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

Hold up a second...

[cruppel]

So the GPL violates copyright law, eh? I thought the GPL is copyleft.

From the FSF website:

Copyleft is a general method for making a program free software and requiring all modified and extended versions of the program to be free software as well.
...
In the GNU project, our aim is to give all users the freedom to redistribute and change GNU software. If middlemen could strip off the freedom, we might have many users, but those users would not have freedom. So instead of putting GNU software in the public domain, we ``copyleft'' it. Copyleft says that anyone who redistributes the software, with or without changes, must pass along the freedom to further copy and change it. Copyleft guarantees that every user has freedom.

So why is anyone talking about copyright When the GPL is specifically designed to provide copyleft? :)

Re:Hold up a second...

[Zachary Kessin]

because there is legally no such thing as "copyleft" its something that RMS made up to stand for his ideas. Copyright is a a legal term defined by law treaty and convention. Copyleft is a concept that can only exist ontop of copyright.

Now in truth while IANAL, when he wrote the GPL rms did consult with law professors who created a document that should stand up in court.

SCO can say that it not valid, but they are probably wrong.
They could say that 2+2 = 5 but they would probably be wrong about that too.

Re:Hold up a second...

[EvanED]

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.

Re:Hold up a second...

[cshark]

Yes, but if their case is as strong and undisputable as they say it is, then why would they even need to attack the validity of the GPL?

They are barely into the discovery phase of the law suit and they're already gasping for air?

This doesn't bode well for the credibility of the company.

Re:Hold up a second...

[watchful.babbler]

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.

Absolutely correct, and that's why invoking preemption isn't so crazy as many seem to think. The federal courts, in Vault Corp. v. Quaid Software, held that Title 17 Sec. 117 of the U.S. Code preempted terms in Vault's shrink-wrap licensing, so there's precedent for applying the preemption doctrine to private contracts in copyright litigation.

Without knowing more about SCO's argument, we certainly can't argue on the merits of it, but there's always the possibility that some enterprising copyright lawyer has found a potential incompatibility between the GPL and copyright law. (Offhand, though, any argument based on Title 17 Sec. 117(a) seems specious to me, since I don't see how it could possibly affect the right to authorize copies and derivative works in Sec. 106 -- but IANA(IP)L.)

And, actually, *I* say :x!, but who's keeping track?

SCO and UNIX

[mao che minh]

And people still wonder whether or not UNIX is really dying, when you see companies like SCO fighting tooth and nail, in any way that they can regardless of how despicable and embarrassing it is, to stop Linux. SCO basically gave up the UNIX business because of Linux.

Sun Microsystems doesn't seem to mind what's happening with SCO. I wonder why?

The penguin is insatiable. Better wake up and smell the coffee.

Review of Attorney's Summary

[ipandithurts]

After reading the attorney's article in ZDNet, while I enjoyed it, I have to make a couple comments as he's simply missing the point on one point he made and outright wrong on another point.

First, on point two he states:

2. SCO has a duty to mitigate damages. Any plaintiff complaining that it is being injured by wrongful conduct has a duty to mitigate its damages. In order for SCO to assert claims against Linux users, it has to take reasonable steps to lessen the harm that it is suffering. This means giving Linux users the opportunity to remove the infringing code from Linux. SCO's refusal to identify the Linux code in question is hard to defend. SCO says that it can't do so, because it would be akin to showing a thief his fingerprints so that he can clean them off. But that makes no sense. The "fingerprints" are available in many forms, and can be traced electronically. Keeping the Linux community guessing about the code seems more tailored to running up the damages than preserving evidence.

While it is most assuredly true that parties in a contract have a duty to mitigate their damages, that mitigation duty hasn't been applied as far as I can tell to copyright infringement. And even if it is applied to copyright issues, the duty to mitigate only goes to the question of the amount of damages sustained by the plaintiff, not to if the defendant is infringing.


Second, in point four he stated that:

4. SCO may have set a ceiling on recovery. SCO has already announced a licensing program with specific license rates. In the worst case, and unless and until SCO makes a much clearer and more public case that its code has been stolen, SCO is not likely to recover from individual users more than it has announced its license fees to be. Why pay now when you can pay later or quite possibly not at all?

First, it is clear that SCO is offer a per seat license at 50% and will increase after a certain date (Oct. 15>) Second, statutory damage amounts are provided by law to those who have a registered copyrighted work infringed. This amount is above any "ceiling" that Mr. Carey may mistakenly assert that exists.

Finally, Mr. Carey is right. If SCO's claims are without merit, then they have placed themselves at a huge risk of a substantial judgment against them. Of all our sakes, I hope that this is the case.

Re:Review of Attorney's Summary

[eric76]

that mitigation duty hasn't been applied as far as I can tell to copyright infringement

In at least one case, it has been applied. Someone was denied damages because they didn't mitigate their damages even though it was found that the other work did infringe on theirs.

And the judge in that matter is the same Judge Kimball who is presiding over this case. In the opinion, he said "Had Jacobsen voiced his disapproval in 1996, Hughes would have had the opportunity to take the offending material out of the books".

So if this actually gets upheld...

[Captain Tenille]

... 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.

Sigh....

This would make other licenses illegal

[OfficerNoGun]

Unless I'm reading this wrong this would also invalidate any site license for software, which allow for unlimited copies (albeit with some restrictions), it would also make freeware and pretty much everything else given away illegal. No court is going to buy this argument and deny the right to give things away. On the other hand, if SCO had sold something that had be GPL'd they might have a case that they had the right to sell it, but I really don't find anyone believing the "Hey You Guys, no giving away things for free" argument.

There is no way to win!

[His name cannot be s]

It's not really relevant whether the GPL is valid or not.

If the GPL is compeletly invalid -- they have a singular problem : Distributing copywrited software without a license. Linus et all can sue for massive damages.

If the GPL is valid, they are in a boatload of shit anyway: How the fuck could they get EXT2 compatability in SCO Unix? They sure the hell didn't clean room it. I wanna see the code to their filesystems. How about the Linux Compatability crap? Clean room? NO FUCKING WAY!

any way you slice it, SCO is gettin' ready to get their butts kicked, but IBM, Redhat SuSE and others.

Finally, a Substantive Claim from SCO

[reporter]

Why is SCO claiming that the GPL violates copyright law? IBM poignantly noted, a while ago, that SCO distributed any disputed source code under GPL. Hence, according to IBM, the disputed source code is available for any use allowed by GPL. That is a very strong argument by IBM.

To counter this argument, SCO claims that GPL itself is invalid. Hence, even if SCO did previously distribute the disputed source code under GPL, SCO is still entitled to demand royalties because GPL violates the law.

Finally, SCO has a substantive claim. Apparently, the court case will finally come down to one issue: "Is GPL valid and enforceable?" If the answer is "yes", then SCO does not have a case.

Ok then, SCO's guilty of copyright infringement.

[mrsam]

Well, in that case, if GPL is invalid, it logically follows that SCO is guilty of copyright infringement. After all, if SCO has sold N copies of their Linux distribution, then SCO must be guilty of N-1 counts of copyright infringement for each and every software application that was included in the distribution under the terms of the GPL.

Obviously this is sheer nonsense. Yes, I'm trying to derive logic from an illogical fallacy. But, it's a slow news day, and I find that trying to make sense of SCO's legal argument is rather a cheap way to amuse oneself and pass some free time.

Certainly, they cannot be serious. That naturally leads to a question how could they possibly even think of coming up with such a big, fat whopper. I mean, you have to be doing some serious drugs in order for such a thought to enter your mind, through nothing but random, natural processes.

I think this is nothing more than a knee-jerk response to IBM's countersuit. SCO's got blindsided when IBM's countersued them for violating the GPL. I'm sure that SCO has planned their legal strategy (or whatever passes for one) in advance, and must've considered all kinds of potential responses from IBM to their original suit. They must've considered many possibilities, but it never considered that IBM would respond by countersuing them for violating the GPL.

Dollars-to-doughnuts SCO didn't even realize that large portions of the Linux kernel, which SCO themselves sold, were copyrighted by IBM, and licensed under the GPL, and IBM is now suing SCO not just for violating the GPL in general (which would be somewhat difficult, since IBM would have no real standing to sue) but IBM is now suing SCO as a copyright owner, and for full-fledged copyright infringement.

This is serious stuff. The GPL itself is not even the primary focus. Just forget about the "controversial" copyleft aspect of the GPL. Pretend for a moment that SCO had some kind of a license from IBM on IBM-copyrighted code, and they distributed the code in violation of the license agreement. Or they had no license at all. And now, IBM is suing them for copyright infringement. That's exactly what's happening here, and GPL just happens to be the terms of the original licensing agreement.

SCO didn't expect it this kind of a response, and got caught, flatfooted. So now they're scrambling to figure out how to respond to charges of full-fledged copyright infringement. I guess they figured that their best chance is to try to declare GPL invalid, and hence the idiocy from their legal beagle. So now, I'm waiting for them to explain exactly what kind of a license would then they believe to have to sell IBM's copyrighted code.

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

[TopShelf]

Interesting points about their earnings announcement:

1) Profits were $3.1 million
2) According to a story over at Infoworld, Microsoft may have paid $6 million for their Unix license.
3) Out of $20.1 million in revenues, $7.3 million came from SCOsource, which is the unit driving this whole nonsense.
4) And according to SCO itself, they've spent around $1 million on legal costs so far related to the IBM suit.

Bottom line: SCO's fundamental business is still in a death spiral. Take away the legal fees and the SCOsource revenue, and the rest of the biz lost around $2.2 million, on revenues of $16 million...

Lawyer

[Anonymous Coward]

I spent the better part of four years as a lawyer drafting and negotiating software licenses worth millions.

If this is the real position of SCO, that the GPL is invalid because of no restriction on the number of copies... I am utterly speechless. This is the most retarded legal assertion I have ever heard.

In fact, this tidbit coupled with the revelation that it is Sequent's code that is the whole basis of this dispute has completely reduced SCO and its allegations, for me anyway, to utter nonsense without the slightest doubt.

As to Mr. Boies' stellar legal reputation, don't forget that big-name partners very often flash grins and sign up clients without a whole lot of thought about the merits of a case. (Happened quite often in my firm) Very often plebes in the bowels will then do all the shit-disturbing to see if there's really a case for the big-name partner to win.

I think Mr. Boies will enjoy his retainer on this one then wash his hands and move on to his next case. Publicity will only help him. I wonder if it's possible that Mr. Boies took any shares in lieu of payment and has already cashed them in? Our firm also used to do that too!

Here is the timeline

[Teahouse]

SCO is bleeding money. Darl McBride, a young ambitious twit with no idea how to save the company is preparing for the worst.

Enter Microsoft and their legal department. They "suggest" that SCO make a play for Linux. Of course McBride says "What's in it for me, my stock is in the can, and a lawsuit this big will bankrupt us."

Microsoft's answer (delivered by Ballmer) "Make the play, we'll make sure you and the stockholders get a great deal when we buy you out. In the meantime, it slows the progress of Linux and allows us to test the weaknesses in the GPL (which we hate)".

Darl goes after IBM first because it is following the licencing trail. Next, it goes after users (FUD for Microsoft's cause). Finally, it goes after the GPL. THAT is the real legal test. Even though it looks like a lost cause, SCO doesn't care, the buyout is in place.

When this is all said and done, M$ will buy out SCO (worth $120mill, chump change for M$). Then they will sit around and tell large buyers (i.e goverments and F500s) "SEE all the trouble you can get into with that "free" software? Is it really worth it to you to trust your business to a bunch of immature geeks and their "quaint" licence? This could happen again ANY DAY!!!"

For the cost of lawyers and the $120 million for SCO, M$ gets a great piece of sales FUD to push. They MIGHT get IBM to back off of the Linux train, and they might even cripple Linux for a bit by getting features (NUMA, SMP) removed.

This is getting so obvious.

Very bad move

[Experiment 626]

Challenging the GPL is a stupid move, even for SCO. Consider an analogy: Suppose I make a deal with Microsoft to sell copies of Windows XP. After distributing a few thousand copies, I call up Microsoft to taunt them. "When I signed that contract with you guys, I had my fingers crossed. I never had a valid agreement to copy your software at all. I totally pirated it! Muahahahaha!" Now, would this really be an intelligent move, or just a way to beg for lawsuits and/or jail time? Remember, GPL software is still copyrighted, which means distributing it is illegal without permission of the copyright holder(s). All the GPL does is spell out under which circumstances the author is willing to grant you that permission. Take away the GPL and this becomes a plain vanilla case of copyright infringement. By refuting the GPL, SCO essentially admits to being nothing more than an illegal warez operation.