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Legal Eagle Fires at SCO

The Open Source Development Lab is wading into SCO's Group's legal campaign over whether Linux contains copyrighted code, arguing in a new white paper that the company's legal case is "headed for a wall."

In a position paper released Tuesday, the OSDL said Linux users are likely to ignore SCO Group's copyright-themed lawsuit over select parts of the Linux kernel until the many issues surrounding the case are decided in court.

"SCO has promulgated public positions about the nature of its supposed rights that conflicted with facts known to the free software community," wrote Eben Moglen, a law professor at Columbia University and legal advisor to the Free Software Foundation, and who wrote the OSDL position paper.

The CEO of OSDL, Stuart Cohen, also said he expects to see Linux deployments continuing around the world with "prudent customers" choosing to ignore SCO's legal threats until courts rule, "particularly given SCO's admitted uncertainty about its own rights."

Cohen's and the OSDL's position paper comes just days after SCO Group asked a federal court to add copyright infringement claims to its contract dispute with IBM over whether select Linux kernels contain code pilfered from its own Unix operating system. A judge is expected to rule Friday.

In a recent court filing from the case, IBM's lawyers said they received a letter from SCO on Jan. 30 in which "SCO abandons any claim that IBM misappropriated its trade secrets, concedes that SCO has no evidence that IBM improperly disclosed Unix System V code, and acknowledges that SCO's contract case is grounded solely on the proposition that IBM improperly disclosed portions of IBM's own AIX or Dynix products, which SCO claims to be derivatives of Unix System V."

In a related twist, Novell has challenged SCO's ownership of Unix System V copyrights, as well as potential intellectual property rights claims over Linux at the heart of its dispute with IBM.

SCO fired back at Novell in a separate lawsuit in January, claiming "slander of title" and alleging a "bad faith effort to interfere with SCO's rights with respect to Unix and UnixWare." SCO Group asserts that it does hold the Unix copyright in question.

In addition, SCO Group has sent letters to Linux users, requesting license fees and asserting that a lawsuit could be forthcoming if they don't comply with the request.

Against that backdrop, amid a climate of potential legal liability swirling around end-users of Linux, OSDL is claiming that, by suing Novell, SCO's claim to exclusive ownership of the Unix copyright is in doubt.

In addition, Moglen argued 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."

"As a result," he claimed, "Linux customers would have little incentive to purchase a license from SCO Group and instead will wait for a final decision on who owns the copyrights as between SCO Group and Novell."

Addressing the IBM case, which revolves around claims that IBM's code includes Linux "header," or identification files taken from copyrighted SCO code, Moglen told internetnews.com: "I know what's in the files. If there was going to be a claim against those files, it couldn't be a claim of actual copying."

"The credibility of Linus Torvalds [who is credited with creating Linux and has been subpoenaed in the case] is not going to be successfully challenged [to say] that he copied them," Moglen continued. "No one's going to show Torvalds copied the header files."

Overall, he pointed out that the SCO/IBM dispute is still in the "discovery" process, where documents are produced and assessed prior to the actual trial. "We're in a very early stage right now," he said. "This is a game of long ball."

SCO officials have previously told internetnews.com that they will not try "the case in the court of public opinion -- we're trying it in a courtroom." SCO has also maintained that it has evidence it hasn't yet shown in public.