SCO Claims Linux Sales After Suit Irrelevant

molarmass192 writes "Here's the first reaction I've seen from SCO regarding the public's stance that the code they distributed under the GPL negates their claims on code in the Linux kernel. They claim that the lack of copyright notices "placed by the copyright holder" means that the GPL does not protect the unmentioned code in question. "

Comments

SCO PR department working overtime.

[dtolton]

Sheesh, it's amazing how much the SCO PR department has in
common with M$ PR department. They both must read slashdot and
then formulate their responses accordingly.

When this law suit first came out, I dismissed it as rubbish.
Then I started to think about it, and I got a little worried
there was some truth to it. Then I read the OSI
Position Paper. I don't worry about this too much any more. The
OSI position paper makes some very compelling points, which SCO
hasn't addressed yet. In many cases they simply won't be able
to address them.

I'm not suprised that SCO has an opinion that this doesn't hurt
their case. Of course they'd have that opinion publicly, no
matter how pissed they are about it privately. Ultimately the
only opinion(s) that will matter are the judges.

Did you notice that hughes deflected and had no opinion on a
more questions than he answered? I suspect he is right about
the fact that the GPL can't make code free if the original
author didn't make it free, however the fact that they as the
original authors *were* distributing it under the GPL
complicates that claim greatly.

Of course that is all supposing there is any merit to their
claim that Linux contains enterprise code from SCO in the first
place. That is a claim that I and many others are dubious of in
the first place.

Re:SCO PR department working overtime.

[MonopolyNews]

One, there is still reason to be scared, they have Boies.

However, consider this... they still ARE shipping their IP under GPL because they have aggreed to indemnify their own users. That code is under GPL, period, or else they can't distribute without THEM violating the codes license. They need to actually recall their shipments of linux.

Otherwise, if they persist in their claim that it has their proprietary IP then they have violated the GPL by telling their customers they may keep it. Further, their CUSTOMERS can be sued for violating the GPL now that they have been informed that there is proprietary code mixed with GPL code, a mix the GPL doesn't allow in the case of "code fragments".

Re:SCO PR department working overtime.

[PCM2]

I suspect he is right about the fact that the GPL can't make code free if the original author didn't make it free, however the fact that they as the original authors *were* distributing it under the GPL complicates that claim greatly.

From the article, it sounds like what he's suggesting is that whomever originally distributed the code under the GPL was not a legal, designated agent of Caldera Inc. Basically, he seems to be saying that the engineering team included code in a GPL'ed release that they weren't supposed to, and that until any code released has been vetted by Caldera's legal department, the license doesn't apply.

Personally, I think they'll have a real hard time making that argument stick. I mean, what's next? "The guy who uploaded that tarball to our public server was just an intern we hired over the summer. Unless the Executive VP of Intellectual Property personally fired up an FTP client, the license doesn't apply..."

Re:SCO PR department working overtime.

[PCM2]

I was always curious about this. By this rule some engineer at MS with access to windows code could add it to some open source project and all of windows would be GPL?

The difference here is that it was actually Caldera that released the code. They distributed it, they wrote the press release. Once that's done, the fact that they failed to verify what it was that they released seems like their own problem.

The better example would be if an MS engineer with access to Windows code dropped a Trojan horse in there that would wipe out people's hard drives on his birthday. Does MS turn around and tell its customers, "Sorry! We can't help you get rid of the Trojan ... that part of Windows isn't covered under our support agreement, because we didn't know it was in there when we released it"?

...

...OK, never mind. :-)

Re:SCO PR department working overtime.

[jmauro]

No, in that case just the code added to the opensource project would be GPL, and only that version. The original version from windows would maintain it's original Microsoft EULA. Code can have multiple licenses.

Re:SCO PR department working overtime.

[arkanes]

It's a good thing you aren't a hiring manager, because you'd get someone sued. You think that the entire fucking sales force of SCO, which was aggressively marketing and selling Linux was operating "without authorization"?

If you're acting within the authority of your position, on behalf of your company, then yes, your company is liable for your actions. If you're a web admin, with write access to production webservers, and you replace your companies home page with, say, kiddie porn, you're damn right your company is going to get sued - especially if they didn't take IMMEDIATE action to remove you from your position and take the offending website offline.

You don't magically not represent your company anymore if you do something wrong - like not ensure that the code you know to be your trade secret (because you're filing a BILLION dollar lawsuit against one of the largest companies in the world) is removed from your anonymous FTP server, and that you continue distributing it under a license you know to be fundamentally opposed to the sort of controls you're trying to exert of this IP (because you're not a total fucking moron and had your lawyers read and explain the GPL). Yes, you're acting in your capacity as a company officer and within your authority as a representative of the company, and therefore you're actiing as a copyright holder.

Re:SCO....

[override11]

Or you could write a script that randomized names / histories / addresses and return email addresses, then set it to send out like 500 an hour. :) Ohh, that would be wicked, they would have no way of telling real apps from fake ones flooding in... and they would have to keep them all.. and thats a "Very Bad thing" (tm)

Deplete the warchest

[PhipleTroenix]

Everyone who has ever bought a copy of Caldera/Linux should return it. Since it was marketed as GPL code and it's not.

If everyone does this right now they won't have $$$ to pay the lawyers and the whole thing might go away.

reminds me of the cold war.

[MagicMerlin]

I am feeling more and more that SCO is a pawn in a much larger and more important struggle that is playing out between IBM and microsoft. Consider:

1. US and USSR never entered into active confict but used deparate or greedy 3rd world countries (SCO) to engage in conflict.

2. Like Communism, MS was based around lofty principles but actually survives by strangling all percieved threats.

3. IBM was earlier in a partnership with MS that turned sour (think US-Soviet relations in WW2).

4. Both empires keep its people distracted from the real facts by spreading FUD about the other side, even if that means undertaking petty wars.

5. The soviet empire eventually came down, killed by its own weight. Will MS suffer the same fate?

argument

[pigscanfly.ca]

There arugment is that since they didnt authorize the putting in of the IP into the code that they still own it wheather on not it has been distributed on the GPL basis . This is true . It does not matter that they distributed the code because they did so without knowning *supposedly* that it was in there . However once they found out they should have stopped sales of there own linux product immeditly otherwise they are knownlingly distributing there code under the GPL and have implied concent by doing so(IMHO IANAL ,etc.) . However they seem to (given the quality of there PR department) shifted all the PR budget to the legal budget so they can probably weasly there way out of it . The one thing that I think is missing "show me the code" . Show me the code that violates your IP , untill then I dont care about anything you have to say (to sco)

Liability by accident?

[jcdr]

SCO say: "In other words, the GPL itself covers situations where code is improperly or accidentally contributed to the GPL without proper authorization (sic) of the true copyright holder."

So IBM are liable because SCO accidentally put some code into Linux? How there can present to the court a causal fault from IBM? IBM are not here to verify that SCO don't put there preciouse code into Linux.

Call it out....

[BubbaTheBarbarian]

This should be called out for what it is...the first shot in Microsoft's war against OSS. Everything up to this point has been trivial. Now we have a company that is going to openly challenge the GPL, and one that is a MSBitch to boot.

I bet if you look at the money, all trails will lead to The Beast. OSS has been expecting this to come from any other place (look at openGL for reference of another possible MS suit) then from one of "there own." Makes me ashmed to say I even assosiated with Calders before they became a bunch of a-holes.

WAR TUX!!!

3000 lawsuits can't be wrong....

[Anonymous Coward]

Slashdot them to oblivion!

Re:Sounds like "poisoned roots"

[dackroyd]

You've almost got it but you need one extra step:

1) Source code is 'stolen' from SCO and put into Linux without SCOs knowledge.

2) SCO download the latest kernel, modify it and release it as SCO Linux, without realising that they're distributing some of their proprierty code.

3) They're now claiming that they never intentionally released the code under the GPL, and that it was put their illegally by someone else.

Of course they probably have buggered things up by not stopping their distribution of their Linux as soon as they discovered and announced that they were going to sue everyone over it.

Also any court is going to seriously look down on the fact that they're prolonging the time that their code is being used, by refusing to say exactly what it is.

Isn't this just more media for Linux?

[msimm]

Funny thing is, I'm seeing more 'legitimate' media talking about Linux then ever. The more they yell the more respected business journals will end up printing conversion stories with every bodies new favorite underdog.

I bet this all make for some pretty funny board meetings.

Is this really a big deal?

[Groovus]

This is slightly off topic, but it was running through my head on my bike ride home from work yesterday....

If one was served with a cease and desist from SCO regarding linux code, would it not be an acceptable response to then ask them to identify the offending code so that you could remove it from the code base you are using, and then replace it with code from elsewhere (created by you, obtained from another source, etc.) which would not infringe on their "technology"? Additionally would you not also be within your rights to request proof of SCO "ownership" of the offending code? Simply put, would not the burden of proof still be on SCO if they make such an accusation?

Note that one would be attempting to comply with their request, not going to court or settling for damages. Would this remedy avoid those two outcomes?

Basically it seems to me that given the nature of open source it would be trivial to shrug off any and all such threats/claims by SCO. I mention this not to discourage those who wish to punish SCO for their actions by dragging them through court and beating them, but more along the lines of attemting to nip any fear businesses may have in consideration of adopting Linux about the legality of using "tainted" code in the bud by establishing clear and easy methods of circumventing such chicanery.

You could kill the SCO ploy quickly and easily if it was viable to say that if SCO came calling you just need to have them identify "their" code, prove it is theirs, and then replace it by having coder x create substitute code from scratch or obtaining substitute code from open source project y. Would this work?

How about a Slashdot Interview

[lobsterGun]

Has anyone heard what any of the SCO techies are saying about this suit? We've all heard what the lawyers and the suits have to say.

How about we have a Slashdot Interview with an anonymous SCO techie? Most techies I know would jump at the opportunity to set the record straight if they were in a similar circumstance (espescially if their anonimity could be guarranteed.)

So what do you say Comandante Taco? Can we get and interview?

Re:How about a Slashdot Interview

[mandolin]

The suits must be relying on some techies to examine the code, in order to give their case a semblance of feasibility.

It's probably a small number, too. Any willing techie who could give sufficient information to make for an interesting interview would be quickly discovered, fired, and probably sued as well.

Anyone at SCO: look for another job now. Your execs have somehow managed to bring the wrath of IBM, the entire linux industry (hey it's a couple thousand dollars :)) and an entire demographic of the world population upon them. You're wasting time with IBM. You have two OSs that compete with each other, drain your time trying to write compatibility kits (which also add bloat..), and they both suck compared to the competition (and I've used OpenServer, I know that of which I speak). You're probably being asked to make up some creative bullshit for the court case. Aside from all that, countersuits are terribly likely.

I hope the utah job market pans out for you.

Perfectly Reasonable

[maynard]

"[Huges] had this to offer about the GPL and SCO: "The GPL, by its terms, only applies to software programs or works which contain a notice "placed by the copyright holder saying it may be distributed under the terms of this General Public License. (emphasis by him)"

This is perfectly reasonable. We're all so pissed of at SCO that we forget to think of the potential consequences of taking this line of thought to its logical conclusion. Rip SCO out and reconsider this statement:

I own a company which writes a proprietary application sold to the public. It contains lib 'a' which is used for manipulating the general class of 'foo', something very useful. One of my employees releases the lib 'a' source under the GPL without corporate knowledge or acquiescence. This is then incorporated into several other GPL'd applications, one of which we happen to distribute without knowing that a part of this application contains our source. Is lib 'a' now covered under the GPL because of our mistake?

I certainly hope not. I doubt this would be rms's or the FSF's attorney wish either. Such a conclusion goes against the grain of allowing the copyright holder to designate contractual licenses limiting duplication rights. Note that I don't say right to use, but basic duplication rights. The eventual outcome of that would be a loophole which could dilute basic copyright law; the very foundation of the GPL.

Whatever of SCO's code that may or may not be in the generic Linux Kernel, it's perfectly clear that only the owner of a copyright may specify the contractual terms of licensing. Simply put, if someone other than the owner contributed code which was accepted into the kernel tree (or distributed said code as a patch), the owner shouldn't be held to account for having also distributed their own code by accident; code which they didn't knowingly or purposefully contribute.

Screwing SCO on a 'gotcha' because they continued to distribute the Linux kernel after they filed the lawsuit may seem like just deserts, but long term it could have damaging consequences to the Free Software community after the fact. We should instead be looking for prior examples of development and ownership for everything SCO claims copyright over. If everything they claim can be proven factually false, their case dies a just death. The way to win is to show that SCO has no legal basis for claiming copyright infringement: that they, as SCO, never created whatever code they claim as theirs is in the Linux kernel; nor could they have since the historical timeline clearly shows developments by a wide range of authors who have no connection to IBM, HP, or SCO (or Project Monterey, SCO OpenServer, and/or UNIXWare). Kill their idiotic suit with facts and they will shut up and die already.

Should it turn out that some small portion of the kernel contains illegally expropriated code copyrighted by SCO, then rip it out and recode ASAP. Remove the illegal code from all previous copies in the masters and mirrors. Minimize the damage once it's discovered and plead to the judge that the principal authors didn't and couldn't have known. Point out that the plagiarizing author, the one who submitted whatever infringing code in bad faith, should be the responsible party. Let SCO sue that infringer, the person who willfully broke the law, and then let it drop. SCO winds up with little or no money, the principal authors keep their good name and reputation, and Linux continues on it's merry way.

JMO,
--Maynard

Re:Perfectly Reasonable

[jareds]

I own a company which writes a proprietary application sold to the public. It contains lib 'a' which is used for manipulating the general class of 'foo', something very useful. One of my employees releases the lib 'a' source under the GPL without corporate knowledge or acquiescence. This is then incorporated into several other GPL'd applications, one of which we happen to distribute without knowing that a part of this application contains our source. Is lib 'a' now covered under the GPL because of our mistake?

It need not be. You need not agree to the GPL, because you have never signed it. However, you have no right to distribute the GPL'd application (except for lib 'a' itself) in question without following the terms of the GPL, becuase you do not hold the copyright to it. You should thus immediately stop distributing versions of the application that contain lib 'a' (as should third parties, who have no right to distribute lib 'a' at all). In contrast, SCO has continued to distribute Linux long after filing this suit. If they have not caused their proprietary code to be licensed under the GPL, they are committing willful copyright infringement. I don't see how there can be other options available to them. (Also, in your example, one would expect your company to inform third parties that you hold the copyright to lib 'a' specifically and ask them to stop distributing it. SCO has not done this. No one yet knows what SCO is claiming copyright to sepcifically.)

The point is that others cannot distribute GPL'd software containing SCO's proprietary code, but neither can SCO itself. That is the whole point of the GPL! If its claim that Linux contains SCO's proprietary code is correct, it must cease distributing Linux, or at least excise its code from the version it distributes. If SCO continues to distribute Linux without excising its code or releasing its code under the GPL, it should be sued for copyright infringement by the kernel team.

Statutory Damages

[overshoot]

Talk about foot-in-mouth. According to this, SCO deliberately and after consultation with Counsel chose to distribute copies of a copyrighted work without authorization (the non-SCO portions of the Linux kernel.) [1].

Therefore, every copy of Linux that they've distributed since then (and maybe some before) meets all of the statutory requirements for "willful infringement," which carries a statutory damage of $50,000 to $150,000 per copy. It's not necessary to show damages in this case, the law itself specifies them. Slam-dunk summary judgment stuff.

The FSF (assignee of at least some of the GPL contributions) should sue SCO pronto, citing their own testimony. SCO is estopped from denying the charge, the Court awards $50,000 times a whole bunch of copies, plus legal fees, and the FSF ends up owning what's left of SCO.

Happily ever after.

[1] Since they knew that portions of the work were encumbered, the GPL ceases to enable distribution of any of it, thus copyright law applies. See damages above.

Re:Or in other words:

[theLOUDroom]

No, it doesn't. If SCO didn't explicitely choose to include the code in Linux (it really is stolen, as they claim), then SCO also didn't explicitely choose to license the code under the GPL.

Nope. Once they discovered the infingement, they continued to distribute the code under the GPL. At this point, they have willfully released their code under the GPL, even if they weren't before. (GPL copyright notices were included with the code distributed by them.)

Before they knew, they were unknowingly violation the GPL. Afterwards, they knew they were distributing the code, and they knew the terms of the GPL. This leaves two possibilities:

1. The therefore GPL'ed their code.
2. The were illegally distributing Linux, since the GPL is the only thing with gives them the right to do so.

Either way, SCO is fucked.

#1 leaves them with no damages. (Except possibly IBM, good luck.)

#2 leaves them willfully infringing on the copyright of the Linux kernel. This has all kinds of neat implications. I bet IBM owns the copyright on some part of the Linux code. They could sue SCO for more severe copyright infringement than SCO can sue them for.

It's SCO's fault; they have GPLed it, and worse!

[leonbrooks]

If The SCO Group become aware that they have their "valuable IP" on FTP servers and heading out the door on CDs and do nothing to stop that (which is exactly what happened for several weeks), then it is either The SCO Group's fault that this happened, or the fault of every SCO employee who was in a position to stop the bleed and did not. I can't think of a court that wouldn't come down on the side of the former.

Now that they're aware and have taken some measures to stop the bleeding, any further bleeding is entirely The SCO Group's own corporate fault. So "existing customers" that they continue to support by shipping stuff to - including the Linux kernel source with their "valuable IP" - represent a deliberate "dilution" of the "valuable IP" by The SCO Group.

But it's worse than that: even presuming that there is some merit to their claims of IP theft (ha!), it no longer matters who "placed" the code under the GPL, because SCO have continued to ship (ie, "disclose") the source to that code themselves without removing it from the GPL, which is a clear statement that they accept the terms under which it is distributed.

But wait! It's worse than even that! (-:

In continuing to ship the code under someone else's copyright (call him/her/them/it Q) after they became aware of it they are acknowledging Q's ownership of that code... so Q now has some grounds for suing SCO for restricting distribution (of what SCO have acknowledged Q owns) contrary to the terms of the GPL which SCO have also implicitly accepted by "republishing" the code.

It's a kind of heads-I-win-tails-you-lose situation, so SCO are in the unenviable position of their best option being pressing on blindly and hoping the coin lands on its edge or the toss is cancelled.

SCO is in violation of the GPL already

[Anonymous Coward]

The GPL clearly states:

4. You may not copy, modify, sublicense, or distribute the Program except as expressly provided under this License. Any attempt otherwise to copy, modify, sublicense or distribute the Program is void, and will automatically terminate your rights under this License. However, parties who have received copies, or rights, from you under this License will not have their licenses terminated so long as such parties remain in full compliance.

5. You are not required to accept this License, since you have not signed it. However, nothing else grants you permission to modify or distribute the Program or its derivative works. These actions are prohibited by law if you do not accept this License. Therefore, by modifying or distributing the Program (or any work based on the Program), you indicate your acceptance of this License to do so, and all its terms and conditions for copying, distributing or modifying the Program or works based on it.

Threatening Redhat, SuSE and Linux users in addition to IBM, clearly ran afoul of "Any attempt otherwise to copy, modify, sublicense or distribute the Program is void, and will automatically terminate your rights under this License." It was an attempt to restrict the rights of users to code that SCO had intentionally released. From that moment on, SCO did not have a valid license to distribute Linux. Yet they continued to do so.

Every Linux kernel developer now has grounds to sue SCO for violation of the GPL. I would suggest a coordinated effort, filing suits in as many jurisdictions as possible simultaneously. It is dirt cheap to file in small claims court in the US. Let them die the death of a thousand cuts.