"IBMs counterclaim painted SCO into a corner on the subject of the GPL. Not only the facts but also the law are now fundamentally against SCOs increasingly desperate position. SCO and its predecessor, Caldera, have benefited enormously from the protections of the GPL. "Thanks to the GPL, SCO has been able, for example, to use the invaluable work of compiler designers and implementers around the world who have made GCC the premier cross-platform C compiler," he says in the paper.Customer applications run on SCOs System V Unix because of GCC, to which SCO contributed modifications particular to its system, and for which it assigned copyright to the Free Software Foundation. Caldera and SCO could not have marketed a usable operating system product without the contributions of the free software community, Moglen says."SCO was happy to take the benefits, but it has unethically sought to avoid its responsibilities. The law does not permit SCO to have it both ways. So now it has become time for SCO and its lawyers to pound the table," he says in the paper. SCOs response to IBMs counterclaim has been a round of absurd attacks on the GPL, its users and its author, the Free Software Foundation. The GPL, SCOs answer to IBMs counterclaim alleges, violates not just federal statutes but also the United States Constitution. "How a private copyright holder can violate the US Constitution by giving others permission to copy, modify and redistribute its work SCO does not deign to say. Legal theories arent secrets; if SCOs lawyers had anything to offer in support of this novel proposition, they would offer it," Moglen said. "Not one case decided in the long history of US copyright affords support to this ridiculous conception of an unconstitutional copyright license. No lawyer of my reasonably broad acquaintance, no matter what his or her view of the GPL may be, takes this moonshine seriously. After failing on the facts, failing on the law, and raising no more than derisive laughter from pounding the table, even the proverbial shyster is out of luck. What will we see next from SCO, an attack on the umpire?" he asks.
Moglen also devotes a significant portion of his paper to the code SCO showed at its annual SCO Forum event in Las Vegas in August, which it claimed was a literal copyright infringement in Linux of Unix code.
"What the Las Vegas examples actually demonstrated was that SCOs factual claims were irresponsibly inflated when they werent being kept artfully secret. With the facts running against them even when the facts were of their own choosing, it was unsurprising that after August SCO turned to the law. But the law was not on their side either," Moglen said.
This paper follows SCOs latest threats, made last week in Las Vegas, that it plans within 90 days to sue a Linux user over copyright infringement related to its Unix System V code that it alleges is included in Linux.
SCO is also taking aim at Novell Inc., which recently announced that it will buy SuSE Linux AG. SCO is considering possible legal action against Novell once it completes the SuSE acquisition. Discuss This in the eWEEK Forum