Linked by Eugenia Loli-Queru on Wed 12th Mar 2003 20:31 UTC
SCO's lawsuit filed in Utah last week claims that IBM integrated computer code belonging to another company into the Linux operating system, touching off speculation that the lawsuit could hurt other Linux companies, including Red Hat, the country's largest distributor of the software. Red Hat isn't involved in the dispute, but some analysts say that the Raleigh-based company won't be able to escape the fallout. "It's kind of irrelevant who wins the lawsuit," said Victor Raisys, analyst with Soundview Technology Group in San Francisco. "You can't take back the fact that someone has tried to claim intellectual property on Linux. The genie is out of the bottle."
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Here's the danger: IBM developer works on Linux kernel or other major part of Linux. That work is good, gets blessed by Linus, ends up in the Linux kernel, gets integrated into all the Linux distros. Several years later, it turns out that that IBM developer had previously worked on Unix, had seen some of the proprietary code that now "belongs' to SCO. If SCO can prove in court that the developer in question has inadvertently used some of what he learned from the Unix code to make new code for the Linux kernel, then there's the danger that the court could require all versions of Linux to remove the code in question. That would be a problem for Linux, but I'm not sure it would be a major problem for anyone but IBM, who would be subject to damages.
This is why, I've heard, that Microsoft forbids its developers from even looking at open source software's code. They are worried that if there's any similarity between a future MS product's functionality and that of some open source software that the OSS people would be able to sue them.
This is a not-well-defined area of intellectual property law, when you bring the open source angle in. In the past, companies misappropriated each other's IP, sometimes on purpose, sometimes accidentally. But there was always an easier paper trail, because they only saw each other's source code under protected circumstances (partnership) or through theft.
I think it's a little hazy, this concept of IP misapprpriation by a developer learning something from commercial source code and then using that knowledge to make some completely new source code. I guess that's what the courts are for.
What's truly unique about this lawsuit is that since the IP in question has been released to the public and therefore irretrivably lost to SCO (as if it would have done them any good, since their IP is by now of dubious value) it could possibly justify a much larger award of damages by the court than if this were simply the case of IBM using their IP in a commercial closed source product that could simply be recalled and replaced with a clean version.