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July 26, 2008

Here are some facts, combined with a bit of history: In the mid-seventies, Bell Labs invented the UNIX operating system. In 1991, it sold it to Novell. So Novell used to own the rights to Unix's intellectual property (IP) as far as the code is concerned. In 1998, Novell turned around and sold it to SCO.

Then, in 2003, SCO sold UNIX's IP to Sun Microsystems. Sun then included some Unix IP into its Solaris OS. Finally, Sun decided to open source Solaris as OpenSolaris. Does all of this sound like a gold mine for intellectual property lawyers?

While Sun's Chief Open Source Officer Simon Phipps described the line of logic above as "sheer speculation," others see a major potential legal problem for Sun. However, analysts, lawyers and open source leaders also agreed that it's unlikely Novell would ever choose to make trouble for Sun.

But as of today, Novell hasn't commented on its intentions despite several attempts to get the Linux company's take on the issue.

Thomas Carey, chairman of the business practice group at the Boston-based Bromberg & Sunstein IP law firm, describes the legal details like this: "As to Sun Microsystems, SCO released Sun from a confidentiality obligation with respect to SVRX (System V Release X Unix) code when its contract with Novell did not permit it to do so without Novell's permission."

Carey continued: "SCO did not seek or obtain that permission. This proceeding does not involve Sun as a party, only SCO and Novell. As between these parties, the court views the genie (the confidential information) to be out of the bottle, and the court can't put it back in. It can, however, hold SCO liable to Novell for breach of contract (and/or breach of fiduciary duty), and it did so and found the damages for this breach to be $2.5-million."

Jay Lyman, an open source analyst for The 451 Group, also can't see Novell fooling its lawyers on Sun. "Novell is unlikely to overtly pursue any kind of legal strategy against Sun. It may try to use the rulings as leverage behind the scenes, but I doubt the benefits to Novell of legal strategies or threats involving Unix, Linux, open source, and Sun."

"Novell has more to gain by focusing on growing its Linux and open source business (including work with Sun) than to do anything that remotely resembles what SCO did," added Lyman.

Others agree with Lyman. Open source advocate Bruce Perens says "I don't believe that OpenSolaris is in much danger. Novell would only be in another long lawsuit if it tried to pressure Sun, or tried to sell those rights to someone who would pressure Sun. Instead, I think we'll see Sun make some quiet deal with Novell."

What does this mean for Sun? Carey says, "In theory, Novell could sue Sun directly, but its chances of success would be slim. Furthermore, Novell isn't interested in pursuing/developing SVRX, and is more interested in its reputation in the open source community. Its lawsuit against SCO was political -- it got to wear the white hat. If it went after Sun because of OpenSolaris, it would wear the black hat. It is not likely to change hats now."

Perens continues "if pressured, Sun could buy out Novell without a problem, which would be the best end for Novell anyway."

Novell could give Sun a real legal headache, but since that wouldn't serve the Linux company's goals, no one can see Novell trying it.

But for the time being, it appears that Sun will be getting a free legal pass for OpenSolaris.

Source: ITF.

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