SCO Targets Torvalds, Stallman

Daniel Lyons

November 13, 2003

NEW YORK - The legal battle between SCO Group and IBM is taking another ugly lurch forward.

On Nov. 11, the same day that Forbes reported that IBM had sent subpoenas to investors and analysts who supported SCO --and a day in which SCO shares suffered a 10% drop--SCO fired back, telling the court it would issue subpoenas to Linus Torvalds, creator of the Linux free operating system kernel, and Richard Stallman, president of the Free Software Foundation.

SCO won't say what it hopes to accomplish with the subpoenas. A SCO spokesman says he doesn't even know which subpoenas, if any, have been served. Torvalds says he got his Wednesday evening. Stallman says he hasn't received one yet.

In addition to Torvalds and Stallman, SCO told the U.S. District Court in Utah it would issue subpoenas to Transmeta, a chip-design company that employs Torvalds; the Open Source Development Lab, where Torvalds currently works, on leave from Transmeta; software maker Novell; and Digeo, maker of Linux-based TV set-top boxes.

SCO's move comes as part of the lawsuit it filed last March, claiming IBM put derivative code from Unix System V, an operating system for which SCO holds copyrights, into Linux, the free operating system kernel developed collaboratively by programmers around the world. SCO is seeking $3 billion in damages from IBM and hopes to collect license fees from companies that use Linux.

Denying SCO's charges, IBM has filed counterclaims and launched an aggressive attack on SCO, a company based in Lindon, Utah, that had 2002 sales of $64 million.

Oddly enough, on Nov. 11, SCO Executive Vice President Christopher Sontag complained to Forbes about IBM's decision to send subpoenas to investors and analysts who supported SCO. Sontag called the move "an attempt to bully and intimidate" and said IBM was engaged in "legal gamesmanship."

So why didn't Sontag mention that, uh, SCO itself was about to target Torvalds and Stallman with subpoenas? SCO's spokesman says Sontag and Darl McBride, SCO's chief executive, did not know that SCO's lawyers were planning the move.

But the "Who's on first?" act is tough to swallow since it turns out SCO notified IBM of its plans to seek discovery from these parties more than a month ago, on Oct. 5. And SCO told the court about its plans at 4:34 P.M. on Nov. 11, only hours after Sontag spoke to Forbes.

"I have to think that SCO's management knew they were going to subpoena the biggest names in the free software and open-source movement. Torvalds and Stallman? Come on, they knew," says Brian Ferguson, an intellectual property attorney at McDermott, Will & Emery, a Washington, D.C., law firm, who has been following the case.

Ferguson says it's no surprise that SCO wants to talk to Torvalds. He's the Finnish programmer who created the Linux operating system kernel 12 years ago and who oversees the process by which new features are added to Linux. Torvalds received a subpoena during dinner Wednesday night and says now he'll need to hire a lawyer. "Do you know any good lawyers in this area?" he asked via e-mail. "Just kidding."

Stallman is another obvious candidate for SCO's legal hit men. Not only did he write much of the code that makes up the GNU/Linux operating system, but in 1989 he created the GNU General Public License under which Linux and many other free software programs are distributed. SCO has challenged the validity of the GPL.

Stallman says the Boston-based Free Software Foundation, which he founded in 1985, has nothing to do with SCO's lawsuit. "SCO is suing IBM for violating a contract. We don't even know what the contract said. In terms of the resolution of that lawsuit, the Free Software Foundation is entirely uninvolved," he says.

Stallman's GNU/Linux operating system is not the target of SCO's suit. Linux, the program SCO is targeting, is not an operating system, but only the kernel of the GNU/Linux operating system, which could run using a different kernel.

"I am concerned about long-term entrenched confusions such as referring to a version of our GNU OS as 'Linux' and thinking that our work on free software was motivated by the ideas associated with 'open source.' These confusions lead users away from the basic issue: their freedom. By comparison, the events involving SCO are transitory and almost trivial," Stallman says.

A spokesman for OSDL in Beaverton, Ore., said the organization received a subpoena on Wednesday. OSDL, which employs Torvalds, is a nerve center for Linux development, where programmers are developing new versions of Linux aimed at high-end computers.

As of late Wednesday, Novell, in Provo, Utah, had not been served with a subpoena, but a spokesman said the company would not be surprised to get one. Novell once owned the copyrights to Unix System V and last week announced an agreement to acquire SuSE Linux, a top Linux distributor.

Transmeta and Digeo spokespeople said they didn't know if their companies have received subpoenas or why SCO would target them. What's the point of hassling people who make chips and set-top boxes? Don't ask SCO's top execs. They don't know anything about this stuff, remember?


2003 Inc