The Open Source Development Lab (OSDL) has released a position paper “raising serious questions” about SCO Group's threatened litigation against end users of Linux. The paper, which casts doubt on SCO's position, was authored by one of the world's leading legal experts on copyright law as applied to software, Professor Eben Moglen of Columbia University, according to OSDL.

OSDL said SCO Group has not yet publicly revealed the basis for any of its claims, and that OSDL is disseminating the position paper to address issues that may concern its members and industry Linux customers as a result of SCO Group's public threats. OSDL said it believes Moglen's analysis will help its members, the Linux development community, and Linux users better understand potential legal issues.

In his paper, Professor Moglen identifies some of the legal issues raised by the SCO Group's claims about Linux and users of the popular open source system. He does not offer legal advice, but rather frames some of the key questions that companies and developers should ask their own counsel about Linux. Moglen, a faculty member at Columbia University's Law School, presented his paper on July 24 in New York at the first meeting of OSDL's customer advisory council, comprised of CIOs and CTOs from Fortune 100 corporations.

“It is the consensus among the end users with whom we've discussed SCO's claims that they are not slowing their Linux implementation plans,” said Stuart Cohen, OSDL CEO. “As suggested by Moglen, absent clear, open and publicly available evidence that using Linux violates rights that SCO has not already conferred on users by freely distributing Linux over the course of several years, users see no need to purchase a license from SCO at present.”

Moglen makes three main points in his paper:

• SCO has yet to file a lawsuit against end users, nor has it shared publicly any information on what software code might infringe its copyright or trademark trade secret claims. Absent specific factual and legal information from SCO, how can any individual or company threatened with a potential lawsuit respond appropriately?
• Moglen points out that copyright law is not relevant to customers “using” Linux. In much the same way that readers can enjoy a book or a newspaper without a copyright license, so can users of software — unless they have agreed to additional use restrictions in, for example, a shrink-wrapped box of software. Copyright law does restrict modification, copying and redistribution, however these activities are all allowed under the GNU General Public License (GPL) for GNU/Linux and other free software.
• Moglen says SCO itself continues to distribute Linux under the GPL. He argues that users should be free to modify, copy and redistribute Linux since users can go to the SCO even today and download Linux with a GPL license. Hence, users of Linux already have a license — from SCO — that already allows them to do the things that SCO claims are infringing.

“Failure to come forward with evidence of any infringement of SCO's legal rights is suspicious,” Moglen says. “SCO's public announcement of a decision to pursue users, rather than the authors or distributors of allegedly infringing software, only increases doubts.”

Professor Moglen, a legal historian and antitrust expert who has written extensively on the Microsoft antitrust case, is recognized internationally as a leading authority on computers and free expression. He is a 2003 recipient of the Electronic Frontier Foundation's Pioneer Award for Pioneering Freedom on the Electronic Frontier, and has served as the general counsel for the Free Software Foundation since 1993.

The full paper is available for download here. The paper is copyright Eben Moglen © 2003, and may be redistributed in any medium provided its copyright notice is preserved.

 
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