Corporate LINUX Users Can Get Sued for Copyright Infringement, Wolf Greenfield Lawyers Write; Corporate Counsel Face Dilemma But Other Open-Source Software Even Riskier.

Business Editors/Legal Writers/High-Tech Writers

BOSTON--(BUSINESS WIRE)--May 11, 2004

Your company could get sued for copyright infringement simply by using LINUX. Just ask AutoZone, which was sued by the SCO Group, which claims to own copyrights that are infringed by LINUX, a free "open-source" operating system, Edmund J. Walsh and Steven J. Henry of the law firm Wolf, Greenfield & Sacks, P.C., write in New England In-House magazine, a newspaper for corporate lawyers.

Corporate attorneys face a quandary.

On one hand, "Those who opt to start or continue using LINUX without taking a license from SCO should not take lightly the cost and disruption of defending a suit with such complex issues. If SCO follows the model of others who have undertaken broad-based licensing programs, it will initiate suits periodically against seemingly randomly selected defendants so that everyone considering a license has a litigation risk and expense that makes taking the license seem more attractive."

On the other hand, "No corporate counsel wants to be known as the 'handwringer' who paid for licenses that are later proved to have been unnecessary."

One strategy, they write, is to buy an indemnity agreement from a LINUX provider. However, there are usually strings attached, such as requirements to purchase hardware or service contracts.

"Corporate counsel have relatively few options. For those who have not yet adopted LINUX, doing nothing may well be the best choice in the short term. The facts underlying the dispute are too much of a jumbled mess to make sorting them out on your own a viable option."

While the confusing situation should be sorted out in the next 18 months, the time between now and then offers a useful educational opportunity.

"LINUX is one of the best-managed open source products. Other open source products likely present a greater risk of legal or technical problems. And more of them are probably coming into your company than you realize.

"If the only impact on you of SCO's campaign is that it prompts you to educate your workforce and enforce good-practice policies with respect to open source software (and IP rights of others, in general), the angst may all be worth it."

The story can be read online at www.newenglandinhouse.com/walsh3.htm.

Walsh is counsel in the Electrical and Computer Technologies Group and Henry is a shareholder at Boston-based Wolf Greenfield, a leading intellectual property law firm. They can be contacted at [e-mail] and [e-mail] respectively.