Speaker Jeremy Malcolm
Time 2004-01-15 11:00
Conference LCA2004

case backfired on SCO

IP = intellectual property

How to avoid falling in the same trap?

The SCO Group

  • The great Satan
  • was Caldera Systems, purchased Novell’s IP


  • now Novell
  • original Unix IP owner


  • Bought license from SCO for IP used for AIX

12 May 2003

  • initial warning to users

11 April 2005

  • the trial begins

Lots of time for uncertainty in the mean time

SCO is going to fail

  • No evidence that code was copied
  • Even if proprietary code exists, SCO was publishing it as GPL
  • A mistake?
  • Oops not a legal defence?
  • …but it wasn’t authorised?

BSD code now a problem
other operating systems, Mac OS and Windows could be affected?
major Linux customer? Google?
Red Hat counter sued SCO.
IBM counter sued SCO.

5 December, IBM court order for SCO to produce code 11 January; will be made public 23 January.

can’t buy license from SCO in Australia yet.

complaints to ACCC, not yet resulted in formal investigation.


  • SMP
  • LVM
  • 32 and 64 bit processing
  • journalling filesystem JFS JFS originally from OS/2, which came from BSD
  • clustering

Not part of the licensed code in AIX

SCO claims to have terminated license to IBM for AIX

Has IBM breached IP/Copyright laws?

  • SCO says yes, but Novell disputes this
  • does SCO own copyright rights or Novell?
  • Only answer from court case will be “has IBM breached contract with IBM?”

IP law 101

  • Copyright
    • similarity in code doesn’t mean breach of copyright
    • e.g. BSD header files are the same by coincidence
    • same code so simple not protected by copyright law
    • protects expression of ideas, not ideas themselves
    • e.g. copying book and changing names is not protected by copyright
    • how long? 50 years Australia, 70 years USA.
    • automatic in almost every country
  • Patent
    • new and innovative
    • protect public at large from using information
    • 8 years in Australia, less red tape required
    • 20 years for full patent in Australia
    • can infringe accidentally
    • Need to take out in every country
  • Trade Secrets
    • protect ideas as well as expression of ideas
    • must remain confidential to be protected
  • Trade mark

Copyright law, copying is OK if:

  • software public domain
  • trivial works
    • only one way to do it
    • code or comments
  • not a substantial part,
    • small but vital part might be protected; longer part might not be
    • grey area, know code, get legal advice
  • re-engineering is OK
  • copying for permitted purpose
    • interoperable product (only in Australia)
  • only ideas copied

Accidental breach if:

  • Trade secrets trump copyright law
    • IBM working on two projects at once
  • Patents
    • Have to honour even if you haven’t heard of it
    • Linux has broken patents, but not being attacked (yet)
  • Derivative work
    • May include plugins, libraries, etc.
    • What is a derivative work> Very unclear.
    • FSF, one extreme, simply linking it is derivative, even dynamic linking
    • BSD other extreme
    • opinion, static linking derivative work; simply using/dynamic linking isn’t
    • Linus, if-and-only-if module fiddles with internal Linux code it is a derivative work

How to protect?

  • Chinese Walls
    • separate developers
    • protect each project from confidential information from other project
    • IBM claims to have done this
    • Ideally don’t work on both proprietary and open source software at same time in same field
  • Developers have liability
    • leader of open source software, ensure all developers declare code is cleanliness
    • indemnity against liability?? Signing indemnity might be taking things too far
    • get clearance from employers
  • choose right license
  • MPL best one for patents
  • GPL contains clause 7 for patents
  • BSD license, Artistic license ignores patents
  • read up on patents, ignorance not a defence
  • royalty free license that is compatible with open source license
  • contact lawyer, pay lots of money to search patents, if wrong sue them
  • don’t derive, plug in, the more independent, the safer

lucky a case like the SCO case hasn’t happened before
won’t be such a friendly place
improve processes and procedures

US free trade agreement

  • most significant impact on copyright rule
  • difficult for Australia to avoid caving into what USA wants
  • DCMA law puts a lot of people in danger of accidental breach
  • Our law is better then USA’s law

but I didn’t know the license was revoked, so I can continue using it

Same developer working on multiple projects, need to get approval first, no way to prove no IP was copied.