Paper Calls SCOs Position Desperate

By Peter Galli  |  Posted 2003-11-24 Print this article Print

Free Software Foundation's general counsel, Eben Moglen, in his paper "SCO: Without Fear and Without Research" details what he calls an "inherent contradiction" in SCO's Linux case.

The war of words between The SCO Group and the open source community continues unabated, with SCOs legal claims coming under fire again in a paper written by Eben Moglen, a professor of law at Columbia University Law School and the general counsel of the Free Software Foundation. Moglen, who has been very vocal on this issue, wrote the latest paper, titled "SCO: Without Fear and Without Research," based on a recent presentation given to the Open Source Development Labs User Advisory Council in Portland, Ore.
The paper will be published on Monday by the Open Source Development Lab as its third position paper on the matter.
"SCOs legal situation contains an inherent contradiction. SCO claims, in the letters it has sent to large corporate users of free software and in public statements demanding that users of recent versions of the kernel take licenses, that the Linux program contains material over which SCO holds copyright," Moglen says in the paper. SCO has also brought trade secret claims against IBM, alleging that IBM contributed material covered by non-disclosure licenses or agreements to the Linux kernel. But it had distributed, and continues to distribute, Linux under the GPL (General Public License)—thereby publishing its supposed trade secrets and copy-righted material under a license that gave everyone permission to copy, modify and redistribute, Moglen said. "If the GPL means what it says, SCO loses its trade secret lawsuit against IBM, and cannot carry out its threats against users of the Linux kernel. But if the GPL is not a valid and effective copyright permission, by what right is SCO distributing the copyrighted works of Linuxs contributors, and the authors of all the other copyrighted software it currently purports to distribute under GPL?" he questions. IBMs counterclaim against SCO raised that question with respect to Big Blues contributions to the Linux kernel. Under the GPL section 6, no redistributor of GPLd code can add any terms to the license; SCO has demanded that parties using the Linux kernel buy an additional license from it, and conform to additional terms. Under GPL section 4, anyone who violates GPL automatically loses the right to distribute the work as to which it is violating. IBM therefore rightly claims that SCO has no permission to distribute the kernel, and is infringing not only its copyrights, but those of all kernel contributors, he said. "Unless SCO can show that the GPL is a valid form of permission, and that it has never violated that permissions terms, it loses the counterclaim, and should be answerable in damages not only to IBM but to all kernel contributors." Next page: Did IBM paint SCO into a corner?

Peter Galli has been a financial/technology reporter for 12 years at leading publications in South Africa, the UK and the US. He has been Investment Editor of South Africa's Business Day Newspaper, the sister publication of the Financial Times of London.

He was also Group Financial Communications Manager for First National Bank, the second largest banking group in South Africa before moving on to become Executive News Editor of Business Report, the largest daily financial newspaper in South Africa, owned by the global Independent Newspapers group.

He was responsible for a national reporting team of 20 based in four bureaus. He also edited and contributed to its weekly technology page, and launched a financial and technology radio service supplying daily news bulletins to the national broadcaster, the South African Broadcasting Corporation, which were then distributed to some 50 radio stations across the country.

He was then transferred to San Francisco as Business Report's U.S. Correspondent to cover Silicon Valley, trade and finance between the US, Europe and emerging markets like South Africa. After serving that role for more than two years, he joined eWeek as a Senior Editor, covering software platforms in August 2000.

He has comprehensively covered Microsoft and its Windows and .Net platforms, as well as the many legal challenges it has faced. He has also focused on Sun Microsystems and its Solaris operating environment, Java and Unix offerings. He covers developments in the open source community, particularly around the Linux kernel and the effects it will have on the enterprise.

He has written extensively about new products for the Linux and Unix platforms, the development of open standards and critically looked at the potential Linux has to offer an alternative operating system and platform to Windows, .Net and Unix-based solutions like Solaris.

His interviews with senior industry executives include Microsoft CEO Steve Ballmer, Linus Torvalds, the original developer of the Linux operating system, Sun CEO Scot McNealy, and Bill Zeitler, a senior vice president at IBM.

For numerous examples of his writing you can search under his name at the eWEEK Website at


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