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The document discusses various open source litigation cases over the years, with a focus on SCO's lawsuits against IBM, Novell, AutoZone, and DaimlerChrysler claiming ownership of Unix copyrights. It notes that many GPL violation cases are resolved privately by the FSF. Microsoft is speculated to potentially pursue patent infringement claims against Linux users in the future based on hiring an executive known for patent licensing programs and approaching large companies.

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Litigation in Open Source Jason B. Wacha Vice President of Corporate Affairs and General Counsel MontaVista Software, Inc. August 8, 2004
I’m not suggesting anything
SCO!! But wait… ► SCO v. IBM is currently the best known and most talked about litigation in the open source world ► But SCO is party to at least 4 other lawsuits ► And SCO was preceded by – or has progressed contemporaneously with – a number of other “open source” lawsuits worldwide ► So first: a little non-SCO v. IBM background
Before there was open source litigation, there was… ► Open source has existed for more than 30 years; Linux has been around since 1991. In all that time, there’s been almost no challenge to validity of open source . ► Conversely, in the last decade alone, proprietary interests have launched thousands of lawsuits Claims include illegal derivation, copyright and patent infringement, antitrust and trade secret violations, and more A few sample lawsuits from the proprietary embedded world: GreenHills, Microtec, ISI, Wind River, IKOS Systems, Cadence, Unidata, RealNetworks, Caldera, Microsoft, and others. ► In the proprietary embedded world, litigation appears to be almost a certainty.
Being “open source” doesn’t necessarily change anything ► Sometimes the claims are exactly the same as in proprietary “ Open source” is not an issue; the GPL is not an issue ; it just happens that the companies involved sell open source/GPL products Example: MontaVista v. Lineo (alleging federal copyright violations) ► Even if the claims involve the GPL, it’s a question of whether the GPL was breached, not whether the GPL itself is valid. Example: MySQL v. NuSphere (primarily trademark infringement issues, but allegation that NuSphere violated the GPL by failing to release source code to a GPL product)
Out of the courts; out of the press ► Many of the GPL-focused legal inquiries happen behind the scenes ► The FSF launches multiple investigations every month Often begin after a report from the community Most are resolved out of court and out of the press ► But if it does get public, it can be worse than litigation FSF: “No one wants to be seen as the villain who stole free software, and no one wants to be the customer, business partner or even employee of such a bad actor.” LinuxGram.com: “[An alleged GPL violator] doesn’t want to get in bad odor with the prickly, outspoken, dogmatic, GPL-happy open source community.”
Out of the courts, but in the press ► Sometimes issues/investigations become public knowledge ► Early example: FSF inquiries of FSM Labs Issue: whether FSM Labs “ attempted to use [a] patent to impose restrictive terms on a GPL-covered program.” FSF first tried to resolve privately. Then in S ept 2001 issued a press release. Four weeks later, FSF and FSM Labs announce “the release of the Open RTLinux patent license Version 2 fully compliant with the Free Software Foundation's General Public License (GPL).”
Out of the courts, but in the press, cont. ► Example: Linksys Pre 6/03: some indications that Linksys may be failing to provide source code for GPL program. June 2003: postings (including a long string on Slashdot) from U.S., Asia and Europe re alleged violations. July 2003: oreillynet.com article regarding the Linksys issues October 2003: Linuxdevices.com interview with Bruce Perens re Linksys issues May 2004: Linux-hacker.net posting: Linksys “has decided to comply with the GPL.” Still not fully off the hook. Just “it looks like a good start.” July 2004: Confirmed notice on Linksys.com/support site: “If you would like a copy of the GPL source code in Linksys products on a CD” [do the following…].
Before the lawsuits: The Twisted History ► First there was AT&T AT&T developed Unix, and had Unix license agreements with lots of companies HP, which produced HP-UX; SUN, which produced Solaris; SGI, which produced IRIX Now they’re all open source Also with Sequent (acquired by IBM) and with IBM directly, which produced AIX Is AIX code in Linux? Is it there validly? Who can complain? (more on this in a minute) AT&T assigned agreements to Novell, who in 1995 assigned them to SCO, who became Caldera, who renamed itself SCO. But what rights really ended up in (new) SCO’s hands? SCO (new) has sold the Linux kernel and other GPL code for years. SCO (original version) and IBM contracted with IBM on Project Monterey, which produced Unix on Intel-64 Is Monterey code in Linux? Is it there validly? Who can complain?
Before the lawsuits: The Twisted History ► UNIX: The Unix computer operating system was developed by AT&T Bell Labs. AT&T later sold Unix-related assets to Novell. Novell then sold some or all of those assets to SCO. SCO now claims they own all the rights to Unix covered in all of their lawsuits. Novell publicly disagrees with that position. An amendment to the Novell – SCO agreement may or may not give SCO most (?) of the rights they assert (depends on what copyrights are “required for [SCO] to exercise its rights”with respect to the acquired Unix technologies. Court says there is “substantial doubt”. Both parties have subsequently registered copyrights, in some instances on the same System V code. ► AIX: 1985: IBM and AT&T enter into a license agreement giving IBM the right to develop its own version of Unix: AIX (a proprietary product) ► Linux and AIX: IBM begins to develop and sell the Linux OS. SCO (who now claims to have the right to enforce the original AT&T agreements) alleges that IBM incorporated proprietary trade secrets into Linux
SCO: 5 pending lawsuits ► SCO v. IBM ► Red Hat v. SCO ► SCO v. Novell ► SCO v. AutoZone ► SCO v. DaimlerChrysler
SCO v. DaimlerChrysler ► SCO sues DC in March 2004 Main allegations: DC failed to certify, as requested by SCO, that DC is in compliance with certain use restrictions in licenses to the UNIX operating system over which SCO claims ownership. ► But who did they really want to sue? News.com says it saw a Microsoft® Word document of SCO's lawsuit against DaimlerChrysler that indicated SCO originally intended to sue the Bank of America, an IBM AIX account, but changed its mind for some reason or another on February 18 at 11:10 am when the carmaker was substituted. ► April 2004: DC requests dismissal DC claims it has supplied the certification (and that it no longer uses the licensed software). DC agrees with Novell that SCO has no standing to request certification at all. ► Update: July 21, 2004 Judge effectively dismisses the case Open issue: did DC timely respond to certification request
SCO v. AutoZone ► March 2004: SCO sues AutoZone Main allegations: AutoZone illegally copied (or included derived works of) proprietary Unix code into Linux distributions based on the 2.4 and 2.6 kernels, thus violating SCO’s copyrights. This is a broader copyright claim than presented in SCO v. IBM ► April 2004: AutoZone requests a “stay” The elements of the claim are already at issue in SCO v. Novell, Red Hat v. SCO, and SCO v. IBM. Used the Red Hat judge’s “waste of judicial resources” language In the alternative, SCO should provide more detail on its claims. Argument: July 12, 2004 Update: August 2004: Judge grants a stay, but adds a twist: one round of discovery to see if SCO has any claims for a Preliminary Injunction.
SCO v. Novell ► Before the lawsuit: SCO sends letters to Unix licensees claiming ownership of certain source code, and demanding certification of compliance with license agreement terms Novell responds to SCO and goes public saying, effectively, “you don’t own that IP; we do.” ► January 2004: SCO sues Novell Main allegations: slander of title and rights to IP, slander of reputation, interference with business relationships ► February 2004: Novell files motion to dismiss ► June 2004: Motion to dismiss granted (failure to plead special damages) without prejudice. SCO has 30 days to file amended Complaint. ► Update July 9, 2004: SCO files Amended Complaint. Claim: slander of title; now pleads both actual and special damages
Red Hat v. SCO ► August 2003: Red Hat files Complaint asking for: Declaratory judgment that RH does not infringe any SCO copyright Declaratory judgment that RH has not misappropriated any SCO trade secret, and that Linux code is public and cannot constitute a trade secret Decision that SCO activities constitute false advertising, deceptive trade practices, unfair competition, trade libel, etc. ► September 2003: SCO files motion to dismiss ► April 2004: Judge stays the action pending resolution of SCO v. IBM It would be a “waste of judicial resources to have two district courts resolving the same issue”. Current: Red Hat asking judge to reconsider
SCO v. IBM: Lawsuit claims and counterclaims ► March 2003: SCO sues IBM Main allegations: misappropriation of trade secrets (IBM’s AIX product includes proprietary SCO code); breach of contract Amended in July 2003 to include more specific claims of contract breach (IBM agreements and Sequent agreement) ► August 2003 and September 2003: IBM countersues SCO Main allegations: breach of contract, Lanham Act and unfair competition; unfair/deceptive trade practices; patent infringement; copyright infringement; breach of GPL GPL claim: “Hey, you distributed this same code under the GPL! How can you now say it’s proprietary?” ► October 2003: SCO claims the GPL is unenforceable Repeated in April 2004 filing
SCO v. IBM: Sidelights; what’s coming ► German court bars SCO from making claims SCO cannot claim that Linux is part of SCO code. One fine already imposed based on German SCO website link. ► June 2004: SCO’s Gregory Blepp speaks in Germany Eyewitness says Blepp “just wanted IBM to pay [SCO] some millions for copyright infringement, and they are puzzled why that didn’t happen.” Blepp also reportedly said that SCO would still like IBM to buy them. ► Trial is set for November 2005 Copyright is less of an issue: SCO is now claiming copyright violations only for the period after SCO terminated [tried to terminate?] IBM’s AIX license. Real issue is breach of contract
Current cool topic: Sitecom (Germany) ► Authors of netfilter/iptables project claim that several companies are violating the GPL by distributing the software without offering source code. ► Most companies receiving cease/desist letter enter into “actually very inexpensive settlements.” (per plaintiff’s counsel) ► Sitecom Germany disclaims responsibility; ends up in court April 2004: German court issues injunction against Sitecom; says in effect “You can’t distribute the software unless you comply with the conditions of the GPL” Indirect (?) conclusion: the GPL is a valid, enforceable agreement
What’s on the horizon? Microsoft! ► “ Old” history: Microsoft attacks Linux and open source c|net calls M/S “an increasingly harsh critic” of open source ► More recent history: Microsoft “is not against”open source So says Microsoft. But according to leaked internal memos, M/S still sees Linux as a key competitive challenge to their business ► Patents! June 2003: Microsoft hires Marshall Phelps from IBM, the executive who began IBM's patent-based revenue program in 1985 1H 2004: M/S claims it has patents over FAT technology widely used in Linux April 2004: Public Patent files request with USPTO to revoke M/S FAT patent ► “ I told you that story so I could tell you this one.”
Microsoft: the real worry ► Marshall Phelps indirectly quoted in WSJ that some open programs violate M/S patents ►“ Rumor” has it that Microsoft is now approaching very large companies and asking for patent royalties on Linux software Public Patent Foundation expands its “Microsoft Patent Watch” ► Communications, so far, take the form of (depending on your point of view): “ private collaborative discussions” “ isolating third parties with secretive patent licensing discussions” ► A common reaction: “The heck with SCO. This is what worries me.” ► Update: Public Patent (for OSRM) study shows 283 possible patents (27 M/S) that could be infringed by Linux motivations for the study/results? ► Stay tuned.
And in closing… http://www.open-bar.org

More Related Content

Open_Source_Litigation_8-2004

  • 1. Litigation in Open Source Jason B. Wacha Vice President of Corporate Affairs and General Counsel MontaVista Software, Inc. August 8, 2004
  • 3. SCO!! But wait… ► SCO v. IBM is currently the best known and most talked about litigation in the open source world ► But SCO is party to at least 4 other lawsuits ► And SCO was preceded by – or has progressed contemporaneously with – a number of other “open source” lawsuits worldwide ► So first: a little non-SCO v. IBM background
  • 4. Before there was open source litigation, there was… ► Open source has existed for more than 30 years; Linux has been around since 1991. In all that time, there’s been almost no challenge to validity of open source . ► Conversely, in the last decade alone, proprietary interests have launched thousands of lawsuits Claims include illegal derivation, copyright and patent infringement, antitrust and trade secret violations, and more A few sample lawsuits from the proprietary embedded world: GreenHills, Microtec, ISI, Wind River, IKOS Systems, Cadence, Unidata, RealNetworks, Caldera, Microsoft, and others. ► In the proprietary embedded world, litigation appears to be almost a certainty.
  • 5. Being “open source” doesn’t necessarily change anything ► Sometimes the claims are exactly the same as in proprietary “ Open source” is not an issue; the GPL is not an issue ; it just happens that the companies involved sell open source/GPL products Example: MontaVista v. Lineo (alleging federal copyright violations) ► Even if the claims involve the GPL, it’s a question of whether the GPL was breached, not whether the GPL itself is valid. Example: MySQL v. NuSphere (primarily trademark infringement issues, but allegation that NuSphere violated the GPL by failing to release source code to a GPL product)
  • 6. Out of the courts; out of the press ► Many of the GPL-focused legal inquiries happen behind the scenes ► The FSF launches multiple investigations every month Often begin after a report from the community Most are resolved out of court and out of the press ► But if it does get public, it can be worse than litigation FSF: “No one wants to be seen as the villain who stole free software, and no one wants to be the customer, business partner or even employee of such a bad actor.” LinuxGram.com: “[An alleged GPL violator] doesn’t want to get in bad odor with the prickly, outspoken, dogmatic, GPL-happy open source community.”
  • 7. Out of the courts, but in the press ► Sometimes issues/investigations become public knowledge ► Early example: FSF inquiries of FSM Labs Issue: whether FSM Labs “ attempted to use [a] patent to impose restrictive terms on a GPL-covered program.” FSF first tried to resolve privately. Then in S ept 2001 issued a press release. Four weeks later, FSF and FSM Labs announce “the release of the Open RTLinux patent license Version 2 fully compliant with the Free Software Foundation's General Public License (GPL).”
  • 8. Out of the courts, but in the press, cont. ► Example: Linksys Pre 6/03: some indications that Linksys may be failing to provide source code for GPL program. June 2003: postings (including a long string on Slashdot) from U.S., Asia and Europe re alleged violations. July 2003: oreillynet.com article regarding the Linksys issues October 2003: Linuxdevices.com interview with Bruce Perens re Linksys issues May 2004: Linux-hacker.net posting: Linksys “has decided to comply with the GPL.” Still not fully off the hook. Just “it looks like a good start.” July 2004: Confirmed notice on Linksys.com/support site: “If you would like a copy of the GPL source code in Linksys products on a CD” [do the following…].
  • 9. Before the lawsuits: The Twisted History ► First there was AT&T AT&T developed Unix, and had Unix license agreements with lots of companies HP, which produced HP-UX; SUN, which produced Solaris; SGI, which produced IRIX Now they’re all open source Also with Sequent (acquired by IBM) and with IBM directly, which produced AIX Is AIX code in Linux? Is it there validly? Who can complain? (more on this in a minute) AT&T assigned agreements to Novell, who in 1995 assigned them to SCO, who became Caldera, who renamed itself SCO. But what rights really ended up in (new) SCO’s hands? SCO (new) has sold the Linux kernel and other GPL code for years. SCO (original version) and IBM contracted with IBM on Project Monterey, which produced Unix on Intel-64 Is Monterey code in Linux? Is it there validly? Who can complain?
  • 10. Before the lawsuits: The Twisted History ► UNIX: The Unix computer operating system was developed by AT&T Bell Labs. AT&T later sold Unix-related assets to Novell. Novell then sold some or all of those assets to SCO. SCO now claims they own all the rights to Unix covered in all of their lawsuits. Novell publicly disagrees with that position. An amendment to the Novell – SCO agreement may or may not give SCO most (?) of the rights they assert (depends on what copyrights are “required for [SCO] to exercise its rights”with respect to the acquired Unix technologies. Court says there is “substantial doubt”. Both parties have subsequently registered copyrights, in some instances on the same System V code. ► AIX: 1985: IBM and AT&T enter into a license agreement giving IBM the right to develop its own version of Unix: AIX (a proprietary product) ► Linux and AIX: IBM begins to develop and sell the Linux OS. SCO (who now claims to have the right to enforce the original AT&T agreements) alleges that IBM incorporated proprietary trade secrets into Linux
  • 11. SCO: 5 pending lawsuits ► SCO v. IBM ► Red Hat v. SCO ► SCO v. Novell ► SCO v. AutoZone ► SCO v. DaimlerChrysler
  • 12. SCO v. DaimlerChrysler ► SCO sues DC in March 2004 Main allegations: DC failed to certify, as requested by SCO, that DC is in compliance with certain use restrictions in licenses to the UNIX operating system over which SCO claims ownership. ► But who did they really want to sue? News.com says it saw a Microsoft® Word document of SCO's lawsuit against DaimlerChrysler that indicated SCO originally intended to sue the Bank of America, an IBM AIX account, but changed its mind for some reason or another on February 18 at 11:10 am when the carmaker was substituted. ► April 2004: DC requests dismissal DC claims it has supplied the certification (and that it no longer uses the licensed software). DC agrees with Novell that SCO has no standing to request certification at all. ► Update: July 21, 2004 Judge effectively dismisses the case Open issue: did DC timely respond to certification request
  • 13. SCO v. AutoZone ► March 2004: SCO sues AutoZone Main allegations: AutoZone illegally copied (or included derived works of) proprietary Unix code into Linux distributions based on the 2.4 and 2.6 kernels, thus violating SCO’s copyrights. This is a broader copyright claim than presented in SCO v. IBM ► April 2004: AutoZone requests a “stay” The elements of the claim are already at issue in SCO v. Novell, Red Hat v. SCO, and SCO v. IBM. Used the Red Hat judge’s “waste of judicial resources” language In the alternative, SCO should provide more detail on its claims. Argument: July 12, 2004 Update: August 2004: Judge grants a stay, but adds a twist: one round of discovery to see if SCO has any claims for a Preliminary Injunction.
  • 14. SCO v. Novell ► Before the lawsuit: SCO sends letters to Unix licensees claiming ownership of certain source code, and demanding certification of compliance with license agreement terms Novell responds to SCO and goes public saying, effectively, “you don’t own that IP; we do.” ► January 2004: SCO sues Novell Main allegations: slander of title and rights to IP, slander of reputation, interference with business relationships ► February 2004: Novell files motion to dismiss ► June 2004: Motion to dismiss granted (failure to plead special damages) without prejudice. SCO has 30 days to file amended Complaint. ► Update July 9, 2004: SCO files Amended Complaint. Claim: slander of title; now pleads both actual and special damages
  • 15. Red Hat v. SCO ► August 2003: Red Hat files Complaint asking for: Declaratory judgment that RH does not infringe any SCO copyright Declaratory judgment that RH has not misappropriated any SCO trade secret, and that Linux code is public and cannot constitute a trade secret Decision that SCO activities constitute false advertising, deceptive trade practices, unfair competition, trade libel, etc. ► September 2003: SCO files motion to dismiss ► April 2004: Judge stays the action pending resolution of SCO v. IBM It would be a “waste of judicial resources to have two district courts resolving the same issue”. Current: Red Hat asking judge to reconsider
  • 16. SCO v. IBM: Lawsuit claims and counterclaims ► March 2003: SCO sues IBM Main allegations: misappropriation of trade secrets (IBM’s AIX product includes proprietary SCO code); breach of contract Amended in July 2003 to include more specific claims of contract breach (IBM agreements and Sequent agreement) ► August 2003 and September 2003: IBM countersues SCO Main allegations: breach of contract, Lanham Act and unfair competition; unfair/deceptive trade practices; patent infringement; copyright infringement; breach of GPL GPL claim: “Hey, you distributed this same code under the GPL! How can you now say it’s proprietary?” ► October 2003: SCO claims the GPL is unenforceable Repeated in April 2004 filing
  • 17. SCO v. IBM: Sidelights; what’s coming ► German court bars SCO from making claims SCO cannot claim that Linux is part of SCO code. One fine already imposed based on German SCO website link. ► June 2004: SCO’s Gregory Blepp speaks in Germany Eyewitness says Blepp “just wanted IBM to pay [SCO] some millions for copyright infringement, and they are puzzled why that didn’t happen.” Blepp also reportedly said that SCO would still like IBM to buy them. ► Trial is set for November 2005 Copyright is less of an issue: SCO is now claiming copyright violations only for the period after SCO terminated [tried to terminate?] IBM’s AIX license. Real issue is breach of contract
  • 18. Current cool topic: Sitecom (Germany) ► Authors of netfilter/iptables project claim that several companies are violating the GPL by distributing the software without offering source code. ► Most companies receiving cease/desist letter enter into “actually very inexpensive settlements.” (per plaintiff’s counsel) ► Sitecom Germany disclaims responsibility; ends up in court April 2004: German court issues injunction against Sitecom; says in effect “You can’t distribute the software unless you comply with the conditions of the GPL” Indirect (?) conclusion: the GPL is a valid, enforceable agreement
  • 19. What’s on the horizon? Microsoft! ► “ Old” history: Microsoft attacks Linux and open source c|net calls M/S “an increasingly harsh critic” of open source ► More recent history: Microsoft “is not against”open source So says Microsoft. But according to leaked internal memos, M/S still sees Linux as a key competitive challenge to their business ► Patents! June 2003: Microsoft hires Marshall Phelps from IBM, the executive who began IBM's patent-based revenue program in 1985 1H 2004: M/S claims it has patents over FAT technology widely used in Linux April 2004: Public Patent files request with USPTO to revoke M/S FAT patent ► “ I told you that story so I could tell you this one.”
  • 20. Microsoft: the real worry ► Marshall Phelps indirectly quoted in WSJ that some open programs violate M/S patents ►“ Rumor” has it that Microsoft is now approaching very large companies and asking for patent royalties on Linux software Public Patent Foundation expands its “Microsoft Patent Watch” ► Communications, so far, take the form of (depending on your point of view): “ private collaborative discussions” “ isolating third parties with secretive patent licensing discussions” ► A common reaction: “The heck with SCO. This is what worries me.” ► Update: Public Patent (for OSRM) study shows 283 possible patents (27 M/S) that could be infringed by Linux motivations for the study/results? ► Stay tuned.
  • 21. And in closing… http://www.open-bar.org