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FSF Statement on SCO vs. IBM
tomdp writes "Eben Moglen, Law professor and general counsel for the Free Software Foundation, has written a statement about SCO's lawsuit against IBM."
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Moreover, is it just me, or has the case really gone from something that is targeted at Linux (kernel) that many people worry about into just an internal dispute between IBM and SCO that not many really worry about anymore? I woudn't be suprised if the latter was true.
This article frames the issues in a way that cause me to consider that this lawsuit is a legal metaphor for a computer virus. Let me explain what I mean.
This article seems to confirm my suspicion that this lawsuit is a business strategy rather than a principled legal action. If it is also true they they themselves distributed the code under the GPL for which they now seek copyright protection, then maybe the GPL is really the target. Perhaps their lawyers believe that if they can make an argument that invalidates the GPL then they can indeed make a claim against IBM.
But, it is important to note that the exploit here would be of the copyright laws rather as a remedy for some improper action by IBM.
In this sense, the lawsuit is the legal equivalent of a virus. It is seeking to exploit a weakness in the code . Rather than doing something just and benevolent (as lawsuits are intended), this suit seems to seek to exploit a weakness for selfish gain or malevolent satisfaction.
Beyond that, the lack of distinction between GNU and Linux in their pleadings as described in the EFF statement is just lame on SCO's part. Lord knows, both Mr. Stallman and Mr. Raymond have done what they could to ring that bell. Some SCO investigator should have picked up on that.
The best way to do is to be.
To me the important point of that statement was the focus on the trade secret litigation. There is nothing about Unix these days that could be considered secret. Its doubly certain that there is no way sco could assert that it met the trade secret requirements, coke theyr'e not.
Just a refresher for trade secret protection to apply, everyone who comes into contact with the information, has to agree to a NDA, has to be informed that the information is trade secret, and has to be informed that the company will take action against them if they reveal it. The company further has to have regular trade secret audits to review procedures and make certain that the information isn't being improperly divulged.
Take an operating systems course in college ? Look at anything from GNU ? SCO going after IBM for trade secret infringement is laughable. Whats even funnier is they hired a lawyer who couldnt even get a decent judgement against microsoft for anticompetetive practices, after the introduced obviously fabricated evidence into court
Once it stopped appearing daily on all the news sites around, everything would calm down a bit, and the case would generally be seen as a private law suit about trade secrets between two companies having a long history of cross-licensing agreements, i.e. nothing that extraordinary.
But I see that at least some news sites seem to have started understanding this already:
We unsuccessfully tried to ignore the SCO v. IBM fracas, mostly because ...
and
We know just how you feel (lwn.net commenting on the above quote from Linux journal...)
IANAL , etc. .It is very very important for FSF to seperate (espicialy right now) the Gnu tools from the linux kernel .Sco is claiming that linux as a whole violates its IP (even if it does which is bloody unlikely) it is a stratigically sound move to say that the Gnu tools are seperate so they cant sue the FSF for violating their IP . Of course knowing SCO they would try anywyas :-)
This article seems to confirm my suspicion that this lawsuit is a business strategy rather than a principled legal action. If it is also true they they themselves distributed the code under the GPL for which they now seek copyright protection, then maybe the GPL is really the target. Perhaps their lawyers believe that if they can make an argument that invalidates the GPL then they can indeed make a claim against IBM
Law suits imho (I teach media law) are far more often strategies than principled legal action. Sometimes the strategy is principled, and sometimes not. Many famous law decisions by the US Supreme Court were "set up" by one or even both parties to render a decision. So, in U.S. v. Haggerty (the federal flag burning case) someone deliberately burned a flag during a protest in order to bring the law suit. In another example, corporations are required by law to "defend" their trademarks, or risk them entering the public domain, so not that long ago Intel began to demand that a non-profit group that teaches yoga to young people in juvanile detention called "Yoga Inside" change their name because it violated the trademark "Intel Inside." Sometimes principles come out of law decisions, but lawsuits are strategies. My exmaples are two of the less henious strategies out there, but the law is a self-replicating virus even when its biproducts are principled.
Someone needs to draw the media's attention to this point: SCO itself has protected the Linux kernel againt any claim of infringement by SCO. Those 1500 companies SCO mailed letters to can rest assured that they have nothing to fear--SCO itself has released the kernel under the GPL and therefore SCO has given everyone in the world a license to use it.
They may have a case against IBM, but SCO itself has given a license to everyone else.
This needs to get more play in the press, and I think it's the most important point in the article.
The paragraph containing "As to its trade secret claims, which are the only claims actually made in the lawsuit against IBM, there remains the simple fact that SCO has for years distributed copies of the kernel, Linux, as part of GNU/Linux free software systems." concerns me.
/.", and after publication it was discovered that a certain eloquent essay was completely plagiarized. What happens?
What is omitted from this discussion, and what Eben certainly must already know, is that if SCO redistributes in good faith Free products that it receives from the community, then the illegal inclusion by a third party of material copyrighted by SCO does not in any way lessen SCO's claim to that copyright.
It's as if you sold your house "as is", and while you were in the office signing over title someone stole your car and parked it in your garage.
What's pretty obvious is that Open Source Software functions like an online magazine or bulletin board, to which malicious or incompetent users may illegally post copyrighted material. Once the violation is identified, the offending content is removed. The legal standing of companies reselling the content would be the subject of this suit.
Suppose O'Reilly published a "Best of
The blitz of press about SCO leaves one very confused about all of this. This press release doens't seem to contain a whole lot that is new, and unfortunately does little to resolve any of the significant issues.
The IBM vs. SCO dispute appears to be something that Linux itself is not involved in except as a matter of evidence of violation of contract, unless I misunderstand what the initial lawsuit was about. (IANAL.) IBM does not have any control over the Linux kernel.
The involvement of free software, and I think the reason many of us are so up in arms, is certain statements SCO has made which seem to indicate it thinks a) it can treat Linux, and all the contributions made to Linux by people everywhere, as SCO property and b) that any Unix like system, of any type, also owes SCO for IP use. Those are the really dangerous thoughts, because a lot of us don't trust the court system to acknowledge common sense. The whole IBM thing is just a prelude as far as Linux is concerned - contract disputes between IBM and SCO are secondary. It's whether SCO thinks they can go after Linux that is the real issue. And the reason for the sound and fury is they seem to think they can, or at least they say that. Not to mention their statements that they don't believe the Linux kernel could be enterprise ready so quickly (whatever that means) without commercial software being included. How do they know that? The attitude of "well, we know you aren't capable of creating this, so if you have it it must be from us" is extremely insulting and arrogant. No one has ever put a bounds on what the free software community can achieve with any success. It's just too diverse.
The nightmare scenario seems to be this: A US Court grants SCO the right to all Linux IP, based on some bizarre reading of derivative work definitons. Consequently, if people in the US want to use Linux they now have to license it from SCO, despite the fact that SCO did not create most of the code in Linux. Our efforts will have essentially been stolen out from under us - most developers for Linux have worked in good faith to create a totally free system. If SCO is allowed to destroy that, the result is many years of work down the drain, because free software and open source both would sooner abandon Linux than pay SCO anything. Indeed, if SCO succeeds in such an attempt, Linux will become non-free. The effort will have to be recreated elsewhere, and if SCO's claims to all Unix like operating systems holds up it will have to be on something completely new. Plan9 perhaps, or Hurd, or maybe something totally new. But in any case, years gone.
The mistake SCO seems to be making is that they can grab Linux and make people pay for it. That is, of course, utter nonsense. People would sooner abandon it and start over. Linux is not special because of its technology. It is the freedom of Linux that makes it a powerful force in the software world. The technology is secondary. SCO controlling the technology would, by definition, destroy that which makes Linux worthwhile. We would be pissed as heck if they somehow managed it, but maybe just for that reason the rise of a new system without any IP ties would probably be all the faster. SCO is like the child who wants to hold a snowflake in their hand - the mere act of grabbing it destroys it.
What their motivations might be, there has been a lot of speculation. The obvious possibilities have already been mentioned time and again. SCO will not succeed if their goal is to make money from controlling open source software, because any software they control is not, by definition, open source. We will go elsewhere.
Do I think it will come to that? No. But the law is a strange animal, and one is never 100% sure what will happen. So the sooner this is over with, the happier we will all be. And whatever happens, SCO can forget about ever being a viable commercial business again. I would not do business with any company who uses methods such as those I have seen from them.
"I object to doing things that computers can do." -- Olin Shivers, lispers.org
Anybody wondering what the "unfair compeition" part of the whole SCO lawsuit might entail? IANAL, of course, but I sort of wonder what would be considered unfair. Releasing secrets and code to Linux that belong to SCO would seem to be different offenses - would they qualify as unfair competition too, or might that be refering to creating a free system to do what SCO can do, and more? Would that be ruled unfair?
I've often wondered if someone wouldn't sue open source software projects based on the argument it isn't fair that they have to compete against a free product, and asking that no one be allowed to distribute free software on the grounds it is unfair competition. Utter nonsense, of course, but the "I have a right to make a profit" thinking in the US is so strong sometimes it makes me wonder if someday we will see it.
"I object to doing things that computers can do." -- Olin Shivers, lispers.org
Is it reasonable to expect a company to check the entire code of every release to see if there are some trade secrets of theirs embedded?
Yes, it is.
This isn't relevent to this case, but as a general law senario, consider this:
Let's assume a software vendor makes a great little program. They make millions on it. It brings fame and finacial freedom to all involved...
Only one problem. It's based on a wee bit of "IP" from someone who never OKed it's distro.
The owners find out. The new rich software designers didn't check the code. Who's at fault? Who's going to get that massive law suit against them, and lose all that finacial freedom. And most likely a first born or two?
As a business, expectally one so conserned about IP, it would be hoove them to check all source before they release a product.
Isn't IP fun.
The reason people have lawyers to do IP and "trade secret" work is because all they do is spend their time looking for any and everything that can be a infringment. The fact that their distro passed the law department, and that they released GPLed software that maybe have contained IP that SCO claims to exist makes said claim invalid, as they have now made the code GPLed by their own distrobution of it.
Except that Debian has not been an Official GNU Project activity for a couple of years. They weren't GNU enough for the GNU Project. Unfortunatly they DO still have enough GNU zealots that they have picked up that damnable GNU/Linux crap. Personally I'd love to see Linus drop a few hints regarding trademark dilution but he is too nice a guy to do that. Linux is not now and never was a GNU project. Sticking their trademark on as a prefix leads to the confusion that it is.
Putting the GNU where Debian does makes zero sense. Were they still a GNU blessed project calling it GNU Debian would be correct in the same way that GNU Emacs or GNU Compiler Collection is. Of course that would never happen because Debian realizes that having Linux in the name is more important than just GNU, so they try to have it both ways. Frankly, that sort of childishness was probably the primary reason I didn't use Debian until RedHat forced the issue with their dropping freely redistributable stable versions.
Democrat delenda est
Just because the infringing code is removed doesn't negate the fact that the infringement occured, and it would have absolutely no negative effect on any damages awarded.
;)
Actually in this case it probably would. The code would be replaced in a matter of minutes, thereby proving their code isn't worth what they claim it is anyway.
> Linux systems without GNU code are as rare as tits on a bull
If using GNU code automatically infects the name then I guess when Microsoft was shipping the GNU toolchain (with source) as part of the POSIX joke in NT 3.1, Stallman should have been shouting down anyone calling it Windows NT and saying it should be properly called GNU/NT.
It just doesn't work that way. The GNU toolchain is just that, a toolset. Important? Yup. Usefull? Yup. But just because DOS used to be crap without Norton Utilities nobody called it Norton/MSDOS. If the FSF wants their name on something they have an option. They reserved the name a decade ago, it is the Operating System that shall be called GNU. Trying to now stick the name as a prefix to Linux is an admission by the FSF that GNU probably won't ship in their lifetimes.
Democrat delenda est
Most of the more useful FSF projects have been shifted to more capable hands. The center of mass of GCC and GLIBC have been with Cygnus/RedHat for years now and GNOME has been at Ximian/RedHat from day one, being FSF Projects in name only.
;)
Maybe it should be called Red Hat/Linux then.
Seriously, when referring to the whole system, you don't call it Linux anyway. You call it whatever the system is called. In my case, Gentoo Linux. Or in other cases, Debian GNU/Linux, Red Hat Linux, or Mandrake Linux. The term 'Linux' properly refers to the kernel. But there's nothing wrong when referring to Linux generically to call it 'Linux' but I don't know.
For that matter, Solaris ships with a Freeware disc consisting of mostly GNU projects like GNOME, gcc, GNU toolchain, etc. Why doesn't Stallman insist it be called GNU/Solaris?
My journal has hot
The people who still insist on calling the entire OS "Linux" are, imo, fanatics.
This is a demonstratable case of where harm is being done to the entire FS and OSS community because of the confusion between Linux the kernel and the GNU/Linux OS, which is at the core of what every distributor (like RedHat, Suse, Gentoo, Debian, etc) distributes as a distribution.
The only reason SCO is able to exploit the confusion between Linux the kernel and the "Linux OS" is because fanatics insist that because most people have always called the entire OS "Linux", we should continue to do so; despite the fact that it creates confusion between the kernel and the OS, while another name (GNU/Linux) ameliorates that confusion.
Now, I'm not saying that if everyone knew that Linux referred properly to the kernel, and GNU/Linux to the set of OS distributions, this lawsuit would have been prevented. SCO still could have sued IBM, and still could have launched this smear-campaign. However, they would have to specify exactly what they were referring to -- the kernel or the entire OS. They would not be able to exploit ambiguity and confusion to as great an extent as they currently are.
social sciences can never use experience to verify their statemen
Dying and waiting seventy years is considered in this case to constitute permission.
Je fume. Tu fumes. Nous fûmes!
SCO has launched at very little expense currently to themselves a successful FUD campaign. While the lawsuit may be expensive, considering lawyers fees, court costs, and other related items. The publicity campaign has been helped along by everyone protesting the actions being done by SCO.
I am looking at it from this perspective. The management types right now are going to think twice about using Linux and AIX. Think that is a ridiculous statement. Guess what, I have already been to three fortune 500 company meetings where questions were asked. IBM maintains many of the systems at these companies. And many of the companies have AIX systems currently. Some even have a long term plan in the works with IBM to upgrade in a couple of years to Linux based systems.
The questions being asked are some of the following types and yes I am paraphrasing:
What is the status of our current systems in regard to this issue of SCO claiming you have violated your contract with them?
How does this affect our long term plans?
What is being done by IBM to quickly resolve this issue?
Well the IBM reps answer these questions honestly. The problem is the FUD has already started to set in.
The management does not care about the truth in the long term. They care about the right now. And right now they are seeing a lot of press on the SCO issue and it doesn't seem to be going away. That is what will cause them to worry. They have to be able to tell their customers that they can service their needs and the customers are going to be the same attitude as the management. The customers want to know that the system that supports who they do business with is not in jeopardy. Right now it looks like it may be.
SCO may have no foundation for their claim, however before this is over they will have cost IBM money and they will have helped taint the image of Linux and other free software. And that is all they have to do.
FreeBSD is the prime example of this all you have to is look at the history of their lawsuit with AT&T to understand. FreeBSD would have had a much better market share today if not for that lawsuit.
While the SCO claim may have less validity than the AT&T suit. SCO has to only show one small line of code for them to turn around and say we were right.
Yes the line of code could be changed but by then the PR machine will have already dealt a heavy blow.
I think that this is going to drag out for a while and unless SCO is quickly put in their place the long drawn campaign will have been somewhat effective.