This has the potential to be a big problem for Linux.
Code red for open source?. SCO Group says copyrighted code has made its way into Linux, the popular open-source OS. If true, the open-source community could find its hard-won gains threatened.
SCO’s copyright infringement suit goes right to the heart of the intellectual property arguments around software. If SCO prevails, then there isn’t a corporation in the world that will use Linux without first checking the pedigree of the code they’re buying. This will make life much harder for Red Hat and others that depend on selling Linux for their livelihood.
Bruce Perens doesn’t get it either…
There’s a simpler solution to the issue, Perens said. “They should show us what code they have problems with. We’ll take a look at it or we’ll just replace it. Keeping us in the dark is just silly,” he said.
If SCO prevails, then they may be entitled to charge a royalty for each and every copy of Linux in existance. They will be entitled to damages as well, which will be computed on the basis of an estimate of the revenue that Linux has deprived them in the marketplace. If SCO can show that the infringement is wilfull, a judge may award triple damages. In big players that endorse Linux, like IBM, SCO may have a rich enough target to make this worthwhile.
The GPL introduces another problem as well. If SCO prevails, then it will become illegal for Linux companies to ship Linux until the offending code is removed, or SCO agrees to license it to the Linux community. Paragraphs 7 and 8 of the GPL read as follows:
7. If, as a consequence of a court judgment or allegation of patent infringement or for any other reason (not limited to patent issues), conditions are imposed on you (whether by court order, agreement or otherwise) that contradict the conditions of this License, they do not excuse you from the conditions of this License. If you cannot distribute so as to satisfy simultaneously your obligations under this License and any other pertinent obligations, then as a consequence you may not distribute the Program at all. For example, if a patent license would not permit royalty-free redistribution of the Program by all those who receive copies directly or indirectly through you, then the only way you could satisfy both it and this License would be to refrain entirely from distribution of the Program.
If any portion of this section is held invalid or unenforceable under any particular circumstance, the balance of the section is intended to apply and the section as a whole is intended to apply in other circumstances.
It is not the purpose of this section to induce you to infringe any patents or other property right claims or to contest validity of any such claims; this section has the sole purpose of protecting the integrity of the free software distribution system, which is implemented by public license practices. Many people have made generous contributions to the wide range of software distributed through that system in reliance on consistent application of that system; it is up to the author/donor to decide if he or she is willing to distribute software through any other system and a licensee cannot impose that choice.
This section is intended to make thoroughly clear what is believed to be a consequence of the rest of this License.
8. If the distribution and/or use of the Program is restricted in certain countries either by patents or by copyrighted interfaces, the original copyright holder who places the Program under this License may add an explicit geographical distribution limitation excluding those countries, so that distribution is permitted only in or among countries not thus excluded. In such case, this License incorporates the limitation as if written in the body of this License.
SCO may also be able to get a judge to issue an injunction preventing the shipment of Linux until the case is resolved. That would certainly contain any further damage to the company. Any competent lawyer would make that a part of the initial petition.