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Moglen Confirms GPL Boomerang For SCO
Sunday, May 18 2003 @ 01:29 PM EDT

MOGLEN CONFIRMS GPL BOOMERANG FOR SCO

InternetNews.com has the best article I have seen yet on the SCO-IBM case. The reporter actually contacted Columbia Law School Professor Eben Moglen, attorney for the Free Software Foundation, who confirms the GPL snag in SCO's strategy:

"From the moment that SCO distributed that code under the GNU General Public License, they would have given everybody in the world the right to copy, modify and distribute that code freely," he said. "From the moment SCO distributed the Linux kernel under GPL, they licensed the use. Always. That's what our license says."

The article continues:

"Moglen noted that SCO cannot readily make the claim that it inadvertently released the code, because the GPL requires that when code is released under its auspices, the developers must release the binary, the source code and the license, and the source code must be able to build the binary. Presumably, then, the binary functions the way the creators want it to function and has the capabilities they want it to have.

"'This isn't an inadvertent distribution case,' he said. However, he noted that the Free Software Foundation works with companies to ensure that they do not release anything under the GPL that they do not intend to release. In fact, he said, when SCO first filed its suit against IBM, he approached SCO's lawyers because it is the Free Software Foundation and not IBM which holds the copyright to the Linux distribution IBM created, Linux for S/360. IBM created the Linux distribution but released it under the GPL and signed the copyright over to the Free Software Foundation."

"Moglen said that when he approached SCO's lawyers he asked them to show him any problems with the particular Linux distribution and if there were any he would stop its distribution. 'They have never responded to that invitation,' he said.

WHY, THEN, DO THIS, SCO?

A lot of pundits have said that it's because SCO wants IBM to buy them out and put an end to their money misery. I think the refusal to show the code and the following quote in the article points to another motive, and I think this quote may come back to haunt them in court, if patent infringement becomes an issue, with regard to refusing to mitigate damages. SCO still says it won't show its evidence to Linux distributors:

"That's akin to saying, 'Show me the fingerprints so I can clean them off.' The Linux community would love for us to point out the lines of code. We're willing to show that under non-disclosure to select individuals, but the first time we show that publicly will not be in the open," SCO spokesman Blake Stowell told internetnews.com.

So, this is confirmation that SCO is not interested in fixing the problem. Rather it wishes to maintain the status quo. It seems unlikely that any court will reward that behavior. And it indicates to me that Boies needs to muzzle his client, before his entire case goes down the toilet. Not that I'm not hoping for exactly that.

Meanwhile, the InternetNews article is well done and even goes into the SCO decision to file originally in Utah state court instead of federal, which explains why they filed only a misappropriation claim, not copyright infringement. I have just bookmarked InternetNews.com.


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