[This article was contributed by Joe 'Zonker' Brockmeier]
As expected, SCO trotted out a new licensing program today that would
give Linux users a license from SCO to what SCO claims is their
intellectual property in the Linux kernel from 2.4 on. SCO also
announced that they had received copyrights for the Unix System V source
I sat in on the teleconference that SCO held to announce the new
licensing program. McBride did most of the talking during the call, with
David Boies adding just a few comments and clarifications, and answering
a few questions that were directly addressed to him. I tried to get in
the queue to ask a few questions about the impact of the GPL on their
plans to offer a license relating to the Linux kernel, but I was not
called on. Don Marti, of Linux
Journal did get a question in about whether SCO would offer any
additional evidence to substantiate their claims, but it was mostly
ducked by McBride, though he did affirm that they were not talking about
code coming from BSD.
During the call, McBride claimed that "hundreds" of files related to
SMP, NUMA and read-copy update (RCU) were infringing on SCO IP either
directly or indirectly. According to McBride, if the Linux community
were to remove the offending code there would be "little non-infringing
code" left in the areas that SCO is claiming rights to. Essentially, SCO
seems to be basically claiming ownership of most of the advancements in
scalability whether they are directly taken from SCO's codebase or not.
Also, McBride noted that some of the code that they claim infringes on
their IP was not contributed by IBM, though he did not specify which
vendor(s) he believed to be responsible.
Other than announcing the new plan and the copyright registration, very
little information was forthcoming. Essentially, they intend to offer a
license of some kind that would idemnify companies from possible suits
for copyright violations. Pricing was not disclosed, though McBride
hinted that it would be equitable or similar to UnixWare 7.1.3
licensing. It will also likely be a per-server, per-CPU situation.
Though SCO did not disclose all of the license terms today, it doesn't
seem possible that the company would be able to abide by the terms of
the GPL while charging for licenses to run their IP in conjunction with
Linux. Even if SCO actually legitimately holds claim over code that's
being used in the kernel, the voluntary act of licensing that code
should require SCO to allow distribution of the same code under the GPL.
According to Section 2b of the GNU GPL:
You must cause any work that you distribute or publish, that in whole or
in part contains or is derived from the Program or any part thereof, to
be licensed as a whole at no charge to all third parties under the terms
of this License.
And, if that weren't enough, Section 4 enjoins anyone from sublicensing
programs under the GPL:
You may not copy, modify, sublicense, or distribute the Program except
as expressly provided under this License. Any attempt otherwise to copy,
modify, sublicense or distribute the Program is void, and will
automatically terminate your rights under this License. However, parties
who have received copies, or rights, from you under this License will
not have their licenses terminated so long as such parties remain in
Even "hundreds of files" would still be considered a derivative of the
Linux kernel -- the majority of which is still uncontestedly free and
clear of SCO's IP. If you take the folks from SCO at their word, and
assume that they really do own claim to these "hundreds of files,"
they're ultimately useless without the remainder of the Linux kernel --
which is still under the GPL.
And it's far from clear that SCO has legitimate claim over any code
being used in the Linux kernel. Unfortunately, but not surprisingly, SCO
did not directly address the issue of how they could license code that's
already been distributed as part of the Linux kernel as a separate
component that would not fall under the terms of the GNU General Public
McBride also made a point of emphasizing that the SCO license would be
for "binary format." Which is puzzling, since SCO does not seem to be
offering to distribute any kind of new code or new kernel -- simply a
license that would give SCO's blessing to using code already available
in the Linux kernel. McBride made the point several times that SCO would
not be offering source code licenses.
While SCO's antics have most of the Linux community seeing red,
someone out there is responding well. SCO's share price has jumped more
than a dollar today, and looks likely to close above $13 for the first
time in a year.
On the IBM front, Boies was asked whether there were any new
developments in SCO's case against IBM. Boies said that he had "nothing
to add" and that "as a litigator, I assume cases are going to court
resolution." Boies also noted that a lack of resolution in the IBM case
will not stop SCO from going forward with other plans based on claiming
IP infringement in Linux.
In a nutshell, SCO is formalizing a plan to try to charge companies for
the privilege of using Linux or sue them for not doing so. Whether
companies will be willing to do so remains to be seen. If they do so, it
will basically be on SCO's say-so that they own the rights that they are
trying to sell.
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