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SCO vs. IBM lawsuit: SCO has a problem

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Now this is an interesting little problem for SCO. They are claiming that IBM copied SCO Unix code, unchanged, into Linux.
"We're finding...cases where there is line-by-line code in the Linux kernel that is matching up to our UnixWare code," McBride said in an interview.
Meanwhile, SCO themselves continue to knowingly distribute the infringing code under the GPL. The GPL states that:
b) You must cause any work that you distribute or publish, that 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.
Therefore, SCO is now knowingly granting me, you, and IBM full GPL rights to any IBM-introduced infringing code that they (SCO) own.

Now, I am not a lawyer, but I suspect that this has little or no bearing on SCO's suit against IBM because that suit is over misappropriation of trade secrets. The problem I'm pointing out above is based on copyright law, a completely different animal. As unlikely as it may seem, it may well be that SCO could prevail against IBM in the trade secret misappropriation case and at the same time lose control of the very code in question via copyright law. Now, with SCO knowingly publishing that same code, they surely can't continue to claim rights to it under trade secret law. However, they do still hold the copyright, assuming, of course, that they can prove their allegations against IBM.

Meanwhile, even though they would still hold the copyright on the infringing code, they would have released it under the GPL, and can't relicense it without running into yet another problem:
4. 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 full compliance.
The upshot of this GPL paragraph is that by relicensing their own code under non-GPL terms, once having knowingly released said code under the GPL, they have forfeited their own rights to distribute Linux. Or, at least that's how I interpret it. Further, the same paragraph states that the rest of us still hold full GPL rights to the code SCO originally licensed to us via the GPL.

The bottom line to us would appear to be that, even if there is IBM-introduced, SCO-owned, infringing code in Linux, it is now officially released under the GPL by the copyright holder, SCO. And, of course, no sanitizing of the Linux kernel is necessary. This spat should have no effect on Linus, Red Hat, SuSE, or any other Linux developer or distributor.
mail this link | score:4877 | -Ray, May 3, 2003 (Updated: April 18, 2007)
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