[GUFSC] FSF Statement on SCO v. IBM

Sábado Junho 28 15:12:02 GMT+3 2003

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

FSF Statement on SCO v. IBM
Eben Moglen

June 25, 2003

The lawsuit brought by the Santa Cruz Operation (SCO) against IBM has 
generated many requests for comment by FSF. The Foundation has refrained 
from making official comments on the litigation because only the 
plaintiff's allegations have been reported; comment on unverified 
allegations would ordinarily be premature. More disturbing than the 
lawsuit itself, however, have been public statements by representatives 
of SCO, which have irresponsibly suggested doubts about the legitimacy 
of free software overall. These statements require response.

SCO's lawsuit asserts that IBM has breached contractual obligations 
between the two companies, and also that IBM has incorporated trade 
secret information concerning the design of the UNIX operating system 
into what SCO calls generally ``Linux.'' This latter claim has recently 
been expanded in extra-judicial statements by SCO employees and officers 
to include suggestions that ``Linux'' includes material copied from UNIX 
in violation of SCO's copyrights. An allegation to this effect was 
contained in letters apparently sent by SCO to 1500 of the world's 
largest companies warning against use of free software on grounds of 
possible infringement liability.

It is crucial to clarify certain confusions that SCO's spokesmen have 
shown no disposition to dispel. In the first place, SCO has used 
``Linux'' to mean ``all free software,'' or ``all free software 
constituting a UNIX-like operating system.'' This confusion, which the 
Free Software Foundation warned against in the past, is here shown to 
have the misleading consequences the Foundation has often predicted. 
``Linux'' is the name of the kernel most often used in free software 
systems. But the operating system as a whole contains many other 
components, some of them products of the Foundation's GNU Project, 
others written elsewhere and published under free software licenses; the 
totality is GNU, the free operating system on which we have been working 
since 1984. Approximately half GNU's components are copyrighted works of 
the Free Software Foundation, including the C-compiler GCC, the GDB 
debugger, the C library Glibc, the bash shell, among other essential 
parts. The combination of GNU and the Linux kernel produces the 
GNU/Linux system, which is widely used on a variety of hardware and 
which taken as a whole duplicates the functions once only performed by 
the UNIX operating system.

SCO's confusing use of names makes the basis of its claims unclear: has 
SCO alleged that trade secrets of UNIX's originator, AT&T--of which SCO 
is by intermediate transactions the successor in interest--have been 
incorporated by IBM in the kernel, Linux, or in parts of GNU? If the 
former, there is no justification for the broad statements urging the 
Fortune 1500 to be cautious about using free software, or GNU programs 
generally. If, on the other hand, SCO claims that GNU contains any UNIX 
trade secret or copyrighted material, the claim is almost surely false. 
Contributors to the GNU Project promise to follow the Free Software 
Foundation's rules for the project, which specify--among other 
things--that contributors must not enter into non-disclosure agreements 
for technical information relevant to their work on GNU programs, and 
that they must not consult or make any use of source code from non-free 
programs, including specifically UNIX. The Foundation has no basis to 
believe that GNU contains any material about which SCO or anyone else 
could assert valid trade secret or copyright claims. Contributors could 
have made misrepresentations of fact in their copyright assignment 
statements, but failing willful misrepresentation by a contributor, 
which has never happened so far as the Foundation is aware, there is no 
significant likelihood that our supervision of the freedom of our free 
software has failed. The Foundation notes that despite the alarmist 
statements SCO's employees have made, the Foundation has not been sued, 
nor has SCO, despite our requests, identified any work whose copyright 
the Foundation holds-including all of IBM's modifications to the kernel 
for use with IBM's S/390 mainframe computers, assigned to the Foundation 
by IBM--that SCO asserts infringes its rights in any way.

Moreover, there are straightforward legal reasons why SCO's assertions 
concerning claims against the kernel or other free software are likely 
to fail. As to its trade secret claims, which are the only claims 
actually made in the lawsuit against IBM, there remains the simple fact 
that SCO has for years distributed copies of the kernel, Linux, 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 distribution.

The same fact stands as an irrevocable barrier to SCO's claim that 
``Linux'' violates SCO's copyright on UNIX source code. Copyright, as 
the United States Supreme Court has repeatedly emphasized, covers 
expressions, not ideas. Copyright on source code covers not how a 
program works, but only the specific language in which the functionality 
is expressed. A program written from scratch to express the function of 
an existing program in a new way does not infringe the original 
program's copyright. GNU and Linux duplicate some aspects of UNIX 
functionality, but are independent bodies, not copies of existing 
expressions. But even if SCO could show that some portions of its UNIX 
source code were copied into the kernel, the claim of copyright 
infringement would fail, because SCO has itself distributed the kernel 
under GPL. By doing so, SCO licensed everyone everywhere to copy, 
modify, and redistribute that code. SCO cannot now turn around and argue 
that it sold people code under GPL, guaranteeing their right to copy, 
modify and redistribute anything included, but that it somehow did not 
license the copying and redistribution of any copyrighted material of 
their own which that code contained.

In the face of these facts, SCO's public statements are at best 
misleading and irresponsible. SCO has profited handily from the work of 
free software contributors throughout the world. Its current public 
statement constitute a gross abuse of the principles of the free 
software community, by a participant who has employed all our work for 
its own economic benefit. The Free Software Foundation calls upon SCO to 
retract its ill-advised and irresponsible statements, and to proceed 
immediately to separate its commercial disagreements with IBM from its 
obligations and responsibilities to the free software community.