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IP Attorney - Why SCO Has No Case
OSS_ilation writes "In an interview over at SearchOpenSource.com, IP attorney Thomas Carey shoots down SCO's cases against IBM and Novell, but predicts that SCO will fight a losing battle to its last. IT directors shouldn't worry about SCO Group's latest sallies in its legal war on Linux vendors IBM Corp. and Novell Inc., Clarey says, and explains why SCO has no case, predicts the open source legal fields of battle for 2006 and discusses SCO's claims against Novell. Carey chairs the Business Practice Group of Bromberg & Sunstein LLP, an intellectual property law practice in Boston, Mass." Groklaw, as always, has additional details and commentary on this.
In this interview, Carey explains why SCO has no case, predicts the open source legal fields of battle for 2006 and discusses SCO's claims against Novell. Carey chairs the Business Practice Group of Bromberg & Sunstein LLP, an intellectual property law practice in Boston, Mass. Carey's IT background includes a stint as a programmer for the city of New York.
What's the linchpin of SCO's anti-Linux legal battle?
Thomas Carey: The key to the case is that IBM specifically negotiated with SCO a clause that permitted it to use the same programmers who saw the Unix code to make competing products. This was documented as part of a transaction in which SCO was paid lots of money. SCO conveniently left that clause out of its explanation of the facts. But in the long run, it will not be able to hide from that concession.
The result is, absent literal copying of meaningful amounts of Unix into Linux, SCO has no case. None. Nada. Zilch.
Is there any significance to the timing of SCO's renewed activity in its anti-Linux lawsuits?
Carey: [It's] quite possible the renewed activity results from the recent completion of a PIPE [Private Investment in Public Equity] offering by SCO, giving it the funds to proceed more vigorously than before.
Has SCO actually shown that its UnixWare System V code exists in SuSE Linux or another distribution?
Carey: SCO has not shown that its code exists in Linux. SCO now seems to be grounding its case on 'unauthorized disclosures', which is a very different kettle of fish than copied code.
What are the implications of SCO's suit against Novell for Novell/SuSE customers?
Carey: The implications are generally the same as they are for Red Hat customers, except that Novell has some superior legal standing because of their presence in the chain of title to Unix.
But this really misses the main point, which is that SCO's lawsuit is a lost cause. The implications for Linux users are rather like the implications for passengers on an ocean liner of a seagull diving into the water nearby. A physicist might be able to measure the perturbation, but the passenger feels nothing.
SCO went after, with lawsuits, Linux customers before. Do you foresee this happening again?
Carey:This might happen again. Hitler fought World War II until the Allies had nearly overrun his bunker. As long as investors are willing to provide the cash, SCO will sue because that is their business model. They will likely go after smaller companies as a means of controlling the cost of litigation.
Last summer, it came out that an outside consultant, Bob Swartz, conducted an audit for SCO that showed that no SCO code was used in Linux. Why do you think that CEO Darl McBride still proceeded with lawsuits against IBM and Novell?
Carey: The facts concerning this analysis are not very clear. The consultant apparently did find some overlapping code, but came to the conclusion that it was not significant. You can understand how opinions on this might differ. In addition, the audit may have been inadequate to determine whether or not there were derivative works contained in Linux.
I think that the strategy behind SCO's legal actions was to generate recurring licensing revenue from thousands of Linux users who would pay up on the theory that the license fee would be cheap insurance against a lawsuit. The strategy failed.
When will SCO's suits come to a conclusion? Why are they taking so long?
Carey: A trial date has been set for February, 2007. There may be more delays. The factual investigation associated with the development of so many lines of code is very time-consuming.
What does the Novell case mean to other Linux vendors and to corporations using Linux?
Carey: It means much less than the IBM case. Novell presents an interesting, but far-fetched, reason why SCO might have little right to pursue the claims it is pursuing. The IBM case is likely to determine that the claims themselves are baseless; not because IBM didn't
The ironic thing is that the full text of the article just DID receive a -1 redundant mod.
In other news, water is still wet, gravity still functions normally, and the sun hasn't yet burned out.
And in other news, fire is hot!
I think it's about time for me to get a degree in patent law. These lawyers must just be giggling all the way to the bank with these idiotic cases. Lawyer: "You want to sue IBM? Why?" Idiot: "I invented computers, they stole my idea!" Lawyer: . o O ( $$$ BIG MONEY $$$ ) "Sure I'll take the case; however, you still have to pay if you don't win." Idiot: "I don't care, I'm gonna win!" Lawyer: . o O ( $$$ NEW HOUSE! $$$) "Alright, let's get the paperwork done!"
I Lost My Virginity While Waiting for BSD to Compile.