But open-source advocates will have to resolve the issue about whether Linux has been tainted, he added. "Open source (programs) will be used more and more in the future, but they've got to have a clean bill of health," Weiss said. SCO's claims of Unix ownership haven't gone unchallenged: Novell, which owned Unix rights before selling some to SCO's predecessor, initially said it never sold SCO the Unix copyrights and patents, but it backtracked this week when SCO produced an amendment to the original contract. But SCO's arguments would be undermined if it turned out the company's own Linux product made public Unix code that once was proprietary, as some believe has happened. "They delivered the product. Just because of that, they have made that code GPL," Seibt said in an interview. And LinuxTag said in a statement, "Until a few weeks ago, SCO itself distributed the Linux kernel... as a member of the UnitedLinux alliance. Thus, even if SCO owns parts of the Linux kernel, it has made them into Free Software by distributing them under the GPL." Not so, counters SCO's Sontag. "The GPL requires the intentional act of the legal copyright holder to affirmatively and knowingly donate the source code to the GPL," Sontag said. "You can't inadvertently GPL your code." SCO ceased sales of its own Linux product in May. Sontag said the move was prompted not because of the argument that it would open the Unix source code, but because the company is "trying to provide leadership in terms of recognition of intellectual property and making sure mechanisms are in place" to ensure that property isn't infringed. As evidence that putting software under the GPL must be a deliberate act, Sontag points to section zero of the GPL, which states, "this licence applies to any program or other work which contains a notice placed by the copyright holder saying it may be distributed under the terms of this General Public License." But Moglen disagrees with SCO's position. "I find these statements from SCO irresponsible," he said. The act of packaging, advertising and marketing a Linux product means SCO's actions were anything but inadvertent, he said. What SCO is arguing seems instead to be that it didn't know what it was packaging. Moglen likened the situation to selling a book. SCO's argument would be like a publisher saying, "Sorry, had we read the novel we would have known it was a good novel and would have charged more for it," Moglen said. But Ferrell said that with the doctrine of mutual mistake, SCO could employ to its advantage an argument that it didn't know what exactly was in the Linux product. "If neither party knew what it was getting under the contract, it may be possible for SCO to avoid the terms of the contract," the contract in this case being the GPL. The doctrine of mutual mistake dates back to the sale of a cow named Rose the Second, the centre of a legal case called Sherwood v. Walker. In the case, Rose was sold under the assumption that she was barren, but it turned out she was pregnant and thus worth much more. "She was not a barren cow, and, if this fact had been known, there would have been no contract," the Michigan Supreme Court ruled in the case. How the SCO case is resolved will affect how the computing industry treats open-source software and its underpinnings, Ferrell said. "This particular issue is really important to the GPL, and (its resolution) is just inevitable," Ferrell said. "At some point we're going to need to have a judge sit down and sort it all out."
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