The legal war between the SCO Group and IBM took another
step forward after SCO asserted that IBM does not have the right to
enforce the GNU General Public Licence (GPL) governing the Linux
operating system.
"The GPL is selectively enforced by the Free Software Foundation
such that the enforcement of the GPL by IBM or others is waived,"
SCO claimed in papers filed in court at the end of last week.
"The Free Software Foundation is the only entity that can
enforce the GPL so, in effect, IBM is barred from trying to enforce
the GPL with SCO," said SCO spokesman Blake Stowell.
SCO's filings also asserted that "the GPL violates the US
Constitution, together with copyright, antitrust and export control
laws".
The filings were made in response to a countersuit brought
against SCO by IBM last August, which alleged that SCO had violated
the GPL and a number of IBM's software patents.
However, Eben Moglen, a lawyer representing the Free Software
Foundation disputed SCO's claims that the FSF is the only
organisation with the necessary legal standing to launch a
GPL-based lawsuit.
Since IBM holds the copyright to much of the Linux kernel
software distributed under GPL, it has every right to enforce it,
he argued.
"The proper enforcer of a copyright is the copyright holder,"
said ,Moglen. "IBM says, 'You're using a copyrighted work of ours
in a fashion which is prohibited by the Copyright Act, and you're
doing so without our permission. You owe us damages and you must
stop.'"
If the GPL is not a valid licence, Moglen reasoned, then SCO
itself does not have the right to redistribute Linux - something it
has done for years. "Redistributing copyrighted works without
permission, we are told by the RIAA (Recording Industry Association
of America Inc.) and MPAA (Motion Picture Association of America)
every day, is stealing," he said.
One Intellectual property lawyer not connected with the case
agreed with Moglen's assessment. David Byer, a partner with the
Patent and Intellectual Property Practice Group at Testa, Hurwitz
& Thibeault, said, "This really is a matter of a third party
adopting the terms of the FSF ... The fact that IBM adopted the FSF
form doesn't mean that they can't enforce their rights."
The court fillings also disputed IBM's claims that SCO had
violated IBM's software patents. "If we're in violation of them,
then just about every other vendor in the entire software industry
is in violation of them," SCO's Stowell said. "What they're
claiming is something that is a common practice within the software
industry."
The fact that IBM's software patents may be wide-reaching,
however, does not mean that they are unenforceable, Bayer said.
"Arguing that a patent covers too many people isn't an effective
defence," he added.
SCO and IBM have been engaged in a legal dispute over IBM's
contributions to Linux since SCO sued the computer giant in March,
alleging that IBM had inappropriately contributed code to the
open-source operating system in an effort to enhance its Linux
server business.
Robert McMillan writes for IDG News Service