Open-source gurus slam SCO

Objecting to SCO's demands are Linus Torvalds, who began the Linux project 12 years ago and who still leads its development, and Eben Moglen, the attorney for the Free Software Foundation (FSF), which created the legal and technological framework used by Linux.

SCO, owner of Unix copyrights and the company that licensed the operating system to Sun Microsystems, Hewlett-Packard, IBM and others, argues that Unix intellectual property has tainted Linux in three ways. First, some proprietary Unix code has been copied line-by-line into Linux; second, Unix licensee IBM moved software developed for Unix to Linux against licence provisions; and third, Unix "concepts and methods" are used in Linux. Some of these accusations figure in SCO's $3bn (£1.87bn) lawsuit against IBM.

Last week, SCO told companies using Linux that they should buy a Unix licence from SCO or face the possibility of legal action. Analysts have been mixed about the magnitude of SCO's threat, but IBM has attacked the move.

Torvalds has been dismissive of SCO's actions in the past. SCO's new move, based on the fact that it now has registered some key Unix copyrights, hasn't done much to improve his view of the Utah-based company.

"Now they are extortionists," Torvalds said in an email interview. In addition, he took issue with some of SCO's legal reasoning and argued that IBM can do what it wants with its copyrighted code.

The situation, he said, is one of "collective copyright," in which copyrights of individual parts of a collection of works are distinct from the copyright of the collective work.

"If IBM wrote some code, then IBM is the copyright owner in that particular separate contribution," Torvalds said. "So if that same IBM code shows up in Linux, then SCO has zero rights to that code (even though it is line-for-line identical) as it exists in Linux -- because that's a different work than the one that they hold the collective copyright to."

The collective copyright provisions of the US copyright code typically are used to govern works such as encyclopaedias or magazines, said John Ferrell, an intellectual-property attorney with Carr & Ferrell.

SCO countered that its contract with IBM prevents Big Blue from making public the "derivative works" it writes that extend beyond the original Unix source code. "The derivative works clause says that they have to hold the derivative code in confidence," SCO spokesman Blake Stowell said. "They can't wholesale dump it into Linux. That is breach of contract. SCO owns the control rights on that code."

FSF's Moglen made a more elaborate case against SCO Group in a talk given recently to members of the Open Source Development Lab (OSDL), the group that employs Torvalds and that's working on improving high-end Linux features. OSDL published Moglen's position paper that disputed SCO's claims.

In the paper, Moglen made several points. He reiterated one he made earlier that SCO's distribution of a version of Linux means the company has granted customers all the rights they need to use the software.

"SCO cannot argue that people who received a copyrighted work from SCO, with a licence allowing them to copy, modify and redistribute, are not permitted to copy, modify and distribute," Moglen said in the paper. "Those who have received the work under one licence from SCO are not required, under any theory, to take another licence simply because SCO wishes the licence it has already been using had different terms."

Moglen also argued that using Linux doesn't involve copyrights in any case. "One doesn't need a copyright licence to read the newspaper or to listen to recorded music." SCO's actions are similar to a publisher suing the readers of a book it says infringed the publisher's copyright, not suing the author who plagiarised the original work or another publisher who distributed the infringing work, he said.

SCO stands by its view. "Because it is line-by-line copying from Unix System V, a customer's use is in violation of our copyrights," Stowell said.