent Demo," at http://www.theregister.co.uk/2004/04/13/eu_patent_protest/, accessed 18 October 2004; Matthew Broersma, "Software Patent Protest to Block Web Sites," at http://news.zdnet.co.uk/business/legal/0,39020651,39115913,00.htm, accessed 21 October 2004.

237. Eldred v. Ashcroft, 537 US 186, 212 (2003) referring to the United States Constitution art I, 8, cl 8.

238. McBride, "Open Letter on Copyrights," above n. 227.

239. Ibid.; see also Letter from Darl McBride to "The Open Source Community," above n. 227.

240. McBride, "Open Letter on Copyrights," above n. 227.

241. "Microsoft VP Blasts GPL," at http://www.linux-mag.com/2001-05/report_01.html#2, accessed 16 October 2004; "Microsoft Attacks GPL, Announces ‘Shared Source’," at http://www.linux-mag.com/2001-07/report_01.html#1, accessed 16 October 2004; John Lettice, "GPL Pacman Will Eat Your Business, Warns Gates," at http://www.theregister.co.uk/2001/06/20/gpl_pacman_will_eat_your/, accessed 19 October 2004; Vaughan–Nichols, above n. 228.

242. Lawrence Lessig, "More SCO FUD, This Time Insulting the Constitution," at http://www.lessig.org/blog/archives/001611.shtml, accessed 25 October 2004

243. See generally Michael Madison, 2003. "Reconstructing the Software License," Loyola University of Chicago Law Journal, volume 35, p. 275 at 279–95; Lawrence Lessig, 2004. "The Creative Commons," Montana Law Review, volume 65, p. 1; Anick Jesdanun, "Artists, Scholars Seek Copyright Law Changes," The State (Columbia, S.C.), 15 October 2004, p. D2.

244. SCO Second Amended Complaint pp. 32–5 (referring to Appendix A [2.01], [2.05] and [7.10]).

245. See Lessig, above n. 242; Pamela Jones, "Darl’s ‘Greed is Good’ Manifesto," at http://www.groklaw.net/article.php?story=20031204195915515, accessed 25 October 2004.

246. Cf. the standard phrase attached to copyright notices, "All rights reserved".

247. "About Us," at http://creativecommons.org/learn/aboutus/, accessed 18 October 2004.

248. "Choose License," at http://creativecommons.org/license/, accessed 19 October 2004.

249. "Licenses Explained," at http://creativecommons.org/learn/licenses/, accessed 19 October 2004; see also Lessig, above n. 243 at p. 11.

250. "Licenses Explained," above n. 249.

251. See generally Benkler, above n. 191.

252. "Proposal to Explore a Science Commons," at http://creativecommons.org/projects/science/proposal, accessed 17 October 2004; Katie Dean, "GarageBand.com Leaves Door Open," at http://www.wired.com/news/digiwood/0,1412,63720,00.html, accessed 19 October 2004; "Creative Commons," at http://flickr.com/creativecommons/, accessed 19 October 2004.

253. Becky Hogge, Guardian Media Pages, The Guardian (London), 20 September 2004, p. 42. See also BBC, "BBC Creative Archive Pioneers New Approach to Public Access Rights in Digital Age," (press release, 26 May 2004).

254. "License," at http://www.plos.org/journals/license.html, accessed 19 October 2004.

255. Bill Pheasant, "Technology Threatens Old School Ties," Australian Financial Review (Sydney), 8 March 2004, p. 29.

256. O’Reilly, "O’Reilly First to Adopt Founders’ Copyright," (press release, 23 April 2003). From Penguin, Lessig, above n. 226; from HarperCollins, Wayner, above n. 17. See generally "The Founders’ Copyright," at http://creativecommons.org/projects/founderscopyright/, accessed 19 October 2004.

257. Open Source — Effectiveness of GPL [2004] District Court of Munich I (19 May 2004, File Reference: 21 0 6123⁄04) ("GPL Case").

258. Bürgerliches Gesetzbuch ("German Civil Code") art 158.

259. Thomas Hoeren, "The First–ever Ruling on the Legal Validity of the GPL — A Critique of the Case," at http://www.oii.ox.ac.uk/resources/feedback/OIIFB_GPL3_ 20040903.pdf, accessed 14 September 2004, pp. 2–3.

260. Ibid., at pp. 2–3; cf. Pamela Jones, "The GPL is a License, Not a Contract," at http://lwn.net/Articles/61292/, accessed 25 October 2004.

261. Hoeren, above n. 259 at pp. 3–4.

262. "PubMed Central," at http://www.pubmedcentral.nih.gov/, accessed 26 October 2004.

263. House Appropriations Committee, U.S. Congress, Report on the Departments of Labor, Health and Human Services, and Education, and Related Agencies Appropriation Bill, 2005 (2004) pp. 103–4.

264. Rick Weiss, "NIH Proposes Free Access for Public to Research Data," Washington Post (Washington D.C.), 6 September 2004, p. A26.

265. Ibid.,

266. Ingrid Marson, "Singapore Government Switches to OpenOffice.org," at http://news.zdnet.co.uk/software/windows/0,39020396,39171012,00.htm, accessed 26 October 2004 and Georgina Prodhan, "Munich Set to Approve Linux Despite Patent Worries," at http://www.reuters.co.uk/newsArticle.jhtml?type=technologyNews&storyID=6355956&section= news, accessed 26 October 2004; See also Mark Berniker, "China’s Linux Plans Taking Shape," at http://www.internetnews.com/dev-news/article.php/3105171, accessed 26 October 2004; Christophe Guillemin and Matthew Broersma, "Paris Eyes Open–Source Switch," at http://news.com.com/2100-7344_3-5158001.html, accessed 26 October 2004; Iain Ferguson, "NSW Government Wants Linux IP, Patent Protection," at http://www.zdnet.com.au/news/software/0,2000061733,39161055,00.htm, accessed 29 September 2004.

267. Ingrid Marson, "France and China Form Linux Alliance," at http://news.zdnet.co.uk/software/linuxunix/0,39020390,39169959,00.ht, accessed 26 October 2004.

268. USC §1201(a)(1); §1201(a)(2) and (b)(1); §1202(a) and (b).

269. See Kathy Bowrey and Matthew Rimmer, 2002. "Rip, Mix, Burn: The Politics of Peer to Peer and Copyright Law," First Monday,, volume 7, number 8 (August), at http://www.firstmonday.org/issues/issue7_8/bowrey/, accessed 20 October 2004.

270. Copyright Act, 17 USC (2000) §§501–16.

271. Universal City Studios Inc v. Corley, 273 F 3d 429 (2nd Cir, 2001); Universal City Studios Inc v. Reimerdes, 111 F Supp 2d 294 (SDNY, 2000).

272. DeCSS code and information can be found from the links located at Wendy Seltzer, "Where Can You Find DeCSS?," at http://cyber.law.harvard.edu/openlaw/DVD/DeCSS/, accessed 20 October 2004.

273. Universal City Studios Inc v. Reimerdes, 111 F Supp 2d 294, 319 (SDNY, 2000).

274. Ibid., at pp. 319–20.

275. Ibid., at p. 325.

276. Ibid., at p. 319.

277. Sony Corp of America v. Universal City Studios Inc, 464 US 417 (1984).

278. See further MusicAlly, "Microsoft tells music biz to ‘back lock–down CD standard’," at http://www.theregister.co.uk/2004/09/16/ms_cd_copy_protection/, accessed 22 October 2004; Richard Stallman, "The Right to Read," at http://www.fsf.org/philosophy/right-to-read.html, accessed 22 October 2004, updated author’s note. For a legal analysis, see Chad Woodward, 2004. "Trusted Computing or Big Brother? Putting the Rights Back in Digital Rights Management," University of Colorado Law Review, volume 75, p. 253 at 279–88.

279. Daniel Higgs, 2004. "Lexmark International, Inc v. Static Control Components, Inc & Chamberlain Group, Inc v. Skylink Technologies, Inc: The DMCA and Durable Goods Aftermarkets," Berkeley Tchnology Law Journal, volume 19, p. 59 referring to Lexmark International Inc v. Static Control Components Inc, 253 F Supp 2d 943 (EDKY, 2003). Though cf., recently, Lexmark International Inc v. Static Control Components Inc, (Unreported, 6th Cir, Merritt, Sutton and Feikens JJ, 26 October 2004). In the Australian context, see Miranda Forsyth, 2001. "The Digital Agenda Anti–circumvention Provisions: A Threat to Fair Use in Cyberspace," Australian Intellectual Property Journal, volume 12, p. 82 at 96.

280. Council and Parliament Directive 2001/29/EC of 22 May 2001 on the Harmonisation of Certain Aspects of Copyright and Related Rights in the Information Society [2001] OJ L 167/10, 17–18.

281. Copyright Amendment (Digital Agenda) Act 2000 (Cth) sch 1, cl 98.

282. See, generally, Forsyth, above n. 279.

283. See discussion, ibid., at pp. 93–6.

284. Australia–United States Free Trade Agreement, opened for signature 13 May 2004, [2004] ATNIF 6, art 17.7.7–8 (not yet in force).

285. See June Besek, 2004. "Anti&3150;Circumvention Laws and Copyright: A Report From the Kernochan Center for Law, Media and the Arts," Columbia Journal of Law and the Arts, volume 27, p. 385 at 392–3; Forsyth, above n. 279 at pp. 92–3. Discussing the WIPO Copyright Treaty, opened for signature 20 December 1996, 36 ILM 65, arts 11&3150;12 (entered into force 29 February 2002).

286. WIPO Copyright Treaty, opened for signature 20 December 1996, 36 ILM 65, art 11 (entered into force 29 February 2002) (emphasis added).

287. Bowrey and Rimmer, above n. 269.

288. See, e.g., "Cases," above n. 231; "Digital Millennium Copyright Act (DMCA) Archive," above n. 231; "The Digital Millennium Copyright Act Index," at http://www.dfc.org/dfc1/Active_Issues/graphic/DMCA_index.html, accessed 26 October 2004; "More Information on IPac’s Principles," at http://ipaction.org/principles_detail.html#principle1, accessed 26 October 2004.

289. Digital Media Consumers’ Rights Act of 2003 Bill, HR 107, 108th Congress, §5.

290. See, e.g., Digital Choice and Freedom Act of 2002 Bill, HR 5522, 107th Congress, §§3–5.

291. Katie Dean, "Summit: DMCA Blocks Tech Progress," at http://www.wired.com/news/digiwood/0,1412,57740,00.html, accessed 26 October 2004. See Zoe Lofgren, 2003. "Edited Transcript of the David Nelson Memorial Keynote Address: A Voice From Congress On DRM," Berkeley Technology Law Journal, volume 18, p. 495 at 499.

292. See, generally, Lessig, above n. 234.

293. Robert Lemos, "Experts: Copyright Law Hurts Technology," at http://news.com.com/2100-1023-990689.html, accessed 26 October 2004.

294. Declan McCullah, "Tech Heavies Support Challenge to Copyright Law," at http://news.com.com/2100-1028_3-5242774.html, accessed 26 October 2004; Andrew Orlowski, "Microsoft, Apple Snub Consumer Freedom Coalition," at http://www.theregister.co.uk/2004/06/23/ms_apple_snub_boucher/, accessed 27 October 2004.

295. McBride, "Open Letter on Copyrights," above n. 227 referring to Red Hat, "Statement of Position and Our Promise on Software Patents," at http://www.redhat.com/legal/patent_policy.html, accessed 25 October 2004.

296. Cf. Red Hat, above n. 295. See also Eric Raymond and Bruce Perens, "Response to Darl McBride’s Open Letter," at http://www.catb.org/~esr/writings/mcbride2.html, accessed 25 October 2004.

297. Re Alappat, 33 F 3d 1526 (Fed Cir 1994).

298. John Swinson, 1991. "Copyright or Patent or Both: An Algorithmic Approach to Computer Software Protection," Harvard Journal of Law and Technology, volume 5, p. 145 at 157–61.

299. Richard Stallman, "The Danger of Software Patents," (speech delivered at the National Institutes of Social Sciences and Law Public Seminar, Canberra, 13 October 2004).

300. Ibid.; See also James Bessen and Eric Maskin, "Sequential Innovation, Patents and Imitation," (Working Paper No 00–01, Massachusetts Institute of Technology, Department of Economics, 2000).

301. Evans and Layne–Ferrer, above n. 8, discussing the LZW algorithm.

302. Swinson, above n. 298 at p. 171.

303. David Wheeler, "Linux Kernel 2.6: It’s Worth More!," at http://www.dwheeler.com/essays/linux-kernel-cost.html, accessed 27 October 2004; David Wheeler, "More Than a Gigabuck: Estimating GNU⁄Linux’s Size," (2002) at http://www.dwheeler.com/sloc/redhat71-v1/redhat71sloc.html, accessed 27 October 2004.

304. Dan Ravicher, "OSRM Position Paper: Mitigating Linux Patent Risk," at at http://www.osriskmanagement.com/linuxpatentpaper.pdf, accessed 27 October 2004.

305. Swinson, above n. 298 at pp. 170–1.

306. See above, text accompanying n. 92.

307. Andrew Orlowski, "Microsoft Aiming IBM–scale Patent Program at Linux?" at http://www.theregister.co.uk/2003/12/08/microsoft_aiming_ibmscale_patent_program/, accessed 21 September 2004.

308. See Stallman, above n. 299.

309. Foundation for a Free Information Infrastructure, "IBM and Software Patents," at http://swpat.ffii.org/players/ibm/index.en.html, accessed 22 October 2004.

310. Leyden, above n. 236; Broersma, above n. 236.

311. Richard Raysman and Peter Brown, 2004. "EU’s Software Patent Directive: Is Harmonization on the Horizon?," New York Law Journal, volume 231, p. 3 at 3.

312. "No Software Patents in Europe — Action Week in May," at http://demo.ffii.org/index.php, accessed 21 October 2004.

313. Proinsias de Rossa, "Software Patents Directive," Irish Times (Dublin, Ireland), 12 June 2004, p. 15; Jennifer Schenker, "EU’s Software Patent Policy Under Siege Ministers Accused of Making Unauthorized Last–minute Deals," International Herald Tribune (Neuilly Cedex, France), 8 July 2004, 15; Electricnews.net, "EU Software Patents Delayed — Again," at http://www.theregister.co.uk/2004/09/24/software_patents_delayed/, accessed 18 October 2004.

314. Letter from Alan Asher, et al. to Kamil Idris, 7 July 2003, available at http://www.cptech.org/ip/wipo/kamil-idris-7july2003.pdf, 18 October 2004; Discussed in Declan Butler, 2003. "Drive for Patent–Free Innovation Gathers Pace," Nature, volume 424, p. 118.

315. Letter from Alan Asher, et al. to Kamil Idris, above n. 314 at p. 1.

316. Ibid., at pp. 9–12.

317. William New, "Global Group’s Shift on ‘Open Source’ Meeting Spurs Stir," at http://nationaljournal.com/pubs/techdaily/pmedition/tp030819.htm#1, accessed 21 October 2004; cf. Jonathan Krim, "The Quiet War Over Open–Source," at http://www.washingtonpost.com/ac2/wp-dyn?pagename=article&contentId=A234222003Aug20, accessed 16 October 2004.

318. New, above n. 228.

319. Declan Butler, 2003. "Business Backlash Kills Off Software Meeting," Nature, volume 424, p. 948.

320. Lawrence Lessig, "Open–Source, Closed Minds," at http://www.eweek.com/print_article/0,3048,a=108905,00.asp, accessed 22 October 2004; Krim, above n. 317.

321. Linus Torvalds, "What Would You Like to See Most in Minix?" at http://groups.google.com/groups?selm=1991Aug25.205708.9541%40klaava.Helsinki.FI, accessed 30 October 2004.

322. Rivlin, above n. 219 at p. 5.

323. Stone, above n. 15 at p. 2.

 

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Eldred v. Ashcrof, 537 US 186 (2003).

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Editorial history

Paper received 1 November 2004; accepted 10 December 2004.
HTML markup: Diana Duncan, Kyleen Kenney, and Edward J. Valauskas; Editor: Edward J. Valauskas.


Copyright ©2005, First Monday

Copyright ©2005, Ishtiaque Omar

The Penguin in Peril: SCO’s Legal Threats to Linux by Ishtiaque Omar
First Monday, Volume 10, Number 1 - 3 January 2005
http://www.firstmonday.org/ojs/index.php/fm/article/viewArticle/1203/1123





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