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"SCO Admits It Mightn't Own Unix Exclusively," Argues Columbia's Professor Moglen

SCO is only suing Novell "to stay afloat," Eben Moglen says.

In his third paper on the long-running SCO-IBM-Novell-Linux saga, provocatively entitled "Now They Own It, Now They Don't: SCO Sues Novell to Stay Afloat," Columbia University law professor Eben Oglen grasps the nettle as always.

In his latest paper, available on the OSDL Web site, Professor Moglen makes the point that SCO "admits, by suing Novell, that its claim to exclusive ownership of the Unix copyright is in doubt."

"Now They Own It, Now They Don't: SCO Sues Novell to Stay Afloat" is available in PDF form here.

His argument is that no judge would hold an end user liable for intentionally infringing SCO Group's rights when SCO Group itself has cast doubt on what it owns and that - as a result - Linux customers have little incentive to purchase a license from SCO Group and instead can and will wait for a final decision on who owns the copyrights as between SCO Group and Novell.

Moglen makes a second point, too. Once the litigation is resolved, he maintains, and regardless of who prevails, customers will still have the right to use the Linux code in question without purchasing a license from either SCO Group or Novell.

Moglen points out that both SCO Group and Novell (who recently purchased SuSE Linux, a distributor of Linux) have distributed the Linux code under the GPL. Since the GPL allows licensees to use, modify, copy and distribute the Linux code freely, the results of the litigation will have no affect on those rights, and customers will have no obligation to purchase another license from either SCO Group or Novell to ensure those rights.

The report ends as follows:

"If SCO’s licensing campaign fails to generate the revenues SCO has been predicting for potential investors—because it turns out that SCO never owned what it claimed to be legally entitled to force others to license— SCO and its principals will have plenty to answer for, and not just to its shareholders, but to the SEC as well. It is not good practice to attempt to force people to buy from you what you may not own. It is even worse practice to mislead investors into thinking that they will benefit from such sales without disclosing that you may not own what you are trying to sell. Now that SCO itself has begun unraveling this aspect of the situation, the end is in sight. The winter of SCO’s discontent is likely to give way to a glorious summer for open source software."

[Editorial note: If the somewhat in-your-face title of the paper were not enough in itself to hint of Professor Moglen's predispositions, then a LinuxWorld reader points out that one needs always to bear in mind that Moglen's stated aim is: "Try to create freedom by destroying illegitimate power sheltered behind intellectual property law."]

 

More Stories By Jeremy Geelan

Jeremy Geelan is Chairman & CEO of the 21st Century Internet Group, Inc. and an Executive Academy Member of the International Academy of Digital Arts & Sciences. Formerly he was President & COO at Cloud Expo, Inc. and Conference Chair of the worldwide Cloud Expo series. He appears regularly at conferences and trade shows, speaking to technology audiences across six continents. You can follow him on twitter: @jg21.

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Most Recent Comments
Daniel Wallace 02/16/04 06:18:55 AM EST

When we examine the SCO v. Novell suit concerning
slander of title, we see the scoundrels in Utah, and
scoundrels they are, involved in more silly litigation...
except the implications of this litigation are far from
frivolous. The furor over SCO's disputed ownership of UNIX
and UnixWare copyrights may return to haunt Novell.

The asset purchase agreement between Novell and SCO
states:

"Schedule 1.1(a) Assets (Page 1 of 4)
1. All rights and ownership of UNIX and UnixWare,
including but not limited to all versions of UNIX and
UnixWare and all copies of UNIX and UnixWare (including
revisions and updates in process),..., including source
code,..."

Novell claims:
"Contrary to SCO's assertions, Amendment No. 2 does not
purport to concern "all copyrights pertaining to the UNIX
and UnixWare technologies." Instead, it concerns only the
unidentified rights that make up copyrights required for
Santa Cruz to exercise its rights with respect to the
acquisition of UNIX and UnixWare technologies. Not only
are those rights not identified, but SCO's "rights with
respect to the acquisition of UNIX and UnixWare
technologies" are identified. In the face of such vague
and ambiguous language, the governing authority is
clear: the purported assignment must be construed in favor
of the copyright holder and against a transfer of any
copyrights."

Huh?

Let's look at Novell's own words:
"... Instead, it concerns only the unidentified rights
that make up copyrights required for Santa Cruz to
exercise its rights with respect to the acquisition of
UNIX and UnixWare technologies."

Some terms:
acquisition --- The act of becoming the
owner of certain property;...
--- Black's Law Dictionary Fifth Edition.

"9.3 Interpretation.
When a reference is made in this Agreement to Schedules or
Exhibits, such reference shall be to a Schedule or Exhibit
to this Agreement unless otherwise indicated. The words
"include", "includes" and "including" when used herein
shall be deemed in each case to be followed by the words
"without limitation."..."

Novell's now words become:
"... Instead, it concerns only the unidentified rights
that make up copyrights required for Santa Cruz to
exercise its rights with respect to becoming the owner
of "All rights and ownership of UNIX and UnixWare,
including but not limited to all versions of UNIX and
UnixWare and all copies of UNIX and UnixWare (including
revisions and updates in process),..., including *without
limitation* source code,...".

We have now identified "which" source code:
... all versions of UNIX and UnixWare and all copies of
UNIX and UnixWare (including revisions and updates in
process)...".

We now know the "restrictions" placed on that source
code which we have identified:
"... including without limitation source code,...".

In case Novell cannot now identify these mysterious
"unidentified rights", I am willing to bet that a federal
judge can.

The asset purchase agreement is a statement of transfer of
ownership to all versions of UNIX and Unixware source code
copyrights.

It is not the "slander of title" action that is most
troublesome. Novell filed for registration with the
United States Copyright Office concerning copyrights on
the UNIX and UnixWare source code after knowingly
accepting ten million dollars from SCO's predecessors for
the purchase of all rights and ownership of UNIX and
UnixWare, including "without limitation" the source
code.

This act was done in an attempt to interfere with and
derail an otherwise frivolous copyright lawsuit. This act
has also ventured into the scope of federal civil and
criminal fraud statutes.

There is *no* SCO legal ownership interest in Linux source
code, so why is Novell handing SCO Novell's own head on a
platter?

Thank God I am a physicist and not a lawyer.

Tyler Jensen 02/15/04 02:12:44 PM EST

BSProtector writes:
>> If you are an attorney and you have a position, write a "position paper" and publish it. I'm sure people at Linux World will be glad to put it up. <<

I am not an attorney. Nearly made that mistake but at the last minute was saved from a life of boredom by the chance to intern for one.
I have nothing against lawyers or the practice of law, but let's try to get past the misguided reverence that so many of us "lay persons" have for the opinions of attorneys. I have many years of experience in software development but that does not make my opinions on the matter worthy of worship, and they are certainly slanted with my own bias and preferences. A healthly dose of skepticism and a solid footing on reason and common sense can take you a long way toward independent thought. Look at the motives behind a so-called "expert" opinion can help you sift through the rhetoric and come to your own conclusions. That is what the "disclosure" in this matter is all about. The editor's response to my original post validates this train of thought. I just wish so many other media outlets were as responsible as the LinuxWorld editors.

BSDProtector 02/11/04 10:15:04 PM EST

Tyler Jensen wrote:
>But I am getting rather tired of the press quoting Mr. Moglen as
>an expert on the subject without really disclosing his extreme bias in
>the matter. Consider his primary research aim: "Try to create freedom by
>destroying illegitimate power sheltered behind intellectual property law."

I have to agree with Mr Wallace here. What's there to disclose - he's the legal force behind FSF - everyone knows that (and it's written in footnote on page one of the paper). And, he's also a professor of law. Doesn't that doesn't make him an authority of some kind in legal matters?

If you are an attorney and you have a position, write a "position paper" and publish it. I'm sure people at Linux World will be glad to put it up.

As for the statement of Mr Moglen on the illegitimate powers of the intellectual property law, that's entirely debatable, of course.

Daniel Wallace 02/11/04 07:45:10 PM EST

"Unfortunately, I think, based on his comment, that Mr.
Wallace did not."

You are correct in saying that I did not grasp your point.

"But I am getting rather tired of the press quoting Mr.
Moglen as an expert on the subject without really
disclosing his extreme bias in the matter."

Does this imply the "liberal" press is somehow favoring
Mr. Moglen by not disclaiming his extreme bias?

I witnessed an article published this week in
LinuxWorld that could not have been considered anything
but extremely hostile to Mr. Moglen's views. That article
had about 12,000 reads. That doesn't imply to me, that at
least at the LinuxWorld press, that favoritism is being
accorded Mr. Moglen's views.

A Google search [ "intellectual property" moglen ] returns
5,110 hits. Mr. Moglen has become a highly visible public
figure. His views and biases against intellectual property
have been cross-linked throughout cyber-space and are
known to be virtually in lock-step with Richard Stallman
and the Free Software Foundation.

I do not think the press need re-iterate Mr. Moglen's
biases in reporting on his position papers and public
pronouncements concerning the FSF and SCO. To do so would
seemingly reinforce his credibility. Remember the saying
"repeat something often enough and it assumes an aura of
truth"?

Mr. Moglen has worked tirelessly as pro bono counsel
for a client and cause in which he believes. I admire
those motives in an attorney even though I may hold
countervailing views.

My "what's there to disclose?" was merely puzzlement
expressing "what hasn't already been publicly aired
concerning Mr. Moglen and his views?".

Tyler Jensen 02/11/04 06:45:22 PM EST

Throw a stone into a murder of crows huddled in the storm and see how they squawk and caterwaul. It is naive to believe that reading the filings on the SCO case on the groklaw site will lead you to the truth. Truth is not the objective of either side in this case. If you want the truth, go to church. If you want justice meted out as best that any flawed human system can hope to accomplish, then take your case to court in America. It is no insult to point out a person's self-stated beliefs and bias, but labeling anyone clueless without at least pointing to some supporting evidence seems to be not only insulting, but, well, clueless.

Tyler Jensen 02/11/04 05:34:25 PM EST

Thank you, LinuxWorld editors. I am glad that my point was taken correctly by you. Unfortunately, I think, based on his comment, that Mr. Wallace did not. Such a knee-jerk reaction is all too common in this debate, resulting more often than not in making the author of the comment appear fanatic, lacking the requisite deliberative intelligence to productively contribute. I'm sure that the FSF appreciates Mr. Moglen's service, but one does not have to leave his own site (http://emoglen.law.columbia.edu/) to form an opinion as to the personal motivation behind such service. And it is that specific information that I wish journalists would point out in their writing when quoting Mr. Moglen. I hope that clears up my meaning for anyone who did not grasp my point earlier.

Stormkrow 02/11/04 05:18:25 PM EST

It's okay to insult Moglen when he actually makes sense but not anyone else in this matter right? I think not; as much as SCO has been ramping things up in the press with all their FUD and not having a copyright to begin with is criminal in my opinion. By the way only 3 companies have paid for IP licenses; thats it 3. Why dont you, Mr Jensen take a peek at groklaw.net to actually learn what the TRUTH is and quit jumping on the band wagon with the rest of the cattle. By the way what about the oft quoted Ms.DiDio of Yankee Group? Now if you can find someone more clueless than her I'd like to see who they are (aside from Boies and McBride). And somehow she still has a high paying job. In my opinion whatever Ms. DiDio or McBride say then the complete opposite is true.
They can pry my Linux from my cold dead flippers.
Stormkrow

Daniel Wallace 02/11/04 04:46:32 PM EST

"But I am getting rather tired of the press quoting Mr. Moglen as an expert on the subject without really disclosing his extreme bias in the matter."

Professor Moglen is pro bono counsel for the Free Software
Foundation. I find it extremely gratifying to observe an
attorney upholding his Professional Code of Conduct by
zealously representing his client. To do less would be unethical. So what is there to disclose?

Fecal Extrusion 02/11/04 01:48:04 PM EST

Who is actually stupid enough to pay SCO a licensing fee for
the use of Linux?
And for whoever IS that stupid - are they likely to get
that money back "WHEN" SCO's case gets thrown out of court?

I think SCO should sue Microsoft instead, for misleading SCO
into believing that they actually stand a chance in court.

I'm sorry, but based on the rules of the GPL, if ANY judge
actually sides with SCO, then I'm afraid there really is
no such thing as Justice in America, and it is just as
USELESS as the US Patent office.

LinuxWorld editors 02/11/04 12:19:11 PM EST

A very fair point. We'll add this to the story, as it is clearly germane.

Tyler Jensen 02/11/04 12:13:28 PM EST

Mr. Moglen has spent far too much time in the classroom spouting his extremely liberal ideas about the law as judicial absolutes and not nearly enough time in the courtroom practicing the law before a judge required to consider both sides of an issue. Frankly, I think SCO's claims have weaknesses, as any such case would given the long and tangled history of the Unix IP. But I am getting rather tired of the press quoting Mr. Moglen as an expert on the subject without really disclosing his extreme bias in the matter. Consider his primary research aim: "Try to create freedom by destroying illegitimate power sheltered behind intellectual property law." (http://emoglen.law.columbia.edu/research-agenda.html) Read his agenda for yourself and then ask yourself why the press, itself a beneficiary of intellectual property law, does not disclose the bent of this oft quoted expert.

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