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The GPL will win, claims law prof.

Why SCO's latest tactic would fail a Law School exam

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Eben Moglen, Professor of Law at Columbia University and the FSF's pro bono general counsel for the past decade, says that there's nothing to fear from the GPL (General Public Licence) being tested in a US Court. He also expressed astonishment to describe SCO's latest legal tactic to reject the validity of the GPL. SCO is suing IBM for breaching its UNIX™ copyright, and IBM and Red Hat are countersuing SCO.

Getting in touch with The Register after our article lamenting the appearance of the licence in court, Moglen confidently predicted that the GPL would survive. And he is so astonished by SCO's claim that its copyright only allows users to make one copy that he wondered whether he could believe what he read.

According to the Wall Street Journal, an attorney for SCO, Mark Heise, said the company would contest that the users and distributors of GPL licensed software were permitted to make copies. He based this on a reading of the Copyright Act which allows licensees of computer software to make one copy for backup or archival purposes.

"It seemed to me," Moglen told us on Saturday, "the responsible thing is to ask if he'd even said such a thing." Moglen says he emailed Heise to check if he had been misquoted. Why?

"It's moonshine! The Copyright Act doesn't set limitations on what the copyright holder can do. But because you can make one copy, that doesn't mean there's no way you can make multiple copies. The wording is crystal clear. It is not an infringement."

Moglen says that if this were true, distribution of proprietary software such as Windows would rapidly grind to a halt: "Let's apply it to proprietary software. Microsoft licenses manufacturers of hard drives to make copies of Windows on their hard drives. They're delivered, for example by Maxtor, to OEMs with these copies. If Mr Heise is correct, the Microsoft licence is pre-empted to copyright law."

"This is the first sign of irresponsibility. It sheds disrepute on the lawyer who says that," says Moglen.

Industrial Strength

However, Moglen took issue with our view that the GPL was upheld by a social contract. Nonsense, he says: the GPL has been carefully crafted to maximise the opportunities copyright holders enjoy under the Berne Convention.

It works like this. A GPL work is a copyrighted work. "Suppose you've got a copyrighted work and you're distributing it in a form for which you don't have permission. In that case under the Copyright Act the holder takes out an injunction against you.

"If the defendant pleads that his permission is the GPL, then his distribution is voided by Section Four," says Moglen. That is designed to prevent parties adding additional terms to the GPL. And that simply voids their right to do so. An example has been "click-wrap" licences which add conditions to the basic GPL. This has successfully prevented anyone successfully making free software proprietary.

Now IBM, says Moglen, will say that SCO was distributing the Linux kernel under GPL - "our copyrighted works". If SCO imposes additional terms then their right to do so is voided.

Has SCO prevented "inadvertent distribution"? asks Moglen. It has already contributed work under the GPL itself. But more importantly, Moglen argues, users don't need licences.

"You don't need permission to use copyrighted work - there is no exclusive right to use, unlike in Patent law which involves the rights to 'make, use or sell'," he says. SCO could argue that users themselves are infringing (copying) but in the US the copies are exemptions from the inclusive right. And furthermore, most don't even install the source code. So no infringement there.

So far from being something that's upheld through a prayer and goodwill, Moglen argues, the GPL is an industrial-strength legal contract. For more so, he suspects, than Richard Stallman could have expected it to be when it was drafted in 1985.

"His design is more elegant and robust than he could have foreseen." Professor Moglen has a more detailed explanation of why the Heise strategy is mistaken here.

Related Link

A SCO Wiki

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