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Ovum Soapbox: Don't pay SCO a penny without a money-back guarantee

• By Gary Barnett
• August 11, 2003

To some, it's a protection racket; to SCO, it's a business model. SCO wants you to pay it money to protect you from prosecution in the event that the firm proves its case against IBM.

Some commentators have bought into the fear, uncertainty and doubt that SCO is spreading. In fact, they suggest that you rush across town and speak to your lawyer.

I think that the notion of talking to your lawyer about the threat that SCO poses is nonsense. The only notion that is more ridiculous is that you pay SCO for something that they may, or may not, own before that ownership is proven in court. If you are genuinely concerned, my advice is to offer to pay SCO -- but not unless the company offers a money-back guarantee in the event that its case fails or is settled in some other manner. Given SCO's future prospects as a business, I'd also insist that your money be held in a trust until the case is decided.

Speaking to a lawyer about the SCO case would be a complete waste of time for a couple of reasons. To begin with, your standard corporate lawyer isn't going to be able to advise you about the intricacies of intellectual property law. You'll have to find an expert, and they don't come cheap. You'll pay as much as $600 an hour to have a very long, hypothetical conversation about a hypothetical lawsuit and the hundreds of hypothetical outcomes that might transpire at some unknown time in the distant future.

Now, let's imagine that SCO does hit the jackpot and proves that IBM stole its intellectual property and put it into Linux. For me, that requires quite a deep suspension of disbelief, but let's assume this scenario does come to pass. How does it then become your fault? Did you conspire with IBM to steal SCO's IP or did you install Linux in good faith, believing it to be composed of genuine code? Who would be to blame for SCO's loss -- you for installing Linux or IBM for putting SCO's code in it?

Let's take this unlikely scenario a step further. Imagine a few of the millions of potential remedies a court could order that would result in SCO's complaint being addressed without you incurring any liability for innocently installing Linux. A court might order that the offending code be removed from Linux within a certain time. It might order that IBM pay compensation to SCO for its misdeeds. It might even find that SCO was so negligent in distributing its own IP each time it allowed people to download Linux from its own servers that no remedy is justified. There are literally thousands of possible remedies and millions of combinations, and the majority of them don't give SCO the right to sue you for compensation.

SCO is trying to scare you into paying them money on the basis of threats. The likelihood is that those threats are empty, so instead of losing sleep or paying lawyers for their time, spend the money on something else. A lottery ticket, perhaps?

[Editors' Note: Last week was a big one for Linux, as the multi-round prizefight between SCO and the Linux legions continued. It was the week of LinuxWorld in San Francisco and as good a time as any for SCO to disclose its infringement protection plan for Linux licensees. For an introductory rate of $699 for a single CPU system, said the company, users can purchase a license and avoid "infringement." Red Hat was the first Linux vendor to counter SCO, formally complaining that SCO had not demonstrated any infringement of intellectual property. IBM also made a counter-claim against SCO in a Utah court.]