COMMENTARY-- Open source companies are growing up and becoming the profit-oriented entities that companies at their core truly are. But this can be like watching Dr. Jeckyl turn into Mr. Hyde.

I was all set to do another article on .NET, but the media turbulence surrounding SCO's recent raising of the stakes in its apparent battle with the entire Linux world scotched that idea (it'll appear at a later date, an event I'm sure all of you will await with bated breath).

The SCO suit isn't the first legal challenge of an open source product by supposed owners of intellectual property used therein, but it is arguably the most important one. Linux is rapidly becoming the center of the Unix programming domain, and the number of companies adopting Linux and/or developing products for the platform grows by the day. Billions of dollars are at stake, as an entire industry has arisen around an operating system that seemingly came from nowhere to challenge the business models of proprietary companies, Unix-based or otherwise.

The merits, or lack thereof, of this case have been analyzed to death by a number of people. So, let's ignore all the legal splitting of hairs and peer a few years into the future. We all know what would happen if SCO loses. What would happen, however, if SCO won?

Can an IP encumbered Linux be distributed?
This is the first issue which would need to be resolved. The GPL explicitly forbids distribution of GPLed code if it is found to be IP encumbered.

If, as a consequence of a court judgment or allegation of patent infringement or for any other reason (not limited to patent issues), conditions are imposed on you (whether by court order, agreement or otherwise) that contradict the conditions of this License, they do not excuse you from the conditions of this License. If you cannot distribute so as to satisfy simultaneously your obligations under this License and any other pertinent obligations, then as a consequence you may not distribute the Program at all. For example, if a patent license would not permit royalty-free redistribution of the Program by all those who receive copies directly or indirectly through you, then the only way you could satisfy both it and this License would be to refrain entirely from distribution of the Program.

Note that it doesn't say that existing users have to stop using IP-encumbered GPLed code, just that no one would be legally allowed to distribute the GPLed code to new users.

There are two possible solutions to this problem. The open source community can pull out the portions found to be owned by SCO. This may or may not take very long, dependent on what IP SCO is found to own (as SCO is keeping the details close to the vest, no one can really estimate what this would involve). Alternatively, the open source community can choose to allow the code to be distributed, anyway, with end-users expected to pay a licensing fee for the portions found to be owned by SCO. This is really up to the people considered to hold the copyright on Linux. Who, exactly, would legally be allowed to change the licensing terms of Linux? Linus Torvalds? (that IS a question, and I hope someone has an answer in the Talkbacks)

Assuming there is a solution to the IP issue, and that solution doesn't take too much time to implement, what effects would a successful outcome for SCO have on the industry?

1. A temporary slowdown in the growth of Linux
Those most leery of rolling out Linux would be large companies that make more interesting targets for owners of intellectual property contained in Linux. Smaller companies would be less leery, as they would fall beneath the radar screen, and chasing them down would be like trying to catch a swarm of gnats. Those 1500 threatening letters SCO sent out went to large Linux licensees, which excludes hundreds of thousands of companies and end users around the world that SCO, or anyone else for that matter, would be unable to catch.

As noted, this slowdown would be temporary, even if the end result is that Linux licensees must pay a licensing fee for the right to use the product. Linux would still be a completely open source product with all the flexibility that entails. It would still cost less than most proprietary operating systems. It would still have a large pool of knowledgeable technology personnel from which to draw (what computer science major exits university without exposure to Linux?).

A possible snag would arise if SCO's success causes more companies to pop out of the woodwork with claims on IP contained in Linux. As many have noted, the SCO suit is not over patents, but supposed "trade secrets" to which IBM was granted access after signing a non-disclosure agreement. This doesn't resolve the question, in other words, of patents on logic used, consciously or not, in Linux. Even people at IBM have admitted this possibility, which explains why IBM isn't in the business of shipping an IBM-branded Linux distribution.

Were this to happen, SCO might be only the first act in a longer battle over the future of Linux.

2. No change in the rollout schedules of Linux products:
Linux has long since passed the market share threshold which makes it interesting as a target of software development. That will remain the case, even if there is a bit of confusion over intellectual property in Linux.

Of course, that assumes my worst case scenario outlined in item 1 doesn't come to pass. Most companies, however, will assume Linux's IP-related issues to be short term, and will act accordingly.

3. Don't expect a boost in sales of proprietary UNIX:
Companies aren't going to decide to ditch a Linux rollout in favor of a proprietary Unix unless there is evidence that Linux IP difficulties will be long-lasting. Linux is still the future of the Unix programming domain, and will remain so as long as the full source code remains available to everyone.

As for companies suddenly deciding to pull up their tent stakes and move to the Microsoft side of the tracks, I doubt it. Making a shift from UNIX to Windows would be a large investment in terms of software and personnel, and most companies won't do it in the current weak economic environment. UNIX is a unique programming domain with its own set of skills, software and programming conventions, and those companies currently operating in that domain are like to remain inside of it.

4. Expect more IP litigation:
IP litigation has ballooned over the past decade as more and more companies endeavor to patent everything they can get their hands on. This is partly due to the need to make money in a market threatened by competition from free products, and partly a result of an industry taught that courts can be a useful competitive tool as well as a source of revenue. A successful SCO will only compound this problem, providing yet another reason to sink more money into legal instruments of competition and revenue generation.

This is bad news for small companies, which don't have the resources to defend themselves against IP litigation, and more important, don't have the money to generate the IP larger companies use as a defensive shield. It's also bad news for software developers, who will find it much harder to write code that is not IP encumbered. This is good news to lawyers, though. On that note, current trends in America seem to be nothing but good news for lawyers.

5. Expect more proprietary companies to release more source code.
This is wildly speculative, but if it comes to pass, would be the most unusual outcome of a SCO win. AT&T's experience with Unix taught a generation of technology executives the pitfalls of releasing the source code to a product that a company has any hope of commercialising. AT&T essentially lost control of Unix (a fact which may affect the outcome of the SCO case), and companies who wish to avoid that fate tend to keep their source code close to the vest.

If SCO manages to prove, however, that access to source code does not require losing control of intellectual property contained in that source, then more might be willing to consider releasing more source code. The code, of course, would have to be covered by some form of licensing arrangement, but the history of Unix shows that an awful lot of people can see code that is distributed in this fashion. This might appeal to those whose interest in open source is less ideological so much as utilitarian.

Microsoft talked about the "viral" nature of open source software. Oddly enough, if SCO succeeds, that viral nature could be put to use by proprietary software companies.

Conclusion
Open source companies are growing up and becoming the profit-oriented entities that companies at their core truly are. Unfortunately, as the SCO case has shown, this can be like watching Dr. Jeckyl turn into Mr. Hyde.

Corporations have one simple motivation, and that is to make money for their stockholders. This means they will not necessarily adhere to the core beliefs and principles that motivate the open source community to create software. This conflict can only become more and more frequent, as more companies attempting the open source route run across rough patches typical of any company's hoped-for evolution towards profitability.

John Carroll is a software engineer living in Ireland. He specialises in the design and development of distributed systems using Java and .Net. He is also the founder of Turtleneck Software.

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