Opinions

So, just where do things stand legally in the Linux world, post-SCO? What has changed as a result of the SCO saga? If a Son of SCO shows up in the future, is the community prepared? What is now in place that wasn't there when SCO first showed up in 2003? Here is a brief summary to bring you up to date.

When SCO and its supporters decided to attack Linux, they must have seen the Linux community as vulnerable, disorganized, legally inexperienced, and unlikely to be able to defend itself effectively, the quintessential 98-pound weakling. They felt free to kick sand in its face, and they did, but they were clearly stunned by the reaction they got. The community rapidly organized an effective response. The SCO saga is drawing to a close, and Linux won. But what about the future? If a Son of SCO copycat appears, is the community now better prepared because of having gone through the SCO saga? What is now in place to handle legal issues that wasn't there when SCO first attacked in 2003?

First and foremost, we've changed. SCO did its worst, and Linux came out victorious, with the community more solid and better organized than ever. The threat appears now to be over, from all we can see. The rest is process and paperwork, barring something new. SCO's list of allegedly infringing material in the IBM case astounded us by being so empty of substance, leaving SCO's earlier public threats looking like a balloon with a pinhole, leaking air and careening around wildly in the air.

Another change is Groklaw is now an established meeting place for the legal and the technical communities to pool their knowledge and skills to help thwart any future SCO-like attacks on Linux and FOSS, a place where the two communities can educate each other. Because thousands and thousands of volunteers showed up and contributed insight, evidence, historical references, technical and legal knowledge and support, Groklaw worked. I believe it's fair to say that no law firm can afford to hire all the technical expertise that Groklaw provides. Should there be future litigation, everyone knows where to go to find out what's needed so they can help. I'm very proud that most everyone in the Linux community now seems to know the basics of the US legal system or at least knows how to find out how it works.

IP law is too important to leave it to just the lawyers. They need to understand the tech, and now they can. And vice versa. Geeks need to understand the law, because more and more it affects them directly. We didn't have Groklaw in place in 2003. If the next attack is patent infringement, Groklaw is ready. In fact, it has already done some group research on prior art for specific cases.

While a certain company's allegedly chair-throwing CEO has dropped many hints about Linux being vulnerable to patent infringement lawsuits, there are reasons to wonder if it will happen in quite the way some seemed to think back in 2003. Linux isn't as vulnerable as it used to be.

Can you imagine if SCO had had any patents to use as weapons? Of course, they would have used them. Copyright isn't much of a worry. Linux developers don't "steal" others' copyrighted code. It's ludicrous to imagine it. The code's development is naked to the world, viewable by anyone 24/7, which is a strong incentive to honesty. Anyway, the whole point of FOSS development is to write better code than others have already written.

But the simple truth is that no one developing software can avoid patent infringement, which is why you read about patent litigation all the time. Don't the large companies that end up in court in patent disputes have lawyers? Obviously they do, and yet they are unable to avoid it. So what hope is there that FOSS developers can avoid it, when they don't usually have lawyers?

The patent system simply doesn't work well currently, which is why a lot of brain power is going into trying to fix it. Some of that brain power began focusing on Linux and what it needs to survive and thrive in a world that includes operators like SCO, some of whom might have a patent or two. There now exists the Software Freedom Law Center to advise and protect the FOSS community. It wasn't in existence in 2003.

And there are now three patent-related projects that also didn't exist, the Open Invention Network (OIN), OSD'Ls Patent Commons Project, and New York Law School's Peer to Patent project. All three are a direct result of the SCO experience waking the community up to the real danger a SCO with patents would represent, not to mention that alleged chair-thrower's hints.

The Patent Commons Project is currently working on putting together a system of tagging software, so that the USPTO will have a database of FOSS software to search. Why? Because one reason so many ridiculous software patents have been issuing is because the examiners don't know about FOSS prior art, and they have no way currently to search for it. The project also is being designed to time stamp prior art, to prove it legally.