Intellectual Property and Linux

By now you have all undoubtedly heard about SCO’s lawsuit against IBM and the threat that it reflects on the Linux community. The news sites and web forums have been alive with speculation about how this case will pan out, articles either show many shortcomings of Open Source development or how wrong SCO is and how bad they are going to lose.

Note to readers: I am not a native English speaker so please excuse any grammar errors. This editorial expresses my opinions and should not be considered the opinion of OSNews or any of their respective partners.

Let’s push aside all the analysts as well as McBride, Eric Raymond, Richard Stallman and Linus Torvalds and get to the meat of it. Does Linux contain Unix IP? Undoubtedly it does. Bill Gates in a recent meeting with financial analysts claimed that Open Source software contains Microsoft Intellectual Property. Does Open Source software contain Microsoft IP? Most certainly it does. Now before I get crucified and hung from my toenails and disemboweled, let me explain.


Here is the definition of Intellectual Property:

Intellectual Property is the “property of the mind.” The term includes both industrial property and copyright.

Industrial property: patents, trademarks, registered designs, plant breeder’s rights, confidential information, trade secrets and know-how, trade names, indications of source and names of origin, and circuit layout rights.

Copyright: The protection of artistic and literary works such as books, computer programs and engineering drawings. It is designed to prevent the use, by other people, of an original piece of work in which an idea or information has been expressed by the creator.

Many people in the SCO vs IBM case associate Intellectual Property with software code. There are many things that make up Intellectual Property. In the case of Computer programs, trade secrets, look and feel, file formats, methods of engineering as well as software code all make up intellectual property. In the case of SCO there are many gray areas. Owning Intellectual Property is part of the big picture
actively enforcing those rights is the rest of the picture.


Although many people say no, the answer is a resounding yes. I would not go as far as saying that Open Source software contains Microsoft code. But, look and feel as well as file formats play a part.

When people use those cool Windows XP themes for KDE and GNOME and when people use Icons and themes that Microsoft publishes, without express permission from Microsoft, it is infringement. Microsoft does not publish any part of Windows engineering in any kinds of manuals or books, so trade secrecy of Windows engineering is well protected. When consultants and developers participate in Microsofts Shared Source Program, they must sign a stringent and very enforceable NDA and they are expressly forbidden to disclose any details of Microsoft Windows code, but some programs even though they are not using all of Windows engineering, just the mere inclusion of some files violates Microsofts IP rights. WINE for example, allows users to run Microsoft applications without Windows. When you tell wine to set up a fake Windows partitions it copies some common DLL files into that partition so you can execute setup programs and install dependencies are satisfied. Should Microsoft sue Open Source developers for this? No, because it is so trivial that any judge would probably laugh it out of court. It would be like a smoker throwing a cigarette butt on the ground. Is he littering? Yes he is. Would a cop write him a citation for littering? Probably not. Another thing is Microsoft’s Word, Excel, and Powerpoint formats. Microsoft has never published any details on these formats, so in my opinion, yes, some inside information was needed. But that information has been passed down through the years and since Microsoft has never complained or issued a cease and desist order, they have basically given Implied permission to use this information. We will discuss implied and expressed permission later in this editorial. So, yes, Microsoft IP does exist in Open Source software, but in my opinion as a software developer and as a consultant, Linux and Microsoft share no common code. I believe Bill and Steve were just throwing around more FUD by including code. What I expect from Microsoft in the SCO case is a friend of the court filing where some of what I said will appear. But how far a friend of the court filing will go where the filer is a convicted monopolist is beyond me.


In the case of SCO and Linux, the issue of Intellectual Property becomes so much more clouded and SCO is walking on a much thinner line than Microsoft . First, SCO has inherited a big problem. AT&T as well as Novell have written so many books and manuals about the methods of UNIX engineering for so many years that trade secrecy is shot. During my research I have yet to find a manual or book on UNIX that contains anything that says that a developer cannot use these methods or that the reader has to protect the integrity of UNIX source code. But if you find a book on Linux, all of them contain the GPL and expressly state the terms of the GPL. Also, you run into a situation like mine. I was shown the UNIX source code years ago and was not required to agree to any licensing terms, sign an NDA or anything of the such and the code was shown to my class by a USL engineer. Also, Ransom Love, the old CEO of Caldera, stated many times that he wanted to include UNIX code into Linux and many of their engineers were allowed to work on UNIX and Linux at the same time. No one that I have met yet can share with me the degree that these engineers and even Ransom himself submitted code to the Linux kernel and how much UNIX code was given to the Linux community by SCO.


One of the smartest things I have heard from SCO came from Blake Stowell. He is absolutely right on one thing. Just because SCO ships UNIX code with Linux does not mean they have given permission for others to ship it or to use it as well. But in my opinion and the opinion of my legal counsel, SCO, while it hasn’t given express permission to do so has given implied permission to do so. Express permission is when a company or individual says, ” Yes, you can use my code ” either publicly, like Microsoft did with Intervideo in reference to allowing Intervideo to port the Windows Media codec to Linux, or by including the necessary license whether that license is the GPL or BSD. Implied permission is when you are given the code, you use it and basically you aren’t hit with a cease and desist order. SCO knew that its alleged code was being used. They did a complete audit of the Linux source code, even after they found the code they continued to ship it and allowed others to ship it for an entire 2 years. This constitutes Implied permission, they knew that the code was being used yet they ignored it and decided to try to enforce the copyright after they were in severe financial distress, well by this time it is too late. Implied Permission is just as good in a court of law as express permission. They have two options in this case. They can either reiterate that the code is not to be included or used, or they can issue a Cease and Desist and by this time its to late. What I see happening is that SCO will reiterate that their code is not to be used and they will be required to leave its alleged code as is, but they will not be required to offer any enhancements or warranty of any kind for the code.


As you can see, Intellectual Property comes in many shapes and forms and it is not just software code as some suggest. No, I do not see an IP suit from Microsoft, but just because a company does not sue does not mean an infraction has not occurred. As for SCO’s Linux license here are my thoughts on that. Anyone considering paying SCO for a UnixWare license should wait before they do anything. Two points here are A) SCO does not own Linux and cannot license anything that they do not own. They have to be able to prove beyond a shadow of a doubt that the alleged code is theirs. B) Under the law SCO has to issue a cease and desist order and allow at least 30 days for people to comply. Because they have not done so yet shows me that SCO does not have as strong a case as they suggest in the media. Also what happens if SCO was to lose, would they offer a refund? I called SCO and asked that same question and no one would answer that question. What I think will happen in the case of litigation failure is that anybody that buys the license will get a free copy of UnixWare 7.1.3. This case does get more interesting by the day. What doesnt kill you makes you stronger and at the end of this whole ordeal, the GPL will survive the test of fire and will be proven to be a valid and enforceable software license. Much to the dismay of Mr. Gates and Mr. Ballmer.

About the Author:
Roberto J. Dohnert is a Unix/Linux Consultant and software developer. His first introduction to UNIX based systems dates back to NEXTSTEP. He is a member of the GNU Darwin Distribution and has made several contributions to that and other projects. His personal webpage is here.


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