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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
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.
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.
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.
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
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.
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).
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.