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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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Am I the only one that read the first line as "The lawsuit brought by the Satan Cruz Operation ..." ?
nice to see such a clear, concise and complete dismissal of SCO's FUD. They kept it professional and straightforward, and with any luck, this'll defuse some of the tension surronding the entire situation.
Kudos FSF and Eben Moglen
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.
Just as I can't function without my first cup of coffee in the morning, I can't get my moral outrage going without the first SCO story of the morning. What are we going to do when the case is thrown out? I guess there's always MS.
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
Quote from FSF Statement:
"Moreover, there are straightforward legal reasons why SCO's assertions concerning claims against the kernel or other free software are likely to fail. 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. Those systems were distributed by SCO in full compliance with GPL, and therefore included complete source code. So SCO itself has continuously published, as part of its regular business, the material which it claims includes its trade secrets. There is simply no legal basis on which SCO can claim trade secret liability in others for material it widely and commercially published itself under a license that specifically permitted unrestricted copying and distribution."
So instead of claiming they inadvertantly GPLed it, we should rather say, they only made it worse by distributing it themselves, and cannot claim any liability from other people doing the same.
SpongeBob: Hey Patrick, what am I?
SpongeBob lays down and acts dead.
Patrick: Uhh, you're dead.
SpongeBob: No Patrick, I'm SCO!
Patrick: What's the difference? Ha ha ha
SpongeBob: Ha ha ha ha.
Most of what's come out of SCO is so self-contradictory that the only intelligent response is "What the hell are you saying?" Until they can nail down exactly what they're complaining about, there's nothing else to do but demand that they give the particulars.
[100% ISO 646 Compliant]
SVM, ERGO MONSTRO.
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
In a statement in late May, quoted in a CNET article on 28 May, Darryl McBride of SCO said that the SCO lawyers are are working on a contingency fee basis. SCO is not paying the lawyers anything. IFthey win, the lawyers get a big cut of the proceeds. If SCO gets counter-sued for barratry, I hope their lawyers are required to pay an equivalent percentage of the penalty.
"In most cases businesses aren't working for your best interests."
It took you this long to realize that? The whole point of a business is to make money. Although I do think acting like the GPL is the next messiah is childish. It makes you look like a teenage anarchist who hasn't grown up yet.
Only the State obtains its revenue by coercion. - Murray Rothbard
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
Stories to be posted daily:
1) Microsoft Security Hole
2) SCO story 1
3) SCO story 2
3) Web Development with PHP and/or Perl book review
4) Physics story that no-one understands but everyone pretends to
5) New Mozilla build
6) Repost of one of the above
I posted the original post. Yes it was a bit of a troll, but I firmly believe that corporations have gone too far in their quest for profit. The fact that the auto industry would sell unsafe cars and try to keep this from consumers is a perfevct example. When they are finally forced to reveal that there is a problem with their product, then do a recal and put the least amount of money and effort into rectifying the situation. That is morally and ethically wrong. By doing this, it would appear that they place the value of their corporate bottom line above a human life. The funny thing is that all you corporate supporters would easily cry foul with regard to abortion saying the "human life is god's greatest gift" like Reagan did back in the 80s. And yet, when a human life is put at risk by a product that a corporation sells, you do a 180 and say, "well... it would be bad for business if we had to resolve each problem for each individual. It will cut into profits." Sorry, but I think anyone that thinks that way is ghoulish as well as hypocritical.
Think of all the rotten things that businesses have done to consumers in the name of profit. All the dangerous chemicals they's been feeding us in our food and giving us as "medicine"... All the coverups to try and keep critical life saving information from reaching the public. If there is one thing that we all should be aware of as human beings, it's that we should put our fellow man far above profit and personal gain. If you can't do that, you have failed as a human being.
But, in contrast, passing a needle through the eye of a camel is just plain idiotic. The camel isn't going to tolerate someone trying to do that and will probably kick that person. Maybe stomp on that person. But maybe we're not talking about a camel at all. Maybe it's a gnu.
Laws are for people with no friends.
"As a result, Novell is supposedly trying to figure out how to lob another discrediting hand grenade at SCO and claim that the code SCO is basing its $3 billion contentions on is actually in the public domain," LinuxGram says.
Dear Sir,
I am not sure if you goal was to take the polar opposite stance of the post you are replying to but you have made just as grievous errors. Let us begin.
You seem to imply that valuing one's customers is only a side effect of the best interests of the company (which your point seems to be is to make money). This is a terribly cynical POV, however is the the view most companies take. Perhaps on the other hand a company should have a goal of making profit but not have it be the blinding exclusive goal.
Point 2. I am not sure what book you got our definitions from but just generally one does not associate strong personal freedoms with Marxism and communism. Unless you are look only at the alleged 'anti- private business/ownership' angle. Of course both of those are in the theory. As we all know the practice of those philosophies turned out different. As for unions, well (again ideally) they are supposed to advocate the rights of the workers.
Instead of driveling on here let me sum up. I believe that businesses (corporations) should have no 'rights' in the sense that individuals have. Corporations are artificial entities. We as people with rights can grant on to them (corporations) privileges, that may mimic the rights an individual has. However with all privileges we stipulate the responsibilities that that one has to meet in order to keep those privileges. Thus a business can run and make money for its owners, pay its employees, while not gaining the illusion that it it entitled to the rights and actions of an actual human being.
It's not so much about the merits of the lawsuit itself, but about the public opinion statements SCO has been making, trying to affect the free software world in a really negative way, based on vague statement sabout the ramifications of this lawsuit.
As everyone knows, they went from "Trade secret" to "license violation" to "copyright violation" to alleging "patent" almost.
They went from talking about their secrets making it into linux, to pointing out it was actually code that was NOT their secret, but that they technically may have an exclusive license to, due to some wording in IBM's Unix license.
They are saying many confusing things, and backing it up with little.
Sco -vs- IBM is between SCO and IBM. Hopefully the rest of the world is smart enough to realize that the free software world is more than happy to obey the law, if only someone would tell them what they are doing wrong.
So it's good for people, lawyers, and organisations to put forward their own researched opinions as to what the ramifications of SCO's actions are, because the public needs both sides.
When do the legal festivities kick off?
For most of us, that surely is the point. This is Slashdot, of course we are all Linux fans, of course we want to see SCO kicked into the long grass. But even if it were to turn out the "wrong" way, it were better done sooner than later. Just suppose SCOs allecagtions are true (I doubt this as much as most). IBM gets hit with massive damages - bad for IBM shareholdres but IBM, and they, will live. But SCO has revealed all the bits of GNU/Linux it believes to be ripoffs (it has to, in order to estimate the damages and to claim future royalties). So the Linux community cuts them out, does without some of them, and puts in a panic effort to do a cleanroom rewrite of those that are really necessary. I bet that if Torvalds, Stallman & Co. put out a "Save Our System" call, any really crucial bits of the system could be duplicated in three months.
And the Linux cimmunity could get back to growth as normal. This is because the FUD would have been dissipated. The harm being done by the SCO lawsuit hanging over GNU/Linux, and SCOs threatening letters, is far greater than the harm done by ripping out the offending code - if there is any. We, the Linux community, need a quick resolution.
In English law - I don't know about US law (and IANAL anywhere) - there is a duty on a plainiff in a civil case to take all reasonable steps to minimise any losses resulting from the harm being done to them. If you think I am infinging your copyright, you have a duty to tell me as soon as possible, not wait cackling while my potential fine piles up. If such an obligation exists in US law, SCO are not observing it. The cannot claim that every line of GNU/Linux is theirs. In fact, they cannmot claim that the fragnents allegedly stolen by IBM are crucial to the system, because it existed as a working system before IBM ever became involved. But they do claim that they have lost sales of their Unix product because Linux, incorporating their stolen code, is so good. It seems to me, therefore, that they have a duty to expose the code they allege to be stolen, and allow the Linux community to remove it. If their theory about the value of their code (if any) is true, Linux will drop in functionality and their sales will correspondingly recover; they may then claim for past, but not future, sales lost. In fact, I think that Linux would barely huccup. As I say, three months top level work by the community should repair all significant holes in the system.
So if anybody knows how to speed thes up, pleas tell. And for heavans sake, nobody do anything which could slow it down.
Consciousness is an illusion caused by an excess of self consciousness.
> choose the most singificant single contributor: GNU.
What has GNU contributed to Linux? The GNU tools don't count since they a) predate Linux and b) according to the FSF are strictly intended for GNU and any use others make of their Free Software is just a bonus. So just what has the FSF/The GNU Project done with the express purpose of aiding the Linux based distributions? (Hint: there are some, but not many and those are often tangential. Certainly not a significant share though.)
I'm sorry but the FSF can't have it both ways, either they ARE still working on GNU and shouldn't be creating confusion by trying to stick that name to other people's unrelated work or should admit defeat and adopt one of the existing distributions into the GNU Project and rename it as the Official GNU System. Hell, they could fork RedHat and do the world a real favor by providing a freely redistributable version of a stable RedHat. I'd even BUY that from them if they didn't want per seat licensing.
In a nutshell, what I'm saying is that if you expect people to call it GNU it better have a GNU on the login screen, not a hat, lizard or penguin.
But to date, Linux is not GNU. As to the Linux the kernel and Linux the OS confusion, it really isn't. We all know what people mean when they use the word, and to date if it uses the Linux kernel and the distribution want to call it Linux and fly the penguin flag everyone accepts it as a new member of the Linux family.
In the end this is why they are so hysterical about GNU/Linux and don't give a crap about renaming Solaris to GNU/Solaris. Because of Linux, few people care anymore whether GNU ever ships a working system. Linux is a threat to their ego and their need to control. It is the penguin they hate, bacause in the marketplace of ideas more people consider themselves followers of the Penguin banner than members of the GNU herd.
(yea, bad pun)
The FSF has done some wonderful things, and will probably do more in the future, but I for one am glad things worked out where the FSF was never given that much control because like most fanatics they serve a useful purpose but should NEVER be given real power. (See current world affairs for examples.)
p.s. This isn't flamebait. If you disagree, point out where I'm in error instead of modding.
Democrat delenda est
Have you noticed when a Stallman-defender responds to this, it usually involves a personal attack and makes them look somewhat fanatical as a whole?
Shut up you pompus twit. I've no time for jerks like you - I have to go play with my RMS and ESR action-figures.
(kidding)
Moneyed corporations, non-working 'poor' and criminal prisoners are turning productive citizens into tax-slaves.
I'd say their view of copyright law, software programming, and giving respect by calling things by their given name is considerably "grow[n] up". What you don't appear to understand is that SCO's language is purposefully unclear so they can leave their options open on what to sue for. The FSF was simply being thorough in their explanation by showing that SCO's language lead to a losing case.
No on both counts--their fear is probably closer to not having enough money to do all the things they want to do, and no you don't have any news for them. Perhaps you haven't been around long enough to know what contributions the GNU project has made to our community (ideological and programmatic). The political forces are at work challenge both the Open Source and Free Software movements and must be met by focusing our efforts on lobbying for political support, not just more code.
Getting a working GNU/Hurd system has been accomplished and looks to me like it is now in the stage where it is not ready for most computer users but it does boot. Improvements and extensions to the system (as well as getting the Hurd on a new microkernel) continue to arrive. This is all significant and needed progress but more code will not help stop harmful policies from being adopted under the cry of "harmonization" (such as EU adopting software patents or stopping the US Congress from extending the term of copyright again), nor will it stop various US states from adopting legislation that could (among other things) make it illegal to have a firewall unless the local telecommnications corporation says otherwise, or a host of other things that adversely affect our community. The FSF continues to speak on these issues and support Free Software development; the FSF is relevant nearly 30 years after they began.
Don't think that developing code must be done instead of working on other issues. All this and more needs to be done and is being done all at the same time.
Digital Citizen