Is Licensing SCO Unix Legally Dangerous?

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Is Licensing SCO Unix Legally Dangerous?

Posted by Cliff on Thursday July 31, 2003 @12:23PM from the stuff-to-think-about dept.

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?"

29 of 85 comments (clear)

The one thing that licensing SCO linux will do is by Xenkar · 2003-07-31 12:29 · Score: 5, Funny

It will make all of your linux friends laugh at you. Your new nickname will be SCO boy or something less flattering.
This is worse than college football speculation. by BoomerSooner · 2003-07-31 12:32 · Score: 3, Informative

At least with college football it will be concluded by january. This damn SCO thing is going to go on forever.

Use linux, ignore SCO until they are done with IBM. And for the love of god quit asking slashdot, ask your lawyer.
Your contract is with the distributor by Dancin_Santa · 2003-07-31 12:35 · Score: 5, Informative

However, the distributor must comply with the terms of the copyright holder. If SCO holds any copyrights that are not covered by the GPL on the Linux codebase, your distributor is in violation of SCO's copyright unless they have specific exemptions granted by SCO.

The upshot of this is that you as a consumer are safe from litigation, but if you were a distributor of the code (even passing a CD around the office would suffice) then you can be charged with copyright violations of SCO's code.
1. Re:Your contract is with the distributor by Anonymous Coward · 2003-07-31 14:13 · Score: 2, Interesting
  
  The ownership of the code in question has NOT been decided, It could turn out that, as all /.ers know:
  
  Sco
  Copies
  Opensource
  
  In which case I would like to see all SCO customers getting letters from linux kernel developers for violation of their copyrights. Linux developers have the same legal claim over SCO software, that SCO has over Linux, until a court decides something one way or the other.
2. Re:Your contract is with the distributor by deanpole · 2003-07-31 14:31 · Score: 4, Insightful
  
  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. :-)
3. Re:Your contract is with the distributor by Derek · 2003-08-01 03:20 · Score: 2, Interesting
  
  According to Melise Blakeslee (a partner with the law firm McDermott, Will & Emery),
  "Users meanwhile need to understand that Linux enduser license agreements are an 'as is' contract, meaning Linux users aren't protected from copyright or intellectual-property infringement claims..."
  
  Quoted from the July 28th edition of Information Week magazine in an Article by Larry Greenmeier titled "Sco Group Threatens Users in Linux Fight" p.24 -- sorry, I couldn't find a link online.
  -Derek
So.. by Anonvmous+Coward · 2003-07-31 12:36 · Score: 4, Funny

... when's sco.slashdot.org gonna go online?
1. Re:So.. by killmenow · 2003-07-31 12:53 · Score: 3, Funny
  
  yeah...so then I can put this in my host file:
  
  127.0.0.1 sco.slashdot.org
2. Re:So.. by Kris_J · 2003-07-31 12:59 · Score: 2, Informative
  
  Craptacular as the SCO stuff is, it's actually very important stuff. SCO may not produce anything of note anymore, but they do appear to know how to abuse the legal system in a way that should concern anyone with a heavy investment in the IT industry.
OSDL paper by Eben Moglen by ciaran_o_riordan · 2003-07-31 12:45 · Score: 4, Informative

OSDL have produced Positional Paper on the SCO issue.

It's a very well written 5-page document by FSF General counsel Eben Moglen, and can be found here.

Ciaran O'Riordan
--

--
Expert in software patents or patent law? Contribute to the ESP wiki!
1. Re:OSDL paper by Eben Moglen by Palos · 2003-08-01 05:01 · Score: 2, Informative
  
  Here is a reply to a portion of Eben's paper by another lawyer, it brings up some good points.
Re:The one thing that licensing SCO linux will do by Ummagumma · 2003-07-31 12:47 · Score: 4, Funny

It will make all of your linux friends laugh at you.

Linux users have friends? I mean, other than the little stuffed penguin I^H *ahem* they keep on the monitor?

--
"The natural progress of things is for liberty to yield and government to gain ground." - Thomas Jefferson
Re:The one thing that licensing SCO linux will do by Anonymous Coward · 2003-07-31 13:23 · Score: 2, Funny

Of course you insensitive clod! I have a stuffed baby-simba-lion on my monitor.
Exactly! by Greyjack · 2003-07-31 13:25 · Score: 3, Insightful

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!
1. Re:Exactly! by Alpha27 · 2003-07-31 13:33 · Score: 2, Interesting
  
  Despite the stolen analogy, the guy above is absolutely right.
  
  Why should I, a purchaser (if I spent the money) and user of a product who acquired said product from a distributor who is responsible for the software bundling/creation, be responsible for it's illegal origins?
  
  It's the vendors who should be penalized for the wrong doing, not the user. If Microsoft added software to the Windows without the proper licensing, then Microsoft should be to blame, not I. If GM steals an IP idea from another auto maker and puts it into my new car, it's not I who has to cough up the car, it's GM who has to pay the penalty.
  
  So why is it that SCO thinks the user gets the penalty, and not the originator of the software?
  
  I'm so glad someone finally asked this important question.
  
  Now, it's just a matter of waiting for the final outcome, and seeing what happens.
  
  BTW, mod up the stereo thief. ;=)
2. Re:Exactly! by nathanh · 2003-07-31 14:21 · Score: 4, Interesting
  
  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?
  
  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.
  Boy, this legal stuff is fun -- hit me with another one!
  
  Why bother, when you get even the easy ones wrong. Especially when the article is basically rephrasing what Eben Moglen said; you know, the professor who actually does know "legal stuff".
  Moglen points out that copyright law is not relevant to customers "using" Linux. In much the same way that readers can enjoy a book or a newspaper without a copyright license, so can users of software -- unless they have agreed to additional use restrictions in, for example, a shrink-wrapped box of software.
  
  But why do I get the impression that you're going to keep talking anyway.
3. Re:Exactly! by Greyjack · 2003-07-31 16:36 · Score: 4, Informative
  
  Um, I was being sarcastic.
  
  Say you buy a used stereo you find listed in the classified ads of your local newspaper. Then, a week later, the cops knock on your door to tell you it was originally stolen. What do you think happens then?
  
  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.
  
  "Intellectual Property" isn't an accidental name -- it's property. If, instead of a stereo, it was a piece of software, I'd be very surprised if the actual owner who's work was ripped off would actually be so hamstrung; rather, I'll bet they could very easily drag you into court and demand that you either a) pay up, or b) stop using the software.
  
  Gee, kinda like SCO's doing right now! If we discover we actually ARE in some weird bent universe where SCO wins out in all this, fifty bucks says we WILL have to pay them or be branded pirates. But, we'll get to sue the hell out of RedHat, IBM, etc, to the extent that we actually paid them in the first place.
  
  Now, this DOESN'T mean that I think SCO has a case here, at all. I'm merely suggesting that this argument doesn't strike me as holding much water (otherwise, an Ask Slashdot wouldn't be the first place we heard about it -- it's an angle the more legally attuned Bigs would be pounding SCO with in much more public fashion).
  
  No, SCO is going to wind up in a world of hurt because they've ALREADY given their code away under the GPL.
  
  Further, five bucks says there's a handful greybeards out there who have full sets of circa 1974 unix source code, fresh from their personal archives, ready and waiting to be grep'ed for whatever code SCO is claiming is theirs. Given Unix's long, crufty evolution, there's doubtless TONS of code in there that SCO is assuming is theirs, but in actuality isn't.
  
  That, and they already gave away all their damn code under the GPL anyway. But then, I already said that :)
4. Re:Exactly! by cthugha · 2003-07-31 16:41 · Score: 2, Informative
  
  Since you bought it in good faith, and in legal fashion, you get to keep it!
  
  Um, no, no you don't. There is a legal doctrine, nemo dat quod non habet (trans. "You can't give away what you don't have") that says otherwise. Since a vendor of stolen property does not possess title in the property, s/he can't possibly transfer it to someone else. Your only right over the property is a bare possessory right that's good against the entire world, except for the true owner.
  
  After all, you didn't do anything wrong, why should YOU get screwed?
  
  Yeah, life sucks sometimes. But why should the poor bastard who's had his stereo stolen have to suffer; he's just as innocent as you, after all. This is a case where the law has to come down on the side of one of two innocent parties who've both been wronged by a third, and the rule that the law has adopted in this case is caveat emptor.
5. Re:Exactly! by EelBait · 2003-07-31 17:35 · Score: 3, Insightful
  
  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.
6. Re:Exactly! by Basje · 2003-07-31 20:07 · Score: 2, Insightful
  
  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.
  
  --
  the pun is mightier than the sword
7. Re:Exactly! by schon · 2003-08-01 01:04 · Score: 2, Insightful
  
  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.
8. Re:Exactly! by jbolden · 2003-08-01 02:34 · Score: 2, Insightful
  
  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.
9. Re:Exactly! by jedidiah · 2003-08-01 03:16 · Score: 2
  
  They have yet to establish their property rights at this time. They are like some neighborhood kid that's trying to take your shiny new bike from you without so much as a receipt.
  
  SCO is actively evading any attempt to make it show it's reciept. It is quite reasonable to think that they are full of sh*t.
  
  --
  A Pirate and a Puritan look the same on a balance sheet.
10. Re:Exactly! by Kalak · 2003-08-01 03:21 · Score: 2, Insightful
  
  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.
  
  --
  I am, and always will be, an idiot. Karma: Coma (mostly effected by .hack)
11. Re:Exactly! by Qzukk · 2003-08-01 03:48 · Score: 4, Insightful
  
  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.
  
  --
  If I have been able to see further than others, it is because I bought a pair of binoculars.
SCO legal advice on slashdot. Just stop it. by mcdrewski42 · 2003-07-31 13:26 · Score: 2, Interesting

SMS>Since IANAL, and 4 this U need AL, U should get AL.<\summary>

Seriously though, you're asking about the details of copyrights, sub-licensing and contract law on a site, which you have to admit, has shown it's opinion on this matter pretty strongly before.

If you are being pressured into buying an SCO license, how about you ask those that are pressuring you what exactly you are licensing? what rights does it grant you and how may those rights be revoked?

ie: Ask a lawyer. Don't ask slashdot.

--
/* affect != effect */ void affect(int *thing,int effect) { *thing += effect; }
Don't contact SCO yet - if at all by Anonymous Coward · 2003-07-31 14:22 · Score: 3, Interesting

I am not a lawyer, and neither are most Slashdot posters, so you're probably on a hiding to nowhere if you really expect to get advice on a legal matter here...

Before I start, they haven't even started offering Unixware for Linux licenses yet - so why are you considering taking precipitate action. At the very least wait until they offer it! (and no I'm not advising you necessarily take it when they do)

At least one lawyer seems to think you should not contact SCO, but maybe that's just Australia!

A couple of other points have been raised from time to time:

1. If you download Linux from ftp.sco.com (or get a CD), then you are getting from SCO under a GPL license. Some might say it's the end of the story, but even if it's not... SCO supplied it to you under a GPL license which they claim to have rescinded or not accepted (even while distributing it) - what is to stop them also rescinding or saying that they don't accept (in future) whatever new license terms you get their stuff under? They've done it once (GPL), how do you know they won't do it again (Unixware license for Linux)

2. If you get Linux under some SCO license, you might be violating the GPL license of all the other kernel contributors (including individuals and large companies). If SCO gets destroyed, or even if not, as a result of this law suit, these people/entities could allege you broke their license, and sue you.... and I think yes they will find out who you are if they really want to, even if you SCO deal is confidential. The route they would take would (a) sue SCO, (b) get the list of SCO Unixware for Linux licensees from SCO through (a), (c) sue the Unixware for Linux licensees.
Re:The one thing that licensing SCO linux will do by Anonymous Coward · 2003-07-31 14:50 · Score: 2, Funny

They've got you by the SCO-tum.
Correct by booch · 2003-08-01 08:28 · Score: 3, Interesting

You are mostly correct. The whole SCO vs. IBM case is based on a contract dispute, not on any copyright or patent rights. SCO's CEO, Darl McBride, said in a teleconference that "we don't have any issues with copyright or patent with respect to any claims that we have made" regarding the IBM suit.
And in this article he mentions "contract" 12 times, but only mentions copyright once, and that's only in regard to removing copyright statements. It's almost as if he is being coy -- making it sound as if there is copyright infringement without ever directly saying it. In other interviews, he also avoids the word, choosing instead words such as "infringing" and "Intellectual Property". The SCOvsIBM page makes a similar observation:
Uncertainty is sown by much discussion of the case in terms of vague or broad terms such as "intellectual property" or "all rights", rather than addressing specific contractual, copyright, patent, or trademark claims. On specific grounds, Caldera/SCO's complaint seems quite limited.
An important thing to remember is that you cannot be sued over the contract that SCO has with IBM. Third parties cannot be held liable for contracts that they did not agree to. So if you have no contract with SCO, they can only sue you on the basis of copyright infringement. And you can only be sued for copyright infringement if you have copied or distributed something.
Do you really want to give SCO a new avenue by which to sue you? Given that SCO has not shown any evidence that anyone has infringed their copyrights, I don't see why you'd want to do that. SCO hasn't been exactly acting in good faith recently; I don't know if I'd trust any contracts they write up. Here's what Darl McBride says about SCO's use of contracts against their partners and customers:
Contracts are what you use against parties you have relationships with. From a legal standpoint, contracts end up being far stronger than anything you could do with copyrights.
If I were you, I wouldn't even let them know that you use Linux. Why give them any evidence to use against you later? Try to stay off their radar.

--
Software sucks. Open Source sucks less.