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...

[EMH_Mark3]

Well everyone knows that two wrongs don't make a right, but three copyrights make a copyleft :)

Re:Hold up a second...

[gnuadam]

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.

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.

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...

[Jaysyn]

...for very large values of 2....

Jaysyn

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:Hold up a second...

[blibbleblobble]

"Copyleft is not a principle the law recognizes."

And not a character the Unicode recognises.

Bastards.

Re:Hold up a second...

[sgt101]

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)

Re:Hold up a second...

[walt-sjc]

Oh, it's pretty clear what SCO is trying to do is claim that the GPL is invalid, therefore the fact that they were ALSO distributing linux is moot. It's firing back at IBM's and others claims that SCO has given up all rights to any IP based upon that fact that they distributed Linux under the GPL. And it's not gonna work.

Re:Hold up a second...

[spottedkangaroo]

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.

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.

Re:Hold up a second...

[harley_frog]

Perhaps SCO plans on pleading insanity (or stupidity, you choose) as their defense.

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.

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...

[SmackCrackandPot]

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.

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...

[Anders]

Well everyone knows that two wrongs don't make a right, [...]

... but two Wrights make an aeroplane.

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?

Re:Hold up a second...

[gmhowell]

In that case, I would suggest RH sues SCO in a VA or MD court, where UCITA makes shrink wrap licenses hunky dorey. Hoist 'them' on their own petard.

Re:Hold up a second...

[vsprintf]

I think this is just a floater for Boies, etc., to see how well it will fly. . . Remember, they demanded a trial-by-jury.

Ah, I now understand the term "trial balloon".

Re:Hold up a second...

[cybermage]

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.

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.

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.

Re:SCO and UNIX

[caferace]

SCO is going straight for the Jugular...

Yeah, with a Q-Tip.

Pathetic.

Re:SCO and UNIX

[geekee]

" 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, "

Sun should be worried since they use the Apple business strategy of using software to lock you into buy their hardware. Once a client no longer needs Solaris, they no longer need Sun's overpriced, underperforming hardware.

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: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:SCO and UNIX

[mj01nir]

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.

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

[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

[Anonymous Coward]

Disclaimer - IANAL, I'm also Canadian

Excellent. I think all Canadians should be required to use IAC somewhere in their posts, so we can give their opinion the proper weight.

Re:Hmm

[Planesdragon]

IANAL either, but I can tell you that you are in error. According to U.S. law, all works are copyrighted at the moment of creation. The notion that you can choose to put something into the public domain has no force of law behind it.

Wrong. I mean, really wrong.

Public Domain is a great concept, and release into Public Domain by the author has long been upheld as legally binding.

If I write a novel, host it on my website, and clearly state that it's in the public domain (a nice "this whole novel is in public domain" should work), I won't be able to sue someone for taking my PD novel and selling it for thousands of dollars.

(well, I could, but I'd have to convince a Jury that I didn't mean to put that statement there--something like "that was never there" or "hey, a hacker did it!" would be plausible.)

Re:Hmm

[Pius II.]

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...

Re:Hmm

[aldousd666]

actually there is a thing here in the US we call implicit copyright, meaning it's yours to do with as you see fit the instant it takes tangible form. You can choose not to register it, or to change the license to the GPL, but as soon as it exists, it is copyright (c) the creator of the work. This does not invalidate the GPL at all, but does give the original creator the right to make it gpl'd and then, once it is gpl'd it's basically forever that way. Copyrights can be transferred, but one you go GPL, there is no reclaiming exclusive rights to your gpl'd code as a trade secret. So, whoever originally created the code had the rights to it. Somewhere along the lines, they transferred it to what is now SCO. SCO chose as was their right(for the sake of argument) to release it under the GPL. Now they cannot retract a transfer, or change the rules -- that's another thing we have -- a prohibition of Ex Post Facto laws/regulations.

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)

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.

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

[Alan]

Based on the continuingly insane SCO claims, I'd say that massive head trauma, or the smoking of some really bad weed got us into this mes to begin with...

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

[Just Some Guy]

I disagree. I think the last thing we need is another friggin' lawsuit. Litigious greed is what got us into this mess to begin with.

I think I forgot the <smartass> tags around that. No, I don't really think that Linus should start suing. However, it seems like a pretty stupid idea to begin making claims that, when pared to their essence, would indicate that you've violated the same rights of the person you're suing that you claim they infringed. Why even bring it up?

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...

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

[TopShelf]

doh! Should've checked the numbers one last time. Make that, "lost $2.2 million on revenues of $13.8 million."

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?

[hackstraw]

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.

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

[IFF123]

No, they are agruing that whatever you create doesn't belong to you.
I am waiting for the next SCO press conference where McBride will announce that "all your bases now belong to us".

PS: M$Bride knows that the only way they can getout of prizon sentence in the end is to demonstrate their insanity now. So far it's working well...

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

[AndroSyn]

In Soviet Russia authority questions you..oh wait, that really did happen in Soviet Russia, nevermind.

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.

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

[rgmoore]

I am waiting for the next SCO press conference where McBride will announce that "all your bases now belong to us".

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".

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

[RealityShunt]

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

Chewbacca Defense?

[grub]

You mean SCO is going to go after George Lucas?

Re:Chewbacca Defense?

[Waab]

You mean SCO is going to go after George Lucas?

I think it goes something like this:
Darl (dressed up in a monkey suit) sits playing a game of chess with a giant penguin. The penguin makes a move and announces he'll have mate in one. Darl begins to scream, jump up and down, and hurl fecal matter. At this point, Bill Gates, wearing a gold suit, pokes his head in to suggest that the penguin "let the wookie win."

Re:Chewbacca Defense?

[thryllkill]

Maybe they can get him before shooting for Episode 3 starts. Oh SCO Pleeeeaaaase make it not suck...

Re:Chewbacca Defense?

[EpsCylonB]

Remember, if Chewbacca lived on Endor then you must acquit.

in additional news...

[bongoras]

SCO has declared that the earth is actually flat, that you *can* dig a hole to China, and that the moon is, in fact, made of green cheese.

Re:in additional news...

[mydn]

Your attempt to dissemble the "Flat-Earth-Hole-To-China" intellectual property is a clear violation of the DMCA. SCO will soon declare you invalid.

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".

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.

Re:when do we get a SCO section on /.

[Anonymous Coward]

topic 88, Caldera

Re:when do we get a SCO section on /.

[Glyndwr]

I predict we'll get our section three days before IBM crushes them to death in court.

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....

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

howto: disable caldera news

[Comsn]

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.

Re:howto: disable caldera news

[davmct]

what are you doing posting here then? that option must be working really well... ;)

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.

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.

SCO's legal team

[Hieronymus Howard]

I've often heard of companies having a crack legal team, but this is the first time that I've heard of one being on crack.

HH

Wow, simply amazing

[Raul654]

And SCO is paying how much per hour for this legal mastery?

The future of SCO.

[gregarican]

I think they will combine forces with Banyan and Lantastic to usher in a new era of useless has-beens.

What a joke. Johnnie Cochran must be part of their legal team.

... and why wouldn't they?

[*weasel]

if the gpl is -legal- then they have no legal legs to stand on.

-of-course- they'll 'declare it' illegal.

thank goodness their lawyer's opinions matter only slightly more than my cat's.

Copyright...

[c0dedude]

The GPL is a license that allows people to use a work. Copyright is the owners method of ownership of a work. These licenses describe the way a work can be used. The GPL is a specific type of license. It retains the ownership of the work, yet allows the work to be distributed. Because it maintains ownership by a specific owner (eg Linus for the Linux kernel), it is constant with copyright law. Just because you use an GPL work doesn't mean you own it. I'm fairly sure this is how it works, but IANAL.

Re:Copyright...

[schon]

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.

chewbaca defense

[Trinity-Infinity]

If they can use the chewbaca defense, I'm calling SHENANIGANS!!!

Witty, lightly sarcastic headline

[djh101010]

Vague expansion of witty idea, looking like every other one-liner predictably posted to the thread.

--
Pointless and/or overly-geeky quote

Re:Witty, lightly sarcastic headline

[Knife_Edge]

Clarification and development of witty idea. Summary of legal points:

1) This is all wrong
2) Geeks rule
3) I like tuna

Extended rant about moral issues surrounding situation. Oh the humanity, what is wrong with these people? Is there no justice in the world? I fear for the future of civilization.

Anger filled unreasonable solution - Let's all throw rocks! They can't stop all of us!

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:And the GPL....

[Anonymous Coward]

That would be in Soviet Russia, comrade.

In other news...

[Jasin Natael]

SCO has announced an agreement with the Business Software Alliance to raid data backup centers. SCO CEO Darl McBride was quoted as saying "These renegade 'backup' centers are no more than a front for illegitimate software duplication. Any customers who are found to have multiple 'backup' copies of any of SCO's intellectual property will be required to pay additional licensing fees, according to the number of processors in the machine that served as the source for these illicit duplicates."

Future targets, according to the press release, may include schools, small businesses, and FTP 'mirrors', which not only house myriad copies of copyrighted works, but also make them available to further illegal duplication by end users.

SCO Claims that copyright law prohibiting multiple backups of information may also cover music, movies, and published works. The RIAA and MPAA were reportedly intrigued, but unavailable for comment.

--Jasin Natael

His argument is invalid

[dtfinch]

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.

Re:His argument is invalid

[cpt kangarooski]

No, you're wrong.

US copyright law doesn't prevent the copyright holder or those persons
authorized by the copyright holder from doing any damn thing with the
works the copyright holder holds the copyrights on.

However, for the rest of us, the law does not guarantee us the right to
make any backup copies. One, or two, or a million backup copies MAY be a
fair use, but then again they may not be a fair use. You CANNOT make a
blanket statement as to what is and is not a fair use. All uses claimed to
be fair must be considered on the specific facts involved. The factors
that will be looked at for ALL fair use cases (there are no automatic fair
uses even in the law) are in 17 USC 109.

However, Congress can always specifically permit backup copies (or
anything else) to be made regardless of whether or not it is fair. And
they did so, at least partially.

If you are the owner of a copy of a computer program -- and note that this
is entirely seperate from being the owner of the copyright (who could make
copies regardless of what Congress has to say; clearly this doesn't refer
to him) -- then you can make as many backup copies as you like (the law
never says just one, and uses plurals implying that Congress expected
there'd be more than one) provided that you don't keep those copies when
you no longer have the original. There is a problem in that licensees
aren't owners. But the GPL isn't a EULA -- it doesn't claim that the
person who gets a copy of GPLed software is a licensee of the actual
owner, instead apparently allowing the posessor of the copy to own that
copy outright, as with a book, or a DVD, or a CD, none of which have
licenses either normally. The specific law in question is 17 USC 117.

Re:His argument is invalid

[pcwhalen]

Absolutely correct.

You have the right to make one copy, not the limitation to be allowed only one even if your license and contract agree to more than one. The law here allows ONE copy where a contract is silent, it does not command a limitation where a contract speaks of more.

This kind of arguement makes lawyers look bad. If I were IBM I would file for sanctions against this lawyer.

The purtainent chapter of the Copywrite Code reads:

117. Limitations on exclusive rights: Computer programs53 (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.

sco

[loconet]

sco .. drugs are bad mmmmmmmm-kay?

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.

SCO Went Over This In The Conference Call

[Anonymous Coward]

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.

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..

Silent Majority?

[mod_parent_down]

"I would say that the silent majority is behind SCO in this case," McBride said.

In the RED Corner, weighing in at $140M, we have the Self-Proclaimed Siiiilent Majorrrity. . .

And in the BLUE corner, weighing in at One Hunnnndred and Fifty Beeeellion Dollars, The Heavyweight Champion of Patent Litigation, DEEEEEEEEP POCKETTTTTTTS!!!!

Round 1.

Fight!

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

[CoughDropAddict]

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.

Re:Not How I Expected the GPL to be Challenged

[Frobnicator]

Actually, the SCO case is quite strong, and in a way, that's what makes it so weak. I consult with lawyers and have discussed this issue in depth. I have read the applicable laws, and the definitions. And I am worried. But not about what you would think.

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.

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. .... According to armchair lawyers on Slashdot the answer is YES, however would a judge and jury see it the same way?

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...

Excerpt from 17 USC 101:

A "derivative work" is a work based upon one or more preexisting works, such as a translation, musical arrangement, dramatization, fictionalization, motion picture version, sound recording, art reproduction, abridgment, condensation, or any other form in which a work may be recast, transformed, or adapted. A work consisting of editorial revisions, annotations, elaborations, or other modifications which, as a whole, represent an original work of authorship, is a "derivative work".

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

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.

no GPL means SCO is and was infringing copyright

[nuggz]

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.

Wrong

[mark-t]

From one of the linked articles:

How does that work then? According to Heise, federal law only lets people make a single backup copy of software, and that makes the GPL void under US law.

This is a gross misunderstanding of copyright law!!!

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.

I've Got It Figured Out

[thomas.galvin]

I've got it figured out. SCO is trying to throw out so many baseless accusitions, and fill the air with so much nonesense, that we simply become numb, unable to deal with it, or respond in a coherent manner.

It's like a two year old that keeps arguing that the sky is, in fact, green, and that he'll never grow up to be a basketball player if you don't let him eat cookies for breakfast. It's cute the first couple of times, then becomes slightly annoying, but eventually you are so baffled by the shear stupidity that you stop tyring to correct him, stop trying to prove your point, and simply say 'yes, dear.'

That, my friends, is SCO; Litigation through Temper Tantrum.

Re:I've Got It Figured Out

[Chops]

I've got it figured out. SCO is trying to throw out so many baseless accusitions, and fill the air with so much nonesense, that we simply become numb, unable to deal with it, or respond in a coherent manner.

This is actually a viable arguing strategy if the point you're arguing is wholly wrong. If you say things that are wrongly based, confusing, or self-contradictory, you raise the bar for people unfamiliar with the reality of the situation to make sense of it. People who understand the SCO situation, or are willing to take half an hour to examine it, are going to think SCO's full of shit in any case; that's not who this is aimed at.

If the GPL violates copyright...

[JeffTL]

...then by extension, probably all other EULAs do as well, and we are free to do anything with our software that isn't specifically forbidden under our respective copyright laws. Have SCO/Caldera realized that they just called for the banning of license agreements.

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.

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.

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: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

Copyright law

[noerej]

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....

License Nazi

[Talia Starhawke]

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!?!?

ROTFLMAO

[john82]

Dear Darl,

Thanks, I needed that. Can't remember when I heard something so goddamn funny. I nearly blew Mountain Dew through my nose on that one.

What, you're serious?! Ssnnnorrkkk!!! Damn, that's even funnier! Have you guys thought about doing a stand-up routine somewhere?

Really. Just too f'ing funny. Pardon me while I wipe the tears out of my eyes.

You're the best,
Bill Gates

Copywrong

[gunix]

is when the copymachine get a serious paperjam.

Re:Copywrong

[xanadu-xtroot.com]

"PC Load Letter?!? What the fuck does that mean?!?"

- Michael

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.

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.

BWAHAHAHAH!

[TheSHAD0W]

Do you know what this means?

Since SCO issued their own version of Linux, bound by the GPL, if they were actually able to get the GPL declaired invalid, this means any intellectual property of theirs that was released in that variant is now in the public domain.

Battle of Stalingrad?

[AtariAmarok]

"SCO, they're about to get on the wrong side of Microsoft too, since MS..."

Are you hoping for a Battle of Stalingrad situation, where there is really no site to cheer for?

Or is the Godzilla vs Rodan analogy more appropriate? Or would a simple shark feeding-frezny do.

This is what it's like when worlds collide....

Re:Battle of Stalingrad?

[Soko]

Or is the Godzilla vs Rodan analogy more appropriate?

IMHO this case will more resemble Bambi vs Godzilla. SCO's about to get squashed.

Or would a simple shark feeding-frezny do.

There's an old joke about sharks not eating lawyers out of professional courtesy. Draw your own conclusions.

Soko

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.

3-layer deep response...

[djh101010]

...which will never be read, let alone modded up.

Q&A re: SCO vs. IBM by Lawrence Rosen

[pjack76]

Position paper from an attorney over at OSI.

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.

That does it!

[Jaguar777]

IBM: That does it! Shenanigans! Shenanigans!!!
SCO: What are you doing?
IBM: I'm declaring Shenanigans on you. This lawsuit is rigged.

SCO says it's invalid, so pay up!!!

[Newsome]

Oh, well. If SCO says the GPL is invalid, then obviously it's time to pay up!!!

This really is much more fun

[lone_marauder]

...now that I don't have to take it seriously. I love the department tagline. Somehow the sight of a monkey in a fez seems utterly fitting. Any chance we could make that the new SCO icon?

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: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.

In other news...

[not_a_george]

SCO declares Law of gravity invalid, as servers with linux use it to stay on the ground.

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.

You're the worst damn lawyer I EVER seen!

[nagora]

They've totally lost it. If the GPL is invalid what exactly is giving them permission to distribute people's GPL'd code in their Linux distro?

Idiots.

TWW

Copyright Law Dumbed Down

[Jeagoss]

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!!

"Insightful?" Grrrrrrr... GPL !=Public Domain!

[poptones]

The GPL does NOT make works public domain. If they were public domain I could take any GPL project, compile it, and sell it with a shrinkiwrap license (see: Apple & BSD). The GPL is specifically crafted to PREVENT this from happening by allowing the unlimited sharing of works WITHOUT putting them into the PD and making them succeptible to the BSD situation just mentioned.

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."

Re:"Insightful?" Grrrrrrr... GPL !=Public Domain!

[Soko]

Whoa there - I agree with you.

I'm asserting that the tack that SCOs lawyers seem to be taking is to try and push GPLed works into the public domain and not copyright.

Soko

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.

Re:It's all about the words ...

[OpieTaylor]

More specifically, U.S. Copyright action, section 106 states...

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;

...there's more, but these are the ones that count.

Bottom line: GPL okay!

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.

SCO, lying (and threatening) outright

[Kostya]

Consider this from Wired 09.2003 (80):

Are you afraid of being remembered as the man who killed open source?
McBride: People ask why we haven't sued Red Hat. We haven't sued Red Hat becase then the GPL grinds to a screeching halt, and all shipping distributions of Linux must stop. This whole process is going to make Linux and open source stronger with respect to intellectual property. Today there is no vetting process to make sure the code that goes into open source is clear. We're trying to work through the issues in such a way that we get justice without putting a hole in the head of the penguin.

So they say they don't want to bring the GPL to a screeching halt, but we can see that a) that was bull and b) that was their intent the whole time--to claim the GPL was invalid. Despite all the nice-talk, that has been their intent all along--to bring the GPL to a screeching halt and to stop mainline distributors in their tracks.

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.

The law establishes a floor

[coyote-san]

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.)

Re:The law establishes a floor

[Stalemate]

(IANAL, but this is basic stuff that everyone should know.)

Is it just me, or does anyone else read IANAL and pronounce it in your head as "I anal"? It drives me crazy.

Go ahead, mod me down as stupid or whatever, but I know someone else has to read it that way.

Re:The law establishes a floor

[Anonymous Coward]

That would be iAnal(TM) the first in Apple's new line of internet enabled buttplugs.

Re:The law establishes a floor

[worm eater]

Go ahead, mod me down as stupid or whatever, but I know someone else has to read it that way.
(Score:5, Insightful)

Is it just me or do posters always get modded up whenever they dare the moderators to mod them down?

Please mod me down, I'm a redundant, trolling, flamebait-loving dogmatist and I was a pro-DMCA lobbyist. And I'm sleeping with Darl.

Re:The law establishes a floor

[Le Marteau]

Is it just me, or does anyone else read IANAL

You should run Privoxy. Great for suppressing advertising, but it also includes a webfilter with which you can change the content of pages before it gets to your browser. Like:

s/IANAL/I am not a lawyer/g

or

s/boxen/boxes/g

Makes reading slashdot much less annoying.

Re:The law establishes a floor

[stuntpope]

No, that was Asimov's little-known collection of sci-fi erotica.

Ok, karma dive.

Ext2 compatibility

[Wise Dragon]

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.

http://e2fsprogs.sourceforge.net/ext2intro.html
http://uranus.it.swin.edu.au/~jn/explore2fs/es2fs . htm

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.

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

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!

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.

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.

Re:Not Even Judge Judy Would Go Along With This

[guy-in-corner]

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.

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.

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!

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.

Also in the Wall Street Journal

[Goner]

This was covered in the marketplace section of today's WSJ. The odd thing about that article was that it quoted Eric Raymond as saying that Linus had said that he had some other license he would agree to switch Linux to if the GPL was invalidated. Anyone have anymore detail on that aspect?

-Rich

$1M in legal fees per quarter???

[mykepredko]

In the news.com article, it states "He [McBride] said the company had spent between $600,000 and $700,000 on legal expenses since March, less than half of the $1 million per quarter it has budgeted for such costs."

SCO is budgeting $333k per month to go up against the company that took on the part of the United States government that literally prints money and won?

Before reading this, I was willing to discount the comments about Darl and his merry men being on crack, but after reading this the only question I have is:

Darl, where can I find some of what you're smoking, swallowing, snorting or injecting?

myke

Legal Position issued by OSDL

[bstadil]

There is a good article here about the whole issue

It is the first LEGAL statement I have seen. This is important as everyone can hide behind this if they are later sued.

It is not a good defense in court to state that you chose to ignore this whole issue based on advice from you uncle or your friends at Slashdot.

However if you say that you sought legal council and behaved as advised, you are OK in the sense that your max exposure is the License payment not recieved, no Punitives, fines etc.

Best quote from the Article: Quote:

Simply by being an interested and aggressive defendant with deep pockets, IBM is now effectively shielding Linux users from damages, even without an indemnity provision in the GPL.

Re:Are you PURPOSELY being thick?!?

[stames]

the JPL is null and void under U.S. copyright law

Quick! Someone call NASA!

Dear Darl,

[geekoid]

I'm sorry I wasn't clear in our last conversation.
What I meant to say is "Get crack team of lawyers", not "Get that team of lawyers some crack".

Sorry for any inconviences

In breaking news from the former USSR:

[XaXXon]

In soviet Russia, the GPL declares SCO invalid.

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..

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.

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?

Donate?

[autopr0n]

Who said anything about 'donate'? Why would I want to 'donate' code to anyone for any reason? Why on earth would I want to 'donate' my code to you? You're a dick. If I want to GPL something, that's my choice. I don't give up 'ownership' of the code in the way I would if I put it in the public domain.

Trial by jury... *shudder*

[sterno]

I'm really nervous about this going before a jury. It'll be the good corporate citizens defending their honest right to make money for their hard work vs. the godless communists who've infected IBM.

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.

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.

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.

Preemption of Contract is a Zero Traction Argument

[werdna]

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.

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.

And in other news...

[Odinson]

About 10,000 Linux advocates laughed themselves to death today, France is now confused about weather to add their share of the dead nerds to the heat death toll. In an official response to the sea SCO's chairman said there will now be weekly wild assertaions until the case is lost... errr he meant won.

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!"

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

[paganizer]

"hey! glad to see you? hows it been? come on over here and have a seat.. can I get you a drink? are you sure? cigarette? no? fine, fine...
Listen, I'm glad we had this chance to talk privately for a second, there was something I've been wanting to tell you, and I don't see any reason to discuss it it front of just everybody, right?
There is this little thing that everyone else on the planet has been aware of for quite a while now, that you just can't seem to get a grasp on......"

Re:Trial by jury... *shudder*

[Ian Wolf]

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 can see Boies during voire dire.

Boies: "Have you ever read Slashdot?"
Juror: uh.......yeah
Boies: "Your honor I move to have this juror excused."
Juror: "But all I ever post is hot grits and natalie portman posts."
Boies: "Oh, sorry your honor. We'll keep him."

That's good then

[Snaller]

I won't have to read it then, Tried before always got a headache.

Re:Trial by jury... *shudder*

[Pharmboy]

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?

Well..

[deadgoon42]

I declare SCO it be invalid.

There that should solve all our problems!

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.

Chewbacca Defense, Argentinian Attack

[ospirata]

Yes, this SCO deal is pissing everybody off. If the original post says they are using th chewbacca defense, I would go further and say that they used the Argentinian attack, just like at Falkland.

Why is SCO fighting the GPL?

[AaronW]

What advantage would SCO have by nullifying the GPL? Perhapse they discovered that the source of the code in question which they claim was copied out of SVr4 instead was copied from Linux into Unixware? If this is the case, then SCO is screwed (as if they were not screwed anyway). Perhapse they know this and thus are trying to limit any damages they might have due to this.

After all, they have offered absolutely zero credible evidence to back their claims that the Linux kernel contains their code.

-Aaron

SCO vs. Slashdot Trolls

[InfiniteVoid]

Like lame Slashdotters who post before reading the article, SCO's lawyers appear to have not even bothered to read the GPL before declaring it illegal.

Re:Preemption of Contract is a Zero Traction Argum

[Lochin Rabbar]

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.

You've just demonstrated that judges are capable of ignoring both law and constitution when it suits them. 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. Given that it can not be assumed that any ludicrous argument presented for the the GPL being invalid will not be upheld.

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.

This is classic poker

[flacco]

SCO is exhibiting all the signs of a classic poker bluff.

Declaring the GPL invalid? Terminating IBM's AIX license? Sending unsolicited invoices to companies that use Linux?

BLUFF.

They've got a mish-mash of cards in their hands that amount to absolutely nothing, and they keep smirking and pushing these massive piles of chips into the pot hoping the world will back down.

Be prepared to take the Greyhound home, boys - you're going to lose everything.

There's something being overlooked here...

[Angst Badger]

SCO has been going on about Linux being in violation of the law, IBM being in violation of the law, Linux users being in violation of the law, and now, incredibly, the GPL being in violation of the law on the grounds that copyright ownership prohibits you from transferring copying privileges, all of which point to the big question that nobody so far has asked:

Isn't having an entire company full of people smoking crack in violation of the law?

'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

Re:Trial by jury... *shudder*

[dipipanone]

can see Boies during voire dire.

Boies: "Have you ever read Slashdot?"
Juror: uh.......yeah

Boies: Then you'll know that in Soviet Russia, intellectual property steals YOU. By stealing other people's intellectual property, SCO are simply engaged in the sort of anti-communist activity that's necessary to protect our way of life.

Judge (who is a Microsoft troll): Somebody mod that sucker UP!

The reason for the anti-GPL declaration

[theolein]

If anyone has noticed this is not the first time that SCO has railed against the GPL. In their response to the IBM countersuit, they accused IBM of trying to divert attention away from the "real case" and claimed that IBM should idemnify Linux users and move away from the GPL.

This, in conjunction with today's amazing declaration by that lawyer, says to me that SCO is definitely on an anti-GPL agenda. Why? Perhaps because part of IBM's countersuit is an alleged GPL violation by SCO, and given that SCO threats of trying to gain money by billing Linux users and the strange idea of a binary only licence for Linux is clearly against the GPL, SCO is probably scared that they might very well lose this portion of the case.

It might very well be a ploy by Microsoft using SCO as a proxy to demolish the GPL, and given that the large majority of SCO's FUD has been directed against Linux the signs do tend to point in that direction. But that is something for the DOJ to investigate.

More probable is that it is partly an idea based on some lawyer deciding that SCO has a good case in winning the case on derivative works, mixed in with a clever marketing department deciding to use the suit as a tool to push stocks up.

I do however think that the mainstream press is no longer taking SCO's statements as seriously as they did in the beginning. The sheer volume of SCO press releases and the high level of contradictions within those releases pointing towards a strategy being made up as they go along is boring and irritating even the most anti Linux reporters out there. The statements by SCO especially those relating to Linux (no problem in the beginning , then the 1500 letters, then the threat to sue Linus, then the retraction, then the wierd pricing scheme and the binary licence being compliant with the GPL, then the decalration that the GPL is null and void) might frighten some PHBs and encourage some day traders, but it will wear off as time goes on and people tire of SCO's embarassing craziness in public.

This is very good news

[Stephen Samuel]

The fact that SCO is grasping at such small (and obviously non-boyant) straws is in indicator that SCO never really thought this one through. With millions of dollars at stake, they have no better answer to the GPL than this.

Not quite time to go out in the streets and celebrate, but I have a big smile on my face.

Man, that's a really dumb legal theory

[studerby]

Heise is claiming that the GPL contract (a license is a subspecies of contract) is invalid because it allows *more* copying than the (alleged) default limit of 1 backup in copyright law.

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:

Section 117. Limitations on exclusive rights: Computer programs

(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.

[ ... other stuff ...]

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...

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?

contempt of court?

[bbc22405]

Um, if SCO's lawyers do ever argue this in front of a judge, does this sort of stupidity count as one of the things for which a judge can declare the lawyer in contempt? Something along the lines of "Mr. SCO Lawyer, in recognition of your extreme ignorance of copyright law and for wasting our time, I'm fining you $500."

contract != copyright law

[MoFoQ]

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).