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Posted on 06/28/2003 5:15:50 PM PDT by Salo
FSF Statement on SCO v. IBM
Eben Moglen
June 25, 2003
The lawsuit brought by the Santa Cruz Operation (SCO) against IBM has generated many requests for comment by FSF. The Foundation has refrained from making official comments on the litigation because only the plaintiff's allegations have been reported; comment on unverified allegations would ordinarily be premature. More disturbing than the lawsuit itself, however, have been public statements by representatives of SCO, which have irresponsibly suggested doubts about the legitimacy of free software overall. These statements require response.
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 apparently 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, some of them products of the Foundation's GNU Project, others written elsewhere and published under free software licenses; the totality is GNU, the free operating system on which we have been working since 1984. Approximately half GNU's components are copyrighted works of the Free Software Foundation, including 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 as a whole duplicates the functions once only performed by the UNIX operating system.
SCO's confusing use of names makes the basis of its claims unclear: 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 kernel, Linux, or in 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 promise to 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. The Foundation has 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 made misrepresentations of fact in their copyright assignment statements, but failing willful misrepresentation by a contributor, which has never happened so far as the Foundation is aware, there is no significant likelihood that our supervision of the freedom of our free software has failed. The Foundation notes that despite the alarmist statements SCO's employees have made, the Foundation has not been sued, nor has SCO, despite our requests, identified any work whose copyright the Foundation holds-including all of IBM's modifications to the kernel for use with IBM's S/390 mainframe computers, assigned to the Foundation by IBM--that SCO asserts infringes its rights in any way.
Moreover, there are straightforward legal reasons why SCO's assertions concerning claims against the 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 kernel, Linux, 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 the United States Supreme Court has repeatedly emphasized, covers expressions, not ideas. Copyright on source code covers 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 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 it sold people code under GPL, guaranteeing their right to copy, modify and redistribute anything included, but that it somehow did not license the copying and redistribution of any copyrighted material of their own which that code contained.
In the face of these facts, SCO's public statements are at best misleading and irresponsible. SCO has profited handily from the work of free software contributors throughout the world. Its current public statement constitute a gross abuse of the principles of the free software community, by a participant who has employed all our work for its own economic benefit. The Free Software Foundation calls upon SCO to retract its ill-advised and irresponsible statements, and to proceed immediately to separate its commercial disagreements with IBM from its obligations and responsibilities to the free software community.
Copyright © Free Software Foundation, 2003. Verbatim copying of this article is permitted in any medium, provided this notice is preserved.
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The company purchased these UNIX assets in early 2000. At a trade show in August of that year, Ransom Love, the CEO, gave a keynote address at the LinuxWorld trade show in which he said,
"We are already demonstrating what we call the Open Linux Personality on top of UnixWare. Product release-wise, you should see something by late November. This will allow users to run any Linux application on the UnixWare kernel. This gives the customer the best of both Linux and UnixWare and the capability to mix and match. We'll provide this through our channel partners."So at least as early as August, 2000, the company was demonstrating competence in using the UNIXware (AT&T UNIX) kernel to provide services to linux programs.
If asked in a courtroom, "When did you start looking at the UNIX source code, and in particular the kernel?" the answer has to be less than or equal to "August, 2000."
If the next questions are, "When did you warn everyone that your experienced linux programmers had found similarities between the linux kernel and this UNIX kernel you had purchased?" and "When did you yourself stop shipping OpenLinux under the GPL?" the answers are going to be hard for a court to digest.
The lawyers will of course argue over how long it should have taken for a competent software development company to notice these similarities, but "three years" is a long time, especially when they were bragging at a trade show in 2000 that they were already building products on top of the UNIX kernel.
Anything can happen in a courtroom, but they have a tough row to hoe here. The judge they have drawn in this case is on record in a previous case saying this:
In his ruling, Kimball said Jacobsen did not "express any disapproval" of the series until 1999, after the third volume had been published. "Had Jacobsen voiced his disapproval in 1996, Hughes would have had the opportunity to take the offending material out of the books," Kimball wrote. "For Jacobsen to wait until three volumes of the series had been published before voicing his disapproval, when it is clear he had ample opportunity to let Hughes know of his disapproval as early as 1996, results in extreme prejudice to Hughes."Laches? We ain't got no laches. We don't need no laches! I don't have to show you any stinking laches!!
"Don't come any closer!"
Wonder how long until the brass buzzard starts FUDding here too.
Ummmm..... no. Pay attention, guys...
Let us agree that there are two crucial differences then, the larger of them being that the SCO case is not a copyright case. None of SCO's causes of action turns on copyright infringement.
That has actually raised a few eyebrows among the lawyer types, because it is an almost glaring omission in a lawsuit of this kind. The complaint appears to be carefully crafted so as not to rely on any claims of patent or copyright ownership. (They mention such things in the background material, but no cause of action actually turns on it). Some lawyers say that this is a red flag; the claim in writing is, on its face, a whole lot weaker than the claim in front of the microphones.
SCO could presumably add such a charge, but they have amended their complaint once already and did not do so.
People cannot really play Legal Gotcha in the way that you have described. Like everyone else, SCO has an obligation to minimize their own damages. If you disapprove of someone's behavior, but you don't tell them, and instead watch your damages accumulate for three years before saying anything about it, you'll most likely lose. Other people are allowed to be reasonable; if you don't say anything, they can reasonably conclude that you do not object. There is no clause that you could have put in a contract that would override that principle. "We have the right to wait until the honey pot gets really huge before suing you" is not an enforceable clause.
Rather than pull an unenforceable clause out of a contract, SCO is more likely to claim that they only recently discovered these similarities. In fact the company president has already said exactly that. In the courtroom, this will presumably turn into one of those "dueling experts" things where one side brings in Professor Guru to say that it's very common for software companies to spend millions of dollars for something and then leave it on the shelf without looking at it for three years, while the other guys hire Professor Maven to say, "How could a company of linux gurus poke around in the UNIX kernel like these guys were doing in August 2000 without noticing any of this? An undergrad student would have seen that. An English major would have seen that." Who knows how that will sort out.
I understand that SCO was making noises to IBM about this for a while. And IBM just laughed it off.
On the other hand, I would have expected SCO to make just as much noise to Linus Torvalds, since all the Linux stuff that was allegedly stolen from UNIX was being funneled through him.
This IS a bizarre way of conducting a lawsuit.
That's why so many people think it's more a shakedown than a lawsuit. These guys are spending at least as much time giving press conferences and granting interviews as they are on their legal preparations, and all of it is peppered with these incredible, audacious claims.
We've all seen enough lawsuits in our lives to know that this is not how serious people conduct billion-dollar business lawsuits. If you really have a guy by the contract hairs over a billion dollars, you get straight to business on it.
This is a Jesse Jackson show where the guy gets up in front of a bunch of microphones and tells everybody about his incredibly strong claims, and how strong his claims are, and how his claims are really really strong. Meanwhile, down in the fine print, he isn't sure enough of his copyright ownership to even put it in the lawsuit. There's no patents in there because he doesn't have any. Then we find out that IBM does have a patent on at least one of the things he claims is his. The whole thing just reeks of extortion-by-lawuit.
"I'll win this for SCO!" Declared lawyer David Boise. "Just like I won for Gore in Flroida and before the US Supreme Court! Just like I saved Napster!"
Whoever wrote this obviously doesn't know what they're talking about if they can't even get their first sentence correct.
Before you all line up in support of the FSF, make sure you agree with what they espouse, namely that ALL software should be free.
Why do we have to sign up for their whole show if we happen to oppose the same guys they do in a lawsuit? The other day we were faced with a similar opportunity to embrace the politics of New York Senator Charles Schumer when we were stunned by this reality: SCHUMER WANTS FANATICAL IMAMS ROOTED OUT OF JAILS, ARMED FORCES.
Even a stopped clock is going to be right twice a day. I didn't hear a single person around here say, "Well, if Schumer's against it, I'm going to switch sides and start supporting fanatical Imams." I applaud what Schumer said there. As for the rest of what he does, to Hell with him.
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