SCO Linux dispute new legal action

11 March 2004

Roger Bickerstaff, Graham Smith

SCO starts new legal actions against Autozone and Chrysler-Daimler

The now long running saga of legal actions by SCO against the Linux community had further developments last week when SCO started legal actions against Autozone inc. as a Linux user and against Chrysler-Daimler as a SCO UNIX licensee. SCO already has a law suit against IBM, commenced in March 2003, alleging that IBM incorporated UNIX software into the Linux kernel in breach of SCO's copyrights.

In the action against Autozone, SCO alleges that by running Linux software as a user Autozone is violating SCO's copyrights. Autozone is a user of Redhat Linux. SCO filed the lawsuit in Nevada, requesting injunctive relief against Autozone's further use or copying of SCO's copyrighted materials and also damages for an amount to be proven at trial.

SCO alleges that Autozone violated SCO's UNIX copyrights by running versions of the Linux operating system that contain code, structure, sequence and/organisation from SCO proprietary UNIX System V code in violation of SCO's copyrights.

Autozone is probably in SCO's legal action spotlight as Autozone used to license UNIX software from SCO. Evidence submitted in the case between SCO and IBM shows that Autozone migrated from UNIX to Linux in 2001 with support from IBM. In the SCO vs. IBM case, SCO alleges that IBM interfered with SCO's licence with Autozone and induced Autozone to cease using SCO's UNIX software. SCO alleges that the Autozone Linux implementation "featured SCO's shared libraries which had been stripped out of the SCO's UNIX based OpenServer by IBM and embedded inside Autozone's Linux implementation".

This means that the action by SCO against Autozone is against an atypical Linux user. SCO has not alleged in the new case that the use of Linux software by a vanilla Linux user with no direct connection to SCO or IBM amounts to an infringement of copyright. Time will tell whether SCO brings any legal actions against Linux users that have never had any connection with SCO. It is unclear at this stage whether SCO's choice of defendant is for tactical reasons, or reflects a broader strategic concern about the strength of its case against vanilla Linux users.

The action against Daimler-Chrysler relates to an alleged breach of Daimler-Chrysler's UNIX licence, rather than the use of Linux. SCO alleges that Chrysler-Daimler has failed to comply with the software audit provisions of the SCO UNIX licence, as required in the letter issued by SCO to its UNIX licensees in December 2003 (see the Bird & Bird Briefing, January 2004). SCO seeks an order requiring Daimler-Chrysler to refrain from further violations of its UNIX licence and a mandatory injunction remedying past violations and damages. SCO does not appear to be seeking a court-sanctioned termination of the Daimler-Chrysler UNIX licence.

What, if anything, should Linux users do as a result of the new legal actions? At this stage, there is relatively little that Linux users can do to prepare for a legal action if they consider that they are in SCO's firing line. If SCO is able to establish that mere usage of Linux software infringes the SCO copyrights, there will be no steps that users can take to avoid the infringement, short of not using Linux or at least those portions of the Linux code that are found to infringe the SCO copyrights, or obtaining a licence from SCO to use the infringing copyrights.

It is not practicable for a Linux user to prepare significant evidence from its internal sources as would be normal in a pre-litigation scenario. This is because the infringing activities (if any) would have been carried out by third parties in the development of Linux. A vanilla Linux user would not normally have access to this evidence without approaching third parties, which in this situation might include IBM and Linux contributors.

As a result, if SCO sues a Linux user the user would be in the unusual position of having to defend itself in circumstances where it might not have easy access to the information that would be needed in order to determine the validity of the alleged infringement. English law does permit the court, but only in very limited circumstances, to compel a third party to disclose specified documents to a party in litigation. Also, in theory, the Linux user could seek a subpoena to require third party witnesses to provide evidence and produce documents at trial. However, this would not be straightforward:

· the identity of any relevant Linux contributors would be difficult to identify. It is unlikely to clear who contributed which elements of the Linux code

· if any such Linux contributors could be identified, they may be located outside the jurisdiction of the English courts and it would be difficult to force them to provide evidence at a trial in the UK

· requiring a Linux contributor to give evidence unwillingly under a subpoena is a high risk tactic as the witness could be hostile

· it might not be possible to obtain such a subpoena until late in the proceedings, near trial

In practice, the Linux community is likely to "rally round" to any Linux user sued by SCO. The problem in reality may be that a Linux user sued by SCO would be inundated by offers of assistance from the Linux community. It may be hard to identify who has relevant substantive evidence and would be a suitable witness in court.

Since the outcome of a lawsuit against a vanilla Linux user would most likely depend on the result of the proceedings brought by SCO against IBM, such a user might also consider asking for the proceedings to be halted pending the outcome of the SCO/IBM litigation.

This Bird & Bird Briefing is one of a series on this issue that is being issued by Bird & Bird. As the issue develops further briefings will be issued. For any further information on these issues, please contact Roger Bickerstaff or Graham Smith at Bird & Bird on +44 (0)20 7415 6000.