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SCO Claims Copyright Trumps GPL

By Jay Lyman
Aug 15, 2003 1:54 PM PT

The legal battle over alleged unauthorized incorporation of Unix source code into Linux is leading to scrutiny of the GNU General Public License (GPL) that covers the use and distribution of open-source software.

SCO Claims Copyright Trumps GPL

In its $3 billion lawsuit against IBM, Lindon, Utah-based SCO has claimed commercial users of Linux are benefiting from SCO Unix V source code used by IBM in its AIX system and in Linux. SCO has made copyright claims that it says preempt the stipulations of the GPL, which IBM has invoked in its countersuit claims.

Jeff Berkowitz, a partner at intellectual law firm Finnegan Henderson, told TechNewsWorld that SCO's arguments about the GPL go after the basics of the open-source movement.

"It calls into question the methodology behind the open-source movement for licensing code," Berkowitz said. "They're asking under what authority can you confirm everything in the open-source movement is, in fact, rightfully there."

License To Code

The Free Software Foundation's GNU GPL applies only to programmers and companies that commit to using it. It is aimed at ensuring that software code, such as the Linux operating system, can be shared, changed, distributed and sold.

Free Software Foundation general counsel Eben Moglen, who claimed SCO is not detailing what code was copied because it "doesn't want it fixed," told TechNewsWorld that the copyright claim does not make sense because use and distribution of the code in question is covered by the GPL.

"There's no exclusion of rights to use copyrighted works to copyright holders," he said. "You don't need a copyright license to read the newspaper you bought today. It's a characteristic of copyright law -- nobody can control anything more than the first sale."

GPL Attacked

In its response to IBM's counterclaim filed in U.S. district court last week, SCO argued that the Linux legal battle is bigger than the companies involved in the fight.

"The core issue is about the value of intellectual property in an Internet age," said a SCO statement. "IBM urges its customers to use nonwarranted, unprotected software. This software violates SCO's intellectual property rights in Unix and fails to give comfort to customers going forward in use of Linux."

SCO, which has offered licenses to commercial Linux users that wish to avoid potential litigation, argues that the Linux GPL does not cover its copyrighted source code.

Copyright Claim

While he said the copyright-over-GPL debate might have the two sides "talking past each other," Berkowitz said SCO is claiming its source code was not already in the GPL pool of code, while IBM insists it has a license for the code that was properly in the pool.

"Through a series of transactions, SCO claims they own the copyright to the work," Berkowitz said. "They're arguing someone else can't license what they own."

However, the Open Source Development Lab argued through intellectual property expert Lawrence Rosen that SCO has yet to prove its copyright claims and, in the process of doing so in court, might be left with little on which to base those claims.

"Ultimately, after these tests and the merger doctrine are applied to SCO's software, far less will be legally copyrightable by SCO than the code they submitted to the Library of Congress [for copyright]," Rosen wrote.

Linux License Defended

In defense of the GPL, Red Hat and IBM have countersued SCO, using the GPL as the basis for complaints and claiming that SCO has violated the license under which it accepted Linux contributions and distributed Linux.

IBM has one of the largest collection of patents in the United States, but it has rarely defended those patents in court. However, said Berkowitz, IBM and Red Hat are standing up for the GPL with their countersuits.

"They're essentially standing behind this particular process," he said. "Their response is 'We've got to stand behind our products.'"

Large Impact, Long Road

Yankee Group senior analyst Laura DiDio told TechNewsWorld that the legal maneuvering in the case will not impact Linux deployment immediately.

IBM, Red Hat and the open-source community as a whole must address the issues of licensing and indemnification to ensure the long-term success of the open-source movement, she said.

"For large enterprises, particularly in vertical markets, such as financial services, legal indemnification is a requirement, not an elective," DiDio noted.

Berkowitz, who said resolution of the case could take up to two years, reported he has received many concerned calls about the Linux legal battle from a wide range of industries, including financial services, software, hardware and telecommunications.

"It's the sort of matter that really spans the scope of industries in the United States," he said. "There is no industry that's untouched."

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