12 September 2003 Linux creator Linus Torvalds has told SCO Group CEO Darl McBride to “grow up” after McBride had claimed in an open letter that there were “fundamental structural flaws in the Linux development process”.
McBride added: “The flaws inherent in the Linux process must be openly addressed and fixed… If the open source community wants to develop products for enterprise corporations, it must respect and follow the rule of law. These rules include contracts, copyrights and other intellectual property laws.”
McBride concluded his letter by appealing to the open source community to negotiate with SCO. “Further, the SCO Group is open to ideas of working with the open source community to monetize software technology and its underlying intellectual property for all contributors, not just SCO.”
However, in a sarcastic response released yesterday, Torvalds wrote that there was nothing to negotiate over. “SCO has yet to show any infringing IP [intellectual property] in the open source domain… all of our source code is out in the open, and we welcome you [to] point to any particular piece you might disagree with,” he wrote.
Torvalds response came a day after a stinging rebuke delivered jointly by open source gurus Eric Raymond and Bruce Perens.
“[There are] numerous instances on record of Linus Torvalds and others refusing code in circumstances where there is reason to believe it might be compromised by third party IP claims… we are instinctively respectful of concerns about IP, credit and provenance,” they wrote.
They also suggested that some of McBride’s claims amount to slander. “You have uttered vast conspiracy theories which fail to be vague only where they are slanderous and insulting.”
“You have already been compelled to abandon major claims — such as the ownership of SMP technology alleged in your original complaint against IBM — on showings that they were false and that you knew or should have known them to be false.”
Although SCO makes light of its Unix intellectual property ownership, much of its legal battle does not concern copyright, but the extent and enforceability of its Unix licensing contract with IBM. Under the terms of this contract, SCO only owns the copyright of the code from System V Unix that is reproduced in IBM’s AIX Unix.
In addition, SCO claims that IBM is also barred from transferring “derivative works” from AIX to other products. Whether the Unix technology that IBM transferred to Linux counts as a derivative work is open to legal interpretation. In addition, much of that technology came from Sequent’s Dynix Unix operating system, which is based on the free BSD version of Unix, and not IBM’s home-grown AIX.
Furthermore, SCO does not claim copyright over what it regards as derivative works. In a July 2003 interview with MozillaQuest, SCO director of corporate communications Blake Stowell admitted that IBM ultimately owns the copyright to those “extensions”, not SCO. “This is not about copyrights. It is about the breaking of a contract,” he told MozillaQuest.
As a result, says one observer, “people who didn’t sign contracts with SCO have no obligation to pay SCO even if ‘millions of lines of code’ were added in violation of its contract with IBM”.