SCO: Right winner, wrong case

This week’s news – that a judge ruled that Novell, not SCO, owned the copyrights to Unix and UnixWare – was good news for anyone who believes in open source software, and who also believes in giving customers choice. It was certainly bad news, very bad news, for SCO, and for other companies who shall remain nameless (like Microsoft and Sun) who supported SCO in its attempts to stifle Linux by bankrolling fear, uncertainly and doubt.

I’ve made no bones about it: I’ve been rooting against SCO, whose efforts to prove that IBM violated its licenses and stole its intellectual property were groundless. In particular, I’ve criticized SCO’s leadership, especially its CEO, Darl McBride, and its board of directors, for pursuing this course of action, and in the process, dooming the company, its employees and customers.

So, while I’m delighted with Judge Kimball’s ruling because it might bring this drama to a close, my problem is that I wanted to see the real issues settled by the courts. In short, Judge Kimball ruled that SCO didn’t have the right to sue IBM, because SCO doesn’t own Unix. Left unresolved, however, is the question that SCO raised in its lawsuits: Did IBM misappropriate Unix source code and put it into Linux? That question is not answered… and now may never be answered.

Over the past several years, as the lawsuit dragged out, it because evident to many observers that SCO simply couldn’t demonstrate any theft of intellectual property. It couldn’t, or wouldn’t, show offending source code, despite endless fishing expeditions disguised as legal discovery. Many of us wanted to see SCO’s claims ruled on by the courts.

If it turns out that Judge Kimball’s ruling stands, and the SCO v. IBM lawsuit is dismissed, we wouldn’t have learned a thing about the intellectual property foundations behind Linux. Instead, we would have learned that Novell apparently tricked The Santa Cruz Operation when it sold them UnixWare in 1995, but didn’t transfer over the copyrights or all the IP. We also learned that when The Santa Cruz Operation went to sell UnixWare to Caldera (later renamed SCO Group) six years later, Caldera didn’t buy what it thought it was buying. In other words, the judge essentially ruled that Caldera was sloppy on the UnixWare acquisition in 2001 — and that has nothing to do with Linux.

So, despite what many are saying, this wasn’t a victory of “open source” over SCO. It was a victory of Novell over SCO about the terms of a 1995 business transaction.

To reiterate: I’m happy that this case appears to be winding down. SCO has behaved churlishly, making many claims about IBM, DaimlerChrysler and AutoZone that ultimately it couldn’t substantiate. SCO’s managers, and the investors who financed the company hoping for a big lawsuit payday, deserve to go down with the ship. It’s a shame, however, that we may never see the big Linux v. Unix issue resolved, conclusively deciding once or for all whether Linux contains Unix intellectual property.