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Re: SCO laying an ambush for the GPL?

From: John Winters
Subject: Re: SCO laying an ambush for the GPL?
Date: Mon, 19 Jul 2004 12:11:18 +0100 (BST)

In article <>,
Nick Kew <> wrote:
>Ref: SCO Reply Memorandum Re Discovery - published at Groklaw
>The issue now seems to be "IBM has improperly contributed its own code to
>Linux in violation of a contract". Since it is not in dispute that IBM has
>contributed code to Linux, that would seem to boil down to an argument over
>whether SCO has rights over any or all of that code on the grounds of being
>a derivative work.

I would read this as saying that it boils down to the exact opposite.
It's perfectly feasible for two parties to enter into a contract where
one undertakes not to do something.  It's possible (albeit very unlikely)
that a contract exists between IBM and SCO whereby IBM has undertaken not
to release its own code under the GPL.  If such were the case then IBM
could be in breach of contract.

IBM releasing code over which SCO has rights would be a breach of
copyright, not a breach of contract (although it might be a breach
of contract as well).  However the clause now says "contributed its own
code in violation of a contract" so it appears that SCO are now claiming
just the case I describe in my previous paragraph - not that they have
any rights over the code, nor that it is a derivative work, just that
IBM are in breach of a contract.  All they need to do to prove their case
is to produce the contract and point at the clause.  If they can't then
they lose.

Wallingford, Oxfordshire, England
i = (free(NULL), i++);

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