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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"?"
--
Need to calculate something?
Either way, the spectre of "intellectual property" has been brought up to Corporate America. Boards and CEO's who get gunshy when the litigation is aimed at them are going to be skeptical about liability and open source software.
The point has been brought to the board rooms, and I don't know see what it can do other than hurt the cause.
Why doesn't SCO tell us what part of the source are in violation? Simply because these parts don't exist.
SCO is either paid for spraying FUD (by MS) or will be payed for stopping spraying FUD (by IBM, simply because the damage this FUD is inflicting is higher than the sum SCO will want to shut up) - or both.
So please don't consider SCO seriously, they don't have a case.
Just look at what MS was claiming. They won't let third parties develop GPL code using MS tools because they claim that will make the MS tools GPL.
Unless MS is somehow claiming that all code developed with MS tools automaticaly belongs to MS, their claim is absurd.
-- Don't Tase me, bro!
Statements made by SCO CEO Darl McBride and senior vice president Chris
Sontag indicate that SCO has been illegally selling and distributing software
that is in violation of the GPL. SCO first became aware of the problem late
in 2002, but has done nothing to protect customers or inform them about which
parts SCO distributed illegally. The company claims this information would
damaged their lawsuit against IBM.
SCO did not stop selling the infringing software until May 14 2003, and is
still distributing it from ftp.caldera.com.
Customers who purchased or downloaded SCO software demand the following
things:
1) A complete refund of the purchase price for any software SCO distributed
illegally.
2) Any infringing source code or intellectual property must be revealed so it
can be replaced. Any source code or intellectual property that infringes and
is owned by SCO must be released under the GPL or relevant license.
3) If SCO wins or settles its lawsuit with IBM, a portion of the money must
be returned to SCO customers who were put in legal jeopardy because SCO did
nothing protect them.
Many claim that the lawsuit against SCO is simply a bid to be purchased. If
the company is purchased, the buyer may be liable instead.
Of course the GPL is viral. There should be no question of this, but the question one should ask is "Is that a bad thing?". This was Stallman's goal. He wanted to screw up the software business model, which he succeeded in doing, but with the vary positive side effect of cuilding a cooperative culture of open software development with a fully functional service based business model behind it.
.NET Studio EULA. It speaks for itself.
Clearly the GPL has benefitted many people and businesses. The fact that Microsoft isn't collectively smart enough to figure out a business model that will allow them to benefit from it isn't anyone's problem than theirs, and certainly doesn't make the GPL a bad thing.
The GPL established a structure where developers can leverage the vast amounts of work released by others for the relitively cheap buy-in of licensing the nw derivative code using the same license. This is not an unreasonable obligation by any streach of the imagination. As for it being viral, if you don't agree to the terms of the license, you are free to avoid building your work on top of code licensed in this way. In the case of SCO, of they were so neglegent as to fail to observer the license constraints they were adopting, through contributing to GPL-licensed software, this is their own fault. This does not in any way reflect poorly on the license. It is written in plain language, and the text of the license represents possibly the most widely distributed and available legal contract in history.
The nature of the GPL supports a specific development and business model which is inconsistant with certain other models. If Microsoft, SCO and others wish to benefit from software developed under this model, they must accept the simple and streight-forward license terms.
For an entertaining afternoon, print out and compare the GPL to the Microsoft
--CTH
--Got Lists? | Top 95 Star Wars Line
But then the focus switches to Linux, how it could have inside "stolen" code, and how everyone could be violating their IP... and there the things are more darker for SCO. Either the offending code could be replaced, or they validated the code addition releasing that code with the GPL license, or they are plain wrong. In any case, I hope the bribe they got to do all of this is enough to live the rest of their lives because no one will buy something from them ever again
Sure you do. If you don't tell the other party then it will not be admitted as evidence. Second as pointed out multiple times, You have a DUTY to mitigate damages. By not publishing the alledgedly offending portion, coupled with the fact the code is out in the open, prevents them from collecting damages from anybody but possible IBM.
Help fight continental drift.
A "non-disclosure agreement" is a contract and the terms of the contract determine what can and cannot be disclosed by one (or both) of the parties. I haven't seen the terms of the SCO non-disclosure agreement but whether or not it requires you to pay them regardless of your ability to reduce your liability by removing or re-writing the code would depend upon how the agreement is written. It seems to me, and IAMAL, that SCO's claims to be "damaged" is reduced if SCO refuses to let anyone know what the damage is, let alone fix it.
Let's take an injury claim. If you help me paint my house and fall off the ladder and get hurt, then I am probably responsible. However, if you won't let me know what injuries you incurred then I cannot repair the damage. If you then take me to court and demand punitive damages to teach me a lesson for not fixing you, I can claim that you never gave me the chance to help.
If you make me sign a non-disclosure agreement that stipulates that I must pay you regardless of whether I could easily remedy the damage, then that seems pretty unfair too. In the case of our painting injury, you could show me that your arm was broken but then claim (with supporting "expert" testimony, that only a heart replacement would truly fix you up and by signing the non-disclosure I would be obligated to pay for that. Nevermind that an emergency room doc could set the arm and cast it and you'd be fine in six weeks.
Any company that would sign such a non-disclosure agreement (if it were couched in the terms you describe) would deserve what it gets.
It seems to me that just the act of refusing to allow anyone to see the infringing material casts SCO in the light of trying to maximize damage to their intellectual property rights. In other words, rather than allowing it to be fixed, they want to take it to court and assign a monetary amount to the "damage" and add punitive consequences.
No one ever had to evacuate a city because the solar panels broke!
If I'm not mistaken both parties will be required to disclose their evidence *before* court during the discovery process. To me SCO's statements about revealing their evidence only "in a court setting" sound as clueless as they are belligerent. Perhaps SCO's backers dream at night of David Boies confronting Samuel Palmisano with a stack of greenbar paper in some Salt Lake City courtroom, badgering him with: "How do you explain these diff files?!?!?!?" If so they should cut down on the TV.
It is NOT the purpose of a trial to "discover the truth and deal with it." It is the purpose of a trial to determine whether a specific set of charges brought by the plaintiff against the defendent are true (and, if they're true, what relief the plaintiff should get for the damage he has suffered). A civil trial is not a "truth commission." It only deals with a fairly narrow set of facts. When one party to the suit knows that it has the facts on its side, it KNOWS that the other side is going to try to present those facts in a totally different light or lie in order to interpret the facts in a different way. That means that neither party wants to give away its strategy or interpretation of the facts until legally required. It would be like the general of an invading army faxing his battle plan to the army he was attacking. It would be stupid.
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 a third company's proprietary code without telling you?
> The GPL seems like a nasty can of worms...
Closed-source is a nasty can of worms. You have only the vendor's word as to what is in it. If they are incompetent or crooked you can get smacked from behind at any moment.
Warning: this article may contain humor, sarcasm, parody, and perhaps even irony. Read at your own risk.
Yes, you have to disclose evidence to the other side, but, no, you don't have to disclose it on a timetable that suits people on Slashdot. As for mitigating damages, they are fulfilling that requirement by sending notices to people telling them that some of the code in Linux is their property and that they don't have a license to use it. A plaintiff is NOT required to litigate a case in public from the moment he files it.
For example, IBM markets linux. Of course they did not write all of the code. Now suppose a devious linux developer were to insert say, all of some propriatey IBM application into the kernel code. If IBM does not check the code line by line they wont know it when they go to release the next edition of their variant of Linux that includes this new kernel. Thus IBM would have been duped in to releasing their own proprietary code. No reasonable person would think they were bound by the GPL.
Some drink at the fountain of knowledge. Others just gargle.
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.
My recollection is that their original claim was that they did contact IBM first, and after looking at the claims IBM told them to go fuck themselves.
However, it's hard to tell what the SCO management is thinking, because they've changed their story so many times that it's really looking more and more like a shakedown - but at the same time, it'd be even worse for Linux if their bullshit turns out to be true. They started out by going after IBM, and making those stupid bicycle/car comparisons; next they threatened other Linux vendors, claiming that parts of SCO's IP were in other pieces of the OS besides the kernel; then they claimed that the Linux kernel itself has SCO's source code, and now they even claim that this was the case before IBM started doing Linux development. I don't think this has helped their case much.
SCO's original complaint was actually sort of vague; now that they've moved on to claiming that specific bits of code have been lifted by non-IBM developers, they just sound incompetent for letting this go on for so long while they continued to distribute Linux. In the worst case, if the claims hold up, they're a bunch of incompetent morons. Either way, they've now backed themselves up against a wall - this leaves them wide open to a countersuit if they can't back up their words.
A blanket statement like that has no legal value, as it does not allow for the alledged offender to take any specific actions.
If they want anyone to stop using Linux they need an injunction, and in asking for that they need to be specific.
The judge will not grant this as they clearly have shown that the potential damage in granting this is much higher than not doing. There is no irreparable damages since they were years late in doing this.
Second if the judge grants it, they will most likely be asked to post a bond, much higher than they can afford.
Thirdly: If they are not already dead-meat, They surely will be when the suits for damages starts rolling in.
Help fight continental drift.
Correct me if I'm wrong but I was under the understanding they had entered a motion to have the case sealed..
While its true they will have to release evidence in court to the other party as part of due process, ( though I originally thought that only applied to criminal cases, not civil, but ill take everyone's word for it that I'm wrong ) they don't have to release to US.. and if its sealed, they CANT...
and I still say that would hurt their case.. ( even if they are nuts )
---- Booth was a patriot ----
I figured out that Microsoft won't buy SCO for the UNIX license. At first, it seems that it might be good idea, especially if all of the UNIX flavors would have to pay license fees to Microsoft. It looks like SCO is EITHER trying to get bought OR trying to assert their IP rights. Is it possible they are doing both?
Is it possible that 1)SCO is right about IP rights concerning Linux AND 2)SCO will continue to collect on UNIX licenses AND 3)If they sell out, that whoever buys them will benefit from UNIX and Linux IP rights?
Microsoft Windows was sort of designed from the ground up; it does not have as rich of a history as UNIX - Microsoft feels strongly (or at least they claim) that their OS's are superior to UNIX.
The AT&T v Berkeley case stands as a precedent; and no one is going to feel sorry (poor baby) about Microsoft when similar challenges occur. Given those facts, it seems very likely to me that Microsoft will not buy SCO. If Microsoft buys SCO, it might end up making things harder for itself in the long run. Besides, if SCO does have a case, Linux should be able to break free by changing the code (if that's the case).
I have a feeling that IBM will prevail. Maybe IBM should consider buying the UNIX rights from SCO, but not the company? That would be interesting.
Maybe, but what kind of lame-ass company counsel would advise his client to pay off on a copyright infringement claim where: 1) the claimed infringed matter is unknown; 2) no known certificate of copyright registration has been issued with respect to the claimed infinrged matter; 3) no copyright is claimed in the claimed infringed matter in any pending litigation, and; 4) the claimed infringed matter was, at least on its face, distributed under the GPL? Any company who pays on such a claim deserves to go belly up and any lawyer who advises same should be shot twice (obligatory bullet plus one).