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The open-source community is rallying against comments made by The SCO Group CEO Darl McBride late last month that the GPL, under which Linux and open-source software is distributed, violates the U.S. Constitution as well as copyright and patent laws.
McBride created a furor last month when he wrote: “We believe that adoption and use of the GPL [GNU General Public License] by … the software industry was a mistake. The positions of the Free Software Foundation and Red Hat [Inc.] against proprietary software are ill-founded and are contrary to our system of copyright and patent laws.”
Rolland Roseland, a systems developer for information services at The Schwan Food Company Inc., in Marshall, Minn., said McBrides characterization of GPL use as illegal is a mistake.
“McBride is wrong to state that those who support and participate in the GPL and open-source software creation and distribution are against copyright practice and copyright law,” Roseland said. “Owners of IP [intellectual property] have the right to copyright their IP or to provide it free to society. It is their choice, and we should be supporting that choice.”
Furthermore, this latest blast from McBride paints SCO, which owns rights to Unix, into a corner, Roseland said. Thats because several years ago, while operating under the name Caldera International Inc. as a Linux distributor, it used the GPL.
“If this case has any merit whatsoever, and I believe Im in the camp that doubts there is any merit, they are therefore accusing themselves of illegally infringing on the copyrighted material of another company, since at the time Unix was owned by Novell [Inc.] and/or the former SCO,” he said.
Next page: Is SCO “playing dirty”?
Playing Dirty
Roseland said that SCO is “playing dirty.”
“To freely and openly distribute [Linux] code in accordance with and in acceptance of the GPL and then to turn around and say that doing so was a mistake and that it wants all the code back or to at least be paid royalties for it is pure nonsense,” he said. “If SCO freely gave away their code via their distribution of Linux, nobody else has any legal obligation to pay them for it.”
Another software developer, Kevin Murphy, of The Childrens Hospital of Philadelphia, agreed. SCOs GPL claims are “even weirder than most,” said Murphy, who is also the technical lead for a research group that develops software that uses the GPL.
The validity of the GPL rests with its language and the law, not the ruminations or beliefs of its authors or the open-source movement, Murphy added. What SCO, of Lindon, Utah, wants is for the GPL to be held invalid and for all the rights of other open-source copyright holders, except SCO, to be terminated, he said.
“There is no possible scenario that this can happen,” Murphy said. “There is no doubt that many in the open-source movement wish that copyright and patent law were substantially different or altogether done away with. It is clear to most of us that intellectual property law has failed and needs to be significantly rethought or eliminated. But, that said, it is still the law of the land.”
Still, Murphy said that he believes the GPL is safe. The GPL has survived for years despite the risk that some interest with deep pockets would challenge it, he said. “But, today, it is being defended by lawyers from one of the largest corporations in the world [IBM],” he said. “The GPL is likely to emerge unscathed, and this case will leave it unassailable.”
Tim Dion, a software engineer manager at a leading semiconductor equipment manufacturer in San Jose, Calif., who also runs a consulting company called PhiSoft LLC, said McBride seems oblivious to the fact that the GPL is a grant of copyright. The GPL requires copyright law, as enacted by Congress, to protect the works of developers.
“[McBride] fundamentally does not understand that SCO licensed, modified and distributed Linux source code. By doing this, SCO agreed to freely license those works, including the alleged infringing code under the GPL,” Dion said.
Next page: Interpretating SCOs interpretation.
Misinterpretation
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SCOs claim that IBM has failed its contractual obligations on Unix System V hinges on a convoluted interpretation of the principle of derived works, Dion said.
SCO appears to be claiming some kind of copyright ownership on all code, yet the company has admitted that those materials were fully copyrighted by IBM and Silicon Graphics Inc., Dion said.
“Their assertion seems to be that since IBM violated the terms of the Unix System V contract, SCO has some kind of copyrightlike control or ownership of the code,” Dion said. “How exactly this tortured chain of logic gets converted into copyright infringement remains unclear.”
In addition, Dion pointed out something that has disturbed the open-source community for months: the fact that despite all its claims, SCO has not produced any evidence of actual infringement.
SCO was recently ordered by the U.S. District Court in Utah to produce the source code and other material in Linux to which SCO believes it has the rights and describe exactly how SCO believes that IBM has infringed the companys rights.
“As an open letter to Darl McBride from one single Linux advocate, I ask for only one thing: Just show us the code,” said Dion.