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Businesses running Linux and worried about legal action could be forgiven for responding to the announcement by acquiring SCO's license for the code that it alleges has been illegally copied into Linux.

They might be better advised not to rush into a decision, however, particularly as the history of SCO's complaint against Linux suggests that Linux users will have plenty of time to decide the best course of action.

Back in August, when SCO first stated that it had begun to invoice Linux users for their use of Unix code, Datamonitor advised Linux users to take legal advice and consider their options rather than rush into paying the invoice. The fact that those invoices never arrived, combined with increased confusion over SCO's tactics, mean that there is less motivation than ever to comply with SCO's requests.

It's in the post

In August, as SCO launched its licensing scheme, it said that invoices would be dispatched in the "next weeks or months". Poised to respond, the Linux community waited for the invoices to arrive. And waited. And waited.

While SCO announced later in August that an unnamed Fortune 500 company had voluntarily purchased one of its Unix intellectual property licenses, the invoices failed to materialize. That didn't stop the company stating that it was identifying Linux customers to take to court, however.

Again the Linux community prepared itself to respond and waited for the invoices to arrive. And waited. Little happened until October, when SCO suddenly announced that it would not be invoicing customers after all, stating that its voluntary licensing program had been successful enough. "We have met our goals," it said.

Strange then that the company announced in November that it was, in fact, about to invoice Linux users and take them to court if they failed to pay the requested fee. A change of mind? Not according to SCO: "The issue right now is we were going to give people a period of time to license. We have had some people license. Then we said we're going to move them into a litigation phase, so it is license or litigate, and what we are announcing today is that phase," said CEO, Darl McBride.

Mood swings

Aside from the issue of SCO's ever-changing mood, there are other good reasons to delay paying any invoice, by far the greatest being that the company has yet to prove its claims that any Unix code has been copied into Linux.

The two pieces of code that have so far been identified by SCO as evidence were quickly dismissed by the Linux community as not being SCO's intellectual property - one having been legally copied from BSD and the other being in the public domain and in any case later removed from Linux.

This indicates that SCO has more than one point to prove with regards to code it believes has been copied into Linux. The first is that Unix code is there in the first place, and the second is that SCO has any rights to it. This is especially relevant given the complexity of deciding whether Unix code developed by Unix licensees (such as IBM and SGI) should be considered a derivative work of the Unix System V code that SCO owns and has licensed to all Unix vendors (including also Sun and HP).

Whether this code is considered a derivative work depends on the contracts SCO has with its licensees, and this is another good reason for delaying paying any invoice. SCO has recently stated that its legal case against Linux has two strands: a contract dispute with IBM, and a copyright dispute with Linux users.

This is an accurate description of its cases, which helps in the understanding of its claims, but does not take into account the fact that the latter must surely depend on the former. Linux users should not pay SCO a penny for copyright infringement claims until it has proved that its copyright has been infringed.

A long wait for payment

That will involve the long and complex task of identifying "Unix" code, tracing where it originated and how it got into Linux, and deciding which company has the right to it. This is precisely what SCO's case against IBM will cover (among other things), but not until at least 2005, when it is expected to enter court.

Unless an extraordinary event occurs such as SCO being acquired or dropping its claims, both of which look unlikely at the moment, it is likely that the legal arguments around Linux will continue for several years. So far this appears to have had little impact on Linux deployments, with IDC reporting third quarter Linux server revenue up 49.8% and shipments up 51.4% year-on-year.

This trend is expected to continue, and while Linux users should take legal advice and be mindful of what an eventual SCO victory could do to their deployments (the same is true of SCO Unix customers considering what impact a legal defeat would have on SCO's longevity), there appears to be no need to rush into paying any invoice - should one ever arrive.

Source: Computerwire/Datamonitor

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