Closing the door on open source: can the general public license save Linux and other open source software?

• Author: Rodriguez, Kenneth J.
• Position: Essay

Rather than defend the 'don't ask, don't tell' Linux intellectual property policy that caused the SCO v. IBM case, the Open Source community should focus on customers' needs. The Open Source community should assure that Open Source software has a solid intellectual property foundation that can give confidence to end users. (2)

In a community of over half a million developers, we can hardly expect that there will never be plagiarism. But it is no disaster; we discard that material and move on. If there is material in Linux that was contributed without legal authorization, the Linux developers will learn what it is and replace it. SCO cannot use its copyrights, or its contracts with specific parties, to suppress the lawful contributions of thousands of others. (3)

1. INTRODUCTION

   It is no longer a secret that the free computer operating system (4) Linux (5) has become a major player in the software industry, (6) if not yet a significant rival to Microsoft's dominance. (7) In addition to capturing the imaginations of software developers, programmers, and hackers worldwide, Linux has been embraced and championed by American corporate technology giants such as IBM, (8) Dell, (9) and HP. (10) Linux has also made substantial headway outside of the United States: for example, China, which has one of the world's fastest growing information technology markets, plans to create a domestic software industry centered around Linux, which would then become the national standard. (11) Linux's surging popularity continues to rise, in part, because users can download it for free from the Internet. (12) Linux's inexpensiveness and ease of access thus makes it an attractive alternative to expensive proprietary software such as Unix, a product of AT&T Bell Labs, or Microsoft's Windows. (13) This is true especially during an economic downturn. (14) In addition, Linux is popular because it is Open Source software, (15) which, unlike proprietary software such as Microsoft Windows, is distributed freely along with its source code, allowing programmers to read, redistribute, and modify it. (16) Moreover, the Open Source movement has many dedicated adherents worldwide who can collaborate quickly by harnessing the speed and ease of the Internet to further enhance Linux. (17) In fact, Linux may be the largest collaborative project in history. (18)

   Many Linux users are not surprised that Linux has been under attack from Microsoft (19) and other proprietary software companies, (20) because it is freely available and thus represents a challenge to proprietary software companies. What surprised users, however, is that a former distributor of the Linux code, The SCO Group, Inc. ("SCO"), attacked it, claiming that Linux infringes on its Unix intellectual property (21) and that the license under which Linux and other Open Source software is distributed is trumped by federal Copyright Law and is thus invalid and unenforceable. (22) This legal attack could jeopardize the future of Open Source software, with users and potential users of GPL-licensed software fearful of previously unasserted intellectual property lawsuits. (23)

   This Note focuses on the threat SCO's attack poses to the Open Source community and to many U.S. businesses, including some Fortune 500 companies, addressing, specifically, the status and legal implications of the Free Software Foundation's GNU General Public License, under which Linux and other Open Source software is distributed. Part II of this Note presents the history of Open Source software, Linux, and the various models of Open Source software licensing. Part III explores SCO's attack against Linux and the related litigation concerning SCO. Part IV analyzes the General Public License and argues that courts should recognize it as a valid license that creates binding legal obligations on those who accept its terms. Finally, this Note suggests that Congress should become involved and pass legislation to protect the Open Source movement, which in turn would help both consumers and many U.S. businesses.

2. HISTORY OF OPEN SOURCE AND LINUX

   1. Open Source

      Open Source software has been around for more than thirty years, but the Open Source movement is a recent development. (24) Before computers and software became mass-produced, software developers often shared software source code because it was cheaper and more efficient to do so. (25) Once computers and software became mass-produced and reached the business world, most software developers adopted a proprietary development model in which the source code was closed and inaccessible to other developers. (26) There were, however, software developers who wanted a way to keep source code open, because they believed that freely available source code was important for the development of computer science and necessary for technology innovation to flourish. (27)

      There are debates about what precisely constitutes Open Source software and whether it should even be called Open Source rather than Free Software, which developed earlier. (28) According to the Free Software movement, which Richard Stallman founded in 1985, (29) both movements are two political camps within the same free software community, (30) but the Open Source movement's "values are less idealistic" than the values of the Free Software movement. (31) The primary difference between the two main groups, the Open Source Movement (32) and Free Software Movement, (33) concerns their philosophical outlook on whether software should always be accompanied by its source code. (34) Whereas the Open Source movement believes that the software provider should be required to offer or provide source code, (35) the Free Software movement believes that the software provider must be required to give purchasers of the software the source code itself or the right, exercisable for three years, to obtain the program source code. (36)

      Regardless of the terminology, the essence of open source software is that the source code is accessible, not closed to view or proprietary, and that programmers can read, redistribute, and modify it. (37) Open source software runs everything from the most widely used Web server in the world, Apache, to handheld wireless devices, (38) to Sendmail, a program through which most of all electronic mail is routed. (39)

   2. Linux

      The most popular open source operating system is Linux, which is now as much of a movement as it is a software product. (40) Linus Torvalds, a Finnish computer science student, developed the Linux kernel, or core, in 1991. (41) Torvalds wanted to create an operating system that would run on the Intel 386 architecture. (42) He combined his kernel with existing open source programs and then integrated them into a functioning operating system. (43)

      Linux has about 7.5 million users and is readily available as either a free or commercial software package, and is distributed under the Free Software Foundation's GNU General Public License. (44) Among its users are two of the most popular Web sites, the online store Amazon (45) and the search engine Google, (46) both of which rely on Linux exclusively. (47) Linux also runs everything from some of the world's most powerful supercomputers to consumer gadgets such as TiVo, cellphones, and handheld devices. (48)

   3. Open Source Models of Licensing Software

      Unlike proprietary models of software licensing, which usually restrict the software to "execute-only format" and restrict the number of installations, (49) Open Source models of software licensing allow source code to be freely modified by anyone. (50) The GNU General Public License ("GPL"), an open source copyright license agreement that the Free Software Foundation published and copyrighted, is the most widely used of the open source licenses for software. (51) Licensing software under the GPL does not mean, however, that the licensor is required to distribute the program or charge next to nothing for it. (52) In fact, by its terms the GPL specifically covers only the copying, distribution, and modification of a program. (53)

      The legal status of the GPL is an open question because it has never been tested in court. (54) One case that included a claim for a breach of the GPL, which was filed in the federal district court of Massachusetts, settled. (55) Now, however, with SCO's attack against Linux and the GPL, the entire future of Open Source software could be greatly harmed or, conversely, even strengthened. (56)

3. LINUX LITIGATION

   1. SCO v. IBM Litigation

      SCO, a Delaware corporation based in Lindon, Utah, develops software for personal computers and servers, primarily for small businesses. (57) SCO was formerly known as Caldera Inc., which was founded in 1994 as a distributor of Linux, and changed its name to The SCO Group in 2002. (58) In 1995, a predecessor company of SCO purchased the rights to the Unix operating system, proprietary software developed at AT&T Bell Labs (59) from the technology company Novell. (60)

      In 1998, SCO and IBM began a collaboration called Project Monterey, which was designed to produce a powerful version of Unix for Intel's Itanium computer processors that IBM would distribute. (61) IBM, however, cancelled its involvement with the project in 2001, which greatly angered SCO management. (62) Two years...