Closing the Door on Open Source: Can the General Public License Save Linux and Other Open Source Software?
Rodriguez, Kenneth J., The Journal of High Technology Law
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)
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. …