12 Jun 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 \emph{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.

This column was first published in the UK in Linux User. It is also available in PostScript and PDF formats.

permalink | columns/lu | 2003.06.12-00:00.00

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