SCO’s big legal gun takes aim

SCO to attack validity of Linux licence

SCO’s strategy for its lawsuit against IBM could destroy the legal foundation of Linux and related software

By Matthew Broersma

SCO Group is planning to argue in its court battle against IBM that the General Public License
(GPL) covering Linux and other open-source software is invalid, according to a report.
SCO, owner of several key copyrights related to the Unix operating system, has been
aggressively defending its intellectual property holdings connected to Unix System V, and
filed a $3bn (£1.87bn) lawsuit against IBM earlier this year. The suit claims that IBM has
committed trade-secret theft and breach of contract for allegedly copying proprietary Unix
source code into its Linux-based products.

IBM’s defence will partly rest on the argument that SCO distributed its own version of Linux for
many years, containing the allegedly infringing code, and that by this action effectively placed
the code in question under the GPL.

SCO is planning to respond that the GPL itself is invalid, SCO’s lead attorney, Mark Heise of
Boies Schiller & Flexner, told the Wall Street Journal in a report on Thursday.If SCO is successful, its lawsuit would undermine the legal basis for Linux and much other
open-source software, although the open-source community has prepared an alternative
licence that could be used by Linux if the GPL is invalidated.

SCO will argue that the GPL’s provisions allowing unlimited copying and modification are not
compatible with US copyright law, which allows software buyers to make only a single copy,
says the Journal. Heise said the GPL “is pre-empted by copyright law”, according to the report.
Broadly speaking, the GPL allows anyone to modify and redistribute a piece of software
covered by the licence, as long as the modified code is returned to the developer community.
The licence also requires that software that incorporates GPL-covered code must itself be
placed under the GPL, a provision that led a Microsoft executive to compare the GPL to an
“un-American cancer” (,39020381,2092085,00.htm) .

Heise’s remarks echo the comments of SCO chief executive Darl McBride during a recent
teleconference, in which he announced a set of licence fees that companies using Linux could
pay if they wanted to avoid legal action by SCO.McBride was unusually blunt in attacking open-source software, saying the GPL is
fundamentally flawed from a business and legal perspective. “At issue here is more than just
SCO and Red Hat,” McBride said. “What is at issue here is whether intellectual property rights
will have any value in the age of the Internet.”

Red Hat, one of the largest distributors of Linux and related applications, filed a suit against
SCO earlier this month in the US District Court in Delaware. The suit in part seeks a court
ruling affirming that the company has not violated SCO’s trade secrets or intellectual property
rights. It claims that SCO’s actions are intended to hurt Red Hat and other Linux backers by
creating “an atmosphere of fear, uncertainty and doubt about Linux”, according to the suit.
CNET’s Matt Hines contributed to this report.

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