OSDL paper lambasts SCO as 'shyster'

By Matt Whipp

Posted on 25 Nov 2003 at 11:41

The Open Source Development Lab (OSDL) has published a paper by Eben Moglen, Columbia University law professor, that challenges both the evidence that SCO has publicly offered to validate its claims, and the legal basis on which it seeks to do so.

In the paper, Moglen describes SCO's claims as 'irresponsibly inflated', its attacks on the GNU General Public Licence as 'absurd' and fully expects 'an attack on the umpire' as SCO's next move.

At SCO's SCOForum 2003 show in Las Vegas this summer, company CEO Darl McBride offered a presentation that apparently showed two instances of where his investigatory team, using their pattern-matching techniques, had found code in Unix System V that had been misappropriated into the Linux kernel.

However, Moglen says that although the code was rightly identified as similar, the code from the Linux kernel has documented provenance that shows it was developed independently.

The second instance was a case where the code in question had already been found to have been published in the public domain twice, and had never been used in Linux kernels available for Intel architectures.

On the legal side, Moglen supports IBM's counterclaim, which alleges SCO's breaking of the terms of the GNU GPL means it infringes copyrights of both IBM and others.

On SCO's attacks in which the company sought to undermine the GPL, claiming it was unconstitutional and unenforceable, Moglen says this has no basis and no historical support from any other court case.

Indeed, Bruce Perens told us previously that quite the opposite is true: 'We've already had a judge (in MySQL v. Nusphere) say that the GPL was enforceable.'

Jason Schultz, staff attorney for the Electronic Frontier Foundation, told us the argument over whether the GNU GPL is enforceable is a blind alley. 'The GPL technically isn't "enforceable" because it's not a contract. It's a license,' he said. 'The GPL is permission from a copyright owner to use the code as long as you also abide by a set of rules... If you violate these rules, your permission to use the code is automatically revoked.

'Thus, if SCO has violated the GPL by not allowing IBM to use [its] code, it is not a "breach" of a contract that must be enforced but rather a situation where whatever permission SCO had to use and modify GPLed code is now revoked - making SCO itself a copyright infringer. This is important because companies who infringe copyrights cannot sue other companies for infringing code that they derived through the process of infringement. In other words, if SCO violated the GPL, they can't sue IBM for copyright infringement on any code that was subject to the GPL.'

See also:

The OSDL paper:

SCO: Without Fear and Without Research

Bruce Perens' analysis of SCO's Las Vegas presentation:

Analysis of SCO's Las Vegas Slide Show