Is Licensing SCO Unix Legally Dangerous?

cheros asks: "I'm starting to get very puzzled by the SCO licensing scheme - am I mistaken or is licensing SCO actually about the most dangerous thing you can do as business or end user using Linux? [disclaimer: IANAL and AFAIK, so get decent legal council - I might be completely wrong ;-)] If I buy a copy of Linux from a provider, my contract is with that provider, NOT with SCO. In other words, if said provider has supplied me with something dodgy (and that is still very much an open question IMO), the issue lies with SCO and the provider, not with me and SCO, as I have no contractual relation with SCO in any way, shape or form. So, licensing SCO might actually CREATE that relationship and thus enable SCO to play further games with enforceable contractual obligations, something it currently lacks with end users. If that is correct it puts SCO in an even worse light (if that's possible) as that could mean deception as well as FUD. The latter might have become accepted in business and politics, but the former might actually be illegal in some countries. In short, as far as I can see you don't actually have a problem as a Linux end user...until you get a license. Comments?"

Comments

Exactly!

[Greyjack]

Yep, it's just like when you buy a used stereo from a guy, and find out later that he stole it from someone else. Since you bought it in good faith, and in legal fashion, you get to keep it! After all, you didn't do anything wrong, why should YOU get screwed?

Boy, this legal stuff is fun -- hit me with another one!

Re:Exactly!

[EelBait]

You forgot that the phrase "Intellectual Property" is not a legal term. It is an attempt by sleazy lawyers to lump copyright, trademark, patents, etc. into some sort of catch-all even though they are nothing in common. Since the law does not recognize "intellectual property" your whole argument is baseless.

Re:Exactly!

[Basje]

It's not the same thing, because your example deals with physical property and the article's example is related to intellectual property and contractual agreements.

No, not exactly, but the analogy is there. What he is referring to is the nemo plus rule (from "nemo plus iuris ad alium transferre postest quam ipse habet"). This says you can never transfer more rights to anything than you had in the first place.

What you call physical property, is nothing but rights you have to a certain piece of matter. It is really not as dissimilar to intellectual rights, which are rights to an idea or concept. Both of them can (and are!) regulated by law. The only real difference is the object to which it applies.

Next, please consider the following: rights are goods too. You can trade rights, just as you would trade physical goods. E.g. if you have a right to build a house on property you don't own, you can sell that right to a 3rd party. You can have a right to a right (e.g. the above example, you can have the right (option) to buy the above building rights)

This brings us on a sidetrack: theft. Now that we've established that property is nothing but rights, and rights are goods, we can say something about taking or using intellectual property without permission. In that case, you take something that is not yours, and use it without having a right to. As you can see, that is theft. Often it is argued that with physical theft, the original owner gets deprived. But consider the following: someone has 1 billion pieces of candy. You take one, to keep for yourself, without permission. Is it theft? Do you think the person will be deprived? This is a good analogy to what is happening when an mp3 is copied. Theft is theft. (Piracy is something else)

Once you realise that property isn't as absolute as you thought it was, the next step isn't hard to understand, although still hard to answer: who is liable in case of theft and fencing?

When a person buys stolen property in good faith, most jurisdictions will protect that person. But what if that person is notified of the status of that property? In that case the person cannot claim good faith anymore. That's point one. From which moment on can't the buyer claim good faith? People who bought Linux before SCO came with their claims, obviously shouldn't need to worry. But people who bought after IBM refuted their claims? Is IBM's reputation so much stronger than SCO's that they can claim good faith?

Why bother, when you get even the easy ones wrong.
I'm sorry to say, but he was a lot closer than you were. Please check your assumptions before making conclusions.

Re:Exactly!

[schon]

If this is so basic then why do SCO make such claims?

Because they have nothing to lose.

NOTHING about SCO's position makes sense. They're fucked, they know it, and they're trying a "hail mary" to see if they can stay afloat long enough to drive the share price up so they can dump their stock and have enough to retire on.

Re:Exactly!

[jbolden]

can't deny that Microsoft has considerable rights, and thus considerable say, about who can / can't use WindowsXP

I'll deny it. Microsoft has no rights regarding who can and can't use WindowsXP. They have one right about who can make copies of it. That's it. That is their only right, the right to control the creation of copies.

Re:Exactly!

[Kalak]

If you bought it in good faith, you don't get arrested, no. But the cops take the stereo, and you're left to try and get your money back from the sleazeball that sold it to you.

In other words, Linux is not in danger, as the cops knock on our door, take the offending code and we're left with some kernel hacker writing it based on established research papers, such as the RCU paper (sorry, not going to bother to link), and we're stuck getting our money back.

I don't want to both getting my money back from RedHat, as I'm sure they will just release a clean kernel and I can move on.

If this was a stereo we were talking about, it would be a big deal, but this a part of the kernel that will continue to evolve. Open source can evelve - a stereo can not.

Re:Exactly!

[Qzukk]

I don't think the minor semantic issues invalidate my point.

The problem is that they don't validate your point, either. Legally, your choices here are copyright infringement, patent infringement, and trademark infringement. Its clear that we do not infringe on SCO's trademarks because "Linux" is registered and in Torvald's name.

Our next choice is patent infringement. Their claims that every variant of Unix and piece of software written for Unix infringes on their "Intellectual Property" might have a claim here... but nobody's been able to turn up a patent in their name covering this. No patent, no infringement.

The last choice is copyright infringement. Here they might have some small fraction of their case against IBM: If someone at IBM took their written code and inserted it into Linux, SCO has a case. Even if the code was changed a little to avoid being a word-for-word copy, it would still bear the taint of being a derivative work or otherwise plagarized. In no way, though, could SCO claim to have copyrights on every piece of code in existance for Unix.

Failing that, their only recourse is breach of contract, which would be an issue strictly between IBM and SCO. If SCO wins on the grounds of that, they have NO recourse against any Linux user, because their contract is only between IBM and SCO.

I am not a lawyer, and there may be other laws I am unaware of, but that seems to pretty much cover the field as far as I'm aware.

Re:Your contract is with the distributor

[deanpole]

Yeah, so buy your Linux from Sun. According to SCO they are the only Unix licensee who is completely paid up and squeaky clean. It only takes one copy by one person. GPL for one, GPL for all. :-)