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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.
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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.
“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.
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.
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It is also interesting that SCO has only just registered the copyrights for Unix System V and “suggests something about the degree of professionalism that lies behind these claims. Unregistered copyrights in the U.S. are accorded less opportunity for certain kinds of enforcement activity and damages, so registering copyrights is a good idea. But it is interesting that SCO had failed all this while to do it and casts an interesting reflection on the quality of management at SCO,” Moglen said.
In a summary of the matter so far, SCOs McBride said in a media teleconference earlier in the day that the matter had started as a contract issue with IBM, which has not been resolved and is now in litigation. But, in the process of moving down that path SCO examined with a “fine-tooth comb” what was going on inside of Linux as well as inside its own Unix code base.
“That has in fact generated this wide range of infringement problems that we are dealing with here today. We have now registered our copyrights to protect our Unix intellectual property. We have a very strong ownership position in Unix intellectual property and we now have the registered copyrights to go with that. SCOs Unix IP has been misappropriated into Linux and anyone who has doubts about that can view the source code under a non-disclosure agreement,” he said.
After first telling businesses that Linux was an unauthorized derivative of Unix and included proprietary Unix code, SCO then made the offending code available to them. After they saw the code, customers told SCO they wanted to continue to use Linux without having to rip out the implementation they currently have, McBride said.
As such SCO is giving customers a license to run Linux, legally, on a run-only basis, which will bring business Linux users into compliance. “This allows both their, and our, concerns to be met, balancing the needs of the marketplace with our right to protect our valuable Unix-based IP. We look forward to getting out into the marketplace and resolving these issues,” he said.
SCO chief legal counsel Boies also told the media that SCO has made a lot of progress in identifying the specifics of the use of SCOs IP and copyright. What SCO had done was begin with the contract claim against IBM as it had evidence of this. Since then, by investigation, SCO had significantly developed its evidentiary base, he said.