SCO Still Distributing Linux From Its Web Site

By Pamela Jones
Groklaw

August 21, 2003

You know? I'm getting weary teaching SCO how the GPL works. They just don't pay attention. My grandmother quit teaching and became a librarian years ago for that exact reason. It's not fun teaching if the class isn't trying. But here goes, one more time. Class?

Two readers have informed me that you can download OpenLinux from SCO's site, that it includes the complete kernel source code, it's licensed under the GPL, and it's the 2.4 kernel. What's up, SCO?

Oh, and they have a "legal notice" that you can only download it if you are a customer. Here is the first message:

"For the record, SCO is still distributing the Linux kernel. URL:
ftp://ftp.sco.com/pub/updates/OpenLinux/3.1.1/Server/current/SRPMS/linux-2.4.13-21S.src.rpm

I . . . verified that it contains a tar ball (linux-2.4.13.tar.bz2), identical to the one available from ftp.kernel.org. Instructions for those wanting to verify this themselves: http://www.iki.fi/kaip/misc/linux-sco.txt

"ftp.sco.com also contains a legal notice ftp://ftp.sco.com/pub/OpenLinux3.1.1/Legal_Notice saying that the files are available for download for existing SCO/Caldera customers only."

The legal notice [ http://ftp//ftp.sco.com/pub/updates/Legal_Notice ] reads like this:

NOTICE: SCO has suspended new sales and distribution of SCO Linux until the intellectual property issues surrounding Linux are resolved. SCO will, however, continue to support existing SCO Linux and Caldera OpenLinux customers consistent with existing contractual obligations. SCO offers at no extra charge to its existing Linux customers a SCO UNIX IP license for their use of prior SCO or Caldera distributions of Linux in binary format. The license also covers binary use of support updates distributed to them by SCO. This SCO license balances SCO's need to enforce its intellectual property rights against the practical needs of existing customers in the marketplace.
The Linux rpms available on SCO's ftp site are offered for download to existing customers of SCO Linux, Caldera OpenLinux or SCO UnixWare with LKP, in order to honor SCO's support obligations to such customers.

I'd say the legality of this "legal notice" has yet to be determined, but I have no doubt in my mind that the distribution itself is a copyright violation, if they are not distributing under the GPL, and a GPL violation if they are. In fact, I'd say it's thumbing its nose at the GPL. I'm not suggesting you download it unless you are a prior customer, just making a public record that they are allowing their customers, at a minimum, to do so.

If the GPL is invalid, what license are they using for this download? If you answer none, then SCO must be releasing it under copyright, in which case we need to ask them: Did you ask before taking someone else's work?

Call the IP police! Those Napster pirates have shown up in Utah!

There is no contract in the world that will justify violating someone else's legal rights, and because the authors with the copyright rights get to decide how they release their work, and they already chose the GPL or nothing, anyone offering their work without their permission is a pirate, using SCO's own terminology. And in this case, it fits.

Think it's not copyright infringement if you keep it inside the company or just your own customers? Here [ http://www.mdd.uscourts.gov/Opinions152/Opinions/Lowrys_op0703.pdf ] is a decision on just such a situation, Lowry's Reports, Inc. v. Legg Mason, Inc. It's a pdf. It's an interesting case, because Lowry's brought a RICO claim as well, as their web site [ http://www.lowrysreports.com/complaint/ ] explains:

Legg Mason is also charged in the suit with violation of the Racketeer Influenced and Corrupt Organizations Act ("RICO"), 18 U.S.C. § 1961-68 for their alleged use of U.S. mails and wire transmissions in its scheme to defraud Lowry's and Legg Mason's own clients who were led to believe that they were entitled to obtain copies of Lowry's reports, thus exposing those customers to copyright liability. Under the Racketeer Influenced and Corrupt Organizations Act ("RICO"), Legg Mason is liable for actual and treble damages.

My second message informs me that the kernel size is identical to the kernel.org 2.4.23 kernel and a collection of patches for that kernel. Here is the rest of the information:

Name: linux
Relocations: (not relocateable)
Version: 2.4.13
Vendor: Caldera International, Inc.
Release: 21S
Build Date: Sat 03 May 2003 15:17:07 BST
Install date: (not installed)
Build Host: build311.ps.asia.caldera.com
Group: System/Kernel
Source RPM: (none)
Size: 27986389
License: GPL
Packager: Ashish Kalra
URL: http://www.kernel.org/
Summary: Linux kernel sources and compiled kernel image.
Description: Linux kernel sources and compiled kernel images. B-
Distribution: OpenLinux3.1.1

Excusez-moi, but if the GPL is preempted by copyright, how can SCO allow multiple copies to be made? And did you notice the build date? Naughty SCO. You're going to have to stay after class and write a hundred times on the blackboard, "I will not violate the GPL or infringe anyone's copyright ever again."

09:38 PM EDT

radiocomment

brenda banks [ http://www.groklaw.net/users.php?mode=profile&uid=11 ]

August 21, 2003

are they masking numbers now?
that would be fraud wouldnt it?
cant a kernel submitter now get a supoena cause of copyright law now?
sorry for all the questions.i never know which way to turn with this case.it is
a constant google adventure
hehe
br3n

07:55 PM EDT http://www.groklaw.net/article.php?story=241#c1939