FSF General Counsel Eben Moglen on Cisco and SCO

I had the opportunity to speak this morning with Eben Moglen, General Counsel for the Free Software Foundation. Actually, I was following up on a post made yesterday by FSF GPL Compliance Engineer David Turner on the LKML (Linux Kernel Mailing List) about a GPL non-compliance issue with Cisco/Linksys being in the hands of lawyers. That’s what led to our conversation. Professor Moglen had a few words to share with us not only on that issue, but on SCO’s most recent public attack on the GPL. Updated

This story has been simmering off-and-on for awhile now. I say off-and-on because at one time it was thought to have been resolved. I approached Cisco about it two or three weeks ago and got a brush-off. The buzz on the street has been that a Cisco/Linksys router runs on a modified version of Linux, but that they have not published the resulting code. Eben Moglen was much more forthcoming than Cisco had been.

NewsForge: We read an email by David Turner of the FSF yesterday which said that lawyers were involved on both sides in the GPL non-compliance issue with Cisco/Linksys. Can you comment on that?

Eben Moglen:
We believe that with good cooperation, which we have been receiving from Cisco and from Broadcom, all but one of the major issues can be speedily resolved. We understand that there are legitimate reasons for careful study with respect to one additional question.

(Editor’s note: The compliance issue with the Cisco/Linksys router actually occur upstream in code from Broadcom.)

The release of source code for device drivers that manage software-controlled radios raises regulatory questions in the United States, Europe, Japan, and elsewhere in the world. This is a problem which we at the Free Software Foundation are well aware of.

So far as all other matters are concerned, we believe that principles of resolution are entirely shared, and that actions that constitute full and complete compliance will occur. I have stated all the way along in response to questions on these matters, that I expected a full and cooperative hearing for our concerns from Cisco/Linksys, and I have received it.

I have also, as I say, had fully productive and useful conversations with Broadcom. I would not characterize this as a situation in which the work of lawyers is the result of an inspiration that results from inadequate cooperation, or an inadequate opportunity to be heard – much less that it represents a disrespect for the concerns of the free software community.

I believe that the legitimate problems of the free software community and the equally serious problems of the parties who are concerned about the regulatory consequences of their product designs are being studied in the appropriate way by all parties.

We at the Free Software Foundation insist on compliance with the Gnu Public License with respect to all copyrighted computer programs for which we are the copyright holder or assignee.

We don’t conclude compliance arrangements where we believe that there is non-compliance with the license with respect to other software for which we do not hold copyright, or those copyright holders for whom we are not negotiating on their behalf.

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.

Where the question of device drivers for incorporation in the Linux kernel raises legal and regulatory issues, we recognize that parties have to study carefully their options. We assist people in thinking about the interaction between their responsibilities to keep free software free and their other legal responsibilities.

This is a subject about which the Free Software Foundation has a good deal of expertise and a good deal of experience. We understand that parties have difficulties that they need to consider and resolve, and we stand ready to help people to do that. That’s how I would characterize the situation.

NewsForge: Are you saying in your exclusion of the Linux kernel that the FSF has no interest or concern with SCO’s recent attack on the GPL?

Eben Moglen: No. I have, however, said repeatedly that our position in the dispute which SCO has initiated against IBM in the form of litigation, and at least potentially with users of free software through the emission of threatening documents, then our position in that controversy is inevitably effected by the fact that the only claims that SCO has made whether legally or in the form of PR, concern a single free software program, the Linux operating system kernel, which we do not have copyright in, and about which we cannot take direct legal action one way or another.

When SCO says as part of its litigation against IBM things about the GPL, I am of course on my client’s behalf, directly interested. But I do not have a position in that litigation.

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.

SCO’s response, that the permission given to some people – which happens to be my client’s license, the GPL – is not legally valid, does not change the fact that they have no permission and are illegally redistributing IBM’s work. (Editor’s note: the word “client’s” was omitted from the preceding sentence in the original story.)

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.

NewsForge: Thank you, Dr. Moglen.