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SCO Attorney Declares GPL Invalid
chrullrich writes "According to heise (German, fishbait), SCO's chief counsel Mark Heise (unrelated) of Boies, Schiller and Flexner has declared that the GPL violates the US copyright law and is thus null and void. SCO's legal position is actually a little too crazy to believe: The GPL allows unlimited copies, the copyright law allows one. Therefore, the GPL is invalid. Apparently, they try to argue that the copyright law, in giving consumers the right to make one backup of their software without any permission from the copyright holder, outlaws any contractual agreement that allows users to make more than one copy." There's an Inquirer article in English. Apparently SCO is now using the Chewbacca Defense. Other SCO news: SCO reports a profit, examining SCO's contributions to Linux, an attorney summarizes the case.
I thought part the GPL was the copyright holder giving permission for people to make copies, etc..
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.
First, on point two he states:
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:
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.
Stop undressing me with your eyes. I'm ugly naked.
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.
Because authors and publishers make a contract?
The GPL is, in a sense, also a contract. It says, "We're giving these rights to you. You don't have to agree to our terms, but if you want the rights we give to you, you have to agree to our other terms." The GPL doesn't modify copyright laws, any more than a contract an author makes with a publishing house does.
Sheesh.
Read Bujold. Free (as in
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
What a joke. Johnnie Cochran must be part of their legal team.
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.
Well everyone knows that two wrongs don't make a right, but three copyrights make a copyleft :)
Burn the land and boil the sea, you can't take the sky from me
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
True science means that when you re-evaluate the evidence, you re-evaluate your faith.
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.
Erlang Developer and podcaster
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.
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.
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!
Copyright dictates that the copyright holder has final say on who, exactly, will have permission to copy a work. The single backup copy issue is "fair use", and has nothing to do with this.
The GPL works *WITH* copyright by telling recipients that the author has explicitly granted them permission to further distribute their works only so long as they comply with the terms of that license. If they do not wish to comply to those terms, they do not have permission from the author to distribute. End of story.
File under 'M' for 'Manic ranting'
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.
Thomas Galvin
...for very large values of 2....
Jaysyn
There is a war going on for your mind.
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....
Actually SCO's reasons for why the GPL is invalid is actually what makes GPL legally strong. It grants rights (unlimited copying and changes) that are prohibited if the user does not accept the license. Therefore, if someone makes more than one copy, or modifies the source code the defacto accept the license (or they are breaking the law).
Galium Arsenide is the material of the future, and always will be.
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.
IBM: That does it! Shenanigans! Shenanigans!!!
SCO: What are you doing?
IBM: I'm declaring Shenanigans on you. This lawsuit is rigged.
Maybe you should educate the morons of tomorrow so they'll stop believing the leaders of tomorrow. - Dogbert
That does appear to be their argument. IANAL, but I cannot imagine that any judge could be convinced that the provision of the copyright law that allows you to make a backup copy, even if you don't have the permission of the copyright owner, somehow constrains the owner from permitting you to make modifications or copies or whatever.
To me, this just makes it abundantly clear -- as if further proof were necessary -- that SCO has no desire for this lawsuit to ever see the inside of a courtroom.
I think SCO is beginning to feel cornered -- not before time. In their earnings webcast today, they presented a "defense" of the stock sales by corporate insiders, which somehow left out how all these pre-planned sales happened (coincidentally, I'm sure) to start right after the lawsuit was announced.
Come to think of it, SCO's source code agreements with everyone else (including Sun and MS) are probably invalid also. This is hilarious.
I am now waiting for SCO's explanation on how code in Linux can still be a secret in spite of the fact that tens of thousands of people regularly look at it. Next, we can learn how patent law does not permit Novell to retain Unix patents when relinguishing the source code and why SCO really does have the right to keep talking about its right to the 'Unix' IP (when it is supposed to have no such right because it does not even own the Unix trademark).
Because copyright law is well known and determined by the Berne convention.
Here are the pertinant facts
You cannot loose your copyright on something that you wrote. It is yours for life unless you assign it to someone
You can ceed it to someone else under a license, but your protection under copyright prevents them from every taking that license off you.
When you work for someone the copyright on the work you produce during the time that they pay you belongs to them, and they can do what they want with it. It is not clear what determines the copyright of items created for a company.
Copyright applies to code, text, music and video.
Copyright has a stronger status than a patent in law because it is easier to prove a violation of it (here is the *copy* that you have made instead of here is the *idea* you used) But items that are copyrighted by someone can be protected by a patent, and licensed items can be protected by patents. This is the killer for Linux and will be how people get it if they every get it, because if someone has a patent on a GPL'ed item they will be able to enforce that patent on derivitive works that are not covered by the GPL and it is argueable that a rewritten class is separated from the initial license because the copyright has now passed to the author of the rewrite (who can grant a license to the copyright, but not to the patent)
--------------------------------------------- "In the end, we're all just water and old stars."
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
"Depression is merely anger without enthusiasm." - Anonymous
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...
Stop by my site where I write about ERP systems & more
Yeah, with a Q-Tip.
Pathetic.
It seems to me the GPL acts as a balancer against a changing legal climate - the more "IP" friendly and less "fair use" friendly that climate becomes, the stronger the GPL becomes.
Brilliant.
It's not wasting time, I'm educating myself.
What the law establishes is a floor - no license can prohibit the purchaser from making at least one backup/archival copy. Some vendors have tried to get around it by declaring the original media to be that single allowed archival copy, but I doubt that would stand up to a laugh test if it got to court.
It's common practice for lobbyists to try to convert floors into ceilings and vice versa during deliberation. That's why you'll occasionally see a group fight hard for a bill then suddenly oppose it - somebody managed to flip the sense of the bill. But you can't do that after the fact, especially for a product you don't own or produce. It's a silly as, oh, Red Hat claiming that copyright law prohibited any company from purchasing and installing more than a single copy of any Windows product.
If somebody rejects the GPL, they don't have the right to make or distribute ANY copies of the software.
(IANAL, but this is basic stuff that everyone should know.)
For every complex problem there is an answer that is clear, simple, and wrong. -- H L Mencken
this argument as put forward by SCO's councel seems pretty damned thin. Anorexic. Thin-sliced deli meat.
No, it's not thin, it's transparent. Invisible. Non-existant. A fart in a sewer.
I'm wondering why everyone is posting in a manner that suggests they didn't even understand the argument?
Perhaps because they do understand the argument, and the conclusion it draws is so laughably stupid it's unbelieveable.
What SCO is claiming is that since the JPL is not a recognized framework under the law
Yes, and this is the part that falls under "laughably stupid" - no contract that hasn't been to court is a "recognized framework" - but that doesn't mean that every contract that hasn't been validated by a judge is invalid.
any contradiction between the two should result in what U.S. copyright law saying winning out.
And (again) this is NOT a logical conclusion - people give up their rights in contracts every day. The NDA that SCO wants people to sign to see the alleged infringing code forces people to give up their right to free speech - does this mean that the NDA is unenforcable? Of course not.
They then further say that since U.S. copyright law allows for only one backup copy, any provision stating otherwise in the JPL is null and void under U.S. copyright law.
And this is their second unbelievably bone-headed, colossaly stupid statement.. The US copyright law allows for one backup copy without the permission of the copyright holder (and this is not entirely correct.) Note that key phrase. The GPL is exactly what gives them that permission.
Those two points, when taken together, is their argument. And contrary to what so many seem to be saying, it is a logical conclusion to draw.
It's only logical if you decide to throw away the concept that people are free to enter into contracts as they see fit - which is ludicrous.
It has NO logic behind it. At all.
it does make sense on the surface
If you define "the surface" as "believe everything they say, without applying any kind of logic-check to it at all", then you may be correct. But as soon as you decide to engage your brain, you see that it's totally and completely without merit of any kind.
... will there be a massive shift to BSD-style licenses. I like the BSD license just fine, but I'd be concerned that if the GPL is ruled invalid, that the BSD license wouldn't be valid either.
... a clear restriction, albeit a benign one), but the net effect is to allow greater lattitude for people to copy the work than the default otherwise permitted under copyright law.
Good God, don't you people think before you type? Or, more to the point, have those who have moderator priveleges today been passing the crack pipe around a little more frequently than usual?
The argument being used in this incredibly weak attempt to overturn the GPL is that it violates copyright law because the creator of the work is offering terms more liberal than copyright's default restrictions.
Now, for those slow on the uptake, what does a Microsoft site license do? Yup, it grants (in exchange for money) a more liberal right to copy than that otherwise offered by copyright law.
And, for those even slower on the uptake, what does the BSD-style license do? Yup, you guessed it again. It offers a more liberal right to copy than that otherwise offered by copyright law, just like the GPL. The specific restrictions BSD-style licenses impose are different from those of the GPL (and don't think for a minute it doesn't impose restrictions, however benign. If it didn't impose restrictions, the work would be in the public domain. Instead, you are required to maintain the copyright notice
Which part of this progression escapes you? If in some perverse miscarriage of anything remotely resembling rule of law, much less justice, the GPL were to be ruled invalid on this basis, that would spell instant death by precident to not only the GPL, but BSD-Style licenses, Creative Commons style licenses, Artistic Licenses, and, yes, corporate site licenses of the variety Microsoft, Sun Microsystems, and just about every other software company on the planet eagerly offers their customers in exchange for cold, hard cash. For about three minutes, before an appeals court slaps a stay on the judgement, hears the case, and overturns the ruling.
Any other outcome would mean we could say goodbye to the software industry, the online content industry, and probably a whole slew of other industries we're not thinking of as well, upon which copyright law touches in one way or another. Not to mention saying goodbye to 220+ years of precident.
There is absolutely no chance this argument will hold up. It will be interesting to see if any lawyers are disbarred or fined for even bringing this argument to court.
IANAL, but I am a sapient being with a three digit IQ, which is all this level of insight really requires.
The Future of Human Evolution: Autonomy
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!
"SCO's reasons for why the GPL is invalid is actually what makes GPL legally strong"
Exactly. I think this is just a floater for Boies, etc., to see how well it will fly. My bet is that the common reaction of "That's insane" will lead them to look for another strategy. Remember, they demanded a trial-by-jury. If they can test drive legal theories in the press, and gauge reaction, then that just works to their advantage.
At that point, the infringing code will be written out and the problem goes away.
===== Murphy's Law is recursive. =====
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.
"Curiosity killed the cat, but for a while I was a suspect."- Steven Wright
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?
LedgerSMB: Open source Accounting/ERP
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.
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.
The enemies of Democracy are
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.