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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
--
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.
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.
Go to their website
and see for yourself. Doesn't look like SCO even talked to them about
this yet...at least that's what SUSE is claiming:
SuSE responds to
latest SCO actions
The UnitedLinux code base -- jointly
designed and developed by SuSE Linux, Turbolinux, Conectiva and SCO --
will continue to be supported unconditionally by SuSE Linux. We will
honor all UnitedLinux commitments to customers and partners, regardless
of any actions that SCO may take or even allegations they may make.
SCO's actions are again indeed
curious. We have asked SCO for clarification of their public
statements, SCO has declined. We are not aware, nor has SCO made any
attempt to make us aware, of any specific unauthorized code in any SuSE
Linux product. As a matter of policy, we have diligent processes for
ensuring that appropriate licensing arrangements (open source or
otherwise) are in place for all code used in our products.
"Music is everybody's possession. It's only publishers who think that people own it." - John Lennon.
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.
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
If SCO is right, and if SCO manages to prevail in court, then expect to see 'Red Hat FreeBSD' fairly quickly.
-- Ed Avis ed@membled.com
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
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)
Ah, but during the discovery phase of a case, you are REQUIRED to tell the opposing side what evidence you have, what witnesses you will be calling, what you consider to be relevant case law and your take on it.
You don't "surprise" either side with evidence in a real court of law. Judges won't let you present evidence in court you haven't already shared with the opposition during discovery, unless it really is "brand new" evidence discovered after the trial has started. And if that actually happens, you'll often have a recess declared so the opposition has a chance to analyze the evidence.
So they lose nothing by presenting the relevant IP.
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.
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.
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.
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).
Rule 26(a) of civil court procedings states parties must disclose their evidense before the case goes in front of the bench IIRC. That is how people get court orders to look at internal and otherwise classified corporate documents.
I'm a loner Dottie, a Rebel.
Discovery occurs in civil cases as well as criminal. A quick trip to google will convince you of this.
See here for a nice description by the ABA of discovery procedures. That website, in fact, has a good description of how trials work in general.
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.
I seriously doubt that. Had SCO released their code due to some sort of internal mixup, it would be their fault. But the chronology, according to SCO, is that IBM released SCO source code, in violation of the terms on which IBM was given the code, which led to that proprietary code being integrated into Linux as a whole. Only later did SCO release the code, and SCO was not the one to release it as GPL.
Since SCO didn't label it as GPL, SCO's code was never licensed as GPL by the owner, hence, it was never legally GPL'ed. Whether or not SCO released their code, unintentionally, while leaving it as GPL is really irrelevent, since it was, according to SCO, never actually GPL'ed to begin with, and their actions merely resulted from IBM's violation of their IP.
No one could ever, succesfully, argue in court that SCO "inadvertently" licensed their code as GPL. You cannot do such a thing inadvertently; if SCO did not know that their code was contained in Linux, the responsibility lies with IBM's alleged violation of SCO's IP, not with SCO itself. This is a very neat, cute scenario, but I can't imagine it would have any weight in court.
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...
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 ----
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.
According to CNET tonight:
Microsoft is acquiring the rights to Unix technology from SCO Group, a move that could dramatically impact the battle between Windows and Linux in the market for computer operating systems.
According to a statement from Microsoft, the company will license SCO's Unix patents and the source code. That code is at the heart of a high-stakes, billion-dollar lawsuit between SCO and IBM that could alter the computing landscape.