COMMENTARY-- Now that SCO faces the dissolution of its legal position, claiming to "enforce 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 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 defence against SCO's misbehaviour. 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, Heise announced that SCO would challenge the GPL's "legality" on grounds 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, Heise said, "is pre-empted by federal copyright law."

This argument is frivolous, by which I mean that it would be a violation of professional obligation for Heise or any other lawyer to submit it to a court. If this argument were valid, no copyright license could permit a licensee to make multiple copies of a licensed program. That would make not just the GPL "illegal": Heise's supposed theory would also invalidate the BSD, Apache, AFL, OSL, MIT/X11, and all other free software licenses.

It would invalidate Microsoft's Shared Source licenses. It would also eliminate the company's method for distributing its Windows operating systems, which are preloaded by hard drive manufacturers onto disk drives that 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 Heise's argument, violate the law. Redmond will be surprised.

Of course, Heise's statement is nothing but moonshine that's based on an intentional misreading of the U.S. Copyright Act that would fail on any law school copyright examination. Heise is referring to section 117 of the Act, which is entitled "Limitation on exclusive rights: Computer programs," and provides, notwithstanding the provisions of section 106, that it is not an infringement for the owner of a copy of a computer program to make or authorise the making of another copy or adaptation of that computer program provided that one of the following situations is in place:

• Such a new copy or adaptation is created as an essential step in the utilisation of the computer program in conjunction with a machine, and that it is used in no other manner.
• Such a new copy or adaptation is for archival purposes only. All archival copies are destroyed in the event that continued possession of the computer program should cease to be rightful.

The claim that this provision sets a limit on what copyright owners may permit through licensing their exclusive rights is utterly bogus. It has no support in statutory language, legislative history, case law or the constitutional policy that lies behind the copyright system. If this argument were 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 defence whatsoever against the GPL; it has already 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 a professor at Columbia Law School. He is also General Counsel of the Free Software Foundation. You can read more of his writing at his Columbia University Web site.

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