SCO has yet to offer evidence in support of its charge that software code was improperly copied to Linux, contends report author Eben Moglen, lawyer for the Free Software Foundation and an authority on software copyright law.

Flawed Argument

Last August, SCO offered two examples that it claimed were literal copies of Unix software code into Linux, Moglen says, but neither sample provided ample proof. The first code sample, implementing the Berkeley Packet Filter (BPF) firewall, is the original work of a Linux developer -- not the property of SCO, the report states.

The second example, comprising several lines of code from Linux identical to code from SCO's Unix Sys V, represents copying of code that already was in the public domain, having appeared in early versions of Unix, and which SCO had released under a free software license, Moglen maintains.

SCO never claimed ownership of the BPF code, company spokesperson Blake Stowell told NewsFactor, but argues that it was a component of Sys V that was illegally copied. He emphasized that the second example is Sys V code that was copied into Linux line by line by a Unix licensee that he declined to identify.

Claims, Counterclaims

SCO claims the GPL software license offers legal protections while also arguing that the GPL is not valid, the report notes. "SCO's legal situation contains an inherent contradiction," says Moglen, noting that SCO has to demonstrate that the GPL is a valid form of permission, and that it has never violated that permission's terms.

SCO kicked off the dispute by filing a billion-dollar lawsuit against IBM this spring, alleging IBM misappropriated source code from SCO's Unix OS and used it to boost Linux's capability.

IBM's counterclaim, filed in Utah federal court, alleges that SCO has violated the GPL, under which it accepted distributed Linux, by restricting use of the open-source software and asserting property rights to it.

"IBM's counterclaim painted SCO into a corner on the subject of the GPL," Moglen observes. "Not only the facts, but also the law are now fundamentally against SCO's increasingly desperate position."

Courtroom Battles Loom

But there has been no evidence showing that SCO violated the GPL, Stowell argues. "This shows how contradictory the GPL really is," he said. "One section requires copyright holders to post a notice indicating that their software can be contributed under the license."

SCO Group is preparing a number of lawsuits against large enterprise-Linux users for copyright infringement, in addition to the action pending against IBM. Stowell confirmed that the targets are corporate users that have not paid the Linux license fees that SCO has demanded.

The company also said it will broaden its copyright-protection efforts to include "copyrighted code included in the 1994 settlement between Unix Systems Laboratories and Berkeley Software Design (BSD)." SCO has said it does not expect to file any BSD-related lawsuits until the first half of 2004.

Any action against Novell, which has acquired SuSE Linux, will depend on what Novell does with SuSE technology after the transaction is completed, Stowell said.

"The courts will have to sort out where the code in question came from, which could be difficult," said Aberdeen Group analyst Bill Claybrook. A definition of "derived works" also may be required to determine copyright claims, he told NewsFactor.