SCO Copyright Claims Questioned

Free Software Foundation, Red Hat Inc. raise issue with SCO's call for enterprise Linux users to pay for UnixWare licenses.

The Free Software Foundation on Monday hit back at The SCO Groups calls for business users of Linux to pay for UnixWare licenses that would indemnify them against past copyright violations and allow them to use Linux in a run-time, binary format.

Eben Moglen, a professor at Columbia Law School and general counsel for the Free Software Foundation, told eWEEK in an interview on Monday that those business Linux users who are not modifying, copying or distributing the Linux kernel can not be targeted for copyright infringement.

"Possession of infringing material is not a copyright violation because the copyright owner doesnt have an exclusive right to possess the work. The copyright statute gives the copyright holder exclusive power to copy, modify and distribute the work, so those people copying, modifying or distributing in violation of the owners exclusive rights are infringing. Those who arent copying, modifying or distributing are not in violation," he said.

Just using infringing code was no more of a copyright violation than possessing a photocopied book, he said. That act of copying and distributing is the infringement. "So end users will probably look at this situation and assume that SCO is not talking to them, including the 1,500 global CEOs who received letters from SCO [warning them that Linux was an unauthorized derivative of Unix and warning them of potential legal liability].

"The vendors will also probably look at SCOs UnixWare license proposal and say that under Section 7 of the GNU General Public License they cant take that license and will have to decide whether there is an infringement they need to obey or simply to disregard these moves as a nuisance," he said.

But SCO on Monday made clear that it was going after business and enterprise Linux users rather than the Linux distributors and vendors such as Red Hat Inc. and SuSE Inc. SCO CEO Darl McBride and David Boies, his chief legal counsel from Boies, Schiller & Flexner LLP, made it clear that SCO intends to use every means possible to protect the companys Unix source code and to enforce its copyrights.

McBride on Monday said SCO had applied for and received the U.S. copyrights to the Unix System V source code and that it would offer business Linux users UnixWare licenses tailored to support run-time, binary use of Linux for all commercial users of Linux based on the 2.4 kernel and later.

Any business running commercial Linux that buys a UnixWare license would be held harmless against any past copyright violations, and for any future use of Linux in a run-only, binary format, McBride said. Beginning this week, SCO will begin contacting companies regarding their use of Linux and to offer them a UnixWare license.

However, McBride declined to specify the pricing of these licenses, saying that SCO is looking at all the factors around this. But he did say the company would be "fair and reasonable" to Linux users while compensating SCO for its "valuable intellectual property" contained in Linux.

Red Hat spokeswoman Leigh Day told eWEEK on Monday that it has still not seen any of the offending Unix code and has complete confidence that its Linux offerings do not infringe any other intellectual property rights. "We see no validity in their claims and we therefore see no reason for our customers to feel that they need to buy a license from SCO," she said.