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."

Comments

Re:Get over it

[Curtman]

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.

Re:Hmm.. question..

[harlows_monkeys]

Not only should people send a C&D letter, but can't they also take scox to at least small court?

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.

Re:That's right

[jchawk]

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.

SCO Was in total violation anyway

[JamesSharman]

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.

5. You are not required to accept this License, since you have not signed it. However, nothing else grants you permission to modify or distribute the Program or its derivative works. These actions are prohibited by law if you do not accept this License. Therefore, by modifying or distributing the Program (or any work based on the Program), you indicate your acceptance of this License to do so, and all its terms and conditions for copying, distributing or modifying the Program or works based on it.

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.

6. Each time you redistribute the Program (or any work based on the Program), the recipient automatically receives a license from the original licensor to copy, distribute or modify the Program subject to these terms and conditions. You may not impose any further restrictions on the recipients' exercise of the rights granted herein. You are not responsible for enforcing compliance by third parties to this License.

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.

7. If, as a consequence of a court judgment or allegation of patent infringement or for any other reason (not limited to patent issues), conditions are imposed on you (whether by court order, agreement or otherwise) that contradict the conditions of this License, they do not excuse you from the conditions of this License. If you cannot distribute so as to satisfy simultaneously your obligations under this License and any other pertinent obligations, then as a consequence you may not distribute the Program at all. For example, if a patent license would not permit royalty-free redistribution of the Program by all those who receive copies directly or indirectly through you, then the only way you could satisfy both it and this License would be to refrain entirely from distribution of the Program.

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.

Re:SCO Was in total violation anyway

[Twylite]

I'm going to be somewhat of a Devil's Advocate here. The problem with the GPL is the same as the problem with any shrink-wrap license: there is a combination of the private law of contract and the property law of copyright at work.

Consider the following simple license: "This software is Copyright. All Rights Reserved. You may receive and use a single copy of this software is you have paid the author $20. You agree to waive your fair use rights."

What does that mean, legally? Copyright law gives the holder certain rights, and gives the user of a legitimate copy certain rights. Now the holder has attempted to use his rights in conjunction with (a presumed) demand for the product and the law of contract to remove the statutory rights of the user.

So the user takes a screenshot of a menu from the program for a review in his blog. Now what? Arguably the user has not infringed on the copyright because fair use is a statutory defense against infringement. But the user has broken the contract. The effect of breaking the contract is (typically) to invalidate it and make the breaker liable for damages. Only the breaking of the contract, in this case, also terminates the right afforded to the user to use the legitimate copy. So by keeping the screenshot in the blog, the user is infringing copyright, because fair use only applies if you have a legitimate copy. Nasty.

More subtly, this contract also contradicts the doctrine of first sale. It requires payment directly to the author, and in the case of infringement the "onwership" of the copy is revoked, and cannot be transferred.

Let's look at this from a different angle. Another author releases his work into the public domain, but only distributes it to his web site, where he has a click-wrap license agreement: "This work is in the public domain and you may download and use one copy, but you may not copy it, distribute or publish it, or modify it in any way". No use of copyright at all, just the law of contract. Would this contract be considered legally valid? If so, is there a point in copyright at all?

When Microsoft claims their license locks an operating system to a particular hardware system, we object and say the license is invalid. But many of the same arguments hold against the GPL because ultimately the GPL, like a commercial EULA, is a combination of contractual and copyright law, and is largely untested ground.

Re:Hmm.. question..

[TWX]

But, those contracts are specifically designed to work with copyright law. Thus as such, they're copyright enforcement.

Re:Hmm.. question..

[John Hasler]

> Most states you cannot take a corporation to
> "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 ... you have to serve papers on
> 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).

Re:No GPL Violation

[narfbot]

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.

Re:Time to enforce the GPL?

[Twylite]

If SCO owns Linux, as they claim, they can assert their copyrights and the GPL simply doesn't exist on Linux anymore

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.

Re:Hmm.. question..

[MrResistor]

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.