Paper Calls SCOs Position Desperate

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?