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Why the GPL Sinks SCO's Copyright Infringement Claims, Even if it Owned the Copyrights
Monday, November 16 2009 @ 02:56 PM EST

I've started to wonder if Novell or IBM has explained to SCO's Chapter 11 Trustee Edward Cahn how the GPL works. It cuts through all the other ways SCO is bound to lose, in my view. Then, I thought: why not just explain it myself? You never know. It might prove useful to put it all in one place. So, here goes, SCO and the GPL.

As you may recall, if you've been around since 2003, SCO's position on the GPL has been that while it may have distributed its code under the GPL, it didn't mean to do it, that it never knowingly distributed Unix or Unixware code under the GPL. I'd like to briefly explain why that excuse doesn't matter to either Novell or IBM. IBM of course has always taken the position that it hasn't infringed any copyrights, no matter who owns them. But let's take SCO's words at face value, and pretend that they are true. Then how does the GPL moot their claims?

So you can try to prove me wrong, if you are so inclined, before I begin, I'll point you to Groklaw's permanent page on the GPL, where you can find resources to a great deal more information on all versions of the GPL. I'll be focusing here on GPLv2, the license that Linux code is distributed under.

What SCO Said:

Here's how then-SCO executive Chris Sontag explained SCO's position to CNET in June of 2003:

And LinuxTag said in a statement, "Until a few weeks ago, SCO itself distributed the Linux kernel...as a member of the UnitedLinux alliance. Thus, even if SCO owns parts of the Linux kernel, it has made them into Free Software by distributing them under the GPL."

Not so, counters SCO's Sontag.

"The GPL requires the intentional act of the legal copyright holder to affirmatively and knowingly donate the source code to the GPL," Sontag said. "You can't inadvertently GPL your code."

Leave donation out of it. Think distribution. There is no "I didn't mean to do it" with distribution under the GPL, or at least no way to go back to Go as if it never happened. Let me show you what I mean in a minute, but first, here's an answer SCO gave in a Supplemental Response to an IBM interrogatory, back in 2003:
Insofar as this interrogatory seeks information as to whether plaintiff has ever distributed the code in question or otherwise made it available to the public, SCO has never authorized, approved or knowingly released any part of the subject code that contains or may contain its confidential and proprietary information and/or trade secrets for inclusion in any Linux kernel or as part of any Linux distribution.
The link will provide you with evidence Groklaw collected on each item of the big four SCO listed as allegedly infringing in the IBM case, evidence that it was indeed knowingly released. As for the ABI files, here's why that won't work for SCO. And as for missing copyright notices on header files, here is why I don't think that will work.

SCO also claimed that the GPL was unConstitutional, to peals of laughter, but they dropped that later, sort of dropped it. Even if that were so, it's the license SCO, as Caldera and then later as SCO in the UnitedLinux distribution, chose. SCO, as Caldera, also donated code under the GPL to the Free Software Foundation, we learned in 2003, when Bradley Kuhn, then at FSF, was interviewed by the Sydney Morning Herald and said this:

"SCO was not merely a distributor of the kernel named Linux; they were the distributor off the entire GNU/Linux system, which includes Linux as well as the core components of the GNU operating system, such as glibc, GCC, GDB, etc.

"Most of the core GNU components are all copyrighted by the Free Software Foundation and distributed under our auspices under GPL. SCO's right to redistribute them, and Linux too, is the GNU GPL and only the GNU GPL."

The GPL is the General Public License under which the Linux kernel and large numbers of software programs are released; it allows people to see and modify the source code, and requires that they give similar rights to others if they distribute the software.

Kuhn said: "SCO now claims that their 'trade secrets' were added by IBM to not just Linux - but to many parts of the GNU/Linux operating system. While SCO's documents say only 'Linux' in most places, they are propagating the same confusion that we have often brought to people's attention: Linux is one part of the whole system.

Kuhn said SCO would not have been permitted to distribute the GNU/Linux system under GPL and related licences if they knew that there were other legal claims (such as trade secrets) that were not licensed to the world under GPL-compatible terms. "Section 7 of the GNU GPL talks about this matter. Thus, we wonder why SCO ever distributed GNU/Linux if they believed that it contained SCO-proprietary trade secrets."

He said: "Ever since the day that SCO made their claims public through their court filing against IBM, we have been asking SCO to tell us precisely what FSF copyrighted code they believe contains their trade secrets (or for that matter, infringes on their copyrights or patents). SCO has refused to answer us or give us any details. As far as we know, there are no such claims.

"Indeed, FSF holds documents from SCO regarding some of this code. SCO has disclaimed copyright on changes that were submitted and assigned by their employees to key GNU operating system components. Why would SCO itself allow their employees to assign copyright to FSF, and perhaps release SCO's supposed 'valuable proprietary trade secrets' in this way?

Good question. And here's another: exactly when did the GPL become unConstitutional in SCO's eyes?

Later, faced with the knowledge of how the GPL works, SCO claimed compliance. In its memorandum in support [PDF] of a still pending motion for summary judgment, SCO wrote:

I. SCO DID NOT BREACH THE GPL

IBM’s Sixth and Seventh Counterclaims fail as a matter of law because SCO did not breach the GPL. First, where SCO has copied and re-distributed Linux, it has done so in compliance with the requirements of the GPL. Second, nothing in the GPL – which by its very terms is limited to “copying, distribution and modification” of Linux – precludes SCO from issuing licenses to its UNIX software.

Well, as I'll show you later, it could do that, but not with Linux, not the way it did it, not with the code integrated into Linux. IBM answers SCO's assertions very clearly. The license has to be respected, and SCO didn't do so, no matter what it says.

Finally, SCO claimed that the GPL represents an antitrust violation, but that issue was shot down in flames in the Daniel Wallace attempt to prove the same thing. SCO never did pay attention to all my attempts to help it understand the GPL, and it's too bad, really, because they are truly in a GPL pickle now.

So, how does the GPL work?

How the GPL Actually Works:

In May of 2003, when Groklaw first got started, I pointed readers to an interview with Eben Moglen in InternetNews. Moglen is the lawyer who has enforced the GPL for many years, and he explained how the GPL works:

But even if SCO can prove that its intellectual property was added to the Linux kernel, its case is moot, according to Columbia Law School Professor Eben Moglen, pro bono publico general counsel for the Free Software Foundation. The Free Software Foundation maintains the GNU General Public License, under which Linux is distributed.

"There is absolute difficulty with this line of argument which ought to make everybody in the world aware that the letters that SCO has put out can be safely put in the wastebasket," Moglen told internetnews.com, noting that SCO distributed its own version of Linux with a kernel that allegedly contains Unix-derived code.

"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."

Note the word 'always'. He means that once it is GPL'd, it's GPL'd forever. Here's a snip from the GPL Frequently Asked Questions, so you can understand what he is referring to:
GPLv2 says that modified versions, if released, must be “licensed … to all third parties.” Who are these third parties?

Section 2 says that modified versions you distribute must be licensed to all third parties under the GPL. “All third parties” means absolutely everyone—but this does not require you to *do* anything physically for them. It only means they have a license from you, under the GPL, for your version.

'Absolutely everyone' means what it says. That means once SCO made its own distribution of Linux and distributed it, everyone -- including IBM and Novell and you and me -- was entitled to accept the code under the license that SCO said they distributed under, the GPL. The license was included with the software. And SCO can't take that back. That code can't be taken back from those that received it, and the license can't be changed later either, because that's one of the terms of the GPL license:
Can the developer of a program who distributed it under the GPL later license it to another party for exclusive use?

No, because the public already has the right to use the program under the GPL, and this right cannot be withdrawn.

'This right cannot be withdrawn." Get it? That right cannot be withdrawn.

As for SCO's claims that because it was not intended, that they never agreed to put their allegedly copyrighted code under the GPL, note this FAQ question and answer:

Am I required to claim a copyright on my modifications to a GPL-covered program?

You are not required to claim a copyright on your changes. In most countries, however, that happens automatically by default, so you need to place your changes explicitly in the public domain if you do not want them to be copyrighted.

Whether you claim a copyright on your changes or not, either way you must release the modified version, as a whole, under the GPL. (if you release your modified version at all)

That last phrase has a link to this further detail:
Does the GPL require that source code of modified versions be posted to the public?

The GPL does not require you to release your modified version, or any part of it. You are free to make modifications and use them privately, without ever releasing them. This applies to organizations (including companies), too; an organization can make a modified version and use it internally without ever releasing it outside the organization.

But if you release the modified version to the public in some way, the GPL requires you to make the modified source code available to the program's users, under the GPL.

Thus, the GPL gives permission to release the modified program in certain ways, and not in other ways; but the decision of whether to release it is up to you.

As you see, SCO was not compelled to release a Linux distribution. It did it because back then it was called Caldera and it was a Linux company, and it was making its money from Linux distribution. But the point I'm stressing is this: once it's out there, it's out there. You can't add another license on top either, as SCO tried to do with SCOsource, and that wasn't the only violation of the GPL involved with SCOsource. Here's another:
Does the GPL allow me to require that anyone who receives the software must pay me a fee and/or notify me?

No. In fact, a requirement like that would make the program non-free. If people have to pay when they get a copy of a program, or if they have to notify anyone in particular, then the program is not free. See the definition of free software.

The GPL is a free software license, and therefore it permits people to use and even redistribute the software without being required to pay anyone a fee for doing so.

SCO demanded payment or it would sue you, IIRC, but in any case it certainly offered the SCOsource license for a fee, and for code it had already distributed as GPL'd code. Now, that doesn't mean that you can't charge money for the code if it is GPL'd, only that you must also make it available for free.

That still isn't the only violation of the GPL by SCO with SCOsource. Here's another:

Does the GPL allow me to distribute copies under a nondisclosure agreement?

No. The GPL says that anyone who receives a copy from you has the right to redistribute copies, modified or not. You are not allowed to distribute the work on any more restrictive basis.

If someone asks you to sign an NDA for receiving GPL-covered software copyrighted by the FSF, please inform us immediately by writing to license-violation@fsf.org.

If the violation involves GPL-covered code that has some other copyright holder, please inform that copyright holder, just as you would for any other kind of violation of the GPL.

Does the GPL allow me to distribute a modified or beta version under a nondisclosure agreement?

No. The GPL says that your modified versions must carry all the freedoms stated in the GPL. Thus, anyone who receives a copy of your version from you has the right to redistribute copies (modified or not) of that version. You may not distribute any version of the work on a more restrictive basis.

So, when SCO said that you could only run its code allegedly in Linux as binary, was that a GPL violation? Of course:
Can I release a modified version of a GPL-covered program in binary form only?

No. The whole point of the GPL is that all modified versions must be free software—which means, in particular, that the source code of the modified version is available to the users.

Once code is out there as GPL'd code, it's out there, and you can't later swing back by and change the terms of the earlier deal.

If I buy a dress in a store, and the store later realizes that it sold those dresses for $100 too little by mistake, can it come to my house and demand I pay them $100 more or they will sue me? Extrapolate.

Now, SCO could offer the code going *forward* under two separate licenses, using the GPL on one distribution and one under SCOsource, if it can ever prove it owns the copyrights, which I doubt, or it could stop further GPL distribution and distribute under a proprietary license its own code, but there is no way to go back in time and change its mind with the GPL about code it already released that way:

I heard that someone got a copy of a GPL'ed program under another license. Is this possible?

The GNU GPL does not give users permission to attach other licenses to the program. But the copyright holder for a program can release it under several different licenses in parallel. One of them may be the GNU GPL.

The license that comes in your copy, assuming it was put in by the copyright holder and that you got the copy legitimately, is the license that applies to your copy.

So if SCO wanted to do SCOsource again, it would have to do it that way, not go after prior users who legitimately got a license, the GPL, for the code they are using. They don't need another license, because they already have one, but if they wanted to buy the same code for money and under more restrictive terms, they are free to do that but only for code SCO actually can prove it owns. It couldn't do a binary-only distribution of Linux with some SCO code in that distribution under proprietary terms:
I downloaded just the binary from the net. If I distribute copies, do I have to get the source and distribute that too?

Yes. The general rule is, if you distribute binaries, you must distribute the complete corresponding source code too. The exception for the case where you received a written offer for source code is quite limited.

So binary-only isn't possible with GPL'd code. So I guess if SCO wanted to distribute its code, should it ever prove to be its code, under a SCOsource license separately from Linux, it could do so, but not with a Linux distribution. You see how many ways SCOsource violated the GPL? And consider that when someone violates the GPL, it's then a copyright violation to distribute at all. By the way, here's the original SCOsource license, so you can compare it to the wording in GPLv2.

Why SCO's Chance to Take it All Back Came and Went in 2003:

But, but, but, SCO said it didn't mean to do that. And notice the language, "assuming that it was put in by the copyright holder"? Doesn't that mean SCO is right about that? There is such a thing as inadvertent distribution, isn't there? If you distribute by mistake, are you just stuck? Moglen again:

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.

He added, "We help people to solve problems with free software. If they would show us something, we would be happy to help them with it."

See the problem? They could have taken the code out back in 2003, when this joke of a litigation began. They didn't. That means they blew it. Of course, even if they had taken advantage of the offer Moglen made, prior releases under the GPL couldn't be taken back, just going forward.

Others, including Linus, also offered to remove any code that was improperly in Linux, but SCO refused to tell with specificity where to find any. Remember the excuse? That then Linux programmers would remove the code and SCO didn't want that to happen before the trial. Stoopid.

By the way, Microsoft recently distributed GPL'd code inadvertently, it says. What happened? How did it fix the problem? It can help us to understand what SCO's options were. First, it pulled the application, while it reviewed whether there was a GPL violation involved or not. Then it acknowledged what happened, and it released the app under the GPL:

As you've likely read and as was originally reported here, we've been investigating a report that the Windows 7 USB/DVD Download Tool, might contain GPLv2 code. The WUDT is a free tool that was offered by the Microsoft Store and which enabled customers to create bootable USB drives or DVD backup media from the electronic software (ESD) edition of Windows 7 that comes in an ISO format.

After looking at the code in question, we are now able to confirm this was indeed the case, although it was not intentional on our part. While we had contracted with a third party to create the tool, we share responsibility as we did not catch it as part of our code review process. We have furthermore conducted a review of other code provided through the Microsoft Store and this was the only incident of this sort we could find.

When it comes to our attention that a Microsoft component contains third party code, our aim is to be respectful of the terms under which that code is being shared. As a result, we will be making the source code as well as binaries for this tool available next week under the terms of the General Public License v2 as described here, and are also taking measures to apply what we have learned from this experience for future code reviews we perform.

We apologize to our customers for any inconvenience this has caused.

Microsoft had the option to pull the app forever, or until it could write its own code, after all, but looking at the options, it decided to just do the right thing. I imagine if it happened with Office, money-making software, the analysis would have been different, but this was a free download, so why not release it as GPLv2? It had those two options. It chose not to pretend, like SCO, that it could just take it all back and act like it never happened or that the GPL wasn't applicable or was unconstitutional or some laughable defense. The company was responsible enough to acknowledge that it made the distribution, and that as a software vendor, it has a duty to vet its code before distributing. It failed. So it took its lumps honorably.

But I can't resist pointing out that while critics of Linux's development model, including SCO and Microsoft, have claimed that the Open Source model doesn't adequately protect against copyright infringement, it is actually Microsoft itself that had that problem in this instance while no one to date has proven any such problem in Linux.

Of course, the GPL compels compliance one way or another. Lots of folks would steal other people's code if they thought they could, even folks who go on and on about piracy. But here, Microsoft behaved respectfully, and I believe they are very, very careful to avoid problems like this with the GPL. So I believe this really was inadvertent, unlike SCO, where I believe they just changed their mind under new management. Here are some reasons I believe SCO knew. And some more, the Ralf Flaxa declaration in the IBM case. Here are some more and more, having to do with its UnitedLinux distribution and JFS.

That same InternetNews interview with Moglen includes the information that SCO announced that same week that it was stopping distribution of Linux. But did they? If they really had, that would have helped them, but they didn't. In fact, they released UnitedLinux after that, and they kept Linux on their servers for public download for many months. I personally wrote about it at the time, and I have all that evidence all these years later. Here's proof of distribution in August of 2003. More distributions, by year:

2006, OpenLinux
2006, Linux, the kernel, the whole enchilada, indicating knowing distribution as of 2004 onward
2006, ELF header files SCO is suing IBM about
2006, gnutools package in OpenServer
2006, Skunkware, including ELF, Streams, etc., allegedly infringed in the IBM case
April 15, 2003, UnitedLinux - SCO released SCO Linux Server 4.0, which is what it called its UnitedLinux offering, for the Itanium processor family a month after it sued IBM, and it distributed it under the GPL after claiming it didn't mean to, advertising that it included "Powerful new enterprise features based on the Linux 2.4.19 kernel", the very kernel it is suing IBM over and the features it is claiming were infringed.
There are actually other instances that I wrote about as we found them over the years, but surely these are sufficient to demonstrate my point, namely that SCO is toast. And it doesn't even go into the fact that Sun was distributing the Linux 2.4 kernel in 2004, claiming Sun's Linux was "clean", and we later learned that it was "blessed" so to speak to be able to do so by the terms of the license SCO gave them in 2003.

Why, then, is SCO toast? It is because the GPL fixed their wagon and fixed it good from day one, and then they were foolish enough to dig the hole deeper still. The GPL was born for players like SCO. And it will finish them.

I just wish the lawyers would point it out to the Chapter 11 Trustee so he can sit down with a calculator and figure out all the damages SCO will owe for each distribution it made in violation of the GPL, should SCO now try to say it didn't distribute under the GPL. But of course, it already told the court in the IBM case that it never violated the GPL.

Oops. If it never violated the GPL, then all those Caldera Linux and UnitedLinux distributions are under the GPL. That means no one violated SCO's copyrights, even if it had any.

Alternatively, SCO owes a fortune to the copyright owners, like IBM, for distributing IBM code in Linux without a license. And yes, IBM has a counterclaim for copyright infringement of its GPL'd code in Linux. Here's a transcript of a speech Eben Moglen gave at Harvard in 2004, where he explained the problem facing SCO for not thinking things through about the GPL thoroughly enough:

The grave difficulty that SCO has with free software isn't their attack; it's the inadequacy of their defense. In order to defend yourself in a case in which you are infringing the freedom of free software, you have to be prepared to meet a call that I make reasonably often with my colleagues at the Foundation who are here tonight. That telephone call goes like this. "Mr. Potential Defendant, you are distributing my client's copyrighted work without permission. Please stop. And if you want to continue to distribute it, we'll help you to get back your distribution rights, which have terminated by your infringement, but you are going to have to do it the right way."

At the moment that I make that call, the potential defendant's lawyer now has a choice. He can cooperate with us, or he can fight with us. And if he goes to court and fights with us, he will have a second choice before him. We will say to the judge, "Judge, Mr. Defendant has used our copyrighted work, copied it, modified it and distributed it without permission. Please make him stop."

One thing that the defendant can say is, "You're right. I have no license." Defendants do not want to say that, because if they say that they lose. So defendants, when they envision to themselves what they will say in court, realize that what they will say is, "But Judge, I do have a license. It's this here document, the GNU GPL. General Public License," at which point, because I know the license reasonably well, and I'm aware in what respect he is breaking it, I will say, "Well, Judge, he had that license but he violated its terms and under Section 4 of it, when he violated its terms, it stopped working for him."

But notice that in order to survive moment one in a lawsuit over free software, it is the defendant who must wave the GPL. It is his permission, his master key to a lawsuit that lasts longer than a nanosecond. This, quite simply, is the reason that lies behind the statement you have heard -- Mr. McBride made it here some weeks ago -- that there has never been a court test of the GPL.

To those who like to say there has never been a court test of the GPL, I have one simple thing to say: Don't blame me. I was perfectly happy to roll any time. It was the defendants who didn't want to do it. And when for ten solid years, people have turned down an opportunity to make a legal argument, guess what? It isn't any good....

They have distributed the operating system kernel program called Linux. That is, SCO has. They continue to do so to their existing customers because they have a contractual responsibility to provide maintenance.

When they distribute that program called Linux, they are distributing the work of thousands of people, and they are doing so without a license, because they burned their license down when they tried to add terms to it, by charging additional license fees in violation of Sections 2 and 6 of the GPL.

Under Section 4 of the GPL, when they violated it, they lost their right to distribute, and IBM has said as a counterclaim in its lawsuit, "Judge, they're distributing our copyrighted work, and they don't have any permission. Make them stop."

Since then, the GPL has been effectively used in litigation by the Free Software Law Center, and it hasn't failed to work, has it? And since SCO has claimed compliance with the GPL, it is stuck with that assertion, which means the code was released under the GPL, whether SCO likes it or not.

In 2004, IBM filed a Redacted Memorandum in Support of IBM's Motion for Partial Summary Judgment on its Counterclaim for Copyright Infringement (8th Counterclaim) [PDF], which is still pending, meaning hanging over SCO's head, and which nicely explains SCO's problem. Here's a bit of what I wrote at that time:

See, if only SCO had paid attention to my summer school "course" in the GPL last summer, they could have spared themselves this moment. I even sent them an email last July raising questions about the license violating the GPL, an email that I was told would receive a reply, although I never did actually get one. But they now instead face the music, based on the list of exhibits IBM offers in paragraph 66 of all the times they said the license was for running Linux. Just stupid. There is no other word.

On the other hand, one of my favorite aspects of the GPL is so many business types fail to take it seriously enough to really study it, and they get caught with their pants down every time. That is the real reason there has never before been a serious court challenge involving the GPL. When Eben Moglen is in negotiations with offenders, and they wake up to what the GPL really means for them, they quickly pull up their pants and get in compliance. SCO at the moment is precisely in that position, caught with their pants down and for them it's now too late to pull up their pants and get in compliance. No matter what they do now, they are in GPL trouble. The beauty of the GPL is there is no escape. Once you violate the terms, your rights terminate, as IBM's memorandum points out:

As detailed above (¶ 66), SCO is attempting to collect, and has collected, licensing fees from Linux users, in violation of any permission or license it may have had under the GPL and LGPL. Because SCO has attempted to license Linux in violation of the GPL and LGPL, any permission or license it may have had under the GPL and LGPL (to copy the IBM Copyrighted Works) terminated. The GPL and LGPL expressly provide that any attempt othewise than in accord with the GPL's or LGPL's restrictions to sublicense works subject to the GPL or LGPL 'is void, and will automatically terminate your rights under this License'. (¶ 63.)10 SCO's efforts (under whatever guise) to collect licensing fees for GPL- or LGPL-licensed activities run afoul of the GPL and LGPL.

By its breaches of the GPL and LGPL, SCO has forfeited any protection against claims of copyright infringement that it may have enjoyed by virtue of the GPL or LGPL. SCO cannot violate the covenants that led to and underlie Linux without forfeiting the beneflts those covenants confer. Because SCO has continued to distribute and copy Linux products containing verbatim copies of IBM's Copyrighted Works after it disclaimed, renounced and breached the GPL and LGPL, SCO has infringed IBM's copyrights in those works, 17 U.S.C. § 501(a), and the GPL and LGPL afford SCO no protection against IBM's claim of infringement.

And terminate means terminate, so SCO can't now hide under the GPL. The only way a GPL-violator can get back a GPL license after a termination is by express permission of the copyright holder, in this case, IBM. Hmm. Snowballs come to mind.
Notice that SCO took in money from GPL violation. So it can't hide under the GPL now or attempt to evade it. Here's how Eben put it in the article about SCO in 2004, "SCO: Without Fear and Without Research" :
But if the GPL is not a valid and effective copyright permission, by what right is SCO distributing the copyrighted works of Linux's contributors, and the authors of all the other copyrighted software it currently purports to distribute under GPL? IBM's counterclaim against SCO raises that question with respect to IBM's contributions to the Linux kernel. Under GPL section 6, no redistributor of GPL'd code can add any terms to the license; SCO has demanded that parties using the Linux kernel buy an additional license from it, and conform to additional terms. Under GPL section 4, anyone who violates GPL automatically loses the right to distribute the work as to which it is violating. 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. 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.

IBM's counterclaim painted SCO into a corner on the subject of the GPL. Not only the facts but also the law are now fundamentally against SCO's increasingly desperate position. SCO and its predecessor, Caldera, have benefited enormously from the protections of the GPL. Thanks to the GPL, SCO has been able, for example, to use the invaluable work of compiler designers and implementers around the world who have made GCC the premier cross-platform C compiler. Customer applications run on SCO's Sys V Unix because of GCC, to which SCO contributed modifications particular to its system, and for which it assigned copyright to the Free Software Foundation. Caldera and SCO could not have marketed a usable operating system product without the contributions of the free software community. SCO was happy to take the benefits, but it has unethically sought to avoid its responsibilities. The law does not permit SCO to have it both ways.

Consider statutory damages for copyright infringement, and you get some idea of the damages SCO is facing just in the IBM case. But every Linux kernel developer who owns a copyright has such a claim against SCO. It's astronomical math, if you actually think about it, and I hope Mr. Cahn does just that. The GPL is involved in SCO's copyright infringement claims against Novell, and vice versa, in the SUSE arbitration, as well as in the IBM case.

By the way, if you are interested in releasing code under any FSF license such as the GPL, here's how to get it right. And here are some instructions on what to do if you notice a GPL violation.


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