Even if SCO can prove that its intellectual property was added to the
Linux kernel, its case is moot, according to Columbia Law School
Professor Eben Moglen, pro bono publico general counsel for the Free
Software Foundation. The Free Software Foundation maintains the GNU
General Public License, under which Linux is distributed.

"There is absolute difficulty with this line of argument which ought
to make everybody in the world aware that the letters that SCO has put
out can be safely put in the wastebasket," Moglen told
internetnews.com, noting that SCO distributed its own version of Linux
with a kernel that allegedly contains Unix-derived code.

"From the moment that SCO distributed that code under the GNU General
Public License, they would have given everybody in the world the right
to copy, modify and distribute that code freely," he said. "From the
moment SCO distributed the Linux kernel under GPL, they licensed the
use. Always. That's what our license says."

Moglen noted that SCO cannot readily make the claim that it
inadvertently released the code, because the GPL requires that when
code is released under its auspices, the developers must release the
binary, the source code and the license, and the source code must be
able to build the binary. Presumably, then, the binary functions the
way the creators want it to function and has the capabilities they
want it to have.

"This isn't an inadvertent distribution case," he said. However, he
noted that the Free Software Foundation works with companies to ensure
that they do not release anything under the GPL that they do not
intend to release. In fact, he said, when SCO first filed its suit
against IBM, he approached SCO's lawyers because it is the Free
Software Foundation and not IBM which holds the copyright to the Linux
distribution IBM created, Linux for S/360. IBM created the Linux
distribution but released it under the GPL and signed the copyright
over to the Free Software Foundation.

Moglen said that when he approached SCO's lawyers he asked them to
show him any problems with the particular Linux distribution and if
there were any he would stop its distribution. "They have never
responded to that invitation," he said.