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Open Source for the Enterprise by Gautam Guliani, Dan Woods

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What It All Means: The Implications of the SCO Crisis

The SCO lawsuits will likely drag on for years, and might even be succeeded by similar suits (discussed shortly). It highlights the flaws in the open source development model, which is what opened the door to litigation (and FUD) in the first place.

The SCO suits have exposed the myth that open source software, and Linux in particular, is immune from questions of authorship and ownership. Haters of Microsoft and Windows have been able to point to the open source model as the one alternative the software giant can’t defeat in the marketplace, or purchase once it has lost. In this line of thinking, open source software is ownerless, thanks to the GPL.

From a legal standpoint, the copyright precedents for Linux and most open source projects are not as clear as its advocates might like. From a copyright perspective, it is not entirely clear whether it is a work of “joint authorship,” a “compilation,” or an endless series of “derivative works” that expands again when someone new tweaks the code. When Richard Stallman drafted the GPL in 1984, he tried to be very careful in basing his Copyleft model on contemporary copyright law, and his successors have been even more scrupulous. However, the GPL and its descendents have not been tested in the courts, meaning there is little precedent for how the SCO suit might play out.

The legal counsel for Stallman’s Free Software Foundation has a simple explanation for this—there is a lack of precedence ...

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