[GUFSC] FSF comenta aafirmação da SCO sobre a GPL ser inválida

Segunda Agosto 18 21:09:03 GMT+3 2003

Fonte: http://www.fsf.org/philosophy/sco/sco-preemption.html

SCO Scuttles Sense, Claiming GPL Invalidity
Eben Moglen

Monday 18 August 2003

Now that the tide has turned, and SCO is facing the dissolution of its 
legal position, claiming to "enforce its intellectual property rights" 
while actually massively infringing the rights of others, the company 
and its lawyers have jettisoned even the appearance of legal 
responsibility. Last week's Wall Street Journal carried statements by 
Mark Heise, outside counsel for SCO, challenging the "legality" of the 
Free Software Foundation's GNU General Public License (GPL). The GPL 
both protects against the baseless claims made by SCO for license fees 
to be paid by users of free software, and also prohibits SCO from its 
ongoing distribution of the Linux kernel, a distribution which infringes 
the copyrights of thousands of contributors to the kernel throughout the 
world. As IBM's recently-filed counterclaim for copyright infringement 
and violation of the GPL shows, the GPL is the bulwark of the 
community's legal defense against SCO's misbehavior. So naturally, one 
would expect SCO to bring forward the best possible arguments against 
the GPL and its application to the current situation. But there aren't 
any best arguments; there aren't even any good arguments, and what SCO's 
lawyer actually said was arrant, unprofessional nonsense.

According to the Journal, Mr Heise announced that SCO would challenge 
the GPL's "legality" on the ground that the GPL permits licensees to 
make unlimited copies of programs it covers, while copyright law only 
allows a single copy to be made. The GPL, the Journal quoted Mr Heise as 
saying, "is preempted by federal copyright law."

This argument is frivolous, by which I mean that it would be a violation 
of professional obligation for Mr Heise or any other lawyer to submit it 
to a court. If it were true, no copyright license could permit the 
licensee to make multiple copies of the licensed program. That would 
make not just the GPL "illegal." Mr Heise's supposed theory would also 
invalidate the BSD, Apache, AFL, OSL, MIT/X11, and all other free 
software licenses. It would invalidate the Microsoft Shared Source 
license. It would also eliminate Microsoft's method for the distribution 
of the Windows operating system, which is pre-loaded by hard drive 
manufacturers onto disk drives they deliver by the hundreds of thousands 
to PC manufacturers. The licenses under which the disk drive and PC 
manufacturers make multiple copies of Microsoft's OS would also, 
according to Mr Heise, violate the law. Redmond will be surprised.

Of course, Mr Heise's statement is nothing but moonshine, based on an 
intentional misreading of the Copyright Act that would fail on any law 
school copyright examination. Mr Heise is referring to section 117 of 
the US Copyright Act, which is entitled "Limitation on exclusive rights: 
computer programs," and which provides that:

     (a) Notwithstanding the provisions of section 106, it is not an 
infringement for the owner of a copy of a computer program to make or 
authorize the making of another copy or adaptation of that computer 
program provided:

     (1) that such a new copy or adaptation is created as an essential 
step in the utilization of the computer program in conjunction with a 
machine and that it is used in no other manner, or

     (2) that such new copy or adaptation is for archival purposes only 
and that all archival copies are destroyed in the event that continued 
possession of the computer program should cease to be rightful.

As the language makes absolutely clear, section 117 says that although 
the Act generally prohibits making any copy of a copyrighted work 
without license, in the case of computer programs one can both make and 
even alter the work for certain purposes without any license at all. The 
claim that this provision sets a limit on what copyright owners may 
permit through licensing their exclusive right is utterly bogus. It has 
no support in statutory language, legislative history, case law, or the 
constitutional policy that lies behind the copyright system. Were this 
argument actually presented to a court it would certainly fail.

The release of this astounding statement is actually good news for 
developers and users of free software. It shows that SCO has no defense 
whatever against the GPL; already it has resorted to nonsense to give 
investors the impression that it can evade the inevitable day of 
reckoning. Far from marking the beginning of a significant threat to the 
vitality of the GPL, the day SCO scuttled sense altogether confirmed the 
strength of the GPL, and its importance in protecting freedom.

Eben Moglen is professor of law at Columbia University Law School. He 
serves without fee as General Counsel of the Free Software Foundation.