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IBM threatens SCO with GPL hearing

SCO in lose/lose situation

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Tech behemoth IBM has accused SCO of copyright infringement because it did not abide by the GNU General Public License (GPL) in using IBM's copyrighted work. IBM is seeking summary judgment for an injunction against SCO.

At issue is a chunk of IBM's Linux code that SCO was authorized to use and distribute on condition that it follow the GPL in doing so. Failure to abide by the GPL, therefore, brings up an issue of copyright infringement, IBM is arguing.

According to a motion filed on 16 August in US District Court (Utah):

"IBM has contributed source code to the development of Linux and owns valid copyrights in its contributions. SCO has, without permission, copied code from sixteen discrete packages of copyrighted source code written by IBM for Linux, and distributed those copies as part of its own Linux products.

"SCO has literally copied more than 783,000 lines of code from these sixteen packages of IBM's copyrighted material. As a result of SCO's copying and distribution of IBM's code, SCO has unlawfully exercised IBM's rights to its works, and therefore infringed IBM's copyrights."

So the guts of the claim are copyright infringement, but the interesting threat here is that the GPL might finally be ruled on in federal court. The IBM legal beagles continue:

"Although IBM's contributions to Linux are copyrighted, they are permitted to be copied, modified and distributed by others under the terms of the GNU General Public License ("GPL") or the GNU Lesser General Public License ("LGPL") (collectively, the "GPL"). However, SCO has renounced, disclaimed and breached the GPL and therefore the GPL does not give SCO permission or a license to copy and distribute IBM's copyrighted works."

One thing that SCO, and, by extension, Microsoft, would be loath to see, is a federal judge validating the GPL by finding that it represents a binding set of terms under which copyrights may be controlled. (Actually, IBM might not be thrilled with such a development, either.) So in this sense, it's reasonable to see IBM's invocation of the GPL as a tactic meant to force a quick, and profitable, settlement from the battered company.

Of course, if SCO actually wishes to 'renounce and disclaim' the GPL in federal court, it is welcome to spend a fortune dealing with IBM's legal team. But this is difficult to imagine. If the judge were to rule the GPL invalid, SCO would lose an important legal basis for using IBM's code, and might well be found guilty of infringement.

There is a possibility that the judge could rule the GPL irrelevant, and still find that infringement did not occur, but this is not something that a company so weakened by legal bills and bad press is likely to risk.

If the ruling were to go the other way, the GPL would be validated (certainly the greater disaster), and SCO would still be guilty of infringement. It's this possibility that IBM is no doubt calculating to chasten SCO.

Many people are eager to see the GPL get a hearing in the US courts, but we rather think that this will not be its day. It's too useful as a threat, much like the practice among big MS customers of threatening a substantial Linux migration, merely to obtain large discounts.

Since losing would be an unmitigated disaster for SCO, and winning might be nearly as painful, we have a gut feeling that a settlement will be in the offing. ®

Thomas C Greene is the author of Computer Security for the Home and Small Office, a comprehensive guide to system hardening, malware protection, online anonymity, encryption, and data hygiene for Windows and Linux.

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