The mystery of the missing argument

2 October 2003

Both IBM, in its counterclaims against SCO, and Red Hat, in its suit for declaratory judgement against SCO, assert that SCO knows that its statements about Linux’s IP infringements are nonsense, and they’re just trying to pump their stock by libeling their competition. (See IBM counterclaims, ¶ 65; Red Hat complaint, ¶¶ 67–69.) It’s interesting that neither IBM nor Red Hat make an argument that Moglen made in his OSDL position paper:

Even if Linux does infringe on an SCO copyright, the only people who are liable for that infringement are people who distribute copies of Linux. Merely using a program whose code violates someone else’s copyright is not illegal. Therefore, SCO’s offer to sell UNIX licenses to Linux end-users, and its threats to sue Linux users who don’t buy the licenses (Red Hat complaint, ¶¶ 42, 45, 59–61), cannot be justified as an attempt to cash in on SCO’s legitimate IP rights; it’s a shakedown operation, plain and simple.

Do IBM’s lawyers know something that Moglen doesn’t? Or are lawyers in the computer industry so accustomed to draconian licensing agreements that they didn’t notice this point?

• Later: One sentence that speaks volumes about this Administration
• Earlier: A thought for Yom Kippur