Linux Lawsuit Could Undercut Other 'Freeware'
Wall Street Journal
Aug 14, 2003
Authors:                  William M. Bulkeley

Full Text:

TO MANY observers, tiny SCO Group Inc.'s $3 billion copyright- infringement
lawsuit against International Business Machines Corp., and SCO's related
demands for stiff license fees from hundreds of users of the free Linux
software, seem like little more than a financial shakedown.

But the early legal maneuverings in the suit suggest the impact could be
far broader. For the first time, the suit promises to test the legal underpinnings
that have allowed free software such as Linux to become a potent challenge
to programs made by Microsoft Corp. and others. Depending on the outcome,
the suit could strengthen or drastically weaken the free-software juggernaut.

The reason: In filing its legal response to the suit last week, IBM relied
on an obscure software license that undergirds most of the free-software
industry. Called the General Public License, or GPL, it requires that the
software it covers, and derivative works as well, may be copied by anyone,
free of charge. IBM's argument is that SCO, in effect, "signed" this license
by distributing Linux for years, and therefore can't now turn around and
demand fees. It's somewhat like Coca-Cola Co. selling its secret recipe
on the Internet, then suing people who brewed their own cola based on it.

Now, SCO is preparing to wheel out the software-industry equivalent of
a nuclear bomb: It will argue that the GPL itself is invalid, says SCO's
lead attorney, Mark Heise of Boies Schiller & Flexner LLP. Mr. Heise says
the GPL, by allowing unlimited copying and modification, conflicts with
federal copyright law, which allows software buyers to make only a single
backup copy. The GPL "is pre-empted by copyright law," he says.

If SCO's argument ultimately wins, free-software advocates worry it would
create considerable uncertainty about the legal status of many industry
products. Although most believe the industry could adapt, companies that
use GPL-licensed software might be confronted by surprise copyright claims
from software developers. In addition, creation of new programs might be
slowed by the confusion.

Eric Raymond, a free-software developer in Malvern, Pa., says he is concerned
about the possibility that a judge could invalidate the GPL. Although he
thinks that's unlikely, Mr. Raymond says free-software advocates have created
an alternative license that they believe would survive court challenge.
Mr. Raymond says the potential new license has won a powerful backer: Linus
Torvalds, the Finnish developer of Linux, who has agreed to use the alternative
license for Linux if necessary.

SCO's attack on the GPL is a "very interesting argument from a legal angle,"
says Andrew Ferguson of McDermott, Will & Emery in Washington, an 
intellectual-property
attorney who has no connection to the free- software movement. "If a court
says that's not an enforceable clause, it's going to cause some concern,"
among free-software developers.

Although SCO, of Lindon, Utah, is a little-known player, industry observers
give its suit credibility in part because of its law firm, which is headed
by David Boies, a heavyweight who became famous representing Al Gore in
the Florida ballot battle and the government in the Microsoft antitrust
case. Boies, Schiller is taking the case, in part, on a contingency basis.
The suit is being heard in U.S. District Court in Salt Lake City.

The GPL was first promulgated by Richard Stallman, a researcher at Massachusetts
Institute of Technology who started the free-software movement in the 1980s.
Mr. Stallman regards free software as a form of free speech, "free as in
freedom -- not free as in beer," he writes. In fact, companies can charge
money for free software, but they can't stop it from being copied. To make
sure that free software stays free and spreads, in 1991 he wrote the GPL,
which he sometimes refers to as "copyleft," because it encourages copying,
as opposed to "copyright," which discourages it.

The GPL has been vital to the rapid spread of free software because it
ensures programmers that if they contribute software that others augment,
the original authors will benefit by having access to the improved software.
Indeed, the GPL "is the constitution of the free- software movement," says
John Gilmore, a libertarian and free-software programmer.

Undergirded by the GPL, the free-software movement has spawned thousands
of programs, many being used by government bodies and large corporations
in vital tasks. The best known is Linux, an operating system that competes
with Microsoft's flagship Windows. Most computer companies, including IBM,
Hewlett-Packard Co. and Dell Inc., encourage customers to use GPL-licensed
programs such as Linux, in part to counter Microsoft's move into software
for the corporate server- computer market.

Indeed, Linux is beginning to take hold in the computer rooms of many large
companies. In addition, many companies such as Texas Instruments Inc.,
Yahoo Inc. and Sony Corp. are using a GPL-licensed database program, MySQL,
instead of a commercial database to store their customer accounts and other
records.

For its part, Microsoft regards the GPL as a threat to the entire commercial
software industry. Microsoft Group Vice President Jim Allchin, who runs
the vast Windows group, has said: "The GPL, in my view, is bad in all its
dimensions." Brad Smith, Microsoft's general counsel, says he won't allow
programmers to even study competing software that is covered by the GPL
for fear they might copy some of it into Microsoft's lucrative programs,
inadvertently transforming them into free software. Yesterday, a spokesman
said Microsoft thinks "the industry would benefit" from a court ruling
on the GPL.

Some free-software backers are delighted to see IBM taking on the case,
because they believe it will validate the GPL. "It's very helpful," says
Eben Moglen, a Columbia University law professor who serves as the pro
bono counsel of the Free Software Foundation, a cash-strapped, Boston-based
nonprofit.

Since 1991, Mr. Moglen has enforced the GPL by bluster and wit, calling
and writing companies that use free software without sharing it. But he's
never defended it in court. Now, IBM and its white-shoe law firm, Cravath,
Swaine & Moore LLP of New York, have shown they are willing to try a case
based in part on the GPL.

Still, the case may not turn on the GPL-validity argument. Both IBM and
SCO have other legal claims. James Boyle, an intellectual-property professor
at Duke University's law school, says, "I have a hard time seeing any court
saying this license isn't enforceable," in part because it covers so much
important software. "Courts pay attention to that pragmatically, and it's
legally relevant because the consequences [of overturning it] would weigh
heavily."

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