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What if SCO is Right?
b17bmbr writes "
What if SCO is right. Bruce Perens was quoted with this scenario. "it's entirely possible that SCO was inadvertently distributing its own proprietary Unix code in its version of Linux. In that case, SCO would've already released its Unix source code into open source". But here's the catch: Does this validate Microsoft's view of a
"viral GPL"?"
If SCO were right, they would've given some evidence to the public by now. It's not like doing that would hurt their case.
How small a thought it takes to fill a whole life
But here's the catch: Does this validate Microsoft's view of a "viral GPL"?"
Then they've still done it purposely, given away their code in a GPL product. They had the choice, and didn't have to. It's about as viral as phoning up your closest friend and saying "hey! I saw your mom giving head to my dad in the car" and complaining that the phone you spouted that into is a device for invading your privacy and letting your thoughts out to the world.
If they did release their code as GPL, it was their choice. Read that. CHOICE.
No it doesn't. If you're a software developer with proprietary code that you want to protect, then yes, you have to be careful about what you release under the GPL. But that isn't what Microsoft were saying, they were trying to worry the majority into avoiding GPL software. But the majority, even if they change the code, are not likely to have a reason to redistribute their changed version, so the terms of the GPL are irrelevant.
Does this validate Microsoft's view of a "viral GPL"?"
Not at all. Releasing software, whether under the GPL or the MS EULA is an intentional action. Any sloppiness resulting in disclosing and/or giving away IP is the responsibility of those doing the software release.
The GPL is a tool. Consequences resulting from the use of any given tool are the burden of the weilder, not the tool.
No one _forced_ SCO to release code without checking it, and the fact that they did reflects badly on their professionalism as a software company and even worse on their due diligence that they are meant to exercise in protecting their shareholders. If their code was eaten by the GPL then that was their fault.
What other companies thinking of dabbling with GPL software will think will most probably depend on who wins the FUD war and how it gets written up in 'PHB Weekly' rather than the actual facts. Unfortunatly Microsoft employs lots of people like Stef (yes, the UF one) where as OSS software is championed by people more interested in Quake than golf.
Beep beep.
I'd use the reference to signing a contract to buy a car and in the contract is the clause that if you don't pay back the car, the seller has the right to repossess it, or your other possessions to get their money back. Like you said if you sign that contract (accept the GPL) then you're under its conditions, and if you didn't understand that well ignorance is no part of the law.
Only if the GPL whacks you over the head with a nightstick and then releases itself with your other code while you're out cold.
Remember: when you use GPL'd code in your business, you don't pay for it with cash. There's no direct monetary cost. The only cost is that if you create a derivitave work with it, you're essentially engaging in an IP cross-licensing agreement: you get to use the GPL code, but must make your own contributions available. There are costs and downsides to that, but businesses make that kind of trade all the time, and they'll do it with the GPL. Calling it "viral" is one spin... viewing it as cross-licensing agreement is another, and probably closer to reality IMHO.
Tweet, tweet.
The blurb makes a good point about the gpl maybe being a viral influence on proprietary code distributors, but I think the more important point is corporate incompetence. If SCO mindlessly opensourced their Unix code, then it's their fault, not the fault of the GPL. If you plan to make money on something, particularly if you are planning on vending both closed source Unix and open source Linux, you should damn well make sure you're not using any dependent packages that would out code that you don't want outed. The idea that the gpl is viral extends to the idea that it is overly restrictive, preventing innovation because users of gpl'd code will be afraid to publish for fear that their Intellectual Property will not be protected. However, if you look at closed source licenses, you'll find that they could be viewed as just as limiting, by preventing access to resources that would allow for the creation of new ideas. The GPL is not viral; SCO was (probably) just foolish.
The GPL is a tool. Consequences resulting from the use of any given tool are the burden of the weilder, not the tool.
I've seen in many cases and lawsuits where the "tool" was found responsible and put to blame. Surely in twisted America somehow the GPL can be put to fault and charged with something? Sorry but I'm not too informed on this topic, so can anyone enlighten me?
You DONT give out evidence before court in a IP type case.. thats just stupid.
It gives the other side time to come up with a defense.. regardless if you are right or wrong you need every advantage you can get.
---- Booth was a patriot ----
I would suggest that you get your tinfoil panties unknotted and back up your rather spurious claims that SCO is somehow paying SCO to spread 'fud'.
I think that if this claim has any merit, it's this. SCO clearly didn't consider all sides of the pro and anti GNU License issue carefully before entering the market. Once they were in for a while, and saw the effects that their influence had on their IP, they realised that they'd chosen unwisely.
It's pretty clear that with it's anti-business qualities, the GNU license (and any code under it) has to be handled with care. SCO found that out the hard way, IBM probably will find that out fairly soon as well.
In the end, I think only apple handled this issue properly. Oh, wait, they chose BSD, didn't they?
If they did release Unix code as part of SCO Linux, that would be intentional in the sense that they purposefully put it into Linux, not realizing the consequences. It would be equally stupid if they had released it under BSD, or any other "non-viral" OSS licence. Yhe code they released would either way be free for the public to use and reuse.
The viral argument usually works the other way around - introduce a small amount of GPL code to a non-GPL program, and it will force the rest of the program to be be GPL'd. SCO has not been forced to GPL-licence any additional code as a consequence of GPL contamination. If they chose to insert non-GPL code in a GPL project, would simply be gross negligence and incompetence from their side.
Kjella
Live today, because you never know what tomorrow brings
How does this effect the argument for bazzar versus catherdral style development?
This is what has always worried me about bazzar projects, since there is no controling body, it depends on the honesty of those developing the code not to violate anyones IP rights, or anything else for that matter.
I don't support SCO, and I hope this matter is resolved in such a way as brings about their ruin, and IANAL, but... SCO's argument is that in good faith they redistributed code that they were told was an entirely original creation or otherwise GPLd under agreement with a copyright holder.
If SCO's IP was in there, then those whom originally released the code acted in bad faith. You can't go around tricking companies into releasing their IP by executing bad faith deals and then claiming that it is too bad because they weren't forced to release the code in the first place. I doubt the court will support this mode of argument.
I think what SCO will have to show is that their IP is in the kernel (the hard part) and then show that prior to them releasing the code themselves, somebody else released the code in bad faith claiming it was legitimately licensed under the GPL, that they had no reason to believe the claim false, and acting on the good faith assumption that it did not violate any IP then distributed it themselves.
Education is a better safeguard of liberty than a standing army.
Edward Everett (1794 - 1865)
SCO has this problem..
Pretend for a moment that someone completely independently codes a processof one click ordering-although they can be sued for infringing on Amazon's IP this cannot be confused with copying code..and even then it comes down to is the Patent a valid one..
Waht we know for sure that Kernels and OSes are different enough in the unix ful world that one solution while have some code the saem and solving the smae problem can have vastly different code foot prints on various OSes o fboth Unix and Linux..and thus saying 20 lines matches has no meaning in this scheme of things on the basis of patent infringement it has to be base don the full code footprint and its effects for thsoe 20 lines of code..ie ho wimport are thos e20 lines towards meeting the ful infringment conditions..
To complicate matters if SCO Group by accident distrbuted code under GPL via their Linux distribution they have already violated the first conditions of a trade secrecy by not keeping the methods secret..
Apple had the same problem with Microsfot in the late 1980s and early 1990s in that Microsoft did copy or come up with code independently that was tghe saem as Apple's but it caqme down to how important was that code to the IP rights that Apple was claiming infringment on..and notice Apple lost that battle..
and also notice Apple is still in buinsess for basing the decision to sue or not or settle on business economic conditions. SCO Group should follow tha texample...
Don't Tread on OpenSource
But there won't be anything left to sue, and SCO knows it. If SCO loses, you can expect an immediate chapter 11 declaration. There won't be any meat to pick off the carcass. SCO has quite literally bet the farm on this one.
My rights don't need management.
What happens if you're a software company that buys some closed source static libraries from another company and link them to your proprietary product and sell the result to customers and later discover the library company included someone else's copyrighted code without telling?
The concept of copyright violation seems like a nasty can of worms.
Really, it doesn't matter if it's GPLed code or code under some other licence.
Reality is defined by the maddest person in the room
We all must remember that the purpose -- and, in fact, the raison d'être -- of the GPL is to destroy software companies. Richard Stallman, in The GNU Manifesto, specifically stated that the purpose of the GNU Project, and the GPL, was to "ban" high-paying jobs for programmers and successful software businesses. And it has been quite effective in doing so -- recent history is literally littered with the corpses of failed companies that attempted to deal in GPLed software. The MIT X License and the BSD License do not have within them the business-destroying "poison pill" that's built into the GPL, but the pointy-haired bosses and ideologically minded, young employees of these companies did not recognize this. Hence, Stallman's dream is coming true: software companies are failing and job prospects for programmers are drying up. (Many of the jobs that remain are being exported to countries where programmers are paid a pittance for their work.)
SCO is flailing, trying to save itself by attacking IBM and others. But it may be too late.
Why wouldn't Microsoft be eyeing SCO for a buy-out? If that's what SCO are so desperate for, Microsoft acquiring the rights to UNIX IP through SCO would give it the leverage it's been desperate to have over Linux. I'm not sure what the kinds of timescale to expect on such a move, but you'd think MS' lawyers are looking carefully to see if this case has any merit, to take full advantage if they think it will hurt the Linux business community.
I agree with a previous poster though-- if specific pieces of code are singled out for infringement, which could take years to bring to a legally enforceable position, they'll be replaced with unencumbered code within a fortnight.
Matthew @ Bytemark Hosting
SCO is suing IBM, not ftp.kernel.org or the linux-kernel mailng list.
Somehow I have a hard time picturing IBM's lawyers as "unwashed, smelly, hairy anti-capitalist hackers".
Also remember that the parent company sued Microsoft, and settled for $150 million. Caldera has been down this road before, successfully.
I'd watch it on C-SPAN with a bucket of popcorn.
Hell, yeah! Although I disagree with your scenario, I do think that the GPL may actually get a test in court, when IBM points out that SCO itself distributed the offending code under the GPL. That's worth lots of popcorn.
Is it? A developer who includes proprietary code in a project will be bound by the limitations of originator's license. Any code that further makes use of the new code will also be so bound, as will every further re-use. GPL affects the re-use of code in exactly the same way.
It seems to me there are two real differences. Being open to anyone's examination, GPL code is far more likely to be re-used than code requiring NDAs and an army of lawyers. Additionally, GPL differs in the form of payout. The cost of re-using proprietary code is monetary, the cost of using GPL code is communal. GPL code isn't any more viral than proprietary code, it more accessible.
I don't see how this is true. If I remember the chronolgy correctly, Caldera was a software company, they started a Linux distro (therefore benefiting from the GPL), then they bought SCO and took the name. They were already using the GNU license long before they acquired SCO, and I'm sure they understood the implications well.
If Linux developers took so much SCO code, then why didn't Caldera notice it right away? Their people had to be knee deep in Linux code. I doubt it would take them 2 years to figure out if there was so much SCO Unix code in Linux as they say. This leaves two possibilities:
Either way, I don't think SCO/Caldera deserves anything--except to get reamed.
I don't like the GNU license much, but it doesn't have "anti-business" qualities any more than anything else. Plenty of businesses use GPLed software just fine. Yeah the GPL is viral, but you can say the same thing about obvious patents and ethically bankrupt software companies.
At least the GPL doesn't take away your rights to use something you made, and many people made Linux. SCO's claim in their court papers amount to "all Linux developers are disorganized stupid incompetent back-wood hicks who couldn't code their way out of a paper bag, so they must have stolen our code!" I not only find this insane, I find it insulting.
It gets a bit more interesting, though. By claiming to go after non-IBM users, they're also effectively limiting distribution of GPL code that they've been distributing. This leaves them in violation of the GPL -- so they've now lost all right to distribute the impugned GPL code. This means (for the moment, anyways -- until and unless they describe which Linux code they're accusing of containing their IP) that if they try to distribute any Linux code, they'll be open to Copyright lawsuits themselves.
Time for the FSF lawyers to get their suits ironed.
(this all, of course, presumes that there really is Unix code in Linux -- which is still a question.)
OS Software is like love: The best way to make it grow is to give it away.
The thing that makes SCO so evil in this is that the people who make Linux distirbutions don't want any proprietary code, and they take pains to avoid it. If there is some proprietary code in there by mistake, the just and correct response is simply to remove it, and if it is critical, replace it with "clean" code written from scratch, like 99% of the system already is.
It's not like some proprietary code vendor stole some of SCO's code. The GPL crowd makes a lot of effort to keep their code free. It's like the difference between hitting someone with a car on purpose or by accident. If you accidently do harm, and you have taken extremely careful precautions to avoid harming others, you should not be charged with the same kind of crime and be subject to the same penalties as someone who harms another on purpose.
SCO needs to be punished somehow in this whole affair. I imagine no one is buying their aging properietary flavor of unix anymore, so perhaps the best punishment is to drive them all the way out of business. That means any company which uses SCO legacy code should switch to something else (Linux, BSD) *today*!
That would put all commercial users and vendors (assuming they weren't aware of the propritary code) in the clear as well I believe.
Your last two points are out of order. First they launched the lawsuit, and then they stopped selling Linux. And this was after months of ominous rumblings. They screwed up, and it may cost them the case.
But what they did not do is stop shipping their Linux distribution as soon as they claimed IBM had leaked their code into Linux. If you assume that their lawsuit was filed legitimately, in that they knew there was proprietary code of theirs included in Linux, it then follows that they, under the terms of the GPL, were giving an implicit license to that code by continuing to distribute it. They didn't cease shipping their distribution of the code for nearly two months after they first alleged infringment.
So no, they did not do everything they could to limit their damages. In fact, by not stipulating what the infringing code is (which, as many others have noted, would not prevent them from seeking damages for the past infringment), they are in fact trying to increase their alleged damages by not allowing the infringing developers to fix the problem. SCO is acting in bad faith on every front to try and get a court to give them what they have never been able to achieve on their own merits (either as Caldera or as SCO in its previous incarnations) - dominance in the UNIX for x86 space.
It's funny - I always thought Caldera was a bit of a joke with Ransom Love at its helm. I recall the cheering that went on when he was no longer in charge there. Now, though, I think we'd rather have the clownish Love, who just didn't get it, instead of Darl McBride and crew, who don't get it and are determined to mess it up for everyone else.
Right...
The reason they won't publically disclose the code in question is because they claim the code is a *Trade Secret* . The law requires they perform due diligence to protect their own trade secrets from public disclosure and also do everything posible to mitigate their own damages. If they publically release the code (even for comparision), they will legally destory their own trade secret. That's why they will only disclose it under Non-Disclosure Agreements.
This brings us back to the question, did they already distroy the trade secret by publishing the open source of Linux? Although similar, this is a completely seperate legal issue from whether they already GPLed it.
What might save them on this issue (and its a stretch but possible, and I would argue it if I was their lawyer) is that Linux was distributed by Caldera *before* it bought SCO or had any knowledge of what was in the SCO-Unix code . So Caldera had no more reason to believe that Linux contained Unix code than anybody else did. When Caldera bought SCO, they now had access to Unix code and whammo! -- they suddenly saw the infringement.
The reason they are no longer distributing Linux is because they are trying to demonstrate to the court that they are taking the "due diligence" mentioned above to protect their trade secrets and mitigate their damage. The question is now whether they acted fast enough to stop the discloure and mitigate the damage. The fact that the spent a few months distributing "SCO Linux" after they had knowlege of the infringment might work against them. But to save themselves there, they might argue that they were under dueling obligations between their own interest and fulfilling contracts as Caldera/United Linux and therefore ended it as soon as practicable without breaching the previous contracts.
unfortunatly the collage would have to be around nine miles long and five miles high, constantly having every last bit of it altered by thousands of people, to compare in any way. The allegation that SCO specifically kept its mouth shut for a while in order to make sure they had a large pool of sue-ables is more serious than the more likely claim that they are merely full of shit.
The real problem with your example is that it's too close to the actual situation. If you can see fault in someone stealing your copywrited photograph and adding it to the bottom left corner of a huge collage you're working on the top center of, you probably already understand what is wrong about stealing code and redistributing it as free code.
In both cases, the Linux Kernel itself isnt the problem. SCO couldnt care much less that their code is being used in a product they sell, the problem is its use in products they dont sell. That is the viral nature of the GPL in this situation: the code is free, and now the code can spread like a virus.
Is this whole concept bullshit? Yes.
Is SCO full of shit? Yes.
Should SCO lose all legal rights for refusing to publically state what it is they believe to have been violated? Yes.
But none of that is at issue here. The issue is: Can I take the code which you have licensed to me, sneak it in to code which we both contribute to and both distribute as OSS, and be free from any charges of IP Theft or contract violation only because you dont have people checking every line of code contributed to the main bit of it against code from closed projects you happen to have.
Sure, SCO has people who look at code, SCO may have people who happened to look at the exact infringing lines of code. Does this relinquish their rights? Of bloody fucking course not. Not everyone browsing contributed Linux code for errors is going to be a fucking expert on the SCO Unix source AND have a photographic memory AND be anal-retentive enough to actually bother to check.
If somebody who worked at O'Reilly as a proof-reader came across a line from a non-open book which they didnt proofread [but was published by O'Reilly], there's no reason to expect them to instantly recognize it and decide that this chapter shouldnt go in a free online book. Let's say the chapter is about Death-Rays and was only distributed to IBM and the Coca-Cola corperation under a strict NDA. This open book has nothing to do with IBM and Coca-Cola, but Coca-Cola happens to be one of the contributers (due to their expertise in object-oriented programming, of course). The book is published completely free-of-charge and open on the internet, and it's 27,000 pages long. (broken up into roughly 10 million chapters and a thorough appendix).
Now, does O'Reilly lose their IP rights to their insightful chapter on Death-Rays found in their expensive and closely-gaurded book about Death-Rays? More importantly, can Coca-Cola be held responcible?
Gee, how much code can we use this trick to steal before anybody catches on?
PS: Fuck you.
-- 'The' Lord and Master Bitman On High, Master Of All
Leave it to slashdot to bash SCO and then accept their advertizing money.
Vote for Pedro
In order to recover damages in a civil case, the plaintiff must demonstrate that he took reasonable steps to mitigate his damages. I don't see much mitigation going on here -- seems to me that SCO could have very easily contacted the kernel developers and have had them remove the offending code. The judge in this case will be very interested to know why this was never done.
Let me sum up what you're saying:
Since SCO may not have known what they were distributing, they should not be held accountable for it.
That is bullshit.
If I am ignorant of something (say, curfew law) am I exempt from abiding by that law? No.
If I sign an agreement, even if it's 100 pages and I don't feel like reading it, am I bound by it? Most probably yes.
From what I could see SCO has a stronger case with M$ than SCO Linux .
I wonder why SCO is not suing M$....hmmm
SCO deliberately distributed their code under the GPL.
Really? How do you know that? There is no evidence that they knew exact copies of their copyrighted code were contained in the distribution.
Just a thought, but consider for a moment that SCO doesn't want the infringing code removed from the linux kernel just yet. As it stands, they can sue any company that uses linux for violating their copyright, in addition to IBM for putting the code out in the first place.
If the linux kernel is patched to remove the offending code, then all companies have to do to be in compliance is download a kernel patch. They can then proceed to tell SCO to stuff it.
Suddently, SCO is left with only one defendant - IBM. Maybe, just maybe, they want to make sure that they cash in with a few scared/chicken poop companies BEFORE the linux kernel can be cleared legally?
Or, maybe it's just really late, and I just need some sleep...
If SCO is just trying to hurt linux to try get people going back to their unix, its a waste of time. Worst case, everyone will be using OpenBSD, i'm not sure about the other BSDs, but OpenBSD is EXTREMLY anal with their licencing.
The irony of all that would be in the fact that openbsd is a fork from bsdlite, which i believe came about from when SCO sued 386BSD.