SCO Position Under Fire

The war of words between the SCO Group and the open-source community continued last week with the publication of a paper by a Columbia University Law School professor, who described SCOs position as “desperate.”

“SCO: Without Fear and Without Research,” by Eben Moglen, who is also general counsel of the Free Software Foundation, is based on a recent presentation given to the Open Source Development Labs User Advisory Council, in Portland, Ore.

“SCOs legal situation contains an inherent contradiction,” Moglen writes in the paper. “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.”

SCO has also brought trade-secret claims against IBM, alleging that IBM contributed material covered by nondisclosure licenses or agreements to the Linux kernel. But SCO distributed, and continues to distribute, Linux under the GPL (General Public License), thereby publishing its supposed trade secrets and copyrighted material under a license that gives permission to copy, modify and redistribute, Moglen writes.

“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,” Moglen writes. “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?”

In addition, under section 6 of the GPL, no distributor of GPL code can add any terms to the license, yet SCO has demanded that parties using the Linux kernel buy an additional license from it and conform to additional terms, Moglen said. And under section 4 of the GPL, anyone who violates the GPL automatically loses the right to distribute the work. IBM, therefore, rightly claims that SCO has no permission to distribute the Linux kernel and is infringing on its copyrights and those of all kernel contributors, Moglen 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,” Moglen writes. “IBMs counterclaim painted SCO into a corner on the subject of the GPL. Not only the facts but also the law are now fundamentally against SCOs increasingly desperate position.”