The FSFs Moglen also said that nothing in SCOs announcement on Monday should increase Linux developer or user concern. "When somebody comes and says they want you to take a copyright license, you are not immediately obliged to do so and so should take the time to determine if this is a good way to respond to an allegation of infringement," he said. Moglen said the UnixWare license SCOs offering is for binary, run-only versions of the Linux operating system kernel program, which means that Linux vendors could not take such a license if they want to continue to copy, modify and ship the Linux kernel under the GNU General Public License.Section 7 would also "inhibit the making of separate peace with SCO since the vendors will not be able to take the SCO license as described on Monday. This is the liberty or death provision and people will have to defend the freedom of free software," he said. As the rest of the Linux kernel is only available under GPL, anyone who signs a UnixWare license with SCO would be restricting themselves from engaging in Linux distribution. For those business and consumer Linux users who do not copy, modify and distribute the Linux operating system kernel but only use it internally and only make copies for their internal use are not engaged in distribution under the copyright law and do not need such a license, he said. SCO is asking people to pay them money to avoid a supposed lawsuit that is problematic in itself, he said. "I believe there is no liability for statutory damages for the period before registration; SCO is not entitled to an injunction for acts of infringement dating before the registration; and they are also not entitled to any damages or injunctive relief or anything else if they have licensed the use of the intellectual property that is their copyrighted work. All of these things would have to be addressed in a lawsuit," he said. If the FSF engaged in distribution of the relevant Linux kernel programs, which it does not, it would be "delighted to be sued. Im sure that SCO will have the opportunity to bring its claims forward and have them adjudicated. I also have no doubt that kernel developers will decide for themselves what steps they need to take to ensure that the work they are allowing others to copy, modify and distribute is the copyrighted work of its authors," Moglen said. Also, if it turns out there is any infringing material in the Linux program, the coders would repair any such infringement and then distribute non-infringing versions of the work, something that normally happens when there is a copyright violation, he said. "SCO believes that the Linux operating system contains some code copied from Unix System V, particularly concerning Symmetric Multi-Processing support. At least we now know the claim is: a single free software program has some copied code in it. They also claim that this has been true since late 2001, but SCO itself distributed versions of Linux long after that under the GNU General Public License (GPL)," he said. By distributing that program under the GPL, SCO licensed everybody to copy, modify and redistribute it. "Using the GPL means that they have licensed everyone to copy, modify and redistribute it and they have required people to distribute the source code. "They are now going to claim that the distribution, copying and modification of the source code violates their copyrights. Anybody sued would be well advised to point to the license under which they have themselves distributed the code," he said.
"The problem is that if a Linux vendor takes such a license, Section 7 of the GPL would then prohibit them from copying, modifying and distributing the Linux kernel. Section 7 says that if anyone is constrained by a judgment of the court or a contract which restricts downstream users ability to do what the GPL allows, then you cannot distribute under the GPL," he pointed out.