August 18, 2003

SCO Scuttles Sense, Claiming GPL Invalidity

- by Eben Moglen -
Now that the tide has turned, and SCO is facing the dissolution of its legal position, claiming to "enforce its intellectual property rights" while actually massively infringing the rights of others, the company and its lawyers have jettisoned even the appearance of legal responsibility.

Last week's Wall Street Journal carried statements by Mark Heise, outside counsel for SCO, challenging the "legality" of the Free Software Foundation's GNU General Public License (GPL). The GPL both protects against the baseless claims made by SCO for license fees to be paid by users of free software, and also prohibits SCO from its ongoing distribution of the Linux kernel, a distribution which infringes the copyrights of thousands of contributors to the kernel throughout the world. As IBM's recently-filed counterclaim for copyright infringement and violation of the GPL shows, the GPL is the bulwark of the community's legal defense against SCO's misbehavior. So naturally, one would expect SCO to bring forward the best possible arguments against the GPL and its application to the current situation. But there aren't any best arguments; there aren't even any good arguments, and what SCO's lawyer actually said was arrant, unprofessional nonsense.

According to the Journal, Mr Heise announced that SCO would challenge the
GPL's "legality" on the ground that the GPL permits licensees to make
unlimited copies of programs it covers, while copyright law only allows a
single copy to be made. The GPL, the Journal quoted Mr Heise as saying,
"is preempted by federal copyright law."

This argument is frivolous, by which I mean that it would be a
violation of professional obligation for Mr Heise or any other lawyer
to submit it to a court. If it were true, no copyright license could
permit the licensee to make multiple copies of the licensed program.
That would make not just the GPL "illegal." Mr Heise's supposed
theory would also invalidate the BSD, Apache, AFL, OSL, MIT/X11, and
all other free software licenses. It would invalidate the Microsoft
Shared Source license. It would also eliminate Microsoft's method for
the distribution of the Windows operating system, which is pre-loaded
by hard drive manufacturers onto disk drives they deliver by the
hundreds of thousands to PC manufacturers. The licenses under which
the disk drive and PC manufacturers make multiple copies of
Microsoft's OS would also, according to Mr Heise, violate the
law. Redmond will be surprised.

Of course, Mr Heise's statement is nothing but moonshine, based on an
intentional misreading of the Copyright Act that would fail on any law
school copyright examination. Mr Heise is referring to section 117 of
the US Copyright Act, which is entitled "Limitation on exclusive
rights: computer programs," and which provides that:

(a) Notwithstanding the provisions of section 106, it is not an
infringement for the owner of a copy of a computer program to make or
authorize the making of another copy or adaptation of that computer
program provided:

(1) that such a new copy or adaptation is created as an essential
step in the utilization of the computer program in conjunction with
a machine and that it is used in no other manner, or

(2) that such new copy or adaptation is for archival purposes only
and that all archival copies are destroyed in the event that continued
possession of the computer program should cease to be rightful.

As the language makes absolutely clear, section 117 says that although
the Act generally prohibits making any copy of a copyrighted work
without license, in the case of computer programs one can both make
and even alter the work for certain purposes without any license
at all
. The claim that this provision sets a limit on what copyright
owners may permit through licensing their exclusive right is utterly
bogus. It has no support in statutory language, legislative history,
case law, or the constitutional policy that lies behind the copyright
system. Were this argument actually presented to a court it would
certainly fail.

The release of this astounding statement is actually good news for
developers and users of free software. It shows that SCO has no
defense whatever against the GPL; already it has resorted to nonsense
to give investors the impression that it can evade the inevitable day
of reckoning. Far from marking the beginning of a significant threat
to the vitality of the GPL, the day SCO scuttled sense altogether
confirmed the strength of the GPL, and its importance in protecting

Copyright © Eben Moglen, 2003.
Verbatim copying of this article is permitted in any medium, provided
this notice is preserved.

Eben Moglen is professor of law
at Columbia University Law School. He serves without fee as
General Counsel of the Free Software Foundation.


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