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RSS feedsA take on the SCO saga: what is a reasonable licence fee?
SCO claims its code is being used without authorisation in some varieties of Linux. What is interesting about SCO's position is that it apparently expects a mere allegation of copyright infringement to result in the "infringers" - Linux users - coughing up what seems to me to be a pretty hefty licence fee.
I am not going to say whether SCO has a valid claim as I have not seen all the evidence - assuming that SCO has it. But, there are a couple of points worth considering.
Our courts are not interested in frivolous claims. If SCO knocked on my door alleging copyright infringement the first thing I would ask for is proof that it owns the copyright for that code. If it does, then yes SCO may have a valid claim. If it cannot substantiate its claim, then I would ignore it. SCO must produce enough evidence to satisfy the reasonable person that it owns the rights to the code and thus your use infringes its rights.
Recent changes to the law mean SCO can raise the spectre of imprisonment for up to 10 years for copyright infringement. Also, if there has been knowing infringement, courts can increase the damages awarded. Typically, however, if there has been no blatant copying, the courts will award damages which would equate to the lost licence fee and perhaps an account of profit. This is where I challenge SCO's licence fees. I think it is fair to say that SCO could only lay claim to a part of the source code to Linux and then only, I believe, in relation to functionality which not everyone uses.
Take the typical cost of the equivalent Windows workstation or server licence - depending on what you used your Linux installation for - and then take from that as a reasonable licence fee the percentage which is attributable to SCO's own source code. We don't know how much of the source code is copied, but if for argument's sake it is 10 percent then I would, as a rough estimate, suggest an appropriate licence fee is 10 percent of the equivalent Microsoft product.
What I don't know is what the courts would award as damages for copyright infringement for functionality which you don't want to use but which came as part of the overall package. Clearly accounting for any profit would result in nothing as you wouldn't have profited from something you did not use.
Would I use Linux? My personal view (so don't rely on it in case I'm wrong) is that I would. The consensus seems to be that SCO has yet to establish its case, despite having had enough time to do so. Like anything, you need to weigh up all the factors, particularly whether Linux is the right tool for you in the first place, and the costs - including savings - in doing so. The only problem is if SCO decides to make you the example in the UK, in which case your legal fees in dealing with it could be quite horrendous.
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