Background

When the SCO Group launched its lawsuit against IBM, SCO's own FTP sites still contained large numbers of Linux kernel sources and binaries, packages for use with Linux, installation disk images, and other related files. This is only natural, because SCO was primarily a Linux company. As the lawsuit has progressed, SCO announced that it had suspended its Linux activities, and that all Linux-related files would henceforth be available only to existing SCO customers. The implementation of this idea, however, has been partial at best. Many of the directories on ftp.sco.com have gradually disappeared, and many of them have been marked with a "legal notice" file indicating the new policy: ftp://ftp.sco.com/pub/updates/Legal_Notice.

This notice just states that SCO has "suspended new sales and distribution of SCO Linux," mentions the binary license for existing customers, and points to the password-protected site. As far as I can tell, there has never been anything even hinting at restrictions on who may use the public FTP site.

As files of interest have disappeared, I have posted information about them to Groklaw. I have generally avoided posting information about Linux kernel files that were still available on the FTP site.

Binary-only distribution

On July 9, 2004, I downloaded a Caldera Open Linux installation floppy image from ftp://ftp.sco.com/pub/updates/OpenLinux/3.1.1/Server/current/floppy/install.144. One of the files on this floppy image is vmlinuz, a compressed Linux kernel. It identifies itself as "2.4.13 (bishop@ol311s.drift.platypus.bc.ca) #19S >SMP Mon Oct 14 04:23:20 PDT 2002" - a Linux-2.4.13 binary kernel. I could find no corresponding source code for this kernel version anywhere on SCO's public FTP sites.

Requesting sources

Naturally, I decided to request the source code and find out whether or not SCO would live up to its obligation to provide it. On August 16, and again on September 20, I sent simple inquiries to info@sco.com on this subject. In each case an automated reply with general information about SCO came immediately, and I didn't really expect anything more. On October 19, however, a knowledgeable, polite, and live employee from SCO support wrote to me requesting more information. Out of consideration for this SCO employee, I will not print his name here, nor have I included his messages in full.

Here is my response, October 23:

Dear Mr. [---],

Thanks for your response. The specific sources I'm looking for are for the Linux kernel, version 2.4.13. I downloaded this from your FTP site on July 9, 2004, as part of a Linux installation floppy image. The URL was

ftp://ftp.sco.com/pub/updates/OpenLinux/3.1.1/Server/current/floppy/install.144

One of the files in this disk image is vmlinuz, a compressed Linux kernel. It identifies itself as "2.4.13 (bishop@ol311s.drift.platypus.bc.ca) #19S SMP Mon Oct 14 04:23:20 PDT 2002".

It would be most convenient to have the sources electronically, but delivery by mail would also be acceptable.

Thanks,
[---]
reuben@[---]

The next message from SCO support came on October 25, and suggested that I could find the source files by following the instructions at http://www.sco.com/support/linux_info.html.

My reply, October 25:

Dear Mr. [---],

I followed your instructions, but was unable to get a username and password, as I have no license card. Nonetheless, SCO has distributed a Linux kernel to me in binary-only form, and is obligated to provide the corresponding sources. If you would like to fulfill this request by giving me access to your repository at http://linuxupdate.sco.com/openlinux, that's fine (assuming that the appropriate sources can be found there). In that case, please assign me a valid username and password, since I cannot obtain one through your registration form.

Thank you,
[---]
reuben@[---]

After a little wait, on November 9, I received the final message from SCO support so far. It mentioned the presence of the "Legal Notice" from the FTP site, but with one sentence that doesn't match any version I can find on the FTP site:

"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."

The final response about complying with the GPL was an explicit refusal: "Because the file you downloaded was clearly marked as begin for existing SCO customers, we do not believe we have an obligation to provide you with the source for the image that you downloaded."

Analysis of SCO's refusal

My assumption is that the SCO employee with whom I corresponded received instructions on how to deny my request, and probably understands the problems with his company's actions. Therefore I decided not to pester him any more.

Here are the problems with SCO's response, as far as I can tell.

1. The most relevant part of the "Legal Notice" doesn't seem to have been present in the version on the FTP site.
2. The "Legal Notice" even as cited to me by SCO support appears only to state SCO's reasons for placing files on its FTP sites, and I can find nothing in it to limit anyone's use of these public sites.
3. The kernel image in question is in not a Linux RPM, and doesn't contain any RPM files.


And the important ones: the GPL permits distribution under sections 3(a), 3(b), and 3(c), any one of which may be satisfied.


4. GPL section 3(a) is not satisfied, because no source code accompanied the binaries on the public FTP site. The possible presence of source code on a different, password-protected, site is insufficient, because this is neither equivalent access, nor is it in the same place:

   "If distribution of executable or object code is made by offering access to copy from a designated place, then offering equivalent access to copy the source code from the same place counts as distribution of the source code, even though third parties are not compelled to copy the source along with the object code."

5. GPL section 3(b) is not satisfied, because it requires source code to be given upon request to "any third party." SCO support's contention that it can limit access to existing customers is expressly forbidden in distribution under section 3(b).
6. GPL section 3(c) is not satisfied, because SCO's distribution is patently commercial.

Therefore, SCO's distribution of this Linux kernel in binary form does not appear to be permitted under any part of the GPL. This remains true even if I was somehow not entitled to download the install.144 image from SCO's public FTP site. I can only conclude that SCO has deliberately chosen not to honor the GPL with respect to Linux.