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
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
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
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
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
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