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.

Comments

Hmm

[Vokbain]

I thought part the GPL was the copyright holder giving permission for people to make copies, etc..

Re:Hmm

[Interesting Username]

It does. If you aren't allowed to do that, then technically you shouldn't be able to license your software/music/whatever either because that allows for another copy. Really what is the difference between giving it away, and selling the rights other than the amount of money that exchanges hands?

Re:Hmm

[Soko]

Exactly.

This is not quite so dumb as it sounds, however. (Disclaimer - IANAL, I'm also Canadian) According to US law, there's 2 ways to release your work - with or without copyright. They seem to be arguing that the GPL invalidates itself since it doesn't seek to restrict how the work is distributed, and all GPLed works should therefore be in the public domain (no copyright).

OK, so it's really a bad argument, since the GPL does place restrictions on distrubuton, but it's likely the best of a bad lot.

Unfortunately for SCO, they're about to get on the wrong side of Microsoft too, since MS allows large coprorate customers to make unlimited copies of thier software, but with restrictions. Someone could use the precedent set by this case (should SCO win - HA) to invalidate those licenses as well.

All in all, I'd say RMS was at his insideous best when he crafted the GPL - delcare the GPL invalid, and all other IP licenses are fair game too.

Soko

Re:Hmm

[Anonymous Coward]

GPL is a means of being paid for your work by requiring individuals who benefit and contribute to your code to release their contributions under the same conditions as the original.

IT IS NOT FREE...It has conditions and limitations...It requires a barter...copying is the means of distrubution...that's it that's all.

Re:Hmm

[lone_marauder]

... all GPLed works should therefore be in the public domain (no copyright).

So they are trying to sell licenses on something they attest in court to be public domain. I wonder if the right hand knows what the left is doing.

Re:Hmm

[RealAlaskan]

Acutally, I'm kind of hoping that the end result of this is exactly what you're saying: you can either copyright something, or you can release it into the public domain. That you can't release something into the public domain with restrictions, even well meaning ones like community licenses.

So, then, there are two possibilities:

• the author has the right to copy his work. NO ONE ELSE DOES. Period.

• The author releases it into the public domain, and EVERYONE can copy it.

And (you seem to be suggesting), if the author lets ANYONE make multiple copies, the document automatically goes into the public domain.

So, if you publish a book, you've let the printer make multiple copies and the book's in the public domain. If MS lets some business make multiple copies of Windows, it's in the public domain and we ALL can copy Windows. No author has the right to enter into an agreement to let his friends, associates or family make copies: doing that would eliminate his copyrights.

Wrong.

The problem with your idea is the ``... release something into the public domain with restrictions ...'' part. If it's in the public domain, it's not restricted. That's what public domain means. Everyone has the right to use it; no one has the right to restrict another from using it.

If you choose to make a copyrighted work available to others, and extend to them some of the rights which copyright law reserves to you, that's your right, and it doesn't, EVER, put that work into the public domain. That's what the GPL and the BSD licences do: they relax some of the restraints of copyright for those who abide by the licence.

To say that an author can't do that is to restrict his right of contract, and it's pure foolishness to suggest. From reading the babelfished version of the Heise article, I can't really tell what SCO is proposing for a theory, but I can't imagine anything that could ever fly.

We actually had a standing order here NOT to use OSS because of licensing questions, until I got the rule whittled down to exclude BSD, Apache and a few other licenses. The managers here thought that the money spent on exploring the legality of products based on top of GPL'd code was not worth the time they saved developers.

That's exactly why some folks use the GPL. If you want to play with our toys, play our game. If you don't want to play nicely with us, get your own stinking toys. I commend your manager's honesty.

Re:Hmm

[matfud]

What exactly is the relationship between Canadians and the Telnet protocol's "Interpret As Command" signal.

Are they now Gods to be obayed to maintain compatibility.

matfud

Re:Hmm

[Minna Kirai]

All these damn licenses acheive nothing. People released code into the public domain LONG before they were penned.

That's exactly why they were penned. Because RMS released Emacs as PD, and then was unhappy that modifications to the program he'd given away were being sold without him being able to see the code as freely as he'd given it.

Re:Hmm

[jedidiah]

You conveniently ignore the history that lead up to the GPL. You also conveniently ignore the fact that people continue to release code with copyleft licenses when they could simply release such code under the public domain. If there were no real motivation for developers to protect their code thusly, the GPL would languish in obscurity. The fact that it gets used enough to annoy people is proof of it's utility.

The GPL did not come about because RMS felt like being a nuisance. It was a response to a real problem. That problem was developer dissatisfaction caused by commercial interests assimilating "pubic domain" source code.

The GPL was created to keep RMS's contributors happy, not just to spearhead some idealistic crusade.

Copyleft achieves one VERY important thing: developer participation.

Not everyone is pleased at the prospect of being an UNPAID microsoft employee.

Re:Hmm

[SillySlashdotName]

you can either copyright something, or you can release it into the public domain.

I can't tell from context if this is your thought, or if you are paraphrasing someone else. Either way, WRONG

Copyright gives the holder certain rights in relation to their creation.

If the copyright holder then choses to exercise those rights and LICENSE the use of their creation under the GPL (hint, the 'L' comes from the word License, not copyright...) then they have not given up ANY of the rights they held under copyright. In fact, the GPL BUILDS on rights granted under copyright - if something is not copyright (i.e., public domain) then GPL CAN'T apply.

Public Domain says "This belongs to everyone, I have no legal rights to it."

Copyright says "This is mine, and I have legal rights."

GPL says "This is mine, and I have legal rights, BUT one of those rights allows me to allow you to use it under license from me, with restrictions. One restriction is you must keep this license text with the software. Another is that if you make modifications to MY creation AND DISTRIBUTE THEM (derivative works?), they must also be licensed under this same license - you can not infringe on my copyright rights. If you do not want to distribute your modifications under this license, then you may not distribute them based on MY copyright rights."

My point is that GPL does not invalidate any part of copyright law, it actually is based on what rights are given under copyright.

Re:Hmm

[Pharmboy]

The owner of copyright has sole discretion as to allowing a work to be copied and distributed, and can ask any price he wants. He can allow 1 copy for $10,000, or 50,000 copies for $19.95 each, or even infinite copies for $0. In the latter case, Public Domain has been created.

Don't fall into the trap of confusing price with copyright. They are not relative. Just because it is free, that doesn't make it Public Domain. If I want, I can sell any Public Domain software for any amount I can get. If there are any restrictions on charging, then it isn't PD.

PD means just that: It is in the public domain, and the public can do anything they want with it. Charge for it, modify and resell it, print T-shirts with the code, etc. The author is giving up all rights to inforce any restrictions when he PD's any software. He has no copyright to protect at that point. If MS wants to take it and incorporate it into Windows, the PD author has no recourse.

...and I declare SCO "petunias"...

[Just Some Guy]

but that doesn't make it so. Anyway, if it is invalid, then Linus should file suit immediately regarding their unauthorized distribution.

Re:...and I declare SCO "petunias"...

[TrollBridge]

"Anyway, if it is invalid, then Linus should file suit immediately regarding their unauthorized distribution."

I'm afraid that would only validate SCO's claim that the GPL is invalid. I'd say, in this case, the damage that could be done to SCO in such a lawsuit is insignificant compared to the damage that eliminating the GPL would do to open source software.

So I can't copy something I create?

[Radix37]

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!

Re:So I can't copy something I create?

[richg74]

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?

That does appear to be their argument. IANAL, but I cannot imagine that any judge could be convinced that the provision of the copyright law that allows you to make a backup copy, even if you don't have the permission of the copyright owner, somehow constrains the owner from permitting you to make modifications or copies or whatever.

To me, this just makes it abundantly clear -- as if further proof were necessary -- that SCO has no desire for this lawsuit to ever see the inside of a courtroom.

I think SCO is beginning to feel cornered -- not before time. In their earnings webcast today, they presented a "defense" of the stock sales by corporate insiders, which somehow left out how all these pre-planned sales happened (coincidentally, I'm sure) to start right after the lawsuit was announced.

Only one copy, huh?

[Elendil]

So shareware and freeware programs have been illegal all these years... thank you so much SCO, for clarifying this point. NOT!

when do we get a SCO section on /.

[Grand]

Seriously, there is a post every 2 days about SCO.

This is stupid

[Fiver-rah]

This interpretation also eviscerates the book publishing industry. After all, how can an author own copyright on a book, and then allow a publisher to go and violate that copyright by tossing off hundreds, thousands, even millions of unwarranted copies? Why has nobody stopped this outrage before?

Because authors and publishers make a contract?

The GPL is, in a sense, also a contract. It says, "We're giving these rights to you. You don't have to agree to our terms, but if you want the rights we give to you, you have to agree to our other terms." The GPL doesn't modify copyright laws, any more than a contract an author makes with a publishing house does.

Sheesh.

Re:This is stupid

[imp]

I am not a lawyer, and this is not legal advise.

Copyright law is the basis of the GPL. Copyright law says that the original holder of the copyright has the exclusive right to copy a work. The only way you can copy a work that has Copyright protection is with the permission of the author (or some other cases involving fair use that aren't relevant to this post). Most Copyright business happens as a result of contracts between the Copyright holder and those that make copies. In the book industry, the author sells his right to make copies, in some fashion, to the publisher. The publisher then creates the copies consistant with the contract, sells them and gives the author the amount of money that he or she is due (sometimes this figure is $0). This is no different than the FSF granting permission to copy a work based on a set of terms and conditions. People that publish 'political' or 'religious' works often do similar things. Many pamphlets I see contain words to the effect of "verbatum copies of this may be made without charge or further permission of X, the lawful copyright holder of this work." The GPL is based solidly in contract law, and is very similar to other software licenses in that it grants the ability to copy in a certain way, so long as certain terms are obeyed. The fact that the details of these terms differs is somewhat irrelevant when one is testing the validity of the licenese. To the extent that they are lawful is the only test that matters. And since they are lawful, SCO's claims not-with-standing, the contract is valid.

SCO's claims do merrit some analysis. The core of their complaint, is that federal law precludes copying. However, the copyright law specifically states that the copying cannot happen, absent permission. They seem to have conveniently overlooked the permission part.

Title 17, chapter 1, section 106 states: 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 ...

The other sections of the copyright act just restrict the extent to which restrictions can be made on the restrictions to make copies. Section 117 is the one that sco is likely relying on. Notice its wording:

(a) Making of Additional Copy or Adaptation by Owner of Copy. - Notwithstanding the provisions of section 106, it is not an infringement for the owner of a copy of a computer program to make or authorize the making of another copy or adaptation of that computer program provided: (1) that such a new copy or adaptation is created as an essential step in the utilization of the computer program in conjunction with a machine and that it is used in no other manner, or (2) that such new copy or adaptation is for archival purposes only and that all archival copies are destroyed in the event that continued possession of the computer program should cease to be rightful.

Notice here how the law allows additional rights to copy. It does not say that other types of copying is necessarily prohibited, just that the author cannot prohibit the actions listed. SCO's argument seems to state that it is the other way around: since federal law requires copyright holders to allow these sorts of copies, it only allows these sorts of copies to be made. That's a stretch by my standards.

Uncontrollable Outrage?

[sisukapalli1]

This is just so ridiculous that the only thing that keeps the sanity is that *eventually* SCO shit will tumble down - may not be weeks, but definitely a few months to a couple of years.

SCO press releases make the (former) Iraqi Information Minister look "forthcomingly honest" and makes Faux news "fair and balanced". Heck, it makes Steve Ballmer look sedated.

S

Re:Hold up a second...

[echo]

Because Copyleft isn't a Law, it's just an idea. Copyright is a law.

However, that being said, Copyleft is BASED on Copyright. What they are saying is.. no matter what the license says, you can only make one copy. Of ANYTHING.

So the Book Publishers and Authors need to start suing the printing press companies, since they give them the "right" to make copies so they can sell them.

What a pantload.

[pair-a-noyd]

The author of something can define his terms of agreement as he sees fit. If the author of a package wants to allow unlimited copies to be made and distributed, then so be it, no law can negate his wishes if he is the author of that work.

In other words, I can write a poem and I can make a public declaration that my poen belongs to the world and that anyone that wants can copy it and give it away and modify it and give that away, as much as they like. You can't then come along and tell me that there is a law that overrides my wishes (that my work be freely copied and distributed) and that I'm a lawbreaker..

SCO is a dirty diaper. They are full of shit, they stink and they need to be changed and thrown out..

Not How I Expected the GPL to be Challenged

[Carnage4Life]

This current ploy by SCO sounds like it doesn't hold any water. On the other hand, there is one part of the GPL that I am unsure how well would stand up to quick witted lawyerisms in a court of law. The section

You may modify your copy or copies of the Program or any portion of it, thus forming a work based on the Program

seems too open to interpretation from my layman's perspective. I'm actually quite surprised that no one's ever gone to court over exactly what it means to say their application is based on another application with regards to what the GPL has to say. If a project with 1000 source files, totalling a million lines of code uses some GPL code in one of the routines that performs some utility function, is the application based on the GPL program? According to armchair lawyers on Slashdot the answer is YES, however would a judge and jury see it the same way?

Re:Not How I Expected the GPL to be Challenged

[Grishnakh]

If you read a book and there's a chapter about a man talking to his cat, that doesn't prevent you from writing your own book with a chapter about a man talking to some cat.

However, if your book contains an exact copy of that other book's chapter, that's called plagiarism, and is illegal. It doesn't matter that your book has 50 chapters, and only that 1 chapter was copied; you're still guilty.

Legal Loophole?

[darkstar949]

From my understanding of the GPL they are giving you permision to make multiple copies, and one would think that if the creator of the software gives you permision to make the copies then that should over ride the copyright laws. In esence, whats the point of making a EULA (or the GPL in this case) in the first place if the federal copyright laws are going to over ride anything that is agreed to?

Also, on a side note, why is SCO making this the focus of the case if the reason for the lawsuit is that they are claiming that code was used without their permision. If that is the focus of the case then they should prove that code was used without there permision - not that the program is distribuited and they don't like the way it is distriuted.

What the GPL is. Why this won't work.

[Anonymous Coward]

Every author of original works retains the copyright on those works, unless they choose to pass the copyright on.

A copyright is a governmental monopoly given to the author to allow them to control the production of copies of their work, to allow them to extract maximum profit from their activity (for a limited period... not so limited anymore, mind).

The GPL does not limit a person's copyright holding as the author. Such a license would be an illegal contract.

An author with copyright is able to offer a license to produce copies to publishing organisations. In the case of books, a publishing company. The author still holds the copyright, but they allow someone else to exercise it, based on conditions (either a set fee, or a more detailed contract). In fact, without these enabling contracts, copyright is merely a prison of ideas. They must be copied somehow and more authors are unable to do so themselves.

An author might write a book and then draw up a contract with a publisher to allow them exclusive rights to print hard copies for a limited time, with a set percentage of the profits going to the author. In the book business, it is common for publishers to borrow the copyright from the author for a given time, so that the author can't allow someone else to publish too. In the book business, three publishers producing the same new book is bad for the business of each publisher.

The GPL is a contract like the ones authors sign, that sits above copyright law. It extends it and makes it useful.

The GPL is a reasonable contract, by and large. It does not break the fundamental rights granted by law to the publishing parties, so it is a legal contract. Moreover, it does not damage copyright law, nor does it take the copyright away from the author illegally. If you don't like it, don't copy it and don't take advantage of the copyright monopolist giving you the ability to produce copies.

It is worth understanding, though, that each of us are publishers and have legal requirements to act in a responsible way.

But the GPL is quite, quite valid.

Are you PURPOSELY being thick?!?

[fzammett]

Look, I'll be the first to say that this argument as put forward by SCO's councel seems pretty damned thin. Anorexic. Thin-sliced deli meat.

They may wind up being right of course, but that's not my point here...

I'm wondering why everyone is posting in a manner that suggests they didn't even understand the argument?

What SCO is claiming is that since the JPL is not a recognized framework under the law, but U.S. copyright law of course is, any contradiction between the two should result in what U.S. copyright law saying winning out.

They then further say that since U.S. copyright law allows for only one backup copy, any provision stating otherwise in the JPL is null and void under U.S. copyright law.

(One presumes they are only claiming this applies in the United States, they're flakier than we all think if they're claiming otherwise).

Those two points, when taken together, is their argument. And contrary to what so many seem to be saying, it is a logical conclusion to draw.

I'm not saying they are right... You have to use some discretion when applying law, that's what judges are ultimately for, and I, like everyone else, suspect that a judge is going to laugh about this.

But, it does make sense on the surface, and I'm surprised so many of you uber-geeks don't seem to see the argument for what it is, which is a massively stretched piece of logic, but a piece of logic none the less.

Re:Are you PURPOSELY being thick?!?

[mark-t]

The GPL does not have to be recognized by the copyright office in order to be valid.

Copyright dictates that *only* those who have been permission to distribute a copyrighted work may do so (Note, *distribute*, not merely copy.... copyright law is actually quite relaxed on the allowance of copying for purposes of fair use).

The GPL outlines what terms a person must agree to in order to acquire permission from the copyright holder to distribute copies of the works.

Therefore, simple failure to abide by those terms while continuing to distribute such works is plain ordinary copyright infringement.

Re:Are you PURPOSELY being thick?!?

[schon]

this argument as put forward by SCO's councel seems pretty damned thin. Anorexic. Thin-sliced deli meat.

No, it's not thin, it's transparent. Invisible. Non-existant. A fart in a sewer.

I'm wondering why everyone is posting in a manner that suggests they didn't even understand the argument?

Perhaps because they do understand the argument, and the conclusion it draws is so laughably stupid it's unbelieveable.

What SCO is claiming is that since the JPL is not a recognized framework under the law

Yes, and this is the part that falls under "laughably stupid" - no contract that hasn't been to court is a "recognized framework" - but that doesn't mean that every contract that hasn't been validated by a judge is invalid.

any contradiction between the two should result in what U.S. copyright law saying winning out.

And (again) this is NOT a logical conclusion - people give up their rights in contracts every day. The NDA that SCO wants people to sign to see the alleged infringing code forces people to give up their right to free speech - does this mean that the NDA is unenforcable? Of course not.

They then further say that since U.S. copyright law allows for only one backup copy, any provision stating otherwise in the JPL is null and void under U.S. copyright law.

And this is their second unbelievably bone-headed, colossaly stupid statement.. The US copyright law allows for one backup copy without the permission of the copyright holder (and this is not entirely correct.) Note that key phrase. The GPL is exactly what gives them that permission.

Those two points, when taken together, is their argument. And contrary to what so many seem to be saying, it is a logical conclusion to draw.

It's only logical if you decide to throw away the concept that people are free to enter into contracts as they see fit - which is ludicrous.

It has NO logic behind it. At all.

it does make sense on the surface

If you define "the surface" as "believe everything they say, without applying any kind of logic-check to it at all", then you may be correct. But as soon as you decide to engage your brain, you see that it's totally and completely without merit of any kind.

Re:Hold up a second...

[luzrek]

Actually SCO's reasons for why the GPL is invalid is actually what makes GPL legally strong. It grants rights (unlimited copying and changes) that are prohibited if the user does not accept the license. Therefore, if someone makes more than one copy, or modifies the source code the defacto accept the license (or they are breaking the law).

Re:howto: disable caldera news

[Cutriss]

It's all well and good that you're tired of SCO articles, but this one is *highly* important...Important enough, I think, that the editors could "override" your Caldera selection.

The GPL is being formally challenged in court. I fail to see how that *couldn't* be "News for Nerds" or "Stuff that Matters". This affects *everyone* here, and hundreds of millions of people that don't read /. . The future of Free Software is contingent on the outcome of this allegation.

huh

[BoneFlower]

what? huh? what? huh?

wtf? this is wrong... Copyright law allows one backup copy, and such other copies as are necesary to use the software, unless the copyright holder grants permission to make more.

So, am I violating US copyrights law?

[mm0mm]

If their interpretation is valid, all free software available on the planet might be violating US copyrights laws because agreements that allow free distribution of copyrighted materials is illegal. Thanks for the tip, Boies office. I can no longer make copies of Mozilla or OpenOffice binaries without copyright holder's permission. Damnit!

But hold on a second; I thought GPL was an agreement more for distributor to release copyrighted materials to public without fees. While EULA is a Nazi copyright contract to limit users' rights, GPL works both on copyrights holder, distributor and end users mutually.

hmm, looks like SCO legal team, in desperation, is making radical accusations that is tough to verify.

Re:SCO and UNIX

[sunbane]

Sun doesn't mind because their revenue doesn't necessarily come from Solaris, it comes from servers and support contracts. Whether they slap Solaris on a box or Linux, won't matter as long as they are still the ones supplying the hardware with redundant power supplies, fiber channel disk arrays, etc. Short term, solaris may be a little more stable for a large scale enterprise. Long term, if linux fills the gap there, they just increase their profit margin by not having to maintain their own OS.

Site licenses?

[maynard]

Wouldn't a legal ruling along these lines make all commerical site licenses invalid as well? Can they really be arguing that the owner of a copyrighted work doesn't have the right to contractually license duplication rights to others? Wow, that's just plain nutty. --M

SCO's agreement with IBM

[Mostly a lurker]

If copyright law forbids a license that allows multiple copies to be made, presumably this means that parts of SCO's agreement with IBM for use of the old Unix code base are invalid.

Come to think of it, SCO's source code agreements with everyone else (including Sun and MS) are probably invalid also. This is hilarious.

I am now waiting for SCO's explanation on how code in Linux can still be a secret in spite of the fact that tens of thousands of people regularly look at it. Next, we can learn how patent law does not permit Novell to retain Unix patents when relinguishing the source code and why SCO really does have the right to keep talking about its right to the 'Unix' IP (when it is supposed to have no such right because it does not even own the Unix trademark).

Re:There is no way to win!

[AndroidCat]

What do they care about SCO Unix? I doubt they care if they sell another copy. Right now, SCO is a zombie that only exists for two reasons: (1) Sue as many people as possible and hope they win something before they're locked up in prison or the loony-bin. (2) Live-testing designer drugs.

Re:Finally, a Substantive Claim from SCO

[TexVex]

But if the GPL is not valid and enforceable, then what software license is? I'd imagine that if the GPL were found not valid, then it could validly be argued that Microsoft's EULA is not valid either. That would be a hell of an interesting class action lawsuit.

By their logic

[onyxruby]

Any software that doesn't allow one copy also has an invalid license. Ergo by preventing me by license or DRM (digital restrictions managment) from making my one copy, the license is also invalid. Not that I'm rooting for the one copy thing to knock down the GPL, I'm just saying this is a two-edged sword that could also be used against draconian liceneses and DRM measures. Regardless, this bears watching. You can't argue that it works for more than one and than counter that you mean it can work for less than one.

Give me another hit of that stuff......

[Anonymous Coward]

If by some weird twise of fate SCO's challenge is upheld, the implications are far more staggering than just the end of free sortware (although that's bad enough.) It might mean the end of free *anything*. What they're arguing is essentially that the owner of a copyrighted work may only distribute it for a per-copy price. This would outlaw the Internet as we know it, as well as junk mail, Gideon's Bible, political leafletting and Lord knows what else.

Re:So if this actually gets upheld...

[finkployd]

I like the BSD license just fine, but I'd be concerned that if the GPL is ruled invalid, that the BSD license wouldn't be valid either.

Neither will any site license of commercial software.

Finkployd

Agreed

[phloydphreak]

Precedence is going to be made. Just because SCO(X) is full of shit, does not mean that lawyers will simply drop the case. We will have to deal with the yack-dung that this conflict is bringing about for years afterwards.

Do you think that those who are making decisions over this issue have the ideals of open source in mind? IBM and RH? They only want it for corporate profits. SCO(X)... yeah... big negative. The Courts?! They might be the only one we can get through to. We have to get involved. I recomend starting an e-mail list to protest the abuse of free rights that are being presented in this lawsuit.

or maybee I am just an idiot for thinking that a bunch of /. sheep can do anything.

hate me.

proud member

Re:There is no way to win!

[molo]

ext2 is available in FreeBSD, under the BSD license. SCO and even MS can take it and do whatever they want.

-molo

Some praise for RMS

[FuzzyDaddy]

I know it's popular to rag on RMS - and he sometimes comes across as a kook - but the implications of the GPL in this legal mess really make me sit back and admire it.

It seems to me the GPL acts as a balancer against a changing legal climate - the more "IP" friendly and less "fair use" friendly that climate becomes, the stronger the GPL becomes.

Brilliant.

So if SCO does win based on this argument...

[Yaztromo]

So if SCO does convince some court of law that this is a valid argument, they'll self-destruct.

How on earth can SCO get theri own product CDs pressed if the CD production company is only allowed to make one copy from the master? ;)

Yaz.

Re:Hold up a second...

[Java Pimp]

because there is legally no such thing as "copyleft"

Technically this is correct. There is no "copyleft" concept in the lawbooks.

However, legally there is a such thing as "copyleft". It is provided for by the GPL and other free software licenses. These are legal and binding license agreements set by the licensor and agreed to by the licensee. Regardless of copyright.

Simply put:

I the author give permission to you the recipient to copy and modify (beyond that allowed by law since the works are mine and I have say over how my works are handled) the works I created and own provided you follow the the rules I have set. If you do not agree to these terms, you have no rights or permission by me the author to circumvent normal copyright laws.

Um...okay...

[davmoo]

If the obviously brain damaged shitheads at SCO wants to play like that, fine, let them. It can work to our advantage.

Since SCO claims the GPL is invalid and therefore SCO is not bound by it, then that works both ways. Authors of the software are not bound by it either. Therefore, everyone who has ever written a line of code that is used anywhere in GNU/Linux should now inform SCO that their rights to distribute the author's code has been withdrawn, royalties for any future distribution will be required, and royalties for past distribution are now due...just like SCO is wanting to do to IBM. If they want to play games, then dammit we can play games too. Batter up!

Not Even Judge Judy Would Go Along With This

[FreeUser]

... will there be a massive shift to BSD-style licenses. I like the BSD license just fine, but I'd be concerned that if the GPL is ruled invalid, that the BSD license wouldn't be valid either.

Good God, don't you people think before you type? Or, more to the point, have those who have moderator priveleges today been passing the crack pipe around a little more frequently than usual?

The argument being used in this incredibly weak attempt to overturn the GPL is that it violates copyright law because the creator of the work is offering terms more liberal than copyright's default restrictions.

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.

And, for those even slower on the uptake, what does the BSD-style license do? Yup, you guessed it again. It offers a more liberal right to copy than that otherwise offered by copyright law, just like the GPL. The specific restrictions BSD-style licenses impose are different from those of the GPL (and don't think for a minute it doesn't impose restrictions, however benign. If it didn't impose restrictions, the work would be in the public domain. Instead, you are required to maintain the copyright notice ... a clear restriction, albeit a benign one), but the net effect is to allow greater lattitude for people to copy the work than the default otherwise permitted under copyright law.

Which part of this progression escapes you? If in some perverse miscarriage of anything remotely resembling rule of law, much less justice, the GPL were to be ruled invalid on this basis, that would spell instant death by precident to not only the GPL, but BSD-Style licenses, Creative Commons style licenses, Artistic Licenses, and, yes, corporate site licenses of the variety Microsoft, Sun Microsystems, and just about every other software company on the planet eagerly offers their customers in exchange for cold, hard cash. For about three minutes, before an appeals court slaps a stay on the judgement, hears the case, and overturns the ruling.

Any other outcome would mean we could say goodbye to the software industry, the online content industry, and probably a whole slew of other industries we're not thinking of as well, upon which copyright law touches in one way or another. Not to mention saying goodbye to 220+ years of precident.

There is absolutely no chance this argument will hold up. It will be interesting to see if any lawyers are disbarred or fined for even bringing this argument to court.

IANAL, but I am a sapient being with a three digit IQ, which is all this level of insight really requires.

Well fuck

[autopr0n]

The GPL is the only OSS license I would ever release my work under. Why the hell should I let anyone profit off of my work without giving anything back. Especialy fuckheads like you?

I should be able to release my code how I want. If you don't like it, then don't fucking use it.

If the only choice was All rights reserved or public domain, then I would choose rights-reserved over PD any day.

Re:Well fuck

[jedidiah]

The GPL makes NO DEMANDS on mere users.

The GPL isn't government cheese, it's a national forest. Mere users are free to use with minimal or zero restriction. It is only those that would strip mine Yosemite that are "inconvenienced".

Re:SCO and UNIX

[TheCrazyFinn]

Except that their competition (IBM RS/6000's, HP PA-RISC boxes, etc) cost the same.

Sun's low-end stuff isn't much, but their highend server boxes are killer. Only reason to by the dinky boxes is that they run the same software.

Re:Hold up a second...

[MuParadigm]

"SCO's reasons for why the GPL is invalid is actually what makes GPL legally strong"

Exactly. I think this is just a floater for Boies, etc., to see how well it will fly. My bet is that the common reaction of "That's insane" will lead them to look for another strategy. Remember, they demanded a trial-by-jury. If they can test drive legal theories in the press, and gauge reaction, then that just works to their advantage.

Check the lawyer's point #6.

[Jaywalk]

6. Even if Linux contains SCO code, you might not be infringing. If you run devices with Linux pre-installed, your system might not be using copies of the files that SCO says are infringing. Since nobody knows yet what portions of Linux are alleged to be infringing, it is too early to tell.

Nobody uses every feature in Linux. This seems to imply that a company that uses Linux can reply to SCO's blackmail letter with something like, "We don't use all of Linux, so please tell us what code is infringing so we can tell if we're using it." Since SCO is keeping that a secret, the letter still has not given you the information you need to determine if you're infringing, so you're clear until SCO reveals where the infringement is.

At that point, the infringing code will be written out and the problem goes away.

Ummm...

[Garion911]

I always thought of copyright and license to be two seperate things.. I can hold the copyright, but give you a license to distrubute it anyways you feel, thats the jist of GPL..

If they are saying that copyright only allows one copy, then there's many many companies that will have issue with this.. Think of software that allows 5 copies installed... Usually, they are called 5 user, yes you got it, licenses.. Not copyright..

What's good for the goose

[einhverfr]

If the GPL is invalid because it allows multiple redistributions, doesn't that make all of SCO's UNIX licenses invalid?

Or at least doesn't it indicate that there is no good faith on their part?

extending this notion further

[bigbigbison]

now i'm not a lawyer, don't pretend to be, but it would seem that this argument would also make things like shareware and freeware illegal as well not just open source, right? any software (or song or whatever) where the creator says, "make copies of this for your friends and give them away." would be illegal? so then this interpretation of copyright law has much broader implications than open source.

Re:SCO and UNIX

[sharlskdy]

well, now... finally we are getting to the heart of the matter. This latest maneuver is what this case has been about from the beginning: an attempt to kill the entire free software movement. This goes straight back to the Microsoft Halloween Letters, with the goal of finding some means of stopping Linux.

In fact, Halloween II raised the idea of pursuing exactly this: the effect patents and copyright in combatting Linux. Given the insightful analysis of one of our own, there is pretty good evidence that Microsoft is playing the wizard behind the curtain. This is precisely the arena they wanted to test Linux in.

Re:Ext2 compatibility

[His name cannot be s]

Ext2: Whoops. I guess my bad.. I knew they *could* do a clean room, there's plenty of info, I just still doubt they DID.

I just found out about ExtFS anywhere... I suspect that *is* a clean room, given the nightmare of making windows file systems, starting with the linux one, wouldn't be much help ;p

I never thought about the BSD version. Hmmm. In a way I'm kinda suprised that that exists. Was that really implemented from scratch? Really? wow.

Still the Linux Compatability layer in SCO Unix is hardly likely to be actually cleanroomed. (wait: I've got a SCO style argument for that!) "There's no possible way they could come up with that without using the source code" -- Isn't that what they said about the SMP support in linux?

Heh-heh..

either way, I would almost bet the farm on GPL code being inside of SCO's products. Those dimwits aren't all that careful.

Heck, I'd be willing to concede that there is a significant amount shared. But how can we tell when it appeared in SCO's code? As it's closed source, there is no public record of the commits to their source tree. All those copied code segments between Linux and Unix probably originated with Linux.

Any way you slice it, SCO is a box full of assholes. Unwiped. :p

Publishers.

[Chris Burke]

Forget site licenses. If SCO's logic were true, and it was not possible to grant someone permission to make copies, then you wouldn't be able to authorize a publisher to make copies of your work! So basically if you own a book by an author who retains the copyright to their book, then both you and the publisher are violating copyright law!

No... Wait... That's completely stupid, too. The whole reason we have copyright is so that the author can grant the right to copy to others, and request compensation in return. Unless we required all authors to self-publish, or transfer their copyright. Which I suppose SCO thinks is the case!

So is this Heise a moron, or does he think we all are? Does he actually not realize that copyright law prohibts only unauthorized copies, and that the GPL is a document which grants authorization? Or is he just hoping we won't realize that?

Either way: This is completely stupid.

RMS on SCO...

[joebeone]

Here's a good, recent Q&A with RMS that should have been included in the article list... here.

A pertinent quote:

TRB: Does the fact that, as is often pointed out, the GPL has not yet been tested in court concern you?

RMS: No wise person looks forward to a major battle, even if he expects to win it. Rather than being concerned that we have not yet tested the GPL in court, I'm encouraged by the fact that we have been successful for years in enforcing the GPL without needing to go to court. Many companies have looked at the odds and decided not to gamble on overturning the GPL. That's not the same as proof, but it is reassuring.

Holey Logic, Batman!

[VernonNemitz]

"The GPL allows unlimited copies, the copyright law allows one. Therefore, the GPL is invalid. 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 is an obvious flaw in the above reasoning. It focusses on the the public, and not on the copyright holder. A copyright holder decides how a work is to be released, after all, and it is perfectly legal for a copyright holder to release something to the Public Domain. In actual fact the copyright holder has the right to decide on any degree of release between public domain and not-at-all. So, when the copyright holder releases something under the GPL, the copyright holder has decided to accept the GPL's details for a release. In such case the copyright holder is giving the public the right to make unlimited copies, which fact does NOT violate the copyright law.

Whoa! I think I know WHAT they're counting on

[JCCyC]

Thay think the legal system has become so megaoligopoly-friendly that any claim that benefits one will be held valid in court, no matter how insane.

"The Constitution doesn't say anything about nerds!"

How much stock would you like to dump today?

[Anonymous Coward]

It's seems like a waste of time to reply, or even converse about SCO's public releases anymore. Since they filed suit against IBM the SCO execs have been dumping stock left and right. Over a quarter of a million shares so far. SCOX is up right now. http://finance.yahoo.com/q?s=scox&d=v1 Check back tomorrow and see which exec dumped more of their stock while it was up over $10/share. Alas their court date is long into the future and they will just keep with their pump and dump (per IBM) stock scheme and the SEC will do nothing. Since SCO is based in the US, all execs will face utter defeat by IBM in court and ride away on their golden parachutes with their millions into retirement. I just hope that some of them are Mormon and get excommunicated from the church for lies and dishonest business practice. I doubt that will happen though as long as theiy keep putting their little bit into the offering plate every week.

SCO knows it can't win

[Anonymous Coward]

I suspect that SCO knows that it has indeed violated the GPL so they are grasping at straws for a defense.

Copyright != License

[Digital G]

Hmm Whats this in Websters Dictionary?

\Cop"y*right\, n. The right of an author or his assignee, under statute, to print and publish his literary or artistic work, exclusively of all other persons. This right may be had in maps, charts, engravings, plays, and musical compositions, as well as in books.

ok Now lets see License...

\Li"cense\ (l[imac]"sens), v. t. [imp. & p. p. Licensed (l[imac]"senst); p. pr. & vb. n. Licensing.] To permit or authorize by license; to give license to.

Hmm, and their paying this guy as a Attorney?

CLUE FOR SCO: THE GPL IS NOT A COPYRIGHT!! It is a license between the author of said works, and user of said works.

Re:Preemption of Contract is a Zero Traction Argum

[werdna]

Although the case you describe could be seen to set a precedent against preemption it is also a case of a much more worrying precedent, that is it is a case of judges coming to a conclusion that flies in the face of the law and logic.

I wish that were so. The truth is far more interesting.

While I believe "our side" has the better side of that argument, Judge Rader's analysis is far from the illogical or illegal claptrap you suggest -- indeed, he is also far from alone, the 7th Circuit in ProCD began this particular line of analysis -- it is simply my view that the fair use and first sale issues are in some sense more fundamental statements of Federal policy than the quibbles in the ProCd and the utter silliness of the present GPL argument. There is more than ample precedent to explain these cases, and ultimately, I think, Bowers will be rejected over conflicting law, without exposing this Section 117 argument.

Comforted by the conflicting Vault v. Quaid case, which holds to the contrary concerning no-reverse-engineering provisions, and on grounds irrelevant to Bois' argument, I think justice ultimately will be done in each line of cases.

'Course, SCO has already won (short term)

[Tor]

I think we (as led by mass media) are missing the point of SCO's venture. SCO's senior management are actually quite smart and cunning, and are getting exactly the results that they want (even if it will cost them the company).

The court date for SCO vs. IBM has been set to sometime in 2005. In the mean time, they have a pretty nifty scheme involving an absurd pending lawsuit, even more absurd press releases to match, Slashdot readers (&al) to provide free publicity, and gullible potential CEOs that are only asking where to send the check (and how much to put on it). 'Course, they'll stifle the use of Linux in some environments too, but hey, those are environments that probably should not be using Linux in the first place.

To put it in simpler terms - the lawsuit has nothing to do with legal issues such as license violations, copyrights etc. It's a ridiculous case that they are bound to lose, and they know it.

They are only trying to boost the stock price of their dying company long enough that their insiders can unload some shares. Sort of a highly publicised pump'n'dump scheme, if you will.

We saw the evidence yesterday, when some execs dumped some stocks (at a price higher than, say, back in May...).

Too bad this scheme is probably a little bit to the side of what the SEC normally would prosecute.

-tor

What keeps UnixWare alive

[John Bayko]

Inertia.

Where I work, they ship systems based on UnixWare, with custom software added in. I've asked my managers many times why the company is sticking with an outdated product (conforms to the Unix95 standard, not the Unix98 standard - how lazy are they that they can't even make Genuine Unix System V.something code "Unix compatible"?).

The answer is always "there are no plans to change". More specifically, there's no budget allocated to change.

I fear that a few months from now, we'll have a dozen very expensive boxes sitting by the door with no OS on them. And some upset customers making many upset phone calls.

I wonder what the budget will have to say about that.

The point is, I'm sure this isn't rare. It's the main reason for MS Windows being so dominant in the face of better alternatives (more so in the past). To change would mean to make an effort, and if you've stuck with UnixWare this long, you're not the type to ever make an effort to change.

Re:David Boies, why GWB is prez

[Yert]

No, GWB is prez because of this (apparently) little known entity called "The Electoral College". It's taught in 6th grade civics classes. Maybe you should take a refresher before you try and influence governmental leadership again. (ie, vote).

Yes, I'm flaming. I'm pissed, because no one seems to know how the system actually works, and instead goes on a bender about how wronged the country was because GWB is The POTUS.

Mod me down - I don't give a rat's ass. Rant over.

The Rules of the Game.

[screenrc]

No. SCO executives seem to know well what their
are doing. So far, the left hand was dumping
stock while everyone was looking at their right
hand hold the U.S. Copyright Law. The real
question do *we* know what they are doing?
Or, are we distracted in the SCO v. IBM show, and in
claims of licensing fees,
when the real game is somewhere else?