Moglen: SCO Is Guilty of What the RIAA Calls Stealing

Friday, October 31 2003 @ 02:43 AM EST

Contributed by: PJ

Eben Moglen, the Free Software Foundation's attorney, is interviewed over on NewsForge regarding the Linksys situation, which appears to be moving along nicely to a resolution, and in the course of the interview, Moglen answers some of SCO's most absurd contentions.

First, their saying that the FSF is the only proper enforcer of the GPL and thus should be a party to the action:

"It is well known that the Free Software Foundation does not hold copyright in the Linux system kernel program. Linux is not part of the gnu project, which is why Mr. Stallman insists so much on the verbal distinction between GNU and Linux. Since we do not hold copyright in the Linux kernel, we do not enforce the GPL with respect to the Linux operating system kernel. Where, however, we believe the kernel is being distributed in a non-compliant fashion, that's an impediment to the full resolution of disputes about compliance where other free software foundation programs are involved, because we want the license respected as to all free software."

In short, copyright holders enforce their own copyrights. IBM has contributed their own copyrighted code to the kernel, unlike the FSF, so they are the appropriate party to bring an infringement claim. Duh. I guess we can all be glad the world found it so hard to say GNU/Linux, because SCO fell right into the pit, equating Linux, the kernel, with GNU/Linux, the everything, kernel plus the applications. They saw FSF enforcing other GPL issues and didn't notice that their lawsuit is only about the kernel. Not that it was nice not to call the whole works by their more accurate name, and once again, I see why it matters, but if you had planned it as a strategy, it couldn't have worked any better than this. There does seem to be an imbalance in the universe, though. Some lawyers, it seems, get paid millions and don't even bother to do basic research for a case. Go figure.

As to the the GPL being "unconstitutional", here is his response:

"IBM, unlike the Free Software Foundation, has contributed a good deal of copyrighted work to the program called the Linux operating system kernel. And IBM is saying to SCO in its counter-claim something which I believe is entirely factually accurate and legally justified.

"That is:
You are using our copyrighted work. You are redistributing our copyrighted work because you are continuing to distribute the Linux operating system kernel, which includes our copyrighted work. And you are doing so without permission. You owe us damages, and you must stop.

"When SCO returns to that the supposed defense that the GPL is invalid, that is not actually a defense of any kind. Even if it were true, which it is not, that there is some legal impediment to the use of GPL, all that would stand for would be that SCO has no permission to redistribute IBM's copyrighted work.

"Every week, somewhere in the newspaper that you read is a statement by Mr. Valenti of the MPAA , or by some authority at the RIAA saying that redistributing other people's copyrighted work without permission is stealing.

"I don't necessarily agree with that characterization, but I would point out that what IBM says, perfectly correctly, SCO is doing is precisely what RIAA and MPAA say is stealing: namely, the redistribution of copyrighted work without permission. . . .

"Now, as to what SCO says that the GPL violates the United States Constitution, it is simply nonsense. I have studied the United States legal system for my entire adult life. In addition to this work that I do on behalf on the Free Software Foundation, I earned a PhD in American Legal History, and have taught legal history throughout my academic career at front-rank law schools here and elsewhere in the world. I clerked at the United States Supreme Court. I have done a fair amount of studying of constitutional law. I don't see any basis of any kind anywhere for this absurd claim that giving somebody permission, using a certain form of words, to copy, modify, and redistribute copyrighted work in some way violates the United States constitution. That's ludicrous."

I gather they teach you how to speak plainly in law school, because there is no missing his meaning. They are distributing other people's copyrighted works without permission, and that is what the RIAA calls stealing. SCO are software pirates, in RIAAspeak. And they don't know their Constitution as well as they think they do. Thank heaven. Can you imagine how it'd be if they knew what they were doing instead of being the Keystone Kops? puts it even a tad more plainly. They positively mock SCO's position:

"And after this, we'll prove that the IRS doesn't legally exist: The General Public License (GPL) is not only unenforceable, void and/or voidable, it violates the U.S. Constitution, together with copyright, antitrust and export control laws. This according to SCO, where they seem to have taken up huffing paint thinner."

Newsfactor uses headers like "Talking Big" and "SCO Running a Scam?" in its article, which also includes quotes from Moglen:

"SCO's distribution of software under GPL contradicts its legal claims, Moglen said. 'SCO has distributed under GPL for years, and continues to do so. That means that SCO has permitted everybody to copy, modify and distribute that code. They can't go back now and say people don't have a right to distribute that code. 'In order to run the scam that it is running, demanding people pay license fees to them for use of the Linux kernel, SCO has to say the GPL doesn't do what the GPL says it does,' he argued.


"If the GPL were invalidated, it could have a negative impact on many Linux vendors who work under the license agreement. It could create confusion regarding software copyright issues across the Linux industry, and also might undermine one of the key principles of open source: that software can be modified and shared freely.

"But this outcome is unlikely, SuSE spokesperson Joe Eckert told NewsFactor. 'Fortunately, we live in a country governed by the rule of law, and I think we'll find out that the GPL is pretty solid.'"

It looks like the tide is turning.

SCO and Dupaco Are Back in Business, for a While Anyway

Do you remember the Dutch SCO distributor who sued SCO over having its contract terminated so abruptly? The poor man came to the US to talk it over and was escorted out of the lobby by security personnel, IIRC. Well, after further negotiation, he has a new contract for at least six months. Of course, as usual with SCO, it's not as good as the first one.

Here's a computer translation of the article,which is in Dutch, then edited by Hans Stoop and then by me, slighly:

The Hague, 14.29 hours - Software company SCO Group and its Dutch distributor, Dupaco, have resolved their dispute. Dupaco will continue the distribution of SCO products. Both parties yesterday signed a contract, says Dupaco-directeur Bart van Rheenen.

"The American SCO Group decided in August to close down a number of European offices. The country managers got the 'distribution franchise' offered. Elbert Vlastuin, country manager Benelux, accepted the offer and the contract with distributor Dupaco was canceled. Dupaco started a lawsuit, because the company found the notice of a month, after a relation of seventeen years with SCO, much too short. . . .

"According to the contract now agreed upon, both SCO Benelux and Dupaco will distribute the products, but all delivered products are invoiced by Dupaco. . . .

"Van Rheenen admits, however, that Dupaco will now have less margin on the SCO products then before. The new contract has a duration of six months and can be extended with an additional six-months added each time.

Thank you, Hans!