Take SCO SeriouslyTake SCO Seriously

Whenever we write about SCO's Linux lawsuit, I get nasty e-mail from Linux advocates saying we're simply playing into SCO's PR campaign. We should ignore the lawsuit, I'm told, because it's groundless.

This attitude shows a staggering ignorance of how the law and court system works. A lawsuit doesn't have to have merit to be enormously harmful to the defendant. Indeed, a lawyer who doesn't know that he doesn't have a case can do more damage than a clueful lawyer; the clueful lawyer will be eager to settle and move on, but the clueless lawyer will file motion after motion, dragging a case out and doing a lot of damage to the defendant in the process. SCO has a team of seasoned lawyers, they've already filed one lawsuit, and they're extremely well-funded. None of this is evidence that SCO is right, but it does demonstrate that its claims must be taken seriously. Even if they are a load of baloney.

One of the most frustrating things about the SCO-Linux legal action to date is that the outside observer doesn't know if the case actually has any merit, and--even if SCO's claims are without merit--there's no way of knowing how a court will rule on that question.

SCO has released scant evidence of the merits of its case. Linux advocates argue that this absence of evidence proves that the evidence does not exist, but this argument is poppycock. SCO is under no legal obligation to divulge the evidence of its case at this stage of the process, and indeed divulging evidence too early can be harmful, by allowing an opponent to prepare.

The Linux community also argues that SCO is under a moral obligation to divulge the evidence, but that argument is irrelevant to people trying to decide, based on current information, whether SCO's case has merit. If SCO believes it is in the right, then they are under no obligation to help minimize the exposure of people who have been stealing from them. If SCO believes that it is in the wrong--if the company is, as its accusers say, cynically moving forward on a case that it knows to be groundless in the hopes of cashing in before it's found out--then SCO will not hesitate at one more immoral behavior.

We hear from Linux advocates who say that they know what's in Linux and know what's in Unix, and they know that there's no stolen Unix code in Linux. These people may, in fact, know the code, but do they know copyright law? Many of these people point to the weblog groklaw.net as an authority, but of course a weblog is neither a legal journal nor a courtroom; Groklaw itself sensibly carries the prominent disclaimer that the author is a paralegal, not a lawyer. "[S]o if you have a legal problem and want advice, this isn't the place. Hire an attorney instead."

SCO on Tuesday stepped up the heat, saying it plans to sue at least one major Linux customer in the near future, and will sue Novell if that company completes its acquisition of Linux distributor SuSE. SCO's statements were, in a grim way, encouraging, in that they will at least move the issue forward, and get it closer to resolution. SCO is moving closer to the day when it must show the evidence--or lack of evidence--backing its claims.

Meanwhile, you should be taking SCO seriously.

(This piece initially appeared in the InternetWeek newsletter for Wednesday, Nov. 19. It has been edited for the web.)