Park Ridge, Ill. Pointing a legal dagger at the heart of Linux and other free software, SCO Group Inc. threatened last week to attack the validity of the general public license, the very foundation of open-source software. If SCO succeeds and some question its chances it would raise troubling questions not only for the open-source movement but for OEMs whose Linux-based products rely on the GPL.
Embroiled in a contentious public debate with Linux supporters and ongoing legal wrangles with other software suppliers, SCO said it was responding to countersuits from Red Hat Inc. and IBM Corp. by attacking the GPL, an agreement that spells out the conditions under which software may be used for free.
SCO (Lindon, Utah) said it will argue that U.S. copyright law supercedes the GPL. If a court agrees, some experts said, the open-source concept could be permanently damaged. "If you say that the GPL is no longer in force, and take away all the obligations to re-release software, then you diminish the open-source process to a great degree," said Chris Lanfear, an analyst for Venture Development Corp.
What are they thinking?
But others questioned the argument's merits and legal analysts insisted that the likelihood of SCO making such a case before a judge is slim. "It appears to be a totally bizarre argument," said James Boyle, a professor at Duke University's law school (Durham, N.C.). "It's hard to imagine what they're thinking."
The attack on GPL is the latest step in a courthouse drama that began in March when SCO sued IBM for $1 billion, charging misappropriation of trade secrets. IBM countersued last month, contending that as a former Linux vendor, the SCO Group is subject to the GPL, which allows open-source software and its derivative works to be copied by anyone without charge. IBM, in an unexpected and damaging retort, argued that since SCO had already signed on to the GPL, it could not seek a monetary reward for alleged damages to its Unix product.
SCO Group executives called the attack on GPL simply a reaction to IBM's argument. The company's high-profile attorney, David Boies, who prosecuted the Microsoft Corp. antitrust case, and his firm now say they will counter IBM's argument by going after the GPL itself. Their plan, as described by SCO, is to cite the doctrine of pre-emption, which holds that in some instances federal law supercedes state law. In this case, it would mean that federal copyright laws would pre-empt any GPL license agreement that is based on state law.
Success for SCO could damage the open-source movement, which depends on the GPL. It could also raise serious legal questions for OEMs with Linux-based products. "If SCO is correct, it means that their alleged infringers could not rely on the GPL as a defense," said Brian Ferguson, an intellectual-property (IP) attorney with McDermott, Will & Emery in Washington.
SCO said last week that its attack on the GPL reflects a widespread view, not only among makers of proprietary software, but among companies that could be viewed as potential users of open-source software.
"Privately, in meetings we've had with them, some very large companies in the IT industry have told us that they have a lot of problems with the GPL," said the SCO Group spokesman.
Still, legal experts last week said SCO's new legal tack may not stand up. "It's true that pre-emption is a valid defense," Ferguson said. "Whether or not that will carry any weight in court is somewhat suspect."
Boyle of Duke University argues that while federal copyright law prevents IP owners from protecting their property too much users can make a single copy of a software program, for example it makes no provisions regarding owners who want to protect their property less. "How can copyright law pre-empt a copyright holder who says, 'I don't want to limit people's ability to reproduce?' " Boyle asked. "The GPL people are the people who own the code. They can do with it whatever they want."
Boyle said, however, that he knows of SCO's position only through newspaper and Internet accounts, and acknowledged that there might be more to SCO's position.
"From the outside, it appears so bizarre and so ridiculous that I fear their argument is being misstated," he said.
In any case, most experts now say the stakes of the battle between SCO and IBM could define the future of Linux, and are larger than a company-to-company scrap. For that reason, they say that SCO's new legal approach needs to be taken seriously. "There is such a thing as the doctrine of pre-emption," Ferguson said. "We just don't know if it's applicable to the current facts."