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

August 21st, 2003 at 3:00 PM - News by Vern Seward

This weekis news has been full of the controversy between IBM, members of the Open Source Community, and SCO. At the center of the controversy is SCOis claims that key portions of the code that make up Linux and UNIX belongs to them, that theyive 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|Netis 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 SCOis position concerning the disputed code, GPL, and IBM. From the article SCOis 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 donit 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 didnit 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 didnit say, "Here is my copyrighted material, and Iim knowingly and willingly giving it to you under the GPL. Hereis my copyrighted work."

Youire not going to see that when you go into Linux. Youire not going to see "copyright, The SCO Group." Youill see copyright IBM; youill see copyright any other UNIX licensee, but itis not coming from us. The difference is that other companies have donated their copyrighted material, and they did so knowingly, and theyire free to do that. But youire not free to take somebody elseis copyrighted or otherwise protected material and put it into the GPL and suddenly itis 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 canit make the claim about what that thing is that they put in there. But that doesnit mean that--well, letis use an example. Letis say you have a hundred files, and you put one of your hundred files under the GPL. That doesnit mean youive lost the rights to your other 99 files. So I donit think itis 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 TMOis extensive coverage.