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SGI's Letter to the Linux Community
_Upsilon_ writes "SGI has released a letter to the Linux community in response to SCO's recent threat to revoke the UNIX licence for Irix. The letter mentions that they inadvertently did submit some System V code into the Linux kernel, that has since been removed (and some more in the process of being removed). The article points out that the code fragments in question had already been released into the public domain as well."
This is one of the most levelheaded, rational-sounding responses to SCO that I've seen in a long time. I hope they sent this to their customers. If it goes just to slashdot and associated sites it's sort of just preaching to the choir :)
"As a result of that exhaustive investigation, SGI has discovered a few additional code segments (similar in nature to the segments referred to above and trivial in amount) that may arguably be related to UNIX code. We are in the process of removing and replacing these segments."
Isn't SCO costing SGI an awful lot of time and effort (i.e. money) to scour code in order to find the "iunfringing code" that supposedly SCO knows about and won't release? I'd think that SGI could have a case to sue SCO for refusing to identify the "infringing" code based on SGI having to spend money attempting to address SCO's claims without SCO helping? I'm pretty sure that the law requires that if you believe someone is infringing on your copyrights that you identify the infringements so that they can stop. Am I missing something, or is SCO just building a case against itself by refusing to allow people to remove the infringing code?
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This totally scuppers SCO's argument that Linux contributors are out of control and stealing their stuff.
Legally SGI is doing the right thing. They perform due dilligence and if anything slips through the cracks they remedy it. It illustrates just how flimsy SCO's copyright case is a pointer to what may actually ultimately happen when this matter is resolved.
Prepare for more crazy ramblings from SCO in the immediate future. They will undoubtedly issue a press release claiming this is an admission of wrongdoing by SGI and play up the aspect of the letter that suggest missappropriated code, but of course this is not the message to be taken from the SGI letter.
If you'll note, the example of infringing code given at the SCO stockholders meeting earlier this year was an SGI one. Upon being faced with the origin and the point it was public domain SCO backpedaled and announced it was not an example of infringing code, just an example of "code". Retreating from that statement to say yes, in fact it was infringing, would be odd and probably even their followers would see it that way.
but McBride whining about the simple fact that the code was there now has some merit to it"
The fact the code was there gives him no merit at all. What I see here is the linux community plus SGI being absolutely vehement in removing copyright violations from linux the instant that it's even hinted they might be there. This seems to place SCO wholly at fault since it is thus their fault the infringing code continues to be in linux, by virtue of the fact they refuse to tell anyone what that infringing code is. The legal doctrine of due dilligence means a court will likely see it the same way.
Let's see now; SCO claims that they inadvertantly released code under the GPL so they cannot be held accountable.
SGI claims they inadvertantly released UNIX code into Linux, but SCO says they are accountable; ie., lawsuit.
Is something wrong with this scene?
As I followed this, I thought there was always the undercurrent of 'There may be code that looks extremely similar that has ancestors in BSD and has been proven in court to be not part of the System V code and public domain'. Yes, Linux was written from scratch or whatever, but it was possible that in an effort to add some functionality someone refered to a book rather than reinvent the wheel.
The mere fact that code is the same between two sources is useless without being able to prove if either was original. As has been shown repeatedly, either SCO doesn't know or thought no one else would remember about the whole AT&T vs. BSD deally.
And in any case, SGI has already proven how easy it would have been to address the issue if SCO had identified any code they actually had rights to - yet another fact that would hurt SCO in a copyright lawsuit.
R: That voice. Where have I heard that voice before? B: In about 365 other episodes. But I don't know who it is either.
Yes it is material. This is a civil case, not a criminal. In civil cases, attempting to right a wrong is important. If SCO is succeeds, it will affect any penalties levied against SGI. Probably diminishing them significantly.
- No SYSV code has been misappropriated into Linux and SCO gets nothing, or
- Some code has been misappropriated into Linux and SCO gets full damages.
The real truth is likely between these two, and much closer to (1). The factors that limit damages SCO might be able to collect from SGI include:- The amount of copied code was small,
- The code copied was not unique or vital--it had been implemented elsewhere and thus cannot be worth much more than the alternative implementations,
- The infringement was not willful, and
- That the code even infringes is not obvious. The actual code has been available to many parties in various stages of openness.
It's possible that there is infringement but that SCO is entitled to so little compensation that they effectively get nothing.How this does help SCO is by allowing them to demonstrate that their misrepresentation of rights was not willful. It will be more difficult for IBM and RHAT to collect damages from SCO if SCO's allegations had any base, as trivial and insignificant as it was.
The correct solution in such cases is a) determine if damages apply, and b) cease and desist infringing (that is, remove or rewrite the code).
But if the code is removed, then SCO can't charge everyone under the sun with licensing fees. And if they showed people what the hell code they're talking about, people would be able to remove the code, thus preventing them garnering licensing fees. Since removal of the code is the last thing they want to happen, they are probably unable to even present a coherent case in court. I mean, besides wanting to keep the purported infringements a secret, wouldn't a judge just order the offending code be removed?
I believe their sole strategy is to whine, posture, lie through their teeth, and desperately hope people will be scared and cave in and purchase licenses, as some have done already.
If they actually had a case, they'd take someone to court and win and be done with it. Resorting to scare tactics and hysterical accusations pretty much proves they have nothing, IMHO.
--marmot
You mean that McBride's rants may actually have a bit of substance behind them?
Ok, I'll make it easy for you. Here's by far the most important part of the letter:
"Notably, it appears that most or all of the System V code fragments we found had previously been placed in the public domain, meaning it is very doubtful that the SCO Group has any proprietary claim to these code fragments in any case."
IOW, the letter can be summarised to, "We don't think we've infringed on [SCO's] copyright as this was BSD code, but it was that easy to replace that we've done it anyway."
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Probably not. Here's my interpretation of this letter:
SGI carfully verified its code base before releasing it under an open source licence. Most of it was code that was completely original to SGI. However it included a few excedingly common routines that have been around forever, have been release as public domain, published in textbooks and distibuted in BSD software for decades. There is no legal justification for anyone owning this code. We figured that the ATT case was the nail in the coffin of this issue and didn't think anyone would be stupid enough to try to claim ownership of this code again. But unfortunately, we were wrong and these morons think that just because SysV uses these extremely common routines that they must own them. To make things easier for everyone, we are have removed this code, and are looking for any other code that will give these idiots bad ideas, and will remove it as well. We appologise for underestimating the extreme stupidity capable of businessmen and layers.
But if they have already released it into the public domain...
Putting something in the Public Domain specifically means you are giving up any copyright to it. NO ONE owns the Copyright for Public Domain works, thus, anyone can use it for any reason whatsoever. Microsoft can use it, you can use it, Saddam Hussan can use, all legally, and no one has any authority to limit how you use it.
The GPL relies on Copyright, and is very unrelated to PD. If you never have read it, go to www.gnu.org and read the GPL. It is very much like any other software license in a legal sense, only the terms are different. Its an interesting read. GPL does NOT mean you can do what you want with it. If you change GPL software, sell or give away a modified binary but refuse to show me the source, you are infringing the copyright, for instance, and subject to getting your butt sued by the owner of the copyright.
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Actually, it's not immaterial at all.
SGI has demonstrated that any copyright violation was inadvertent and that any such copied code was insignificant within the larger work, as it was so easily removed.
Moreover, they've shown good faith by making every effort to mitigate the damages, even though SCO has shown no such willingness (by refusing to identify the infringing code).
As a result, SCO would be unlikely to get anything more than actual damages, which would be small. And, if the infringing code was removed before SCO obtained its copyright registration (which you'll recall was quite late in the game), they probably wouldn't even get that.
what are the chances that in a big closed source project (like Windows for example), that some developer hasn't used some open source code at one point or another?
0%. In Windows 9x (at least), for example, you can run "strings" on some of the networking utilities to get at the BSD copyright statements.
If you're asking about hidden GPL code, though, then it's anybody's guess.
How do you protect against this?
If you're part of the company in question, you could get the source code most likely to be copied (e.g. Linux if you're working on operating systems, Apache if you're writing a server, etc), try running something like Eric Raymond's new comparison program between those sources and your own code, and most importantly let your employees know that you're checking on them and that illegally claiming someone else's copyrighted material as their own is grounds for termination.
If you're someone else and only have access to the closed binaries, then you might try checking for unique symbols or debugging output, but you won't have nearly as easy a time of it.
MS threatens me with audits to check my license compliance, can I audit them to check that no open source code is in their products?
No. They may get to audit you because that's one of the rights you can sign away to get a cheap site license from them. You don't get to audit them because you've never tricked them into agreeing to it.
If GPL'd code was found in a product like Windows, would Microsoft be forced to open source the entire thing?
No. You can't force anyone to agree to the GPL. You can sue them for past copyright infringement (and probably win big if you've registered your copyrights), but (despite SCO's claims to the contrary) you can't stop them from removing your code and selling their own code no longer encumbered. In the worst case for them, if they wouldn't have a useful product without your code and are redistributing too much to reimplement themselves, then they're pretty much stuck as they've already forfeited their GPL rights and would have to negotiate new rights with every single author whose copyright they've infringed.
SCO hasn't litigated yet. They are asking for a license fee, which you can argue is a mutually acceptable solution.
Talk about confused. You are mixing up two parties here.
1. SCO hasn't litigated against SGI yet.
2. They are asking me for license fees, not SGI. But I have no liability.
Mutually acceptable to who? What parties does "mutually acceptable" refer to?
The price of freedom is eternal litigation.