[linux-elitists] Does SCO's distribution of Linux release alleged infringing code under the GPL?

Karsten M. Self kmself@ix.netcom.com
Tue Jun 17 00:05:56 PDT 2003

on Mon, Jun 16, 2003 at 10:00:33PM -0700, Larry M. Augustin (lma@lmaugustin.com) wrote:
> SCO sold a Linux distribution.  Presumably they offered source code for the
> Linux kernel as required by the GPL.  Would not any code owned by SCO in
> that distribution be legally available under the GPL as a result?
> It's SCO's code.  SCO is releasing it under the GPL.  It doesn't really
> matter how SCO's code got in that release, does it?

Given that we're no stranger to language wars, I'd suggest using
"Caldera/SCO" to refer to the plaintiff against IBM.  This is the
successor organization to Caldera International.  The original Santa
Cruz Operation was not bought by Caldera, only a business line.  The
original SCO continues to exist today as Tarantella (still in Santa
Cruz, FWIW).  Caldera has only within the past month officially adopted
the name "The SCO Group".  It helps to realize that this is a
carpetbagging scam, not some company with a long legacy of having
developed the works in question here.

That out of the way...

That's one of several arguments of Caldera/SCO's weaknesses in this

Caldera/SCO has lately taken to addressing this by pointing out that the
GPL is not a compulsory license -- the GPL can't compell a work to be
licensed under its terms, it can only take effect on an affirmative
action on the part of the copyrightholder.

However, one of the very curious developments is the exterme vigour
with which Caldera/SCO are currently performing an software audit...having to
all appearances failed to do so at the time.  Given the company --
again, this is Caldera International, co-developer of the RPM packaging
system, GNU/Linux vendor since 1994, with nine years' experience with
the GNU GPL and related free software licenses -- has been distirbuting,
nay, *selling* GNU/Linux, including the contested 2.4 kernel for three
years, at what point does this "oops" become something Darl "Major
General" McBride can't call "do over" on?

That's the case Eben Moglen makes:


    [T]here remains the simple fact that SCO has for years distributed
    copies of the Linux kernel as part of GNU/Linux free software
    systems. Those systems were distributed by SCO in full compliance
    with GPL, and therefore included complete source code. So SCO itself
    has continuously published, as part of its regular business, the
    material which it claims includes its trade secrets. There is simply
    no legal basis on which SCO can claim trade secret liability in
    others for material it widely and commercially published itself
    under a license that specifically permitted unrestricted copying and

This an other references can be found at the SCOvsIBM TWiki page I set
up at Mikael's suggestion.



Karsten M. Self <kmself@ix.netcom.com>        http://kmself.home.netcom.com/
 What Part of "Gestalt" don't you understand?
   At the sound of the toner, boycott Lexmark:  trade restraint via DMCA.
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