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Closing the Door on Open Source: Can the General Public License Save Linux and Other Open Source Software?

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Closing the Door on Open Source: Can the General Public License Save Linux and Other Open Source Software? Closing the Door on Open Source: Can the General Public License Save Linux and Other Open Source Software? Kenneth J. Rodriguez1 Cite as: 5 J. High Tech. L. 403 (2005) 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 2 confidence to end users. 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 3 lawful contributions of thousands of others. 1. Suffolk University Law School, J.D., 2005. 2. Darl McBride, Open Letter to the Open Source Community (2003), at http://sco.com/company/openletter/ (last visited Mar. 4, 2005). McBride is the CEO of The SCO Group, Inc., a software company based in Utah that is suing IBM. See http://www.sco.com/company/profile.html and http://www.sco.com/scoip/lawsuits/ibm/ (last visited Mar. 4, 2005). 3. Richard M. Stallman, SCO, GNU and Linux, at http://www.gnu.org/philosophy/sco/sco-gnu-linux.html (last visited Mar. 4, 2005). Stallman is President of the Free Software Foundation (FSF), a charity for free software development based in Boston, Massachusetts. See http://www.fsf.org/about (last visited Mar. 4, 2005). The FSF publishes and holds the copyright for the GNU General Public License (“GPL”), a copyright license agreement for software. See http://www.fsf.org/licensing/licenses/gpl.html (last visited Mar. 4, 2005). (403) Copyright © 2005 Journal of High Technology Law. All Rights Reserved. ISSN 1536-7983 404 JOURNAL OF HIGH TECHNOLOGY LAW [Vol. V No. 2 I. INTRODUCTION It is no longer a secret that the free computer operating system4 Linux5 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 4. A computer operating system is the software program that governs all the other software programs, or applications, installed on a computer. See http://whatis.techtarget.com/definition/0,,sid9_gci212714,00.html (last visited Mar. 4, 2005). Microsoft Windows is an example of a computer operating system. Id. 5. See generally Linus Torvalds, The Linux Edge, in OPEN SOURCES: VOICES FROM THE OPEN SOURCE REVOLUTION (Chris DiBona et al. eds., 1999), available at http://www.oreilly.com/catalog/opensources/book/linus.html (describing the development, application, and success of the Unix-like operating system Linux). The name Linux is a contraction for “Linus’ Unix,” combining Linus Torvalds’ first name with “Unix,” the computer operating system that Linux resembles. See http://whatis.techtarget.com/sDefinition/0,,sid39_gci212482,00.html (last visited Mar. 4, 2005). 6. See Alorie Gilbert, Linux Inches Up Corporate IT Priority List, CNET News.com, at http://news.com.com/2100-1014-5089341.html (Oct. 10, 2003). Many American businesses are using Linux in order to cut technology expenditures. Id. According to one survey, 39% of large corporations use Linux. See Jim Kerstetter et al., The Linux Uprising, BUSINESSWEEK ONLINE, at http://www.businessweek.com/magazine/content/03_09/b3822601_tc102.htm (Mar. 3, 2003). 7. See Matt Hines, Microsoft Still Rules Server OS Market, CNET News.com, at http://news.com.com/2100-7344_3-5088233.html (Oct. 8, 2003). In 2002, Microsoft controlled 55.1 percent of the server operating systems in 2002, while Linux controlled 23.1 percent. Id. 8. See IBM Linux Portal - Linux at IBM, at http://www- 1.ibm.com/linux/index.shtml (last visited Mar. 4, 2005). In 2002, IBM posted $1 billion in Linux-based revenues. See Alex Salkever, The Big Guys Latch Onto Linux, BUSINESSWEEK ONLINE, at http://www.businessweek.com/magazine/content/03_09/b3822616_tc102.htm (Mar. 3, 2003). 9. See Dell Launches New Services to Simplify Enterprise Linux Deployments, at http://www1.us.dell.com/content/topics/global.aspx/corp/ pressoffice/en/2002/2002_08_13_sf_002?c=us&l=en&s=corp (last visited Mar. 4, 2005). 10. See HP.com - Linux solutions, at http://www.hp.com/wwsolutions/linux/ (last visited Mar. 4, 2005); see also Stephen Shankland, Linux brings in $2.5 billion for HP, CNET News.com, at http://news.com.com/2100-7344-5141324.html (Jan. 14, 2004). In 2003, HP made $2.5 billion selling Linux-related products and services. Id. 2005] CLOSING THE DOOR ON OPEN SOURCE 405 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 Microsoft19 and other proprietary software companies,20 11. China to Invest in Linux-based Software, CNN.com, at http://www.cnn.com/2003/TECH/biztech/11/05/china.linux.reut/index.html (Nov. 5, 2003). Currently, Microsoft, IBM, Oracle, Sybase, UFSoft, and Kingsoft control a significant share of China’s domestic market. Id. 12. See Jim Kerstetter et al., The Linux Uprising, BUSINESSWEEK ONLINE, at http://www.businessweek.com/magazine/content/03_09/b3822601_tc102.htm (Mar. 3, 2003). Linux is, however, usually purchased as part of a software package that includes service and support. Id. 13. See Alex Salkever, The Big Guys Latch Onto Linux, BUSINESSWEEK ONLINE, at http://www.businessweek.com/ magazine/content/03_09/b3822616_tc102.htm (Mar. 3, 2003). 14. Id. 15. See http://www.opensource.org (last visited Mar. 4, 2005). Open source adherents believe that open source software’s rapid evolutionary process creates better software than the traditional proprietary model. Id. 16. Open source code is computer software that comes bundled with both its source code as well as its object code. The computer reads the object code and the programmer reads the source code. See Lawrence Lessig, The Limits in Open Code: Regulatory Standards and the Future of the Net, 14 BERKELEY TECH. L.J. 759, 764 (1999). As Lessig puts it, the source code “allows a programmer to open an open source software project and see what makes it tick.” Id. 17. See Thomas M. Pitegoff, Open Source, Open World: New Possibilities for Computer Software in Business, BUSINESS LAW TODAY, Sept./Oct. 2001, at 52. 18. Gary Rivlin, Leader of the Free World, WIRED, Nov. 2003, at 154. At the very least, Linux may be the only software to have its own mascot, the friendly and serene cartoon penguin named Tux. See Salkever, supra note 13. 19. Michael Gartenberg, Microsoft Can’t Stifle Linux, Computerworld, at http://www.computerworld.com/softwaretopics/os/linux/story/0,10801,82323,00.ht ml (June 23, 2003). Microsoft’s CEO, Steve Ballmer, leaked a memo that named Linux as Microsoft’s main enemy. Id. Linux is the greatest threat that Microsoft has faced since Netscape’s Web browser in 1995. See Kerstetter, supra note 12. 20. See Declan McCullagh, The Politics of Open-Source Software, CNET News.com, at http://news.com.com/2010-1071_3-1025268.html (July 14, 2003). 406 JOURNAL OF HIGH TECHNOLOGY LAW [Vol. V No. 2 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 property21 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.
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