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SCO Might Sue Linus for Patent Infringement?
An anonymous reader writes "[Darl McBride, SCO's chief executive stated] that unless more companies start licensing SCO's property, he may also sue Linus Torvalds, who is credited with inventing the Linux operating system, for patent infringement." It's right at the end of the story and it's quite a statement.
Ok, so what, exactly, are they planning to sue him for? It's not like he can be held responsible for what IBM may or may not have put into the kernel. Or can he?
End of lesson. You may press the button.
The threat to get Linus is as hollow as the rest, no Judge will allow a suit to be brought when the ownership of the IP is in question, and given that Novell own a vast majority of the patents (832 unix and novell vs 117 Sco and Unix), according to the USPTO, the fact that Novell have taken some time and obviously a lot of expensive Legal advice before making such a series of claims vis a vis the ownership of the Unix IP and seems willing to step in the way of SCOs legal bullets, I'd say SCO's battle to steal Linux from the community has just got infinitely more difficult.
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If I must buy a licence, I at least want to know what I am getting for my money, and what is contracted for, yes ?
Rob. "For Every Pleasure There's a Tax".
The Man
Let your representatives in the EU, which is considering software patents, know about this,as an example of why software patents are a BAD IDEA! A lot of European cities (Munich comes to mind) have shown a shining to Linux, and software patents could leave them without that choice!
I keep posting this, but nobody seems to get it. SCO as a **distributor** of the linux kernel has committed copyright infringement UNLESS they have properly licenced all copyrights from which it is derived. If somebody else (IBM or Linus) creates a work which is improperly licenced, but is derived from GPL work, then SCO **STILL** must abide by the GPL in order to distribute a deriviative of the GPL portions.
... sublicense or distribute" the work will "terminate your rights under this License".
In order to do that, they must abide by the clause (clause 2b) which requires them to licence "as a whole" to "all third parties" (which certainly includes Linux and IBM) the works which they distribute under the terms of the GPL, assuming they either modify the source (clause 2) or distributed binaries (clause 3). This is not compatible with patent enforcement (vs Linus) or with trade secret protection (vs IBM).
Clause 6 states that no "further restrictions" are allowed. Clause 4 moreover states that any attempt to "otherwise
Finally, Clause 5 states that "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", which implies that SCO has accepted the GPL by distributing Linux, which even under SCO's extreme viewpoint is inarguably "based on" GPL works.
Linus should and frankly MUST sue SCO for copyright infringement for distributing a derivitive of his work without a licence. In fact, any other kernel contributor could do the same so long as their original work is included in what SCO has distributed. It does not matter if SCO wilfullly commited copyright infringment (it is still infringement), though it is untenable to call it unwilfull after they began publicly proclaiming to retain rights to elements of Linux.
The next question to ask would be about the timing of this: Which specific functions and features of the kernel are under fire here? And when were these put into the kernel?
And finally, isn't SCO becoming engaged in barratry here?
SIGBUS @ NO-07.308
Back in '92, someone made this exact argument to me about the AT&T/BSD case. He was wrong: the BSD people had screwed up (there were several files that had tainted AT&T code), but BSD won anyway.
You forget an important lesson of the AT&T vs BSD case. It was found that AT&T itself was engaging in serious copyright violation (removing all the University of California copyrights from their code). They had to settle.
Similarly, SCO will be found to be violating all kinds of IP rules itself: IBM patents (you can't sneeze without violating an IBM patent, they have so many), remaining BSD code with copyrights stripped, GPLed code copied into their Unix product, etc. Then they have the problem that they don't own the copyright!. Novell does.
Finally, there's a huge difference: the GPL, and the fact that SCO itself distributed and worked on Linux for years. They can't claim ignorance, as their own engineers worked intimately with the Linux kernel and OS, modified it, and distributed it. By doing so, they granted a GPL license on what they distributed to the world. They can't revoke that.
Ok. It have been stated already that SCO has no patents nor IP related to their claims. They do have code, but that sale didn't involve the IP nor the patents involved in the development of that code.
The really funny thing is that IBM, HP, Compaq (formerly Digital), Novell et all do have patents related to UNIX (and I'll bet they have patents over H2O methodus and aparatus). If SCO wants to get into that game they're going to suffer. A lot.
Yeah,
We (Tivoli Indy) had an IBM IP guy come in and explain a lot of this stuff. He basically explained the strategy of patenting anything and everything possible.
Effectively, if someone sues them they search their IMMENSE inventory of patents and find things that apply (even remotely). After that, it's a simple matter of cross-licensing or annihalation via litigation.
BTW, IBM is the #1 patent holder in the US. They file more patent applications than ALL OTHER parties in the US. They have a VERY NICE incentive program for folks to patent what they do. And they DO take advantage of it.
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