Slashdot Mirror
SCO Now Willfully Violating the GPL
Pogue Mahone writes "According to The Register, SCO is now distributing Linux code under a more restrictive license than the GPL. This is a violation of copyright, since only the GPL gives them any rights to distribute the code.
Time for every single developer who has contributed code to the kernel to send a Cease and Desist letter to SCO."
Wrong, the GPL defines the rights. One right it does not give is the ability to restrict rights.
This sig is the express property of someone.
Honestly though, is a COD *really* going to do anything? Unless somebody comes up with the money to back it up... I can't imagine it doing any good.
They'll just keep doing as they please and leave a tangled mess in the courts.
This space for sale
No, it wouldn't. The GPL gives them the right to distribute code, provided they follow the conditions of the license. Without the GPL, they'd have no right to distribute it at all.
You can't take away a right SCO didn't have to begin with.
Nice troll.. But copyright law is exactly what this is about. If, the GPL was invalid copyright law would still hold. It's the GPL that gives them distribution rights. Without that, they are violating copyright law.
Hippies unite! Have a nice day.
It's been a while since I studied Civil Procedure, but I believe that federal courts have exclusive jurisdiction over copyright matters, and so small-claims court could not hear such cases, since they are state courts.
Most states you cannot take a corporation to "small court." If you want to file a lawsuit against a foreign corporation (which would take into account all the US kernel developers who do not live in Utah), you have to serve papers on their registered agent in your state, unless you want to sue them in Utah (and why on earth would you want to do that?).
IANAL, but we have had to send a handful of cease and desist letters. Our lawyers advised us to send 2 copies of the letter. 1 copy goes by certified mail and the other goes in the regular mail. Get a recept that both were sent, that way if it goes to court you have proof you sent the letter, even if they don't sign for the certified letter.
Finally if you are really worried you can pay a constible to serve them papers. Once they are served, they are responsible for this information even if they throw the papers in the trash without reading them.
To understand the extent of the hole that SCO have dug for themselves, you have to look at the full extent of GPL software that is out there that they are relying on, and then read clause 5 of the GPL.
Now read it again. You are not required too accept this licence (they don't, they claim it is contrary to the us constitution, us copyright law yada yada yada). But nothing else gives you permission to modify or distribute the program. Considering the wording of this in the GPL (IANAL so please correct me if I'm wrong) this paragraph effectively removes all rights for SCO to distribute ANY GPL software, not just Linux.
Lets go on and look at another clause.
You may not impose any further restrictions (which is obviously exactly what they are trying to do). Incidentally the first bit states that a copy is licensed by the original licensor (not the distributor) which in the case of the contested code is IBM, this both means but SCO should be going after IBM and not end users, and in my interpretation also suggests that SCO did not release there code under the GPL by distributing Linux (if there actually is any in there) since IBM would still have been the licensor.
And now the bombshell that it's seems SCO are completely unaware of.
If you agree to SCO's new licence you are agreeing that they have a right to charge a royalty. However not only is the issuer (SCO) breaching GPL but the recipient would be if they then distributed (since they are accepting that a licence is payable to SCO) so in effect SCO are in double breach.
IANAL, But I wish I were, someone is going to make some serious money fighting this one.
You misunderstand copyright. You do not violate copyright for writing down something that someone else has already written down. You violate copyright when you copy their work. In fact, being able to show that you never had access to the other company's source code would be a pretty good way of showing that you hadn't violated copyright.
This aspect of copyright law (and the fact that copyright law only protects the expression of ideas, not the ideas themselves) is the reason that clean room implementations are legally possible.
Incidentially, this is all OT to what SCO is reported to have done. They are just copying source code in breach of copyright which has nothing to do with the situation you raise.
But, those contracts are specifically designed to work with copyright law. Thus as such, they're copyright enforcement.
Do not look into laser with remaining eye.
I'm pretty sure SCO's public statements about the invalidity of the GPL, combined with the GPL's own statements that any disagreement over the terms of GPL-code distribution kicks the whole package back to standard copyright and thus makes SCO's own continued distribution illegal as hell, will make this case a laugher.
Except that the brunt of SCO's claim is that Linux, being a Unix derivative, is really the copyright of SCO (having bought the System V copyrights, or so they claim; Novell says otherwise), so the copyright and licenses can only be decided upon and enforced by SCO.
Now, we all know *THAT* claim is also laughable, but that's the first claim and the actual court case itself, and if that's disproven, the GPL gets no legal test because its irrelevant to that particular issue. It all hinges on the case against IBM and whether or not Linux is decided to be a Unix System V derivative.
If SCO owns Linux, as they claim, they can assert their copyrights and the GPL simply doesn't exist on Linux anymore. Fortunately, the BSD case already set a precident that simple code copying of small modules, violating copyright/licenses or not, doesn't make for ownership of the whole project.
If SCO doesn't own Linux, then the GPL case can get tested, but only in countersuit. SCO's refuting of the GPL is at this point FUD and publicity. When SCO loses the IBM case, and Linux is proven to remain totally the property of Linus, then IBM or the FSF can countersue the GPL violations. But they won't bother, because after that loss, SCO will lose so much stock value the Canopy group (the *real* culpricks here) will sell it all off and run for the hills. There won't be anybody left worth sueing, or any money to be gained from it.
"But remember, most lynch mobs aren't this nice." (H.Simpson)
-- Joe
Letters like a C&D are sent with a timeframe - either they comply or it will go to court as of a certain date (typically a month in Small Claims Court). Basically, that letter (which should be sent with a Return Receipt, etc., is proof that they were made aware of the issue and were given time to resolve it. Without it, the court may just tell you that you have to give them a chance and throw out the case.
I'm no lawyer, but I was trained in Small Claims Court counselling (don't ask).
GL
Except that the brunt of SCO's claim is that Linux, being a Unix derivative, is really the copyright of SCO (having bought the System V copyrights, or so they claim; Novell says otherwise), so the copyright and licenses can only be decided upon and enforced by SCO.
For this claim to have any merit, SCO must prove that:
a) IBM or another party they attack willfully contributed SysV code to the Linux codebase, and it is still there.
b) The licences agreed to by IBM or another party gives SCO the right to any derivative works based on SysV code (many people have stated that the JFS code in Linux, upon which one of SCO's claims is based, most likely came from IBM's clean-room OS/2 implementation).
c) The "derivative works" clause would give SCO control over any other program containing the actual derivative code, regardless of other existing copyrights prior to introduction of, and after removal of, said infringing code.
Linux, after all, is not a Unix "derivative", but a Unix work-alike. It looks like Unix, smells like Unix, but is not a direct branch from other Unices (except, possibly, with code from various BSDs contributed over time). Its tool suite is not from Unix, but from the GNU work-alikes. SCO's seriously reaching here.
I see what you're getting at, but there are now issues beyond the SCO-IBM case. SCO is now, possibly, willfully violating the copyrights of other programmers. This now goes beyond SCO-IBM, and SCO's public statements can now be used in other ways in a potentially far more important case for the GPL. To paraphrase someone's Slashdot sig, they've stepped into penguinshit. On purpose.
Someday, you're going to die. Get over it.
> Most states you cannot take a corporation to
... you have to serve papers on
> "small court."
You most certainly can sue corporations, local or foreign, in most small claims courts.
> If you want to file a lawsuit against a foreign
> corporation
> their registered agent in your state....
Which is exactly the same procedure as for a local corporation. That is why such agents are required (if they don't have such an agent they lose all lawsuits by default).
Warning: this article may contain humor, sarcasm, parody, and perhaps even irony. Read at your own risk.
Just to be clear, SCO hasn't asserted, except in press releases, any ownership over Linux whatsoever. Theres no courtcase whatsoever. The scope of thier actual, legal claims in the IBM case are for more restrained (although still laughable, imo) than thier statements to the press.
If you look and see their help section, it shows that during the sign up process, they require you to agree to a *new license* (SCO IP license) before you can access the code. That's a GPL violation. And if they claim that the GPL is invalid, then they're still infringing on the copyright.
This is completely unreasonable of SCO. And if you look at it, it's their plan all along. Their goal is to brand linux into their own proprietory unix.
Think about it if every time a contract went bad and it had to go the the lowest level of courts the geographically includes both the federal courts would be far too busy.. When working on a projectin NY with a company in MI a dispute came up and it was handled in NY becuase that is where the contract was taking place..
If the contract said in effect "You may (cash my Adoption Fee check) if you give me your first born." and it was ruled unenforcable for me to demand your first born. I don't believe you would stll be entitled to cash my check anyway. I'd be even more surprised if your inability to deliver the goods stood as grounds for you to cash the check anyway.
SCO's behavior seems to be that of an organization which either fails to understand the terms of the GPL license it has agreed to (and fails to understand the necessity of understanding now) or that of an organization which is trying hard to maintain the facade that it does not (or cannot) understand the terms of the license. Maybe they honestly misunderstood what they thought they were getting when they signed-onto the GPL and don't want to admit that in court for fear of the dereliction-of-duty backlash from the investors. Or perhaps they really are hoping to cash in on a strategy of "Your Honor, the GPL couldn't possibly mean what it actually says, so lets just presume the thousands of contributors actually meant to dump their contributions into the public domain instead."
The thing about things we don't know is we often don't know we don't know them.
>Where does it state in the GPL that you can't
>restrict downloads?
If you reject the GPL and do not negotiate some other agreement, under copyright law you have NO RIGHT WHATSOEVER to distribute the code.
-fb Everything not expressly forbidden is now mandatory.
This is incorrect. If you create a derivative work without the permission of the copyright holder (of the original), you own the copyright on the derivative. The copyright holder of the original work has no claim to your derivative.
HOWEVER, if you attempt to exercise any of your intellectual rights regarding your (derivative) work (i.e. publication, distribution, etc) every copy you make of your work will be an infringement of the copyright of the copyright holder of the original.
This is well established in international law. This page provides commentary on Xu Liu vs. Price Waterhouse LLP et. al, which illustrates a similar issue. Apart from this there are (several) cases in which the the rights to a motion picture derived from a book were limited (in terms of time) and not renewed: the distribution of the motion picture was found to be infringing, but in no case has the court found that the derivative work (the motion picture) is owned by the book's copyright holder.
The result is that SCO cannot claim ownership of Linux. All it can claim is that Linux is an infringing derivative, and that is therefore has a claim against anyone who has used and/or copied Linux.
i-name =twylite [http://public.xdi.org/=twylite], see idcommons.net
The SCO Group
355 South 520 West
Suite 100
Lindon, Utah 84042 USA
801-765-4999 phone
801-765-1313 fax
A contract that is invalid for any reason isn't binding. Because you need a binding contract to allow you to copy a copyrighted work, if the contract wasn't valid you'd be right back at the start, with you having a copyrighted work and someone wanting it. They wouldn't get it free because of this, any more than you'd get a car for free because the dealership misspelled your name on the contract.
> No, I think it suggests that you do so, but it
> does not require it.
The GPL suggests no such thing. Read it:
GNU GENERAL PUBLIC LICENSE
TERMS AND CONDITIONS FOR COPYING, DISTRIBUTION AND MODIFICATION
0. This License applies to any program or other work which contains
a notice placed by the copyright holder saying it may be distributed
under the terms of this General Public License. The "Program", below,
refers to any such program or work, and a "work based on the Program"
means either the Program or any derivative work under copyright law:
that is to say, a work containing the Program or a portion of it,
either verbatim or with modifications and/or translated into another
language. (Hereinafter, translation is included without limitation in
the term "modification".) Each licensee is addressed as "you".
Activities other than copying, distribution and modification are not
covered by this License; they are outside its scope. The act of
running the Program is not restricted, and the output from the Program
is covered only if its contents constitute a work based on the
Program (independent of having been made by running the Program).
Whether that is true depends on what the Program does.
1. You may copy and distribute verbatim copies of the Program's
source code as you receive it, in any medium, provided that you
conspicuously and appropriately publish on each copy an appropriate
copyright notice and disclaimer of warranty; keep intact all the
notices that refer to this License and to the absence of any warranty;
and give any other recipients of the Program a copy of this License
along with the Program.
You may charge a fee for the physical act of transferring a copy, and
you may at your option offer warranty protection in exchange for a fee.
2. You may modify your copy or copies of the Program or any portion
of it, thus forming a work based on the Program, and copy and
distribute such modifications or work under the terms of Section 1
above, provided that you also meet all of these conditions:
a) You must cause the modified files to carry prominent notices
stating that you changed the files and the date of any change.
b) You must cause any work that you distribute or publish, that in
whole or in part contains or is derived from the Program or any
part thereof, to be licensed as a whole at no charge to all third
parties under the terms of this License.
c) If the modified program normally reads commands interactively
when run, you must cause it, when started running for such
interactive use in the most ordinary way, to print or display an
announcement including an appropriate copyright notice and a
notice that there is no warranty (or else, saying that you provide
a warranty) and that users may redistribute the program under
these conditions, and telling the user how to view a copy of this
License. (Exception: if the Program itself is interactive but
does not normally print such an announcement, your work based on
the Program is not required to print an announcement.)
^L
These requirements apply to the modified work as a whole. If
identifiable sections of that work are not derived from the Program,
and can be reasonably considered independent and separate works in
themselves, then this License, and its terms, do not apply to those
sections when you distribute them as separate works. But when you distribute
the same sections as part of a whole which is a work based
on the Program, the distribution of the whole must be on the terms of
this License, whose permissions for other licensees extend to the
entire whole, and thus to each and every part regardless of who wrote it.
Thus, it is not the intent of this section to claim rights or contest
your rights to work written
Warning: this article may contain humor, sarcasm, parody, and perhaps even irony. Read at your own risk.
I don't know what anyone thinks a "court test of the GPL" means, exactly, but the only thing to be found about it is the question of whether it is legal for a given party to license a given work under each clause, and then whether it is legal for a given second party to distribute a given work under each clause.
The "test" that everyone wants has already been done a thousand times. Attorneys who are licensed to practice law have read the GPL, and have found nothing specifically illegal about it.
Read it yourself, it is quite clear. Ask yourself at each and every clause, "is it legal in my State for me to make this agreement?"
Saying the GPL has not withstood the legal test is like saying that my mortgage contract has not stood the legal test. Just because I haven't sued my lender, doesn't mean the contract I signed is no good. Even if there is an illegal clause or two in that contract, doesn't mean I'm going to lose my house, or that I'm going to get it free. And it sure as hell wouldn't mean that the State can come and bulldoze it without compensating either me or the bank.
That's what SCO is proposing. Because they have an idea that there is a clause in the GPL that does not apply to SCO or IBM, that they can make the property rights of arbitrary other parties go away. They have only suggested that was possible, but they have not made any sort of argument that would even reach the ear of a judge, much less be decided on.
I think the popularity of the whole SCO versus IBM thing caught SCO by surprise. I don't think they understood that the noise they made would create an international contraversy. They probably thought it would be settled under the radar of the public eye, that the FUD they created would somehow derail the free software movement which they no doubt perceive as fragile and easily derailed. I think someone may have miscalculated significantly, and now a combination of cognitive dissonance (we've risked our future on this, we MUST prevail), risks associated with estoppel (we cannot change our story even if we know we're wrong), and wishful thinking (if we keep up the negative publicity against linux and gcc, people will stop using it and start looking to us for alternatives) has shaped their strategy.
-fb Everything not expressly forbidden is now mandatory.
Err, are we meant to be able to download from their 'password restricted download site' ?
If you just dont enter a username or password you can get at everything. whats going on there?
It is strictly a copyright case. If they are using GPLed software in a way that violates the GPL then their rights under the GPL are void and they are guilty of copyright infringement. It says so right in the GPL.
Under capitalism man exploits man. Under communism it's the other way around.
The BSD licence is a copyleft licence in the same way the the GPL is.
Last time I checked, BSD allowed for the creation of derivitive works and non-attributed sale of said works.
It's quite different from the GPL; if it wasn't, Windows wouldn't have its TCP/IP stack and OS X wouldn't even exist.
If an ISP gets a letter from joeslashdot@somedomain.com, they won't read it, and if they do, ..., then the letter will end up in the trash.
IIRC, they are legally required to read DMCA takedown notices. Then they must give SCO a chance to file a counter-notice - if SCO doesn't file one, the ISP must cut off their service, otherwise they will become legally responsible for the infringement.
If 1000 developers send valid takedown notices, SCO would have to file 1000 counter-notices to keep their service. If the 1000 notices are distinct, not just a form letter with names/filenames changed, that could waste quite a bit of their lawyers' time.
At least that's my understanding of the law. There may be some other conditions, like having to use registered mail, making sure to sign the takedown notice, etc.
I used to work CSR/Helpdesk. I know how to behave on the phone even when I have to jelly elephant [1] something.
So, just for grins, I thought I'd call SCO. I asked what was going on and if they could explain how they were now stealing code while sueing others over the theft of thier code.
I got hung up on. No suprise. But, maybe someone else will have better luck.
Product and Sales Inquiries
1-800-726-8649
I own a copy of Caldera linux 2.2 and they give this number for help: 1-800-850-7779
Also, 1-800-go-linux ( oh the irony! ) I don't know if this last one is still active.
I'm going to call them and ask what my standing is and what an 'upgrade' would cost. Mostly for grins. Okay, all for grins - no way I'm going to give them a penny.
MySQL AB even wrote a thank you letter to the FSF.
I just called the FSF's GNU Press office. The woman I spoke to told me that there's nothing to worry about (duh) and that while they weren't planning any legal action yet, they do a lot more than what is publicized. She said they prefer to negotiate. "We see [SCO] as a child who is acting out." Damn right.
While IANL, I just got off the phone with mine for an unrelated reason, but the SCO question came up. The question is, who is being infringed? Did the contributers to the kernel give up their copyright in favor of Linus's (i.e. Linus (or his legal entity) now owns all kerl code for Linux) or does the Linux kernel have many different owners, all of whom have agreed to distribute thier code under the same license.
If it's the former, then only Linus (or his legal entity) can send SCO a C&D letter. If not then SCO is looking at a lot of potential law suits. But that also means very bad things for companies that use Linux because they would not have a sngle point of negotiation. Also, there are a lot of GPL'd packages that are typically distributed with Linux. Each of those owners is likely being infringed as well.
Anyway, this is an interesting problem. If you do want to sue SCO (in the US) or serve them for some reason you must find thier registered agent. Many national companies maintain one in each state. I was unsuccessfull, after speaking with the VA SCC, in finding one in my home state of VA.
To clarify it, I'll recite Bruce Perens: Federal law "establishes the right to license copyrights in return for some compensation, which is what the GPL does," Perens said."The only difference between our licenses and those used by everyone else is that they ask for cash; we ask for some rights regarding derived works."
This is what exactly the SCO's point, you can ask for anything but the "rights regarding derived works", because these rights are already established by U.S.C. 17. To take your examples in this context In fact, copyright explicitly says that the copies must be authorized by the copyright owner.. If I were arguing for SCO, I would say that they (FSF) can control authorization of copying their work, but not in a way that alter our rights to use derivative work to the fullest extent granted us by U.S.C. 17.
Now, excuse me, I have to go and wash my mouth :)
I am not talking about use of the work. I am talking about control of the rights on the derived work. And, technically, requirement to release it under specific license, may be construed as alteration.
And asking for limited rights over derivated works in return for allowing such derivated works to be made is a fairly standard setup. It happens all the time, although I'm not privy to any specific example.
I would consider AT&T UNIX License, so precious to SCO, as one of those examples, since it limits use of derived components to the use only within the derived work. Which by SCO's logic also should make it unconstitutional.
What SCO is saying possibly applies to EULAs that restrict things like reinstalling on a different computer
This is exactly what SCO is NOT talking about. SCO is not arguing validity of GPL for distributing/using original work, only the part that governs distribution of derivative works, e.g. they do not try invalidate BSD-like licenses because they do not exhert any control over derived works.
Only paying a constible to serve the papers will stand up in court as proof of delivery (been there). In my case, I gave the sheriff's office the papers. They made copies so they could testify as to what they delivered and then delivered the originals. Worked great and wasn't very expensive.