In 1980, Congress amended the federal copyright statutes to cover computer programs. The courts interpreted these statutes to protect the creator of software from copying, as well as translating into another programming language. Translations into foreign languages (i.e., French or Spanish) are also prohibited. Commercial software developers use licenses and the threat of legal action to protect their investment against unauthorized copying.

The traditional way of protecting this investment is referred to as closed source code. When an organization purchases software from an outside vendor, it receives the object code but not the source code. Software developers do not give outsiders access to the source code and do not permit them to modify the software. Commercial software firms often refer to their software source code as the "crown jewels" of the company.1 Users cannot duplicate the code unless they have the technical expertise and time to "decompile" (reverse engineer) the object code. This is an expensive and painstaking process and is strictly prohibited under the terms of all closed software contracts.

Open source software (OSS) is an alternative approach that makes the source code available to end users.2 Users can add and delete features, fix software bugs, or even simplify the program and its interface so that it works exactly as desired. If a new hardware product is introduced to the market, users can write their own drivers. OSS is easy to download, but most businesses still feel safer if they arrange support contracts for any software when they believe they will need outside help.

What started as a niche among software developers, however, has grown to the point where large corporations and government agencies regularly look to open source software for collaboratively developed solutions, and innovators in other technology areas, such as biotechnology and product design, are considering analogous collaborative approaches. What many people learned - and continue to learn - from open source is how people with an interest in solving a problem can work collaboratively to do so.3

This column deals with open source software, its history, and the benefits, responsibilities, and drawbacks of using this software option. Special emphasis is placed on the legal ramifications of this alternative approach to business software development and a long, complex lawsuit that threatens to restructure the open source philosophy.

HISTORY OF OPEN SOURCE CODE

When I started programming professionally in 1975, the environment for software development was very different from today. Before the development of the desktops and the minicomputer, most software was developed for mainframe computers in FORTRAN or COBOL. Mass-marketed packages were a rarity because only large companies could afford the cost of a computer center.

Organizations developed software to meet their own needs, either internally or by hiring an outside software house to develop customized packages.4 Software trading was common. One company would trade its accounts payable system for another company's payroll system. The software was usually traded in the form of source code to make it easier to transfer the program from one computer to another, even if the hardware was from different manufacturers.5

During the 1970s, Richard Stallman was a programmer at MIT's Artificial Intelligence Lab. The lab installed a new Xerox printer and Stallman desired to write software that would notify staff members when the printer jammed.

Stallman requested a copy of the printer's source code. The professor in charge of the printer refused to give him a copy of the software because he had signed a nondisclosure agreement with Xerox. "It was my first encounter with a nondisclosure agreement, and it immediately taught me that nondisclosure agreements have victims," Stallman later recalled. "In this case I was the victim."6

Stallman's solution was to create a computing environment where he could guarantee that the source code would always be available. UNIX-based systems were popular then, so Stallman wanted to write a compatible operating system. In 1985, he created the Free Software Foundation (FSF) and wrote such a system, calling it GNU, an acronym for GNU's Not Unix.

According to its Web site (www.fsf.org), FSF:

is dedicated to promoting computer users' rights to use, study, copy, modify, and redistribute computer programs. The FSF promotes the development and use of free software. "Free software" is a matter of liberty, not price. To understand the concept, you should think of "free" as in "free speech," not as in "free beer."

THE HISTORY OF LINUX

In the late 1980s, MINIX was one of many operating systems designed to run on Intel 8086 microprocessors. MINIX was written in C and Assembly Language and was not generally considered one of the more efficient operating systems of its era.

What made MINIX unusual was that its author, Andrew S. Tanenbaum, made the source code easily available. This was a first. Any interested party could purchase Tanenbaum's book and freely read the source code of the operating system. "Tanenbaum captivated the brightest minds of computer science with the elaborate and immaculately lively discussion of the art of creating a working operating system. Students of Computer Science all over the world poured over his book, reading through the codes to understand the very system that runs their computer."7

In 1991, Linus Torvalds, a Finnish university student, developed a revised operating system kernel as a replacement for MINIX. Torvalds was greatly impressed by Stallman's approach to software and source code. To announce his new kernel, Torvalds sent out a general posting, announcing a "free operating system for 386 and 486 AT clones."

Torvalds attracted considerable interest from the international programming community. A group of volunteers worked with him to improve the system. A functional, stand-alone Unix-like Linux system was released as Version 0.11 in 1991. During 1992 and 1993, the Linux kernel gathered all the features necessary to work as a replacement for Unix workstations, including TCP/IP networking and a graphical windowing system (the X Window System).

Linux began to receive attention from the commercial software industry. Several small companies began operations to develop and distribute Linux. Dozens of user groups emerged and the Linux Journal magazine began publication in 1994.

All the Linux source code is readily available, along with a copyright license that allows modifications to be made and distributed. If users find a problem, they can fix it. If they think a feature is missing, they can add it themselves.

Linux has become as much a movement as it is a software product. It now has more than 8 million users and is readily available as either a free or commercial software package; it is distributed under the Free Software Foundation's GNU General Public License. Fortune 500 companies, governments, and consumers use Linux as a cost-effective computing solution. It has been used and is still used by big companies such as IBM, Amtrak, NASA, and others. Linux also runs everything from some of the world's most powerful supercomputers to consumer gadgets such as TiVo, cell phones, and handheld devices.8

The Linux model has its shortcomings. When hardware manufacturers introduce a new device, it can take a few months before a Linux programmer will write, test, and release a new device driver. Some hardware manufacturers will not release programming information for their devices, which can delay the development of a suitable device driver for Linux users. With the growing global interest in Linux, this is becoming less of a problem.

Numerous flavors of Linux are available today, each containing upgrades and modifications developed by different developers and programmers. Most flavors are functionally similar. Users can download the source code at no cost or can purchase it on CD-ROMs for little more than the cost of the disks and shipping charges. Users are free to customize the code as they wish for their own personal or corporate requirements. Available flavors include Turbo, Debian, Fedora, and Gentoo Linux, among others. There are, of course, endless Web pages dedicated to determining which flavor is best under which set of circumstances.

Other developers soon made their software available at no charge. In 1997, Netscape decided to release its Web browser as free software. Many types of free software applications are now generally accepted. In some cases, they are the preferred choice for many applications.9

SCO GROUP LITIGATION

It is not surprising that commercial software companies have attacked Linux and other open source software packages. Because it is freely available, the price is always right. Sales of commercial software may decrease because of the competition.

A legal attack from a company called SCO could jeopardize the future of open source software, with users and potential users of open source software fearful of previously unasserted intellectual property lawsuits.10

The SCO Group, formerly known as Caldera (www.sco.com), is a Utah-based company that develops software for personal computers and servers, primarily for small businesses. The origins of Linux can be traced back to UNIX, developed at Bell Laboratories in the mid-1960s. SCO started doing business in 1994 as a distributor of Linux. In 1995, a predecessor company of SCO purchased the rights to the Unix operating system.

On March 6, 2003, the SCO Group initiated a civil lawsuit again IBM," claiming damages that were later increased to $5 billion. The main allegation is that SCO held the ownership rights to the UNIX code and that IBM had contributed aspects of that code to Linux in violation of various license agreements.12 The lawsuit claimed that IBM had contributed SCO's intellectual property from UNIX to the Linux operating system. "SCO is in the enviable position of owning the UNIX operating system," said Darl McBride, president and CEO of SCO. "It is clear from our standpoint that we have an extremely compelling case against IBM. SCO has more than 30,000 contracts with UNIX licensees and upholding these contracts is as important today as the day they were signed."13

SCO claimed that the growth of the Linux operating system, which is similar to Unix in many ways, hurt its business. SCO said that once IBM adopted Linux with some of its programmers and partners, it shared details of the Unix operating system, in violation of SCO's license.

In May 2003, SCO sent letters to members of several hundred large companies warning them of the possibility of liability if they use Linux. In September 2003, U.S. District Judge Dale Kimball of the District of Utah granted the SCO Group's request for a delay until February 2004. The schedule was amended again in July 2005. The litigation is currently stuck in a morass of motions, subpoenas, depositions, and other legal technicalities. The trial is currently scheduled to begin in February 2007, but that timetable is also subject to change.14

It is not surprising that IBM and the open source advocates have reacted strongly to SCO's claims. Traditionally, copyright law protects only the expression of ideas, not the ideas themselves. IBM claims that all of the code in Linux could be rewritten to eliminate SCO's claim of copyright infringement.15 Further, IBM has asserted that, because SCO worked on Linux code, it must adhere to the Linux open source license. That license prohibits Linux developers from suing other companies that distribute Linux code.16

Professor Eben Moglen addressed these issues from the viewpoint of the Free Software Foundation. He stated:

SCO has long distributed the Linux kernel under GPL, and continues to do so as of this writing. It has directly given users copies of the work and copies of the license. SCO cannot argue that people who received a copyrighted work from SCO, with a license allowing them to copy, modify and redistribute, are not permitted to copy, modify and distribute. Those who have received the work under one license from SCO are not required, under any theory, to take another license simply because SCO wishes the license it has already been using had different terms.17

SCO has offered Linux users the opportunity to purchase an "intellectual property license," which would make its intellectual property available to end users. On its Web site, SCO states that:

The license gives end users the right to use SCO intellectual property contained in Linux, in binary format only. End users who purchase this license will be covered for their use of SCO's intellectual property in binary format in Linux distributions on the licensed system. The license applies to all commercial users of Linux.

CONCLUSION

There have been countless articles and water cooler arguments about the relative merits of Linux and Windows. Both operating systems have their strengths and weaknesses. Windows is more widely accepted, but it is generally considered less reliable and secure. Linux runs more smoothly and with less overhead.

Novices often consider Linux to be less efficient and more challenging to learn. There are also fewer software packages available for Linux. As time goes by, and the open source software community develops more software for Linux, these differences will shrink.18

A judgment in favor of SCO could do serious damage to the open source community. SCO's threats to sue Linux users could make potential users wary of using Linux. Most experts agree that SCO has little chance of success in its litigation against IBM and other organizations. The possibility that SCO could have some proprietary claim to Linux is negated by the free software community's willingness to rewrite any offending code. At this time, there is little reason for organizations using Linux and other open source programs to fear the results of the SCO litigation.