Free Software Matters Special
SCO v. IBM
Eben Moglen is professor of law at Columbia University Law School. He
serves without fee as General Counsel of the Free Software Foundation. You
can read more of his writing at moglen.law.columbia.edu
June 12, 2003
The lawsuit between the Santa Cruz Operation (SCO) and IBM has been roiling
the free software world this past month. More disturbing than the lawsuit
itself have been the public statements by representatives of SCO, which have
irresponsibly suggested doubts about the legitimacy of free software overall.
SCO's lawsuit asserts that IBM has breached contractual obligations between
the two companies, and also that IBM has incorporated trade secret information
concerning the design of the UNIX operating system into what SCO calls generally
'Linux.' This latter claim has recently been expanded in extra-judicial
statements by SCO employees and officers to include suggestions that 'Linux'
includes material copied from UNIX in violation of SCO's copyrights. An
allegation to this effect was contained in letters sent by SCO to 1500 of
the world's largest companies warning against use of free software on grounds
of possible infringement liability.
It is crucial to clarify certain confusions that SCO's spokesmen have shown
no disposition to dispel. In the first place, SCO has used 'Linux' to mean
'all free software,' or 'all free software constituting a UNIX-like operating
system.' This confusion, which the Free Software Foundation warned against
in the past, is here shown to have the misleading consequences the Foundation
has often predicted. 'Linux' is the name of the kernel most often used in
free software systems. But the operating system as a whole contains many
other components, many of them products of the Foundation's GNU Project.
GNU's components are copyrighted works of the Free Software Foundation.
GNU includes the C-compiler GCC, the GDB debugger, the C library Glibc,
the bash shell, among other essential parts. The combination of GNU and
the Linux kernel produces the GNU/Linux system, which is widely used on a
variety of hardware and which taken together duplicates many of the
functions once performed by the UNIX operating system.
So has SCO alleged that trade secrets of UNIX's originator, AT&T -
of which SCO is by intermediate transactions the successor in interest -
have been incorporated by IBM in the Linux kernel, or in other parts of GNU?
If the former, there is no justification for the broad statements urging
the Fortune 1500 to be cautious about using free software, or GNU programs
generally. If, on the other hand, SCO claims that GNU contains any UNIX
trade secret or copyrighted material, the claim is almost surely false.
Contributors to the GNU Project must follow the Free Software Foundation's
rules for the project, which specify - among other things - that contributors
must not enter into non-disclosure agreements for technical information relevant
to their work on GNU programs, and that they must not consult or make any
use of source code from non-free programs, including specifically UNIX.
Having supervised the legal aspects of the Foundation's work for the
last decade, I see no basis to believe that GNU contains any material about
which SCO or anyone else could assert valid trade secret or copyright claims.
Contributors could have lied to us in their copyright assignment statements,
but failing wilful misrepresentation by a contributor, which has never happened
in my experience, there is no significant likelihood that our supervision
of the freedom of our free software has failed. I suspect that SCO agrees
with me: despite the alarmist statements its employees have made, the Foundation
has not been sued, nor has SCO, despite our requests, identified any work
whose copyright the Foundation holds - including one version of the Linux
kernel - that SCO asserts infringes its rights in any way.
Moreover, there are straightforward legal reasons why SCO's assertions concerning
claims against the Linux kernel or other free software are likely to fail.
As to its trade secret claims, which are the only claims actually made in
the lawsuit against IBM, there remains the simple fact that SCO has for years
distributed copies of the Linux kernel as part of GNU/Linux free software
systems. Those systems were distributed by SCO in full compliance with GPL,
and therefore included complete source code. So SCO itself has continuously
published, as part of its regular business, the material which it claims
includes its trade secrets. There is simply no legal basis on which SCO
can claim trade secret liability in others for material it widely and commercially
published itself under a license that specifically permitted unrestricted
copying and distribution.
The same fact stands as an irrevocable barrier to SCO's claim that 'Linux'
violates SCO's copyright on UNIX source code. Copyright, as I have pointed
out here before, protects expressions, not ideas. Copyright
on source code protects not how a program works, but only the specific language
in which the functionality is expressed. A program written from scratch
to express the function of an existing program in a new way does not infringe
the original program's copyright. GNU and Linux duplicate some aspects of
UNIX functionality, but are independent bodies, not copies of existing expressions.
But even if SCO could show that some portions of its UNIX source code
were copied into the Linux kernel, the claim of copyright infringement would
fail, because SCO has itself distributed the kernel under GPL. By doing
so, SCO licensed everyone everywhere to copy, modify, and redistribute that
code. SCO cannot now turn around and argue that code it sold people under
GPL did not license the copying and redistribution of any copyrighted material
of their own that code contained.
In the face of these facts, SCO's public statements are at best misleading
and irresponsible. In ten years of providing free legal assistance to free
software developers, I have never before seen such a gross abuse of the principles
of the free software community, by a participant who has profited handily
from all our work. I hope that SCO will reconsider its ill-advised and irresponsible
statements, and will immediately proceed to separate its commercial disagreements
with IBM from its obligations and responsibilities to the free software community.
© Eben Moglen, 2003.
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