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You may have heard that a company called SCO Group has filed a lawsuit against IBM for misappropriation of trade secrets and breach of contract. Or, you may have been one of the 1,500 recipients of a letter from SCO that claims the Linux software you are running might infringe the copyright it owns in Unix software. What is all of this about? In both cases, SCO is attacking the free availability of the increasingly popular Linux operating system. Linux is an open source software with what’s called a “copyleft” license, which allows anyone to freely modify the Linux source code and also expressly prohibits someone from claiming that any part of the Linux source code, original or improved, is proprietary. Linux and the “copyleft” license are the result of work by those in the software industry who believe that publication of source code allows for constant improvement of the software by many individuals, so that it is more reliable than proprietary software. SCO now claims that the Linux operating system infringes its copyright in SCO’s version of Unix software. The Unix operating system was first developed at AT&T Bell Labs in the early 1970′s, although by now there are many different Unix softwares, some with original AT&T code and some without. In 1995 SCO purchased an ownership interest in the AT&T Unix, although Novell, the former owner, contests what exactly SCO purchased. The AT&T Unix software is proprietary and can only be used or modified if the user has a license to do so. Last March, SCO sued IBM in Utah state court (now transferred to federal court), claiming that IBM had misappropriated SCO’s trade secrets. SCO’s claims against IBM arose out of a failed collaboration on a version of Unix they were to jointly develop for an Intel chip. The two companies worked together but never completed the project, and now SCO claims that IBM took proprietary code from the AT&T Unix and used the code to improve the Linux operating system. SCO, though, did not make any formal claims of copyright infringement against IBM. After it sued IBM, SCO then began making threats against the Linux community in general. It sent out 1500 letters to commercial users of Linux claiming that the AT&T Unix code was copied, verbatim in some cases, into Linux. SCO, however, has not yet provided any specifics about what Unix code it found in Linux or who was responsible for the purported impermissible copying. As a result of the allegations, one analyst firm recommended that mission-critical systems should minimize their use of Linux. The government of Munich, Germany, however, ignored the SCO threats and went ahead with its plans to switch from Microsoft Windows to the Linux operating system, switching 14,000 computers at a cost of $35 million. The Linux community is in an uproar about the allegations. Novell wrote to SCO claiming that it had not even sold the copyrights and patents in the Unix software to SCO in the first place. Linuxtag, a German Linux lobbying organization, demanded that SCO support its allegations of copyright infringement or risk a suit for unfair trade practices in Germany. When SCO did not provide the information, Linuxtag successfully obtained an injunction in German court, forcing SCO to shut down its German web site. In what may be the most surprising part of the story, until just a few weeks ago SCO itself was a distributor of the Linux code that it now claims infringes the Unix code. Because of the “copyleft” license, however, SCO could not claim exclusive rights in any Unix material contained in Linux code distributed by SCO itself. The SCO/IBM lawsuit is in its earliest stages and, even if litigated to completion, may not illuminate whether there is Unix copyrighted code in the Linux software. Also, as of yet, SCO has not sued anyone for copyright infringement. If it tries, SCO will be up against the whole Linux community, as demonstrated by Novell’s quick and public statements deriding the claim. If you run Linux you are probably not at any immediate risk of an infringement suit, but you should nevertheless keep an eye on the news for further analyses of the SCO allegations as the claims are further investigated. Michael Cantor and Pamela Chestek are attorneys at Cantor Colburn (www.cantorcolburn.com) in Bloomfield.

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