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Moglen: With Novell suit, SCO has done itself in

Free Software Foundation general counsel Eben Moglen wrote in a position paper published today that the SCO Group's legal claims against Linux may have been undone by SCO's recent copyright suit against Novell Inc.

Commercial Linux users wavering about purchasing a Unix license from the SCO Group needn't rush a check to Lindon, Utah, just yet. Perhaps not ever, if Free Software Foundation general counsel Eben Moglen is correct.

Moglen published a position paper this morning about the recent SCO copyright lawsuit targeting Novell Inc. In it, he tells commercial Linux users to wait out the litigation between SCO and Novell, and he predicts that SCO's case will ultimately dissolve because SCO has cast doubt upon whether it exclusively owns the rights to Unix.

If SCO can't carry its burden of proof in that action, and convince the jury it has asked for that Novell has no rights in Unix, its whole campaign is over, and SCO's destiny is dissolution.
Eben Moglen
General counselFree Software Foundation

SCO claims it has exclusive ownership of the Unix copyright because Novell transferred its Unix rights to SCO predecessor Caldera Systems. However, Novell claims to have retained an independent right to license the copyright. Via this loophole, Novell was able to reinstate Unix licenses to IBM and Silicon Graphics Inc. after SCO suspended those companies' rights to Unix.

But Moglen argues in his paper that, by suing Novell, the SCO Group has cast doubt on what it owns.

"If SCO can't carry its burden of proof in that action and convince the jury it has asked for that Novell has no rights in Unix, its whole campaign is over, and SCO's destiny is dissolution," Moglen said.

As for enterprises feeling threatened by SCO, the Novell suit should be a comfort, Moglen said.

"SCO itself has put the ownership of the relevant copyrights in doubt by suing over them," Moglen said. "And no judge would hold that it is intentional infringement to refrain from taking a license while the plaintiff itself scrambles to show it owns what it is trying to sell."

In the meantime, those commercial Linux users who have downloaded Linux from the SCO Group or Novell are protected by the GNU General Public License that allows the free modification, copying and distribution of Linux.

Moglen paints a humorous courtroom scenario in his paper:

" 'Judge,' such an enterprise would tell the court in the event of a lawsuit, 'SCO and Novell disagree about who wound up with the power to license these copyrights, even if they are somehow infringed. They're suing one another in the Utah courts over that. But I have here copies of the supposedly infringing work I got from SCO with a license that says I can use, copy, modify and redistribute, as well as copies I got under the same terms from Novell. So, no matter who wins that action, I have a license that lets me freely use, copy, modify and redistribute. Judge, can I go home now?' "

The SCO Group also modified its legal action against IBM this week, adding two copyright claims to its suit and dropping previously made charges that IBM misappropriated SCO trade secrets. Each new copyright claim carries a $1 billion price tag, bringing the total to $5 billion.

Moglen concluded that, if SCO's licensing campaign ultimately fails, not only will shareholders be up in arms, but the Securities and Exchange Commission will be as well.

"It is not good practice to attempt to force people to buy from you what you may not own. It is [an] 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," Moglen said. "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."

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