SCO and Linux: The legal rights and wrongs

What makes the legal issue so complicated?
You've got this existing legal regime around software, which is the proprietary model. The industry has had some time to develop based on that known model. You've got that new model that comes in with open source. Not only is it new, but it interacts in some way with the proprietary model, as we are seeing now in the SCO case. It's only natural that we are going to see a number of speed bumps. It's inevitable that issues like this come up.

Assuming that SCO's claims have merit, where does the liability lie? Is it with the companies that distribute Linux software, the hardware makers like HP and IBM that sell Linux with their gear, or is it with customers who run Linux?
Potentially, it could lie with a number of different parties. Under intellectual property laws, you can be liable if you are either a direct infringer, or if you either induce someone else to infringe, or do something that contributes to infringement by someone else. The answer could be "all of the above," theoretically.

Would companies have to have known that they were infringing to be liable?
Not necessarily. There is also a knot in some areas of intellectual property that you can be infringing and have "innocence of heart." In patent law, for example, you cannot even know that a patent exists -- and just by coincidence come up with a similar invention and be held liable for infringement. In copyright law, you have to actually copy the work, but it could be (akin to) copying a song you had heard before. George Harrison found that out the hard way.

Most people in the open-source community downplay the SCO suit as frivolous. Do you take it seriously?
It's important to take any allegations of intellectual property infringement or misappropriation seriously. What that means is that you can't just rely on some offhand comment about it not being serious and move on. You really do have to have somebody look into it and decide for your own company what the ramifications are.

Many times, I run into people who say "I can't believe someone has a patent" on this or that. A couple of years later, they wind up in court. Don't read an article and decide based on that that something's not worth your time. It's very dangerous to declare something frivolous, because strange things happen in court. You have to be prepared for those.

What do you advise your clients who sell Linux to do on their own behalf? On their customers'?
Investigate the matter fully and make an informed business decision. Part of the reason Sun and HP are doing the indemnification is so their customers don't feel as if they have to do their own investigation. You look at your risk exposure, and if your vendor is providing indemnification, that lessens your risk, but it doesn't remove it. Theoretically, the claims could result in an injunction that you stop using Linux.

How much of a "chilling effect" do you think the lawsuit has had on development and sales of open-source products?
I don't think that this lawsuit has had any chilling effect, because it's inevitable that the marriage of open-source and proprietary-source software is going to generate disputes. This happens to be the first. If it were not this one, it would be something else. I would consider this lawsuit to be the equivalent of growing pains for an industry just getting used to open source.