Litigating against innovation: Legal attacks on Linux

The real fathers of Linux?

Free and open source software is changing the way in which software and software services are developed and distributed, and depends upon copyright law. The mechanism that gives free software its potency is the GPL, which relies on an inversion of copyright law to protect the user, the developer, and the software. The effect is beneficial for users and developers, but disrupts the business model of existing software companies, who have tended to see free software as a threat to their raison d'etre. This has given rise to a disturbing tendency from some quarters to raise the spectre of patents and/or copyright issues as a means of disrupting customer confidence.

Some of these claims have been more astonishing than others. In May 2004, the think tank, AdTI, declared that it had proof that Linus Torvalds' "claim to invent Linux [was] probably false." Kenneth Brown, the president of AdTI, purported to have written "one of the few and extensive critical studies on the source of open source code."

The purpose of the document, he said, was "to provide US leadership with a researched presentation on attribution and intellectual property problems with the hybrid source code model, particularly Linux."

Brown's contention was that he couldn't believe that "one person could write an operating system all by himself," and the code must have been stolen. The most telling testimony came from Alexey Toptygin, who was asked by a friend "if I wanted to do some code analysis on a consultancy basis for his boss, Ken Brown. I ended up doing about 10 hours of work, comparing early versions of Linux and Minix, looking for copied code... To summarize, my analysis found no evidence whatsoever that any code was copied... When I called him to ask if he had any questions about the analysis methods or results, and to ask if he would like to have it repeated with other source comparison tools, I was in for a bit of a shock. Apparently, Ken was expecting me to find gobs of copied source code. He spent most of the conversation trying to convince me that I must have made a mistake, since it was clearly impossible for one person to write an OS and 'code theft' had to have occurred."

Yet Brown's claims were leant credibility by broad coverage in the computer press. "OK, I admit it," Torvalds responded. "I was just a front-man for the real fathers of Linux, the Tooth Fairy and Santa Claus. Since then," he continued, "I've lived a life of subterfuge, always afraid that somebody would find out the truth. I'm actually relieved that it's over, and that the Alexis de Tocqueville Institute has finally uncovered the lie. I can now go back to my chosen profession, the exploration of the fascinating mating dance of the common newt."

Searching for a motive?

Claims of copyright infringement were also the basis for the most famous litigation to involve Linux, the case of the SCO Group against IBM. SCO claimed to have bought the rights to the Unix system V copyrights from Novell, and alleged that IBM and others had copied "substantial System V code" into the Linux Kernel, for which claim SCO failed to provide any evidence during five long years of litigation.

Darl McBride, the chief executive of the SCO Group, was widely reported as claiming that "when you look in the code base [of the Linux kernel], and you see line-by-line copy of our Unix System V code - not just the code itself, but comments to the code, titles that were in the comments and humour elements that were in the comments - you see that everything is taken straight across. Everything is exactly the same except they have stripped off the copyright notices and pretended it was just Linux code."

In September 2003, McBride made the astonishing claim that "we counted over a million lines of code that we allege are infringed in the Linux kernel today."

Since that day, no evidence has ever been shown to substantiate these claims.

The motives for this action are mired in mystery. Indeed, it is hard to understand what the SCO Group, and its shareholders, hoped to acheive when it first began proceedings against IBM. The copyrights to the System V version of Unix had been owned by AT&T, who had undertaken a lengthy legal case against BSD Unix claiming copyright infringement, which reached a settlement, largely in favour of BSD, back in January 1994.

Later, the rights were sold to Novell, before being sold (in part) to SCO. SCO was absorbed by Caldera Systems. If the SCO Group's claims had been true it stood to make billions both from the litigation and the relicensing of Linux and Unix.

For a short while, the SCO group's star - and its share value - rose, but it fell back just as quickly. The only effects of this litigation have been the bankrupcy of SCO, and a significant interruption in the uptake of Linux and other free software.

On the face of it, the outcome of SCO's action was entirely predictable, and has been of no benefit to its proponents or its shareholders, but the cost to computer users and the defendant companies incalculable. The whole case seems to have been built on an assuption that an operating system as sophisticated as GNU/Linux couldn't have been built by a bunch of "amateurs", therfore the code must have been filched.