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Legal Analysts Examine SCO Claims Against GPL

Aug 22, 2003, 15:00 (9 Talkback[s])
(Other stories by Steven J. Vaughan-Nichols)

By Steven J. Vaughan-Nichols
Contributing Writer

The SCO Group's CEO Darl McBride may have thought he was pulling a public relations coup on August 18th at his company annual trade show, SCO Forum in Las Vegas, by showing slides with obscured lines of code purporting to show that SCO Unix code has been stolen and placed in Linux. Instead, according to open source advocate Bruce Perens, McBride ended up with egg on his face.

Perens, with aid from other open source advocates showed conclusively in his masterful paper, Analysis of Linux Code that at least two code samples has been "twice released under the BSD license: once by Unix Systems Labs (AT&T), and again by Caldera, the company that now calls itself SCO."

Linus Torvalds, Linux's founder, said in a ZDNet Australia interview, that "So one code snippet was from pretty much original Unix -- and yes, Caldera released the old Unix code itself back when they still remembered that they made all their IPO money off Linux, which is interesting partly because it shows how SCO has been lying all along: they said several times how they are talking about SVR4 code, not 'old Unix' code, and now they show old Unix code on their slides."

A SCO spokesman insisted though that the code shown at SCO Forum was from a current Unix licensee and showed SCO-owned 32-bit Unix System V code, not the 16-bit 'ancient' Unix code that had been released under Ransom Love's regime for personal and non-commercial use.

He also said, in response to open source's leaders request that they be freely shown the offending code that all of Non-Uniform Memory Access (NUMA), IBM's Journaled File System (JFS), and Silicon Graphics' journaling file system (XFS)-this last is a new SCO claim-and the majority of Symmetric MultiProcessing (SMP) code in Linux was in violation of SCO's copyright. And, he reiterated that over a million lines of code in Linux 2.4 and above was taken from SCO's System V and derived works.

Open Source Inititive President Eric S. Raymond has put out his own report on the leaked code, a report that stipulates that SCO may indeed have reason to believe that the disputed code is owned by them. But that same report also concludes that since SCO knowingly released their code under the GPL, all of this ownership discussion is moot.

SCO has now taking the legal tack of deriding the GPL itself. Which seems an odd step, given that SCO has already contributed its own code to GPL both by virtue of its employees, such as Christoph Hellwig, Kernel Engineer Unix/Linux Integration for Caldera's Germany subsidiary, Caldera Deutschland GmbH was working on combining Unix and Linux, and, of course, released its own Linux distributions. SCO has responded that "Section 0 of the GPL specifically states that the code must be contributed and that SCO never did this." Instead, SCO just "distributed the code, which is very different from contributing the code."

Does this argument hold water? Thomas C. Carey, chairman of the business practice group at Boston-based Bromberg & Sunstein, LLP, an IP litigation and business law firm, thinks, "Perhaps he means to say that SCO did not execute a copyright assignment. But if SCO made the Unix System V code available to customers with the GPL included in the file, then it granted third parties the right to make an unlimited number of copies and to make derivative works."

Frankly, he thinks that, "Rather than quibble over semantics (distribute versus contribute), SCO would be better off to simply argue that its publication under the GPL was inadvertent. I think a court would be sympathetic to that argument, unless SCO was negligent in its publication."

John Ferrell, founder of Carr & Ferrell, LLP, a Silicon Valley intellectual property and corporate law firm, believes that "The fact that SCO is denying contribution seems to be setting up the defense that SCO was mistaken as to what they were licensing, and likewise those licensing the software were mistaken as to what they were receiving (Unix code rather than Linux code). This contract of 'mutual mistake' in some jurisdictions would permit either party to void the contract."

Ferrell also says, "There is an interesting 19th century case about a pregnant cow named Rose that was mistakenly thought to be barren and sold at a very low price. When upon delivery the cow was found to be pregnant, the seller called the deal off. The Supreme Court of Michigan in this case decided that since both parties were mistaken as to the true nature of the goods (barren cow vs. pregnant cow), and the contract could be voided by the seller. Although still good law in some jurisdictions, courts in general are very reluctant to undo contracts."

This also presumes that the GPL is a bi-lateral contract. The GPL, though, is written as a unilateral contract, so the Rose's case, which established the doctrine of mutual mistake, may not be relevant.

Who's right? Only the courts, if SCO ever get that far, can decide. For now, though, the open source community is certain that SCO has only damaged their case instead of helping it.

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