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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.
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.
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)
Why is there a court case in the first place?
If SCO were really concerned about losing IP, they could have discreetly contacted the parties in question, demonstrated their case, and maybe worked out some kind of licensing agreement.
Instead the first thing they do (before even contacting the companies in question) is to file a lawsuit. This is like taking my neighbor to court because his dog did his business on my front lawn. If I ask my neighbor politely to fix the problem, he probably will. If he doesn't, THEN I might take more serious action, but not before.
The first step in any dispute is to try to reach some kind of resolution outside of a courtroom setting. That SCO did not take this step indicates to me that they are up to no good.
No, you don't surprise the other side in a Perry Mason-like way in open court, but you also don't present your evidence until you are legally required to. You speak of discovery in this case as though it's already happened or is happening now. Do you actually KNOW where the case stands legally? Do you have a clue what depositions might have been taken or what evidence has been exchanged? Just because a case has been filed, that doesn't mean that all information is automatically given to the other side right then. Whether they end up being right or not, the SCO lawyers would be idiots to let their clients give their evidence right now (unless it was already given to the other side because of some legally required disclosure).
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.
I don't understand... if someone did this then why doesn't (or shouldn't?) SCO sue IBM or the coder that did this? Sending letters to users of Linux is like Honda stealing trade secrets from Ford on how to build a certain engine, me buying a Honda, and then getting a letter from Ford letting me know that I may be in violation of something.
It just seems bogus to me. The users of Linux didn't commit a crime. They used what they had every reason to believe was free, GPL software. If that isn't the case then the guilty party is the person that put the offending code in Linux, not all the users (commercial or not) that later used Linux.
At least that's the way it would be in a sane justice system...
That would put all commercial users and vendors (assuming they weren't aware of the propritary code) in the clear as well I believe.
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.
Just for clarification - to my knowledge, SCO has not sent any C&D letters to any Linux vendors. The letters we're talking about are hypothetical follow-ups to the open letter thats posted on thier website, which does include any details, simply claiming that Linux contains SCO IP, with no details, no authentication, and no collaborating evidence. There's not even enough information for the vendor to do a check themself. Based on SCOs behavior up to this point, however, it wouldn't suprise me a great deal to learn that they would in fact send C&Ds that nebulous.
Another clarification - I have no especial love for Linux - I'm actually a Windows user, myself - but I have a great hatred of manipulation of the legal system, which this clearly is. It's a grevious example of corporate misbehavior, and, like many people, I find SCOs behavior puzzling enough that I can't rationally explain it without resorting to conspiracy theories. Chief among these behaviors is that EVERY informed analysis of the case that I've come across, except SCOs, is extremely dismissive - for a great many reasons. And all the analysises(?) I've read are equally puzzled - SCO is doing a great deal of posturing and attempting to make a great deal of press, and not providing even the most reasonable amounts of information. It's childish, it's disrespectful, and it stinks of ulterior motives.