Open Source Attorney Says Linux Users Are Safe.

The Open Source Initiative's general counsel, Lawrence Rosen, says that Linux users should continue to use the operating system without fear, even if SCO Group Inc can prove its code misappropriation claims against IBM Corp.

In a question-and-answer document published by the Open Source Development Lab, Rosen argues that the court case and Lindon, Utah-based SCO's claims against Linux have been exaggerated by the press, and that Linux users need not worry unnecessarily.

Rosen is a founding partner of technology law firm Rosenlaw & Einschlag, and general counsel and secretary of the Open Source Initiative licensing and education organization. In the Q&A - which Rosen is quick to point out is not intended to be legal advice - he states: "The real problem for Linux and open source is not the lawsuit itself, but that the SCO versus IBM case is creating confusion and doubt among Linux users."

Rosen argues that SCO's claims against IBM essentially constitute a contract dispute between two companies over money that is spilling over into the Linux community. He adds that SCO will have to prove that its Unix code is a trade secret and that the code has been copied into Linux.

"How Unix works is not a trade secret, it hasn't been a trade secret since long before SCO and IBM started to work together on AIX," he writes. "There may have some trade secrets exchanged between SCO and IBM, but there weren't that many secrets left for them to exchange that could relate to Unix and Linux functionality. Furthermore, SCO needs to prove that those trade secrets were actually copied into Linux."

While SCO may have registered its Unix copyrights, Rosen also points out that analysis of this copyright will keep the lawyers busy for many months. "The law says that only the expressive elements of software deserve copyright protection. And the 'doctrine of merger' also applies, which denies copyright protection to expression necessarily incidental to the idea being expressed. This legal analysis will keep the parties busy for many months."

Rosen's paper continues to cover other issues affecting the SCO versus Linux debate, such as SCO's publishing of Linux under the General Public License, and the likelihood of any infringing code in Linux being replaced by the open source community before a trial is concluded.

In a conference call on Thursday, however, SCO CEO Darl McBride denied that the Linux community should be given a chance to do just that. "The arguments now are more around 'well the SCO guys should just let us get the code and change it so we can get back to work'," he said.

"I think that argument is missing a very important point, which is we have had our code misappropriated, we do need to get compensated for that, and it's not as simple as just brushing it off and moving on," McBride continued.

McBride also maintained that SCO's case was strengthening. "I believe that the silent majority is behind SCO in this case," he said. "We wouldn't be putting corporate and individual reputations on the line without a very strong knowledge of our case and the infringement that has happened here."

Assuming a worst-case scenario for the Linux community - a jury finding that SCO's Unix trade secrets have been copied into Linux by IBM - Rosen argues that damages demanded from IBM would still negate user license fees, however.

"Assume for example that SCO wins its case against IBM and IBM pays $1bn in damages to compensate for the use of SCO's confidential code in Linux," he writes. "How then could SCO turn to Linux users and ask for the same damages all over again. That double-dipping isn't fair in law or in equity. Courts usually don't allow that.

"Whatever IBM may be forced to pay will presumably compensate SCO for its damages. It would be astonishing if, after IBM paid SCO some huge damage award, a court would let SCO go after users as well for the same damages," he continues.

"For these reasons, the SCO versus IBM lawsuit is not likely to have any real impact on Linux users. Meanwhile, development of Linux continues unaffected. You may continue to use it without fear."