Lawyer Rips SCO Facts in Linux Brouhaha

The Open Source Development Lab (OSDL) Monday published its third position paper on the controversial SCO-Linux war, attacking SCO’s legal claims to the open-source operating system.

Written by Eben Moglen, general counsel of the Free Software Foundation, “SCO: Without Fear and Without Research” blasts SCO’s legal arguments as containing an “inherent contradiction.”

“SCO continues to claim in public statements about its lawsuit against IBM that it can show infringement of its copyrights in Unix Sys V source code by the free software operating system kernel called Linux,” wrote Moglen, who doubles as law professor at Columbia University Law School in New York City. “But on the one occasion when SCO has publicly shown what it claimed were examples of code from Linux taken from Unix Sys V, its demonstration backfired, showing instead SCO’s cavalier attitude toward copyright law and its even greater sloppiness at factual research.”

Moglen referred to an August 18 slide presentation from SCO CEO Darl McBride, who showed what he said were two pieces of code copying from Sys V to Linux at a public speech in Las Vegas.

The first employs the “Berkeley Packet Filter” (BPF) firewall but SCO ever held an ownership interest in the original BPF implementation, which was part of BSD UNIX, and was copied into SCO’s Sys V Unix from BSD. Basically, Moglen said a pattern matching search shows SCO what it thought was an example of copying, but what was copied was not their own originally.

In the second, McBride showed several dozen lines of memory allocation code from Linux, which was identical to code from Sys V, but the “C code” shown in the slides was first incorporated in Unix Version 3 from an earlier version published by Donald Knuth in his “The Art of Computer Programming” in 1968.

Moglen said this was yet another example of how SCO used pattern matching to associate code as its own, but did not actually turn up code that it owned the rights to: this code was in the public domain since 2002, when SCO’s predecessor Caldera released this code again under a license that permitted free copying and redistribution.

“What the Las Vegas ‘examples’ actually demonstrated was that SCO’s factual claims were irresponsibly inflated when they weren’t being kept artfully ‘secret,'” Moglen wrote.

Moglen turns up the furnace on SCO in the latter half of his brief, arguing that its legal situation contains a contradiction.

SCO claims that the Linux program contains material over which SCO holds copyright and has brought trade secret claims against IBM , alleging that IBM contributed material covered by non-disclosure licenses or agreements to the Linux kernel.

“But it has distributed and continues to distribute Linux under GPL,” Moglen wrote. “It has therefore published its supposed trade secrets and copy-righted material, under a license that gives everyone permission to copy, modify, and redistribute. If the GPL means what it says, SCO loses its trade secret lawsuit against IBM, and cannot carry out its threats against users of the Linux kernel.”

Moglen further questions how SCO has the right to distribute the copyrighted works of Linux’s contributors, and the authors of all the other copyrighted software it currently purports to distribute under GPL . He also sees merit in IBM’s counterclaim against SCO raises with respect to IBM’s contributions to the Linux kernel.

Under GPL section 6, no redistribution of GPL code can add any terms to the license but SCO has demanded that parties using the Linux kernel buy an additional license from it, Moglen wrote. Moreover, under GPL section 4, anyone who violates GPL automatically loses the right to distribute the work. IBM therefore rightly claims that SCO has no permission to distribute the kernel, and is infringing not only its copyrights, but those of all kernel contributors, he wrote.

Unless SCO can show that the GPL is a valid form of permission, and that it has never violated that permission’s terms, it loses the counterclaim, and should be answerable in damages not only to IBM but to all kernel contributors,” Moglen wrote.”

The paper comes less than a week after McBride said his company would expand the scope of its suit to include the Berkeley Software Design (BSD) community, which maintains an open source “genetic” version of Unix. He also said that SCO plans on firing off another round of legal maneuvers in the next 90 days aimed at a major user of the Linux operating systems.

SCO, which is also eyeing Novell in a potential lawsuit, refuted the claims as irrelevant.

“SCO stands by its claims and looks forward to proving it in a court of law,” A SCO representative told “As we try to provide a SCO IP license, members of the Fortune 500 that we have communicated with either by mail or face to face really only have two choices — license or litigate.”