What Moglen Really Said

Monday, June 30 2003 @ 01:57 AM EDT

Contributed by: PJ

The official FSF Statement on SCO v IBM is available, written by their pro bono attorney, Eben Moglen, Esq. I haven't seen anyone yet notice what jumped off the page to me:

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.

So, FSF holds the copyrights to all of IBM's contributions to the kernel "for use with IBM's S/390 mainframe computers" and yet SCO hasn't even contacted, or worse, responded to FSF contacts, in order to identify any allegedly infringing code?

This is a significant piece of news, because it'll be mighty hard down the road to claim damages for copyright infringement, certainly for this time period and maybe at all, if SCO isn't lifting a finger to mitigate its damages and is allowing infringement without protest. You can lose your rights by doing exactly that. If you read what I wrote about Judge Kimball, on June 10, you'll find a case where a plaintiff lost his copyright because he allowed it for too long before protesting.

In brief, evidently, he is pointing out, SCO's copyright isn't being infringed. It's just a contract case. And if all of IBM's kernel contribution copyrights belong to FSF, it means that if SCO released "Linux" under the GPL inadvertently (ha ha), then they were violating those FSF copyrights. Which leaves open some possiblities for FSF to go after SCO, should they choose to, and a defense should SCO later decide to attack for copyright infringement, which so far they have said they will, said they won't. I think, if I have understood what Moglen wrote correctly, he's saying they don't need to worry about which it should be, because they can't -- or at least that they would be walking into a minefield if they try. Certainly, this public statement from FSF makes it impossible for SCO to now wait until after the IBM case before it leaps on "Linux", which seemed to be the game plan. It's now or never.