Q&A: Red Hat founder sees irony in SCO lawsuit

Though the company he founded has been drawn into a legal dispute between The SCO Group and IBM, former Red Hat CEO Bob Young has not had much to say about the SCO dispute. At least, that was the case until Wednesday, when Young published an open letter to SCO CEO Darl McBride criticizing him for his management of SCO and countering McBride’s recent claims that the open source community is attacking intellectual property laws in Europe and the U.S.

Though the company he founded has been drawn into a legal dispute between The SCO Group and IBM, former  Red Hat CEO Bob Young has not had much to say about the SCO dispute. At least, that was the case until Wednesday, when Young published an open letter to SCO CEO Darl McBride criticizing him for his management of SCO and countering McBride’s recent claims that the open source community is attacking intellectual property laws in Europe and the U.S.

Young, who serves as a Red Hat board member and is no longer involved in the company’s day-to-day operations, believes that McBride’s recent statements amount to an attack on Young’s new business, an on-line custom publishing venture called Lulu, that Young founded in the spring of 2002.

SCO sued IBM in March of this year, claiming that IBM had illegally contributed source code to the Linux operating system. in August, Red Hat jumped into the action, suing SCO for a variety of allegations relating to its Linux claims, including trade libel and deceptive practices.

This edited interview with Young was conducted by telephone, after his open letter was published on Wednesday.

What prompted you to write this open letter to Darl McBride? To date, you haven’t really said much about this SCO-IBM lawsuit.

I’d been going out of my way not to say anything, because McBride was really going after Red Hat. If this latest Open letter had actually been about Red Hat… I would not have said anything because I do not want to confuse [Red Hat CEO] Matthew Szulik’s messaging.

But this letter was actually an attack on alternative forms of copyright, and that’s what worried me. If McBride and all the fellow travelers — the Recording Industry Association of America, and the various publishing industry associations — if they are successful convincing our legislators that anything but the official copyright legislation that has been passed through the U.S. Congress is somehow un-American and should be legislated against, that would do serious damage to the authors who are trying to bring their works to market through Lulu. As far as I’m concerned, McBride’s latest open letter was an attack on the authors who I’m trying to empower.

Why do you see Darl McBride’s statements as an attack to Lulu’s users?

Because of his attack on the GPL (GNU General Public License). If you think about it, his attack on the GPL was a very broad one. He was saying that the GPL was unconstitutional, and the clear implication was anything but the standard copyright terms that are compatible with legislation in the U.S. Congress is somehow unacceptable. That was the clear implication of what he was saying. The GPL is un-American and evil. The follow-up letter from Darl should be a call for legislation to stamp out evil things like the GPL.

What drives me nuts about arguments like Darl’s is how self-serving they are and how, if our legislators pay attention to them, they will cause our legislators to write bad legislation.

So what do you think is actually happening with SCO? Their claims involve a variety of intellectual property including copyright, derivative works and trade secrets. Do you think they are essentially trying to control the very idea of Unix?

Yes, is the short answer. The longer answer is much more complicated because, for all anyone knows, SCO actually has an argument. For all anyone knows, SCO actually owns a copyright somewhere to some key algorithm in the Unix kernel that was copied verbatim into the Linux kernel, without which Linux would not function. As a result, the Linux community would, in fact have benefited from intellectual property that SCO owns. There is, hypothetically at least, a possibility that that is the case.

How worried were you about this hypothetical possibility when you were running Red Hat?

Not very.

Why is that? It must have crossed your mind?

Because the way copyright law works is you have to prove damages. And there’s another concept in American law, which says you’re required to mitigate your damages. In other words, just because you know someone did something bad to you, you can’t maximize the impact of that bad thing and then claim a much bigger penalty against the person who did the bad thing to you because you maximized the harm.

Let’s take an example. If someone hits your car, your car is now damaged. But in order to maximize the penalty, you know your car is going to break down if you drive it to New York, but you drive it to New York anyway, because you know you can sue the guy who hit you for wrecking your car on the way to New York. Well a judge would say, ‘No, he should have fixed your car. He hit your car, but the fact that you further damaged your car by driving it to New York is your problem, not his.’ ” That’s the concept of mitigating damages.

But SCO is going out of their way to avoid the mitigation of damages. If SCO actually has a reasonable claim to owning the way that Linux swaps data in and out of data or the way that Linux talks to the video devices, we can fix that. But SCO will not tell us what they are claiming, so we can’t fix it.

Ironically, SCO raised the money to acquire the Unix intellectual property when it went public as a Linux company called Caldera. Did you ever think about acquiring the Unix rights after Red Hat’s IPO, because if you had done that, it would have solved this problem?

That’s a Matthew Szulik question. I really don’t want to speak on behalf of Red Hat.

I’m not talking about today’s Red Hat. This was years ago.

I keep pointing you back to Matthew on that history because Matthew was very actively involved in that history. For better or worse, he gets to carry the consequences of all that history as well, so I’m absolutely going to duck that question.

Was there ever discussion about this at Red Hat?

Well obviously. You can speculate, with a fair amount of certainty, that those discussions occurred in every major Unix or operating system vendor in the whole industry. Without having spoken to [former IBM CEO] Lou Gerstner, I’m certain that discussion happened at the IBM executive level. Without speaking to [Sun CEO] Scott McNealy I am certain the discussions occurred at Sun. Without having talked to [Microsoft Chairman] Bill Gates about it, I am certain the Microsoft Executive Committee have thought through the strategies around this thing.

Do you think that Caldera made a good investment in buying SCO’s intellectual property, given the value of its stock today?

Because I am a director of a couple of public companies, I’m not going to speculate on that. I am more than happy to agree with you, though, on the irony of [Novell founder] Ray Noorda founding Caldera specifically to provide alternatives in the marketplace to the Microsoft monopolies, only to have Caldera morph into Ray Noorda’s worst nightmare. For Ray Noorda’s money to actually have gone to fund an organization whose mission is to damage everyone who is competing with Microsoft. The irony is staggering on that particular bit of history.