Lawyer warns about surrendering to SCO

In the latest episode of world's most popular IT source code soap opera, analyst firm Gartner is recommending that Linux users contact SCO to find out how much they may or may not owe. Australian lawyers are having none of it.

In a dour missive entitled "SCO Licence Fees Would Hurt Linux Market", Gartner says the SCO Group has copyrighted Unix System V and is demanding Linux customers shell out on licence fees "or risk being sued for intellectual property (IP) infringement". The assessment goes on to say that if - and it is a big if, SCO's claim succeeds, Linux uptake will be retarded at the enterprise level to the benefit of Sun and Microsoft, hitting Red Hat and SuSe's revenues.

Gartner also says that:

- IBM will have to defend Linux and expedite litigation to stop customers from walking away;

- Oracle’s 9iRAC for Linux will suffer a setback during its ramp-up phase, along with Dell ambitions for the high end market;

- Independent software vendors will temporarily delay commitment and investment in Linux until the IP dispute is resolved and;

- Linux will experience difficulties evolving beyond appliance and infrastructure roles.

As grim as this all sounds, Gartner is possibly attempting to cover any legal contingencies the firm may face from its US clients along the lines of due diligence. Locally, the recommendation to confess all to SCO or face a perp walk (where a 'perpetrator' is paraded in front of the media) has intellectual property lawyer and partner at law firm Clayton Utz, John Collins shaking his head.

"If you don't know whether or not you have a valid licence because there is uncertainty as to the providence of the software and who actually owns the copyright, then to walk up and drop your pants to the person who is likely to sue you sounds a little counter-intuitive-and a bit uncommercial," Collins says.

Collins argues that just because uncertainty exists as to the ownership of the software copyright, the onus remains on the person claiming ownership of copyright to prove this.

"A user who believes they are entitled to [legally] use a product doesn't have to prove to someone asserting a contrary right that he is correct. It's up to the people who assert that they own the copyright to get their ducks in a row and be in a position to prove it.

"The Copyright Act here is quite explicit about that. A copyright owner can't make unjustified threats, that is assert that it will be an infringement of copyright if they haven't got their own ducks in a row from the point of view of being able to prove they are the copyright owner.

"The Copyright Act [section 202] provides a counter balance to those sorts of statements. Someone asserting to be a copyright owner cannot make a threat of infringement unless, in practical terms, they are confident they are the copyright owner. If there is any doubt about that then they could be in deep trouble in asserting infringement. Section 202 gives to someone against whom a claim is made a right to go to [the Federal] Court to get these people to stop making these threats," Collins told Computerworld.

After all, why spend money on software when you can spend it on lawyers instead?

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