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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.
That may well be the point of view of the law.
But if so, I think it does rather validate the 'viral license' accusation, although not quite in the way MS seemed to be intending it to be taken.
Here's the scenario: your company, a medium-sized software business, has a few commercial projects underway. One of your employees naughitly includes some of the code from the commercial project into some GPL'd project, which later makes its way into RedHat. Let's say over a few years she steals quite some bucketful of code. You don't notice, of course, because checking all your code against all of RedHat's source would be kinda onerous and not something that would occur to most people.
Then your company starts distributing RedHat. Then you discover that you've been distributing your own code, inadvertantly, under the GPL, so there's nothing that you can do except fire and sue your employee.
'Tough Cheese', you may respond. But if this is right, then it's going to make many companies quite wary about having anything to do with the GPL.
Which I think would be bad.
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 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...
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.