Tuesday, March 30, 2010

SCO Never Owned the Unix Copyrights

The jury is in. It is the end of the line for Unix — and Linux has prevailed in its most serious legal challenge to date.

The decision a jury made today was that the contract by which Novell sold development rights in Unix to SCO did not transfer any software copyrights to SCO. Most of the world has known this for about seven years — after all, the original contract, as vague as it was about some other things, was very specific about excluding copyrights — but it is now, finally, a legal fact.

This means that SCO spent a decade suing and threatening computer users for supposedly copying something that it never owned in the first place. It apparently means that Microsoft and Sun Microsystems paid SCO to license software that SCO didn’t own. It means that SCO never had a legal basis for its claim that Linux is a copy of Unix, because the Unix components that supposedly were copied into Linux were never owned by SCO in the first place.

For SCO, this is the end of the company. The company has been in bankruptcy for two years, had already fired its staff, then its executives, and is selling assets to pay its accountant and other expert help. The company had been pinning its very faint hopes on a lawsuit against IBM, but the lawsuit was based on a claim of copyright infringement that will now have to be withdrawn. It’s not clear whether the remaining claim of contract violations against IBM can go forward, but even if it can, IBM’s counterclaim against SCO for contract violations is probably much larger, probably about $100 billion larger. If the case against IBM could go forward, then, the likely outcome would be that SCO, which has basically nothing left as it is, would end up owing IBM billions of dollars. I don’t think the bankruptcy court will allow that. I expect the judge in the SCO bankruptcy will order a liquidation within the next six months.

To be clear, SCO’s copyright problem was not its most serious problem it faced in its litigation. SCO signed away its rights to the software it is suing over, and its case depends on courts finding that those licenses aren’t valid. SCO also had a contract with IBM, and its case against IBM depends on that contract being tossed out. It is hard to get courts to void contracts, and it may be impossible now that SCO is revealed to be a shell of a company with essentially no legitimate assets or business. Then there is the problem of the absence of evidence. In all its years of litigation, SCO never said who copied what; its case is essentially, “We’re pretty sure someone copied something of ours.”

For Unix, it is an ignominious end, to be bogged down in a failed campaign of litigation, not just against essentially the whole world of computing, but against the truth. Unix was already fading when SCO started its litigation campaign at the beginning of the decade. Unix may be the most influential operating system in history, but the key word in that statement is history. The Internet runs on Linux, and as you may have heard, the Internet has some influence on the computer industry. In 1990, there were around 100 versions of Unix that mattered, but by 1999, there were only three. Those came from Digital Equipment Corporation, which was bought out and shut down years ago; Sun Microsystems, which appears to be facing the same fate now; and IBM, which became convinced around 2001 that Linux was a more mature and stable operating system than its version of Unix. So at this point, there are no major companies backing Unix.

The promise of Unix, in the 1990s, was of generally compatible computer operating systems from a wide range of companies, and that had already disappeared by 1999. The only hope for Unix was the possibility that a company would take it on and bring it up to date. I supposed it is a sign of how far gone Unix was already that the development rights ended up in SCO’s hands, and its fate was sealed when SCO decided to hire lawyers instead of engineers, to try to shut down Linux in court instead of competing with it.

But it’s worse than that. In the course of the SCO litigation, people have been taking a closer look at how Unix came about. It turns out that more than half of the source code for Unix System V, the first fully functional version of Unix, was taken from BSD. History books have described BSD as an imitation of Unix that was created mostly by graduate students at the University of California at Berkeley. From what we know now, it is more accurate to think of BSD as the original, and Unix as the copy. Essential ideas in BSD originated in Unix, but the imitation is larger in the other direction.

Unix may have faded away, but BSD, with its more mature, up-to-date technology, did not. In fact, it did not influence just Unix. It has also influenced core functionality found in Microsoft Windows and Mac OS X.

For computer users at large, the decision today means you can go ahead and use your computer without worrying about being sued by SCO. SCO made headlines by claiming to own a piece of Linux and threatening to sue essentially all the computer users in the world. We now know it doesn’t have grounds to sue anyone. You may proceed to browse the Internet without fear of someday having to write a check to SCO.