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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.
I thought part the GPL was the copyright holder giving permission for people to make copies, etc..
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.
Read Bujold. Free (as in
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).
Galium Arsenide is the material of the future, and always will be.
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.
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).
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.
It's not wasting time, I'm educating myself.
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.
... 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.
... 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.
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
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.
The Future of Human Evolution: Autonomy
"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.
At that point, the infringing code will be written out and the problem goes away.
===== Murphy's Law is recursive. =====
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?
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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.
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