From: "Rich Gauszka" 


from http://www.infoworld.com/article/03/08/08/HNuntestedgpl_1.html

Untested GPL may be at center of IBM-SCO suit SCO Group and Linux advocates
offer differing interpretations of GPL's role


      By Robert McMillan, IDG News Service August 08, 2003

     The requirements of the software license that governs the Linux
operating system were questioned on Thursday as The SCO Group and Linux
advocates offered differing interpretations of the role that the GNU
General Public License (GPL) would play in a legal dispute between SCO and
IBM.



      In March, SCO launched what has become a $3 billion lawsuit against
IBM, claiming the Armonk, N.Y., company had improperly added code to Linux.
SCO, which owns rights to the original System V Unix software, has since
claimed that IBM may no longer distribute its own version of Unix, called
AIX, and threatened Linux users with lawsuits.

      IBM on Wednesday filed a complaint with the U.S. District Court in
Utah charging SCO with a number of counterclaims, including patent
violations, breach of contract, and breach of the GPL.

      SCO responded to the countersuit on Thursday, calling IBM's complaint
an effort to distract attention from flaws in its own business model and
criticizing the GPL. "It's a fairly nebulous license," said SCO
spokesman Blake Stowell.

      Whatever questions may surround Linux's license, they are compounded
by the fact that SCO this week began offering to sell Linux users new
software licenses that would bring their Linux systems into compliance with
SCO's intellectual property claims. Linux advocates argue that, because it
distributes Linux itself, SCO is retroactively tacking a second conflicting
license onto software it has already distributed.

      "They need to realize that they have licensed the software under the
GPL and released it to the world and they have no rights to ask for
royalties," said Bradley Kuhn, the executive director of the Free
Software Foundation, the organization that created the GPL.

      SCO stopped selling Linux in May. Stowell admitted that his company
was still providing Linux source code and security patches on its Web site
in order to fulfill support contracts with customers, but he disputed
Kuhn's claim. "If our IP [intellectual property] is being found in
Linux and that's being done without our say, then I don't think that the
GPL can force us not to collect license fees from someone who may be using
our intellectual property," he said.

      IBM's complaint echoes Kuhn's criticism. SCO has included GPL code in
its Linux products and "by so doing, SCO accepted the terms of the
GPL," the complaint says. By seeking licensing fees, SCO is in breach
of the license, it says.

      The Free Software Foundation's general counsel, Eben Moglen is
consulting IBM in its counter suit, according to Kuhn.

      IBM's claim of GPL violations is noteworthy because the GPL has never
been tested in court, and the IBM counter suit could ultimately decide
whether it is enforceable under U.S. law.

      Recently, a German legal expert called into question the software
license's enforceability under European law.

      The GPL has not gone to court in the past, Kuhn said, because
companies have always settled with the Free Software Foundation, rather
than risk a court case. "The GPL doesn't need to go to court to be
proven," he said. "The lawyers on the other side don't want to go
to court because they can't win."




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