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SCO vs. GPL: Luminaries Decry Legal Maneuver as "Posturing"

Aug 15, 2003, 20:00 (45 Talkback[s])
(Other stories by Steven J. Vaughan-Nichols)

By Steven J. Vaughan-Nichols
Linux Today Correspondent

According to a SCO Group spokesman, SCO has decided that it will argue in its case against IBM that the GPL itself "'pre-empted' by the Copyright Act. That is to say, the rights and remedies provided by the GPL should be deemed meaningless by a court."

In short, SCO is now attacking the GPL as well as Linux. This, were SCO to get their way, would destroy not just Linux's licensing underpinnings, but the foundation of most free software.

SCO argues that the GPL is null and void because, "The GPL tries to define the rights of copyright holders with respect to copying, distribution, and modification of copyrighted source code. These are the very activities covered by the Copyright Act. Because the GPL attempts to regulate the same rights of copyright holders that are already regulated by the Copyright Act."

SCO's law firm, Boies, Schiller & Flexner, has yet to officially make this move on SCO's behalf. A partner in the firm, Mark Heise, who is working on the case though said, in the Thursday, August 14th Wall Street Journal, that, "the GPL, by allowing unlimited copying and modification, conflicts with federal copyright law, which allows software buyers to make only a single backup copy."

Legal Sense or Nonsense?

That may be SCO's and Boies, Schiller & Flexner's argument, but you'll be hard pressed to find anyone else who buys it.

"The idea that the GPL is contrary to copyright law is, to put it plainly, nonsense," says Eben Moglen, professor of law at Columbia University and general counsel of the Free Software Foundation. "The GPL is a simple form of copyright permission, entirely within the scope of the powers exclusively reserved to the copyright holder under the Act. Despite its unusual social consequences, the GPL is legally about as straightforward and uncontroversial an instrument as can be. Challenging it as 'contrary to copyright law' will fail, regardless of the degree of noise made."

Eric Raymond, one of the founding fathers of the open-source movement agrees. "The GPL uses copyright law in a clever and unusual way, but neither I nor any of the IP lawyers I've discussed think it's contrary to copyright law."

It's not just GPL supporters, though, who make these arguments. Dan Kusnetzky, IDC's vice president for system software research, dismisses SCO's latest move saying, "It's clear that the SCO Group is treating this more as a public relations exercise than as litigation."

Thomas C. Carey, chairman of the business practice group at the Boston-based Bromberg & Sunstein, LLP, an IP litigation and business law firm, dismisses SCO's latest move as "posturing." SCO has very talented lawyers. It is conceivable that they may successfully challenge it. But not on this basis."

John Ferrell, founding partner of Carr & Ferrell, LLP, a Silicon Valley intellectual property and corporate law firm, thinks "The GPL is only a sideshow in this circus." And, "GPL is a contract that can be accepted or rejected by all users. By agreeing to the terms of the GPL, you exchange certain copyright benefits with other users. Transfers of copyrights are explicitly contemplated under the copyright laws; and in fact if a copyright could not be transferred, there would be little commercial benefit to owning one."

That said, though, Ferrell also believes that SCO had no choice but to try to make its anti-GPL claims. He explains, "SCO (has been) forced to challenge the legality of the GPL. IBM will assert that any Unix code incorporated in SCO Linux under the GPL was thereafter dedicated to the public by SCO under the terms of the GPL. To the extent that SCO claims copyright to any code contained in Linux, IBM will argue that this copyright is now licensed to Linux users under the GPL."

Against this natural line of attack, Ferrell goes on to say, "SCO has three defenses. Either (1) there is no SCO code in the Linux product it distributed, contrary to SCO's prior assertions; (2) SCO and its licensees were mistaken as to the true content of its SCO Linux product, and the GPL contract should be reformed or invalidated; or (3) the GPL is otherwise invalid due to some defect, public policy reason, or statute such as copyright law."

SCO probably wouldn't like the second option any better than the first. Larry Rosen, founding partner of Rosen & Einschlag, a small Silicon Valley intellectual property (IP) law firm and general counsel of the Open Source Initiative, observes, "I can't understand how SCO could challenge the legality of a license it adopted. Until very recently, SCO distributed Linux under the GPL. Why did they do that if they didn't think the license was valid? One of the fundamental principles of contract law is that you can't disavow terms you specifically adopt as your own contract."

Bruce Perens, an open-source leader, adds "[SCO is] posturing. If SCO were to overturn the GPL, they would be left with no license at all for the Linux system they willfully distributed for years, and they would be massive copyright infringers."

Could the GPL be Successfully Attacked?

While everyone we spoke with, outside of SCO and its law firm's offices, agreed that SCO's latest position is nonsense, some people do have concerns about the GPL's long-term legal viability.

Raymond observes that "There is a weakness in GPL that many IP lawyers who have studied it are concerned about, which is that it's not a contract. Traditionally, under common law, licenses are contracts and require what's technically called 'establishment of privity.' The GPL doesn't do this. On the other hand, the intention of the GPL, and the fact that it's in wide use, are both very clear. There are precedents that may help us in the law of shrink-wrap licensing. The most serious risk to the GPL is that it could go before a judge who looks at it, says 'it's not a contract,' and refuses to think beyond that point. On our side, we have the fact that hundreds of thousands of people, including major corporations, have been using the GPL to cooperate for over a decade. This actually matters; judges are reluctant to do things that are disruptive of public covenants. And there's a legal doctrine that you're supposed to interpret contracts and licenses in light of common practice in the communities where they arise."

Even Linus Torvalds, Linux's founder and leader, has some concerns about the GPL, because of "the political baggage that the GPL has. Linus uses the Open Software License (OSL) for "some other projects I work on, not for the Linux kernel itself. Some small parts of the kernel are under a dual OSL/GPL license (i.e., you can chose which one you want to use, and the kernel uses the GPL version), but that wasn't actually anything I did, its other people who also like the OSL."

Another reason Linus likes the OSL is that "it is a bit clearer on patent issues etc, for example, while still retaining the 'source must be free forever' clause, i.e., it's much closer to the GPL than to the BSD license."

All that said though, Linus says he "wouldn't try to change the (Linux) license unless that is forced on me by some major legal issues with the GPL. I consider that pretty unlikely."

Raymond adds, "OSI has been making contingency plans in case the GPL fails. And I've had an email conversation with Linus in which he embraced the idea of moving to the Open Software License if (and only if) GPL gets broken. The OSL is a license that OSI's counsel, Larry Rosen, designed as a functional replacement for GPL."

That said, Raymond continues, "OSI's policy is to support the GPL (as we've done in the past, notably when Microsoft attacked it) but to have a fallback strategy in place it founders. So what we'd like everyone to hear is this: don't spend a lot of energy worrying about the GPL breaking, but do be prepared to switch to OSL really quickly if it does."

It's not just US copyright law though that matters. Jeffrey B. Ritter, co-chair of national electronic commerce legal practice for Kirkpatrick & Lockhart, a major national law firm, observes "The global business community lacks any established legal structure for evaluating the sufficiency or enforceability of any software license, including the GPL. Whether the existing cases will align themselves to provide a court the clear opportunity to issue a strong opinion on GPL is not clear, but that business community will benefit from any certainty that can be established regarding the GPL. If the initial German judicial view of questionable enforceability prevails, clearly the free software momentum will be discouraged."

The Case at Hand

No observers, however, thinks this latest SCO assault will be the one to knock GPL out of the ring. Rosen, author of the OSL, says, "I don't think they'll succeed in defeating the GPL. I believe the GPL is consistent with copyright law. My concerns with the GPL have nothing to do with the license's treatment of copyright law."

Besides, as Raymond comments, "If you don't have the rights GPL grants you, they revert exclusively to the copyright holder. That means that the moment GPL is shot down, anybody but the original copyright holder who distributes is breaking the law. Including SCO. Therefore, for SCO's purposes they'd have to manage the tricky feat of arguing that the GPL is broken enough that it does not require them to disclose code, but not so broken that it's void and they never had any right to redistribute GPLed code at all."

Carey sums it up neatly. SCO's latest move "looks like more grand-standing to make people nervous. There is no substance to it whatever."

In other words, the SCO FUD campaign continues.

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