SCO's Attorney Explains Position On Linux, GPL, IBM In Interview

by , 10:00 AM EDT, August 22nd, 2003

This week's news has been full of the controversy between IBM, members of the Open Source Community, and SCO. At the center of the controversy is SCO's claims that key portions of the code that make up Linux and UNIX belongs to them, that they've never gave anyone permission to use the disputed code, and that SCO now wants restitution for the use of their supposedly copyrighted code from UNIX and Linux vendors and their customers.

The controversy took on a new timbre this week when, during a forum hosted by SCO in Las Vegas, SCO showed code that it believes is proof of its allegations. The disputed code was immediately slammed by vocal members of the Open Source community who claimed that the shown code was either in the public forum long before SCO came into being, or was released for public consumption by SCO under the General Public License (GPL).

C|Net's Lisa Bowman has posted an interview with Mark Heise, a lawyer from the law firm that is representing SCO in its lawsuit against IBM, in which SCO's position concerning the disputed code, GPL, and IBM. From the article SCO's big legal gun takes aim:

This case has been characterized as an attack on the GPL.
We never raised the GPL in this litigation. We are somewhat surprised that IBM, which has this tremendous copyright and patent portfolio, is advocating the use of the GPL since it could have an impact on them.

If, for example, their copyrighted materials are finding their way into the GPL, does that suddenly strip them of their rights? We don't think the GPL applies. We believe it is preempted by the federal copyright law.

The Free Software Foundation apparently disagrees. If you look at the terms of the GPL and the terms of copyright law, copyright law governs. It is the exclusive authority regarding the use, distribution, etc., of copyrighted material. In the GPL, (there is a section that) specifically says it applies only to the use and distribution. In other words, the exact same topics that are covered exclusively by the Copyright Act are covered by the GPL. Section 301 of the Copyright Act says the Copyright Act preempts any claims that are governed regarding use, distribution and copying. We believe that although the GPL is being tossed into the fray, it is preempted by federal copyright law.

If SCO were to prevail, do you think it would poke holes in the GPL?
The difference between SCO and other companies that have put their copyrighted material into the GPL is SCO didn't do it. SCO is not the one that put in these derivative works, which, as SCO has maintained, these companies were not allowed to do pursuant to their license. SCO is not the one that put its copyrighted System 5 source code into the GPL. It was another Unix licensee that violated the terms of their licensing agreement. So the difference is that SCO didn't say, "Here is my copyrighted material, and I'm knowingly and willingly giving it to you under the GPL. Here's my copyrighted work."

You're not going to see that when you go into Linux. You're not going to see "copyright, The SCO Group." You'll see copyright IBM; you'll see copyright any other UNIX licensee, but it's not coming from us. The difference is that other companies have donated their copyrighted material, and they did so knowingly, and they're free to do that. But you're not free to take somebody else's copyrighted or otherwise protected material and put it into the GPL and suddenly it's for everybody.

What if, during the course of discovery or another time, you find that the code was originally under the GPL?
Using that hypothetical, if Caldera (International) put something into the GPL, with copyright attribution, the whole nine yards, they can't make the claim about what that thing is that they put in there. But that doesn't mean that--well, let's use an example. Let's say you have a hundred files, and you put one of your hundred files under the GPL. That doesn't mean you've lost the rights to your other 99 files. So I don't think it's going to have an impact.

Mr. Heise addresses other aspects of the SCO controversy and the interview is a very interesting read, so stop by C|Net News and read the full article. For more information on this oingoing story, check out TMO's extensive coverage.

The Mac Observer Spin:

The article is replete with lawyer-speak, but it is not too difficult to understand that the suit against IBM is about the money and little else. According to Mr. Heise, the basis of the lawsuit and the ensuing controversy is whether or not the code in question is still considered SCO's intellectual property regardless of whether it was released under GPL or not. Mr. Heise and SCO believes that they still retain the right to license UNIX even though the code in question may have actually have entered the public domain in what is essentially a legal manner. That, in turn, brings into question the validity of the GPL, according to Mr. Heise.

Mr. Heise concedes that companies can put whatever they want onto the public domain, but he doesn't believe SCO has done so with its code. We guess the courts will decide who is right.

Regardless of how the SCO controversy plays out, we believe that SCO's money grab before it has a verifiable legal basis just plain stinks. In fact, we believe that SCO would not catch nearly as much heat from the Open Source community if it wasn't so actively trying to wring money out of everyone who has anything that looks like UNIX on a computer.

We think it is a sad way to do business, but perhaps that's the point; SCO does not want to do business, perhaps it just wants to take the money and run. It's sort of like a legalized Enron gambit where misdirection is key and the executives and lawyers make off with all of the cash from the poor suckers who bought into their game. We wonder if SCO will still be here 5 years from now. We doubt it, no matter how the legal actions they are pursuing turns out.

SCO's big legal gun takes aim