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The SCO Phoenix Rises…Again

I made a lot of people in the Linux community unhappy when I wrote in CIO Insight ( "Battle over Linux: When a Win May Not Be a Win," Sept., 2007 ) that the decision by federal judge Dale Kimball to grant partial summary judgment to Novell on SCO's claims of ownership of key UNIX copyrights hardly put the matter to rest. "While a favorable ruling from the trial judge certainly weighs in the negotiations," I wrote in 2007, "it is no more definitive than the first estimate you might get for a car repair or a kitchen remodel."

Last week, right on schedule in legal terms, the Tenth Circuit Court of Appeals reversed Kimball's ruling (see Stephen Shankland's column on CNET. The full decision can be found here ). The Court of Appeals, briefly, rejected Novell's claim that it never transferred UNIX copyrights to SCO and left for trial a determination of whether that transfer did or did not occur. The ownership of the UNIX copyrights is important, because SCO's claim that Linux developers are infringing on UNIX relies on SCO's being the owner of the code that Linux is claimed to infringe.

I gave no opinion on whether SCO should win, and I still don't. How this litigation will resolve or even how it should be resolved is impossible to predict even now, several years into the mess and with SCO still trying to come out of bankruptcy protection, which they entered shortly after Kimball's 2007 ruling. (The bankruptcy judge denied SCO's request a few weeks ago to allow it so sell its UNIX assets--which is to say, to sell the lawsuit, the only real asset the company has left.) Final resolution will turn in equal parts on the interpretations of some poorly-drafted contracts and on SCO's ability to find new funding sources to pursue its remaining claims.

I'm more interested in what this case says about the difficulty lay readers, bloggers and even journalists have in trying to understand the twists and turns of legal procedure. With notable exceptions including NPR's Nina Totenberg and ABC's Jan Crawford-Greenberg (a law school classmate), most journalists covering legal matters have no legal training, and regularly misunderstand the import of any given court decision. When Kimball ruled for Novell in 2007, for example, The Wall Street Journal declared it "a boon to the 'open source' software movement and to Linux." Now, boon has turned to bust, as it often does in complex, well-funded lawsuits between former business partners.

The litigation and its outcome are of crucial importance to open-source developers and users, and I'm not suggesting that non-lawyers stay out of the discussion, even about legal merits and legal interpretation. Just understand that no matter how strongly-worded a judge's opinion, or how unfortunate a loss may be to innocent third parties, legal process follows its own, often counter-intuitive rules.