Sunday, February 22, 2004

The newly posted SCO Linux license offers to license any Unix-based-code, by which they mean [...] any Code or Method that: (i) in its literal or non-literal expression, structure, format, use, functionality or adaptation (ii) is based on, developed in, derived from or is similar to (iii) any Code contained in or Method devised or developed in (iv) UNIX System V or UnixWare(R), or (v) any modification or derivative work based on or licensed under UNIX System V or UnixWare. The only IP protection for methods that the law offers are patents or trade secrets. SCO claims no patents on these methods, and they have dropped the trade secret claim for copyright claims in their case against IBM. The claim of any IP rights on "structure, format, use, functionality" is mind-boggling. A succession of lost cases including Apple vs. Microsoft and and Lotus vs. Borland shows that such broad claims go well beyond what can be protected by copyrights. Indeed, the 1976 Copyright Act states Section 102(b) is intended, among other things, to make clear that the expression adopted by the computer programmer is the copyrightable element of a computer program, and that the actual process or methods embodied within the program are not within the scope of copyright law. SCO's understanding of "derivative work" is probably another huge overreach, but what is very worrying about this case is that it threatens to re-litigate the foundation of a thriving information technology industry, which is a competitor's ability to reproduce functionality and interfaces to allow interoperability, unless these were non-obvious and thus protectable by patents (the debacle of current software patents is another issue...). The fact that some very smart lawyers are working for SCO makes me fear that they are counting on the paranoid climate engendered by the DMCA and the RIAA to lead the courts on an activist spree of protecting methods, formats, functionality on the pretext that they are someone's valuable intellectual property, even though the law before the DMCA placed very strict boundaries on what counts as protectable IP. After all, armies of AT&T programmers slaved over hot 5620s to create that stuff, and SCO's predecessors paid $600M for it, so how could it be not protectable? 11:06:58 PM