OSDL Paper Asks ‘Where’s the Beef?’ in SCO Suit

By Bill Claybrook

July 31, 2003

Today the Open Source Development Lab (OSDL) released a position paper that raises serious questions about SCO’s threatened litigation against Linux end users. Professor Eben Moglen of Columbia University wrote the paper. He is one of the world’s leading legal experts on copyright law as applied to software. OSDL is disseminating the paper to address issues that concern its members and industry Linux customers.

The paper (http://www.osdl.org/) does not offer legal advice but it frames some of the key questions that companies and developers should ask their own lawyers about Linux. Professor Moglen says that SCO’s failure to come forth with any real evidence of infringement of SCO’s legal rights is suspicious.

He poses three key questions:

1. Where’s the Beef? SCO has been publishing Linux under General Public License (GPL), which permits unlimited copying, and redistribution for several years. Moglen writes that SCO’s claim that there are trade secrets in the Linux code, and that the secrets should be protected (by SCO) fails two basic requirements of any trade secret claim: (1) that there is a secret, and (2) that the plaintiff has taken reasonable measures to maintain secrecy.

2. Why do users need licenses? Moglen writes that in general copyrighted works do not need licenses. Copyrighted IP requires that people who want to use the IP get permission to use it. Otherwise, they are infringing. But Moglen says that the Copyright Act does not grant the copyright holder the exclusive right to use the work. Read the full position paper to understand the full ramifications of this issue.

3. Do users already have a license? The GPL license under which Linux is distributed requires that everyone receiving executable binaries of GPL’d programs must get or be offered the source code and a copy of the license. SCO has distributed Linux under GPL for several years. It has given users copies of the work and copies of the license. Moglen writes that SCO cannot now argue that people who received a copyrighted work from SCO, with a license allowing them to copy, modify, and redistribute, are not permitted to copy, modify, and distribute.

Moglen provides insight into the kinds of questions that Linux users should be considering when SCO comes knocking on the door selling UnixWare 7 licenses to protect them from SCO’s wrath. Moglen makes a compelling argument that SCO has long been distributing Linux source code — which apparently contains what SCO now calls “pirated code.” This code was distributed under GPL meaning that anyone who got the source code and the license could also distribute, copy, and modify.

I don’t know how this will fly in court, but what would the court’s reaction be if someone actually did copy some code from System V into Linux back in 1996 and then SCO distributed it for six or seven years? I would expect the court to ask, as Professor Moglen does, “Where’s the Beef?”

4:17 ET

Copyright 2003