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SCO Attorney Declares GPL Invalid
chrullrich writes "According to heise (German, fishbait), SCO's chief counsel Mark Heise (unrelated) of Boies, Schiller and Flexner has declared that the GPL violates the US copyright law and is thus null and void. SCO's legal position is actually a little too crazy to believe: The GPL allows unlimited copies, the copyright law allows one. Therefore, the GPL is invalid. Apparently, they try to argue that the copyright law, in giving consumers the right to make one backup of their software without any permission from the copyright holder, outlaws any contractual agreement that allows users to make more than one copy." There's an Inquirer article in English. Apparently SCO is now using the Chewbacca Defense. Other SCO news: SCO reports a profit, examining SCO's contributions to Linux, an attorney summarizes the case.
go here http://slashdot.org/users.pl?op=edithome
and check Caldera under topics, then hit save.
I'm sure i'm not the only one tired of these sco articles.
They're trying to say that if I create something (it doesn't have to be a software program, call it a book) that I can't allow other people to copy it? What baloney!
I see no mention of how many copys are allowed from the ppl that wrote the law here.
When the FSF refers to the GPL license as being a "copyleft" they're making a joke, because they're using COPYRIGHT law to ensure that the code remains freely available. Copyleft is not a principle the law recognizes.
You say
topic 88, Caldera
US Copyright law guarantees the right to make one backup copy. That's fair use. It does not prohibit the copyright owner from allowing more than one copy. That would be absurd and the wording of the law does not resemble that at all. I have no doubt that he knows his own argument to be utterly false, but his job is to try and prove it in court anyway.
Parahpased/loosely transcribed events of the SCO financial conference call (I was multitasking on other work). It is biased, but you should get the gist of things.
rah rah rah
go sco
we made money. our market cap went from 10 million to over 140 million making it one of the leaders on the Nasdaq (Go lawsuit go!).
we r the "leader" in the Unix market.
over 100 parties have seen the code
our linux license was based on "demand". LOL. (because people who came and looked at the code inquired as to whether they would offer a license). that's demand?
companieS have been signing up! (no mention of who or how many). I didnt know ONE was plural.
4Q revenue to grow to 22-25 million due to ScamSource licensing
there are two Operating System platforms in the world. Windows and Unix. Microsoft owns Windows, we own Unix. We don't have a VERSION of Unix, we own ALL of it.
we will see this case through to the end despite what our competitors say (red hat: unmentioned by name).
the industry is being divided into two camps: those who respect IP and the those who are trying to destroy it. the "silent majority" is firmly behind SCO.
legal position is ROCK SOLID.
we continue to gain in credibility.
Q&A:
Budgeted Legal Expenses?
We have spent less than half of what we budgeted so far. Million/quarter range. 600,000-700,000 so far. they include these costs in as "costs of sales".
Guidance on First Linux License you sold?
Confidential. sorry, no.
The GPL
building your company around a GPL licensed software is like building your HQ on quicksand.
Even Linux companies that are pro-Linux are scared that their code "will get sucked into the GPL machine". Pure FUD.
Linux License
If you bought SCO linux, the binary license will be given to you for free.
Our "heritage line of software" wont grow but not because everyone hates us and thinks the product sucks, but because of the global economic slowdown.
Do you have new licensees?
Umm, hmmm, hummina, ermmmm, we are projecting we will for next quarter!
More GPL
When we were more involved in Linux, companies came in and said "how can you get involved with this beast.
There is NO WARRANTY in the license. This is problematic.
We look forward to going into a courtroom and dealing with these GPL licenses. We are very confident.
Insider Trading
When their shares vest, it causes the executives a tax event and this is the only way they can pay those taxes.
Darl McBride
My goal is to get money back on the shares I put into the company in 2000. The strike price on those is 56 dollars a share.
rofl. Good luck buddy.
Since I didn't know what it was I relied on the good old google cache
: www.connect-dots.com/Poofs/chewbacca.html+chewbacc a+defense
http://216.239.51.104/search?q=cache:bcblg2U6NdgJ
If there is no GPL they are infringing on the authors copyright.
They are selling this product.
Infringing copyright for financial gain is a criminal offense. By arguing that SCO does not have a license to distribute Linux definately hurts them.
To actually hurt ANY Linux distributer they would have to #1 prove they don't have a license to distribute. #2 be a copyright holder.
This is so obvious to me leads me to think that they really are MS monkeys and this may be the strongest attack they could muster.
Copyright dictates that the copyright holder has final say on who, exactly, will have permission to copy a work. The single backup copy issue is "fair use", and has nothing to do with this.
The GPL works *WITH* copyright by telling recipients that the author has explicitly granted them permission to further distribute their works only so long as they comply with the terms of that license. If they do not wish to comply to those terms, they do not have permission from the author to distribute. End of story.
File under 'M' for 'Manic ranting'
What about this:Desmond McBribe...
anyway something serious:
For the USA Copyright law: here
See paragraph 106 wich says:
Subject to sections 107 through 122, the owner of copyright under this title has the exclusive rights to do and toauthorize any of the following:
(1) to reproduce the copyrighted work in copies or phonorecords;
(2) to prepare derivative works based upon the copyrighted work;
(3) to distribute copies or phonorecords of the copyrighted work to the public by sale or other transfer of ownership, or by rental, lease, or lending;
(4) in the case of literary, musical, dramatic, and choreographic works, pantomimes, and motion pictures and other audiovisual works, to perform the copyrighted work publicly;
(5) in the case of literary, musical, dramatic, and choreographic works, pantomimes, and pictorial, graphic, or sculptural works, including the individual images of a motion picture or other audiovisual work, to display the copyrighted work publicly; and
(6) in the case of sound recordings, to perform the copyrighted work publicly by means of a digital audio transmission.
Sounds clear to me....
Umm... right. Except the GPL license is an agreement by the creator to FOREGO copyright restrictions. I mean, if the creator of something can't decide how their work can and can't be used..... WTF!?!?
+5, Female
...which will never be read, let alone modded up.
Position paper from an attorney over at OSI.
Wow, a lucrative publishing contract! I don't have to be evil anymore. --Meteor
Because copyright law is well known and determined by the Berne convention.
Here are the pertinant facts
You cannot loose your copyright on something that you wrote. It is yours for life unless you assign it to someone
You can ceed it to someone else under a license, but your protection under copyright prevents them from every taking that license off you.
When you work for someone the copyright on the work you produce during the time that they pay you belongs to them, and they can do what they want with it. It is not clear what determines the copyright of items created for a company.
Copyright applies to code, text, music and video.
Copyright has a stronger status than a patent in law because it is easier to prove a violation of it (here is the *copy* that you have made instead of here is the *idea* you used) But items that are copyrighted by someone can be protected by a patent, and licensed items can be protected by patents. This is the killer for Linux and will be how people get it if they every get it, because if someone has a patent on a GPL'ed item they will be able to enforce that patent on derivitive works that are not covered by the GPL and it is argueable that a rewritten class is separated from the initial license because the copyright has now passed to the author of the rewrite (who can grant a license to the copyright, but not to the patent)
--------------------------------------------- "In the end, we're all just water and old stars."
The GPL doesn't need to rigorously define what it means to form a "work based on the program," because this is covered by Copyright law in its definition of "derivative work."
According to copyright law, creating derivative works is an exlusive right of the copyright holder. The law defines "derivative work" in 17 USC Section 101. Without the GPL, creating a work that is falls under the definition of "derivative work" is illegal unless you are the copyright holder or you have permission from the copyright holder. The GPL grants you the right to create derivative works ("works based on the Program"), but only if you agree to its terms. If you do not, everything reverts back to normal copyright law and creating derivative works is illegal.
doh! Should've checked the numbers one last time. Make that, "lost $2.2 million on revenues of $13.8 million."
Stop by my site where I write about ERP systems & more
The GPL is a license that allows people to use a work
No, actually, the GPL is a license that allows people to distribute copies of a work, and to make their own derivatives. It does not cover use, as you do not need a license to use (view, enjoy) a work.
I'm sorry, but the phrase you're looking for is All Your Base Are Belong to Us". I suppose, given their propensity for getting everything else wrong, that SCO probably couldn't get that quote right either. In any case, I think that both IBM and RedHat have already told SCO "You are on the way to desctuction".
There's no point in questioning authority if you aren't going to listen to the answers.
The specifics of copyright law are that you can make one copy of something "without" the permission of the owner for backup purposes. GPL'd code isn't released with a single owner. It has several owners. All of which, when they released there code under the GPL, "gave" permission to make as many copies as you want. So, the GPL in no way violates copyright law. I am not making copies "without" the copyright holders permission, but rather "with" the copyright holders permission. I am now going to use the permission I was given by the GPL to make another copy of my Slackware CD, and give it to my friend, absolutely free. He in turn, will make a copy of his copy, and give it to someone else, with 100% full permission to do so; thus spreading the yummy goodness!!
Password Authentication Bypassed for Root
Furthermore, if I am the creator of a GPL project there is nothing at all to prevent me from making the code I wrote and making it both GPL and shrinkwrap.
That's the whole point of copyright: you can "give away" your rights for one method of distribution and not lose control of the work. GPL is absolutely, completely and utterly NOT "public domain."
Exactly!
From your link:
"Section 106 of the 1976 Copyright Act generally gives the owner of copyright the exclusive right to do and to authorize others to do the following:
To reproduce the work in copies or phonorecords;"
No mention anywhere about only one copy being legal...I think they're confusing Fair Use with copyright in general.
realityshunt
Democracy is susceptible to being led astray by having scapegoats paraded in front of the electorate.
106. Exclusive rights in copyrighted works
Subject to sections 107 through 122, the owner of copyright under this title has the exclusive rights to do and to authorize any of the following:
(1) to reproduce the copyrighted work in copies or phonorecords;
(2) to prepare derivative works based upon the copyrighted work;
Bottom line: GPL okay!
Thanks a lot, big brain. (K. Vonnegut, "Galapagos")
This was in September's Wired, so when did this interview take place to get published? At least a month to two months earlier. These guys have a long and detailed game plan. We may think they are idiots and wrong, but they are by no means "winging it".
I personally think these guys are going to lose, but anyone who thinks they are not skilled and very dangerous lawyers is fooling themselves. Thank goodness IBM (with lots of money and good lawyers) is taking them on and not some ragtag OpenSource or FSF outfit. We'd get crushed.
"Doubt your doubts and believe your beliefs." -- Switchfoot, Ode to Chin
Yep, and if you are able to read the article you'll see that they are actually arguing that that is impossible.
"[Sie behaupten] die GPL mit ihrer uneingeschrankten Freigabe des abgedeckten Codes zur Weitergabe und Modifikation widerspreche der US-Gesetzgebung uber Copyrights und werde dadurch auBer Kraft gesetzt. Das geltende Recht gestatte Software-Kaufern namlich lediglich das Anfertigen einer einzigen Sicherungskopie."
Loosely translated: "[They say] the GPL with its unrestricted clearance for copying and modifying would contradict the US legislation regarding copyrights and would be voided by it. That would be because the laws in force would only allow software consumers for a single safety copy."
i.e. because the law only gives your client the right to a single safety copy, you can not under any circumstances allow them to do more. Needless to say, this argumentation is so absurd that it's almost an insult to try to get away with this.
BTW, sorry for my possibly incorrect indirect speech in the translation...
What the law establishes is a floor - no license can prohibit the purchaser from making at least one backup/archival copy. Some vendors have tried to get around it by declaring the original media to be that single allowed archival copy, but I doubt that would stand up to a laugh test if it got to court.
It's common practice for lobbyists to try to convert floors into ceilings and vice versa during deliberation. That's why you'll occasionally see a group fight hard for a bill then suddenly oppose it - somebody managed to flip the sense of the bill. But you can't do that after the fact, especially for a product you don't own or produce. It's a silly as, oh, Red Hat claiming that copyright law prohibited any company from purchasing and installing more than a single copy of any Windows product.
If somebody rejects the GPL, they don't have the right to make or distribute ANY copies of the software.
(IANAL, but this is basic stuff that everyone should know.)
For every complex problem there is an answer that is clear, simple, and wrong. -- H L Mencken
I don't think that's quite right. You don't have to accept the license to change the code or make copies. You have to accept the license to DISTRIBUTE the package -- with or without changes.
Imagine if you weren't allowed to use roads because a bus company complained about your driving 3 times. --skunkpussy
Dude, there are papers published about Ext2fs which describe the data structures in exquisite detail. You don't need to look at the code to write an ext2fs clone. I have written proprietary utilities to access ext2fs data structures. I know what I am talking about.
s . htm
http://e2fsprogs.sourceforge.net/ext2intro.html
http://uranus.it.swin.edu.au/~jn/explore2fs/es2f
In addition, there are various commercial tools that read and write ext2, such as
Ext2fs Anywhere.
So in that case, you're full of crap. I don't know if I am really qualified to comment on the other case, but doesn't BSD have linux compatibility? And isn't BSD available under a much less restrictive license? They could just adapt that code.
I'm not a lawyer, but I've worked with several on patent/copyright/trademark issues (none dealing specifically with the GPL, but I've read it and as long as you take what it says to have some merit, all of my above conclusions follow)
Speak for yourself.
From the Legal Law Institute
A copyright gives the owner the exclusive right to reproduce, distribute, perform, display, or license his work. See 106 of the act. The owner also receives the exclusive right to produce or license derivatives of his or her work. See 201(d) of the act. Limited exceptions to this exclusivity exist for types of "fair use", such as book reviews. See 107 of the act. To be covered by copyright a work must be original and in a concrete "medium of expression." See 102 of the act. Under current law, works are covered whether or not a copyright notice is attached and whether or not the work is registered.
Most countries have also accepted the Berne Convention for the protection of literary and artistic works.
Article 9 specifically states:
(1) Authors of literary and artistic works protected by this Convention shall have the exclusive right of authorizing the reproduction of these works, in any manner or form.
(2) It shall be a matter for legislation in the countries of the Union to permit the reproduction of such works in certain special cases, provided that such reproduction does not conflict with a normal exploitation of the work and does not unreasonably prejudice the legitimate interests of the author.
(3) Any sound or visual recording shall be considered as a reproduction for the purposes of this Convention.
Article 12
Authors of literary or artistic works shall enjoy the exclusive right of authorizing adaptations, arrangements and other alterations of their works.
Practical examples: The copyright owner can set the price of the object being protected. Many university research projects release their source code on condition that the authors names remain on the files or that a credit is given somewhere within a derivative application.
Preemption of a license agreement is a dead loss argument these days. The Federal Circuit took up that question in a far more important context: enforceability of a no-reverse-engineering provision. Their answer: no preemption.
In the Bowers v. Baystate opinion , the Federal Circuit considered the enforceability under Copyright preemption of a shrink-wrap no-reverse engineering provision. They held that there can be no preemption of a contract, even if it flies squarely into fundamental Copyright Policy like fair use and first sale doctrine. The Section 117 provision argument here is a far, far more attenuated argument.
Though it is pretty clear to me that provisions like the no-reverse-engineering clauses are clearly unconstitutional, I couldn't get the Supreme Court to get excited enough to take up the case in my Amicus brief on behalf of IEEE policy on no-reverse-engineering clauses. Maybe next time.
But in the meanwhile, Boies et al. are running squarely into the teeth of the most recent Circuit Court case addressing the point, and it won't be pretty for them.
I am worried about the refined definition of "derivative works" that will come out of the case, and if I will be able to reuse source code from books, personal projects, and from online sources. I am NOT worried about SCO, or Linux failing, or the GPL not being enforcable.
On the first point, There was one major case that went to court about derivative works, the issue of AT&T and Berkeley's Unix implementations. If/When this goes to court, the settlement documents will have to be opened, and we'll all get to see some interesting things, including the likely posibility that SCO does not have the rights that it is asserting. There have been a few other cases that were clearly deriviatvies (according to the wording of the law), but there have been no relavent cases other than the earlier one about Unix where the border of derivative works in software has been established.
On the second question, that's exactly what is at stake in the case. That's what the lawyers see, but many geeks try to ignore. It's the reason that so many geeks and laywers were mad when software was declared to be subject to copyright and trademark laws, rather than exempt as science. I argue it is more like science because it must be an iterative improvement, and less like art. But I digress. See 17 USC 101 for the actual legal definition of derivative works and related terms. Or, if you don't want to bother following the link...
Remember that This has not been decided in any legal case yet. So let's not say that it is decided, but look at the extremes. We know that whatever is decided must lie within the extremes, so if we examine the extremes we'll know what to expect.
In a very strict reading of the definition, ANY unix-style OS could be claimed to be a recast, transformed, or adapted verion of some earlier unix OS. The Posix standard also could be considered a derivative work. If your software interfaces with that OS, it must use OS-provided interfaces and data structures. While your application may be an original work of authorship, it could easily be argued that it is a derivative work of the OS. (It contains content that was developed by another author.)
Rinse, Lather, Repeat. Include in your rinse-lather-repeat cycle that new systems, including embedded devices, also use the same concepts that are contained in other OS's. They have to be programmed in some language, probably C, and that language was derived from the Bell Lab's work.
So from this extreme, we can see that SCO owns everything. That is a strict reading of the law.
Lets take the other extreme. In a very lax reading of the definition, it moves us back to common-law. We can then say that any copying for inter-operation and communication purposes is not a deriva
//TODO: Think of witty sig statement
All we need is one slashdotter on the jury and SCO is doomed. I just hope it isn't the penis bird man, the Natalie Portman stalker, or the grits fetishist.
I am not so sure. In criminal law (in most states) it requires "beyond a reasonable doubt" and all jurists agreeing. But the standard is lower in civil suits, and in some states, 10 of 12 have to agree is all. If it goes federal, I am also not sure. Any lawyers want to make yourself useful and fill us in?
Tequila: It's not just for breakfast anymore!
Mind? Some of us feel that it was Sun that bought the first UNIX license from SCO.
And some of us are about a month behind: Sun Revealed as SCO's Secret Licensee.
the no
If his theory is true, then the obvious corollary is that all publishing contracts between a software author and a software publisher are also invalid, as they also allow the publishers to make more than one copy. This, of course, is stupid and wrong.
Actually, the law doesn't state how many backups you can make, the legal staute (17 USC 117) states:
In other words, it says, you can make "a copy", but it doesn't say "one copy", you can make a copy and then make a copy and then make a copy...; it also says "all archival copies [must be] destroyed". The legal standards for interpreting a statute say that all elements are presumed to have meaning; the "all archival copies" clause clearly envisions an owner with multiple archival copies. The omitted sub-section B also clearly states that multiple backup copies are permitted.In other, other words, SCO is blowing really, really, really weak smoke.
This is turning into a laugher...
GPL does not violate copyright law as SCO's backwards-logic lawyers say it is.
The GPL is a contract....a contract that gives ppl access to the source code under certain conditions and also requires them to use the same contract to give access to the source code, especially if they modify the original.
Hell, I think the GPL is better than copyright, at least if you consider the original intent of our founding fathers.
Anyways, copyright law says "WITHOUT permission" and well....the GPL IS the permission (not just the contract).
And this most recent action by SCO just further fortifies the look of how SCO's logic AND code (if any) is faulty, so much so, the exec's are jumping ship faster than ppl would if they suddenly find themselves on the ill-fated Titanic w/ Anna Nicole Smith (2 wrongs make it worse).
Now, for those slow on the uptake, what does a Microsoft site license do? Yup, it grants (in exchange for money) a more liberal right to copy than that otherwise offered by copyright law. Forget site licenses. I have here in front of me a shiny new box of Visual Studio.NET. I quote (from eula.txt): "Microsoft grants to you as an individual, a personal, nonexclusive license to use the Software, and to make and use copies of the Software for the purposes of designing, developing, testing, and demonstrating your software product(s), provided that you are the only individual using the Software." So I can make as many copies as I want, as long as I'm the only one using it.
This is probably (it's untested, hence the "probably") untrue. One of the rights that is reserved for the copyright holders under Title 17 is the right to make derivative works. Modifying code would almost certainly be seen as making a derivative work, at least if the changes are more than an extremely minor patch or something, and hence a violation without the copyright holder's permission.
Uhmmm. What? You can change your copy all you want. If I go out and buy the latest Stephen King novel and change the ending to something that makes sense, I'm not violating the copyright until I start passing out revised copies.
Heck, if people couldn't alter OS code to suit their needs, what would be the point of OS? If the copyright holder had to approve the changes, that defeats the whole purpose, obviously.
Some people have a way with words, and some people, um, thingy.