SCO builds BSD case with GNU/Linux users

By Matt Whipp

Posted on 26 Nov 2003 at 12:54

SCO has outlined its grievances with BSD code and says it plans to take this up with end users, rather than focus on determining who was responsible for allowing the code to slip into the Linux kernel.

During a recent teleconference, CEO Darl McBride touched on other alleged infringement fronts on which SCO's legal firms would be deployed, forcing commercial users to stump up SCO's Unix IP licence. 'We have a situation with other settlement agreements with respect to the BSD case from a few years ago where we do have a legal settlement, we're in strong shape to go out and start enforcing these now and this is really what David [Boies] and his team are going to be expanding their focus around,' he said.

SCO's PR Director Blake Stowell told us that a case between AT&T and Berkeley Software Development (BSD) was settled where the latter had to remove certain files and reinsert copyrights that had been stripped out. 'Some of these same files have now gone into [the Linux kernel] (both those that had to be removed because they were never supposed to be in BSD in the first place, and the files for which copyright attribution had been stripped away. The copyright attribution has still been stripped away as they were contributed into Linux). This is a violation of SCO's copyrights,' he said.

'We haven't yet gone down the path to determine how the code got into [the Linux kernel]. We only know that the code is in there... the problem really impacts the Linux business user more than anyone else, because all liability rests with them,' he added.

However, Jason Schultz, staff attorney at the Electronic Frontier Foundation, cautioned that McBride's 'a few years ago' actually referred to an event in early 1994: 'It's been a long time since the AT&T/BSD agreement. When so much time has passed and so many people have used the software, I don't think many judges would be eager to shut all of that down or make so many little guys pay up to SCO.'

Stowell said that SCO would not necessarily wait to see what precedent the company's suit with IBM sets before taxing GNU/Linux customers with these new issues. Although Stowell says the BSD issues affect Linux kernels prior to those of 2.4 and above, which the company has already brought into dispute, SCO would 'only require commercial users of [the Linux kernel] that are using a version based on the 2.4 kernel and later,' to take a licence.

He said SCO has no plans to increase the cost of the licence in accordance with the amount of evidence it uncovered and denied that the BSD angle was a back up plan. 'SCO really has no need for a back up plan. We're confident of the evidence that we have. I think as we uncover more and more, end users
will become more convinced that they really should purchase a SCO Intellectual Property Licence.'

We also enquired whether SCO intends to take up any BSD issues with Apple users - the latest operating system for which is built around the open-source Unix-based Darwin core that includes FreeBSD technology. Stowell said: 'SCO can't really comment on Apple because we have not looked at them yet. Today, we're only focused on Linux'

Schultz questioned the strength of SCO's arguments: 'Just because you include a few files as part of a huge operating system without permission doesn't necessarily mean its a copyright infringement. There is a doctrine called "deminimus infringement" where small infringements don't really count. So it depends if these few files were a big deal or not as to whether SCO really has anything there to complain about.'