Code shown during a speech in Las Vegas by SCO chief executive Darl McBride to demonstrate how SCO intellectual property has found its way in Linux is nothing but fist-pounding, according to the latest attack on SCO's tactics. Moreover, SCO's legal argument is attacked for containing an inherent contradiction.
The latest debunking of SCO's claims comes from Eben Moglen, professor of law at Columbia University Law School. Moglen, who is also general counsel of the Free Software Foundation, which developed the GNU General Public Licence under which Linux and much other open-source software is made available, accuses SCO of being a "shyster".
"There's a traditional definition of a shyster," says Moglen in his paper SCO: Without Fear and Without Research. "A lawyer who, when the law is against him, pounds on the facts; when the facts are against him, pounds on the law; and when both the facts and the law are against him, pounds on the table."
According to Moglen's analysis, the SCO Group, by attempting "to increase its market value at the expense of free software developers, distributors and users through outlandish legal theories and unsubstantiated factual claims" has simply shown that the old saying hasn't lost its relevance.
McBride's presentation, delivered in Las Vegas on 18 August, suffered from a lack of research, according to Moglen, who says that the examples actually demonstrated that SCO's factual claims "were irresponsibly inflated".
Two examples showed code from Linux that was said to have been copied from SysV Unix. But Moglen contends that this code is not only the original work of Linux developer Jay Schulist, but that it was originally part of BSD Unix. Because it was copied, perfectly legally, into SCO's SysV Unix from BSD, says Moglen, the code in Linux and in SysV Unix have a common ancestry -- so SCO's "pattern-matching" search of the two code bases turned up an apparent example of copying. "SCO didn't do enough research to realise that the work they were claiming was infringed wasn't their own," he says.
A second example, says Moglen, relied on the same method of pattern matching "without ascertaining the actual history and copyright status of the work as to which it claimed ownership and infringement." Moglen contends that the C code that was shown was first incorporated in Unix Version 3, and was written in 1973. Although AT&T later claimed this code as its own, the company lost that claim because it had published the code without a copyright notice. The code was therefore in the public domain, says Moglen. "In 2002," he continues, "SCO's predecessor Caldera released this code again under a licence that permitted free copying and redistribution." Thus, says Moglen, SCO's second example was of code that in the public domain to begin with.
"With the facts running against them even when the facts were of their own choosing, it was unsurprising that after August SCO turned to the law," says Moglen, adding that the law is not on SCO's side either.
Moglen points out that SCO's legal situation contains an inherent contradiction. The problem, he says, lies on the one hand in SCO's demands that Linux users buy licences and on the other hand that it has brought trade secret claims against IBM. Because SCO continues to distribute Linux under the GPL, says Moglen, "it has therefore published its supposed trade secrets and copyrighted material, under a licence that gives everyone permission to copy, modify, and redistribute. 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."
But, he says, if the GPL is not a valid and effective copyright permission, "by what right is SCO distributing the copyrighted works of Linux's contributors, and the authors of all the other copyrighted software it currently purports to distribute under GPL?"
Gregory Blepp, vice president of SCOsource -- the IP licensing division within SCO – said he remained unimpressed by the paper. "This is just one more paper that tries to describe what apparently seems to be a defence for the open-source movement. To us from the first scan there is nothing particularly new and nothing that gives a new direction to our approach."
Furthermore, he said, it is important to understand that there are two quite separate legal issues: the breach-of-contract suit with IBM and the licensing issue for users of Linux. "We haven't in our claim against against IBM mentioned the word GPL. That and all following discussion were brought into the discussion by IBM and we are very well prepared to challenge it. In the coming weeks and months we will clarify that," said Blepp. "The case with users of Linux is completely different," he added. "Here, we are protecting our rights by going to the end user. We request that they accept a clear position and if that is not met we will likely to go the way of litigation."
Moglen's attack on SCO's legal argument echoes comments made by former Hewlett-Packard open-source strategist Bruce Perens, who published a damning analysis of the SCO case in August.