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

Hmm.. question..

[rylin]

Not only should people send a C&D letter, but can't they also take scox to at least small court?
Not that I know smack about law or anything

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:Hmm.. question..

[Waffle Iron]

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

Small claims court? If each and every music track put on a publicly accessible share is worth tens of thousands of dollars in fines, think of how much you could get from somebody who is illegally distributing a complete server operating system. With the number of source files involved, you could stand to make $Millions!

Re:Hmm.. question..

[fliplap]

But this isn't soley a copyright case. This is a simple contract/license dispute. You, as a kernel developer, gave SCO a license to distribute your work, they aren't living up to thier end of the bargain.

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..

[el_gordo101]

Obligitory IANAL, blah, blah, but shouldn't it be possible to form a class-action suit against SCOX on behaf of all of the contributing devlopers? Just a thought.

Re:Hmm.. question..

[Dashing Leech]

I don't think you can terrorize with vaporware.

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:Hmm.. question..

[IWannaBeAnAC]

Or the other way around? SCO versus a lawyer funded on the cheap by a single developer (once they win the first case, the precedent lets them get through the other N-1 pretty quickly), or SCO versus a bunch of lawyers funded by a pool?

Re:Hmm.. question..

[Anonymous Coward]

Microsoft have managed it for the previous two decades.

Re:Hmm.. question..

[sg_oneill]

You most certainly can sue corporations, local or foreign, in most small claims courts.


You most certainly can. Furthermore, IBM/FSF/REDHAT/SAMBA/WHOEVER should not only cease and desist these fuckers, but should as a matter of urgency try and get there assets/stocks frozen on the basis that these will be needed to repay the litigants once they have won.

Fortunately the first inevitable judgement against SCO is likely to lead to a panic sell, which could either trash SCO's financial position or make it impossible for them to repay any fines/compensation imposed.

Some folks will argue "what about shareholders". I would argue "EXACTLY!". There should be a massive penalty against shareholders in SCO who are currently able to sell out but aint.

People who knowingly invest in fraudulent enterprises should be punished as loan sharks and charlitans.

To cut a long story short. SCO should be crashed and its shareholders bankerupted.

Not because its satisfying. But because its moral.

Re:Hmm.. question..

[Anonymous Coward]

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

No. Disputing the terms of a contract is never copyright law. The relevant point is that SCO couldn't possibly argue that they are complying with the GPL (and have stated as much). This means that the GPL is irrelevant, and so it falls back to plain copyright infringement, not breach of contract.

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.

That's right

[Kierthos]

we'll Slashdot their mail room....

Are they even obligated to legally respond to any C&D letters? IANAL, so I have no idea...

Kierthos

Re:That's right

[dougmc]

Are they even obligated to legally respond to any C&D letters?

No, nobody is. But cease and desist letters are usually sent with an understanding (at least they attempt to foster the understanding) that if they are ignored, further legal action will be taken, such as a suit. Sending a C&D letter is cheap, but if all you want to do is scare somebody into stopping, they're often effective.

They don't do much to SCO, however. Somebody will have to actually sue.

As always, I am not a lawyer.

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.

Re:That's right

[Angram]

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).

Re:That's right

[dspeyer]

I won't claim there's no hypocrisy in the replies to this articles (or any article), but this particular point makes sense. SCO, unlike 'music pirates' is actually trying to steal Linux. They are trying to make it so that they own it and the authors don't. They want exclusive power of disribution.

If they just wanted to enjoy it, or pass it around on kazaa, we wouldn't object. That's why we gave them permission to do that.

But they're trying to tell us that we can't do that, simply on the authority that they bluff well and have a lot of lawyers (actually, that they bluff mediocerly, and have some lawyers). They're more like the RIAA, only with no grounds for their actions.

Hopefully they'll overstep so far that even PHB's will laugh at them, and then IBM will swat them like a bug, and the SEC will through the ringleaders in jail for securities fraud. It really could happen.

Re:That's right

[11223]

Dude, if you're going to try to slashdot someone, at least do it right:

This is a big, clickable link to slashdot SCO's servers!

Re:That's right

[back_pages]

This is the funniest thing I've ever seen!

What an embarrassment to moderately smart people everywhere. The GPL specifically SUPPORTS the copying and distribution of Linux. SCO is trying to usurp the RIGHTS to the body of work, whereas music downloaders are merely copying it for themselves.

Offtopic or Totally Stupid was the right moderation for this comment.

Re:That's right

[Omni-Cognate]

No, they are illegally making copies. If you have copyright on some information, and I make an illegal copy, you still have copyright on the information. Copyright infringement is not theft, because it does not involve taking something off the victim, but instead making an unauthorised copy of something he owns. The victim may suffer financial losses further down the line, but this is the loss of a hypothetical (money which might have been made later if...), not of actual property.

What SCO are trying to do is to take away the right to control distribution. The only strategy that makes sense if they are trying to have the GPL declared invalid is to try and get GPL'd code placed in the public domain (if they do not acheive this second part, they are guilty of copyright infringement). In this case, they are actually trying to take away the copyright, not make a copy of the software. There is a much stronger case for calling this theft, morally if not legally, than what music pirates do.

Re:That's right

[No One's Zero]

Mirror Here!
Er, is this a bad place to start karma whoring?

Darl McBride Dance Dance Revolution

[corby]

SCO Group is to resume distributing Linux, but only if you agree to a new "IP license" which implicitly supports SCO's intellectual property claims.

So SCO can distribute code they do not own, and I can download the code I do not own, so long as SCO and I agree to our own made-up license for distributing this IP.

Don't you see where this is headed? SCO is entering the music distribution business!

Under this precendent, they will be able to host MP3s for major-label artists, even though the do not own the IP for the songs. Anyone can download the music, so long as you agree with SCO on the licensing terms!

Long live the Darl McBride Dance Dance Revolution!

Re:Darl McBride Dance Dance Revolution

[cgenman]

Yes. SCO seems to be under the delusion that assertions made in court are TRUE until proven FALSE. That, for example, if a license is declared invalid the item falling under the license is immediately in the public domain. Or that a company which has allegedly been wronged is entitled to payments during the discovery phase of the trial, rather than after a ruling has been made. Or that claiming copyright infringement is the equivalent of proving copyright infringement.

In the spirit of SCO, I would like to begin the Great Darl McBride Sales-A-Bration! Darl has wronged both me and my family, and owes us his entire estate. How much do I hear for a slightly used 4.2 liter 2002 Jaguar S-Type R?*

*Anyone participating in the Great Darl McBride Sales-A-Bration implicitly agrees that the Great Darl McBride Sales-A-Bration is completely legal and enforceable. All US judges and members of congress are required to take part in the Great Darl McBride Sales-A-Bration. Some restrictions apply, which we will announce at the appropriate time in the future.

Re:A non-issue

[Tenareth]

Wrong, the GPL defines the rights. One right it does not give is the ability to restrict rights.

Time to enforce the GPL?

[l2718]

So far this was between IBM and SCO. However, now the major copyright holders for the GNU/Linux system can assert themselves.

In particular, should the FSF (GNU project) sue SCO for license violation?

Re:Time to enforce the GPL?

[Platinum Dragon]

IANAL, of course. This is Slashdot, we all play lawyers here.

The FSF and the kernel hackers could have a field day with SCO right now. This, along with the aborted attempt to sell binary run-time licences that restrict rights in a similar fashion, may be exactly the mistakes the GNU/Linux copyright owners have been waiting for.

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. For all of SCO's claims that the GPL is anti-copyright and unconstitutional, the licence itself makes clear that if the conditions can't be fulfilled or the licence is found to be unenforceable, standard copyright law applies--which means, unfortunately for SCO, the code they're trying to distribute is not automatically public domain, and thus they have no right to distribute any code they can't claim direct ownership for. It just means the authors would have to come up with another way to licence their code, either collectively or individually--and SCO would be in no position to make demands.

Re:Time to enforce the GPL?

[Platinum Dragon]

Sure, but isn't this SCO's goal?

Quite frankly, this may not be SCO's goal. Some people have asserted, without evidence but with some inferences, that SCO may already be violating the GPL. By having the licence declared invalid before anyone gets a chance to look at their code (if ever), any discoveries would be legally cleared in a similar way to how the code SCO showed at their stockholders meeting was found to be clean--it was released at a previous point in the past under a GPL-compatible licence. Alternatively, those who think Microsoft is behind the whole thing believe that M$ may be attempting to destroy the GPL, and thus have the right to either raid Linux code, or wipe out a potential competitor without having to get their own hands dirty. Since M$ is working on its own, new CLI for embedded systems and GUI-less systems, eliminating a potential competitor that already does these things would make market penetration very easy, since I suspect many relatively recent Linux converts would go running back into Bill's arms before moving on to the *BSDs. Comfort syndrome and all.

They could care less about selling their own version of Linux, they just want to get paid for the components of Linux they're asserting ownership of.

No, they want to get paid for all of Linux, regardless of how much they may actually own. If they really cared about clearing copyright infringements and getting properly paid, they could have been far more open and cooperative about what particular code is infringing. Instead, they're trying to hold IBM up for big money over code that many people have demonstrated SCO never touched, and may not be able to touch depending on the exact content and scope of various SysV licencing agreements.

Re:Time to enforce the GPL?

[Platinum Dragon]

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.

Re:Time to enforce the GPL?

[bill_mcgonigle]

IANAL, of course. This is Slashdot, we all play lawyers here.

Can't we just get a checkbox on our preferences page that says "I'm a lawyer". Then we can have a little shark icon that displays next to our username.

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.

Isnt' this a good thing?

[moehoward]

Hasn't the slashdot crowd been clamoring for a test of the GPL since day one?

Why is this a bad thing?

Fine. Take them to court. Seems pretty simple at this point. Both sides want the same thing. A legal test of the GPL. Shouldn't we be celebrating?

Re:Isnt' this a good thing?

[sphealey]

Hasn't the slashdot crowd been clamoring for a test of the GPL since day one?

Why is this a bad thing?

In the long run, the SCO suit is a very good thing for Linux and the GPL. The weakest possible opponent filed the weakest possible challenge under the most disadvantageous circumstances with overt support from Microsoft. Assuming a victory of some sort for IBM, RedHat, and the GPL (looks likely but of course not certain) solid case law will be laid down on the most advantageous terms for Linux.

In the short term though Linux will have to endure a little pain and FUD, but that's OK: "whatever doesn't kill me makes me stronger [unless it leaves me a cripped wreck!]"

sPh

From SCO's eyes

[tekiegreg]

Speaking from SCO's eyes, the Linux developers violated SCO's user agreements. So it's essentially a retaliatory move I take it. However, even in a court of law 2 wrongs don't make a right. I can only hope for a speedy resolution to this whole mess so even SCO could go back to doing something normal and productive, instead of shooting themselves in the foot all the damn time (do they even have any foot left?)

Understand..

[adeyadey]

If the GPL *is* invalid, as SCO claim, then the code reverts back to being the copyright of the individual contributers, who can then sue them for breach. Either way they are stuffed..

Re:Understand..

[adeyadey]

But of course that makes no sense. eg. I am a programmer, I release my code under a set of conditions called GPL. If GPL holds water, then you may only redistribute under the terms of the GPL. If the GPL doesnt hold water, then I keep copyright. At what stage did I state that my code is in the public domain? Its like a tenant saying to a landlord - "there is a technical mistake which makes the tenancy agreement void - so I can now live in your house rent-free forever.."

Re:Understand..

[midav]

If copyleft licences are unconstitutional, and I can't see any way that they are.

Mostly because there are two schools of interpretation of IP in the US. One, which equates IP with ordinary property, allows you to form a contract with any parties on any conditions the standard contract law would find legal. Incidentally, GPL implicitly relies on this interpretation when builds upon U.S.C. 17.

The other school distinguishes IP from P and sees U.S.C. 17 as artificial construct carefully crafted by State to strike the balance between IP creators and IP consumers. If you look at the IP from this angle, then GPL may be considered illegal (at least in the US) because it alters this balance. Hence, the SCO's argument that it is illegal and must be pre-empted.

There are precedents that decided both ways of interpretation, which makes SCO's case less laughable, then any one of us would want it.

Whether GPLed works fall into public domain or not is a separate question. AFAIK, SCO's argument why they should, is because distributing works under illegal license, you barred yourself from the copyright law protection as a matter of equity.

The most ironic part of the whole thing, is that, in general, most people on /. (including myself) consider IP != P, which weakens their pro-GPL case and corporate IP creators, including SCO, in general, argue that P == IP, which makes their anti-GPL case weaker.

Since both sides try to have a pie and eat it too, I expect the trial to be more interesting then MS' anti-trust case.

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:A better idea

[AllUsernamesAreGone]

No, a proper C&D, drawn up and sent by a real live lawyer (or as alive as undead bloodsuckers can get) on behalf of someone who owns the copyright on th ecode that SCO is distributing is the way to go.

Petitions are the last resort of the helpless attempting to achieve the impossible through the rediculous.

Ramifications

[Shadow2097]

If they invalidate the GPL in this manner and get away with it, won't they just have the effect of providing legel precedent for throwing out ALL software licenses and EULAs? Surely this move has got to be one of the STRANGEST moves yet by SCO.

Assuming that their actions of late (starting with the IBM lawsuit) have been directed under the advice of their team of lawyers, who the heck gave the approval for this? Even IF they somehow invalidate the GPL, are their lawyers so short-sighted that they can't see this coming back to haunt not just SCO, but the entire commercial software industry?

-Shadow

Re:Ramifications

[AntiOrganic]

For some reason, I can't picture them being that worried about SCO UnixWare getting pirated.

The MASSIVE problem with SCO's actions...

[Rahga]

Is that right now, their actions are in violation of the GPL, and while they can claim that they believe the GPL is unenforcable and void, that does not mean it is until the courts say so.

Essentially, what they are doing RIGHT NOW is as wrongheaded as pirating and selling the latest sets of MSDN.

The other issue is their notion that an invalid GPL means that all copyrights on Linux source code also becomes invalid and the work enters public domain. I'm no copyright expert, but I really doubt that's the way this works in the real world.

I must congratulate SCO.

[pecosdave]

I didn't know it was possible to invent a better kick me sign.

Re:Makes sense

[Talthane]

That doesn't matter, because much of the code is not theirs (they haven't claimed ownership of everything). Suppose you offer a licence for your app at X pounds; if I don't like the licence, the application doesn't nonetheless become mine.

It's my right to refuse to take the offer on your terms, if I don't like them or think they're wrong; however, it's not within my rights at all to substitute my own terms for your product instead.

This doesn't of course apply to their own stuff, which they can sell under whatever licence they choose; however, in changing the licence for someone else's code (e.g. Samba) they are breaking every rule in the book.

Re:A better idea

[dougmc]

A better idea might be to get together a petition, sending it to SCO telling them to stop this.

All a petition does is show that lots of people care about something -- either they want something, don't want something else, etc.

They're effective against people seeking re-election, or companies who actually sell a product (to the masses.) SCO knows that what they're doing is very unpopular, and so telling them that what they're doing is unpopular isn't going to have any effect on them.

death by 1000 cuts

[Ffakr]

I think the idea of individual developers taking SCO to small claims court is actually a really good idea.
Small claims verdicts are usually not all that tough to win. You go in, show you own the code, show the judge the GPL that was attached to the code. Of course SCO won't/can't send out a lawer for every regional small claims court session so they pretty much default.
You get a 1000 developers winning $1,500 a pop against SCO and it starts to hurt the bottom line.
Not to mention an ever growing list of losses against the corporation.

Re:death by 1000 cuts

[Zathrus]

Small claims court isn't going to touch copyright issues. For one thing, copyright is a federal law, not a state one, much less county. A county small claims court has no jurisdiction, and there is no such thing as a federal small claims court.

If you actually want to sue SCO you have to do it the right way -- file a lawsuit in your local federal court.

Have fun. Enjoy going broke from lawyers fees. Expect to be fired from your job because you need to be in court so often (if you didn't hire a lawyer). Understand that whatever the ruling is, if it goes to appellate court you cannot represent yourself (at least in criminal cases; not sure about civil). Oh, and proving ownership of the code should be enough fun, since SCO's lawyers are likely to hound you over whether or not you actually wrote it, what sources (books, consultation on IRC, etc.) you used while composing it, and so forth.

For the love of GNU, stay out of this. Do not let SCO drag you or any other OSS advocates into court. Sadly, this may force FSF's hand and cause them to enter into a lawsuit with SCO as representation for all of the developers that contributed to anything SCO is relicensing. I really think this is what SCO wants, although I cannot fathom what they expect to gain from it. Are their lawyers really that certain that the GPL can be broken, and that the judge will rule that the code is actually public domain? (note - this would still allow them to sue over copyright violation, since you cannot place anything into the public domain that is not yours. Of course, this tenant of copyright law is one of the parts that strengthens the GPL, which they're now trying to break.)

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.

Indemnification

[Doesn't_Comment_Code]

Has SCO made an offer to indemnify all the users or redistributors of their illegal license?

We need some changes

[mao che minh]

In between the absurdity and jokes, we have forgotten how serious and profound this whole fiasco is. It's pretty sad when a collection of companies can't defeat a community-developed operating system, so they must resort to dramtic and exotic legal tactics. All of those billions of dollars, all of those employees, and they can't beat an operating system that is largely developed by volunteers.

What's really sad is that they are allowed to get away with it. In Germany, SCO has already been prevented from spreading lies and making baseless allegations in public. I enjoy and respect the liberty that is "freedom of speech", but I wouldn't categorize what SCO, Microsoft, and Sun are doing as merely "freely speaking".

So send a C&D Anyways...

[Anonymous Coward]

When they ask you to show what part of Linux you contributed, say "you first". :)

DMCA Takedown request, anyone?

[lynx_user_abroad]

Wouldn't it be possible to send their upstream provider a DMCA takedown request, alleging illegal distribution of copyrighted works?

I don't think someone representing the Free Software Foundation would have any problem convincing anyone that at least some of the files in their distro are (c) by the FSF.

Of course, SCO, with their current state of mind, could simply strip-off all the (improper, from their point of view anyway) copyright attributions and continue distributing. ;-)

Will Linus Sue?

[Ridgelift]

the SCO Group is to resume distributing Linux, but only if you agree to a new "IP license" which implicitly supports SCO's intellectual property claims.

Since Linus Torvalds is the trademark holder for the name Linux, does this mean Linus will sue SCO?

What's wrong with SCO?

[deanj]

What's wrong with SCO? Do they think Linux is an MP3 file or something??

SCO's Legal Strategy

[MattTC]

Although willfully violating the GPL/copyright law seems like an insane thing to do, it actually isn't.

Lets assume that SCO is convinced there actually is proprietary code in the Linux kernel. Therefore, by inviting suits to be brought against them, they are bringing the targets for countersuits out into the light.

They proably hope that there will be a class action, and can countersue the whole class for using their proprietary code.

It's an interesting, if machiavellian legal strategy.

actually...

[thoolihan]

This makes perfect sense for SCO to do. Their whole claim stands on the GPL being invalid. If you're betting the farm on the case, why would they care if they are held liable for violating the GPL? If it stands up there won't be an SCO left to sue.

SCO is throwing a hail mary. I'm not suprised they are sending as many receivers as possible. (Note I said this makes sense, I didn't use the word ethical or correct)

-t

*N*E*W*S*F*L*A*S*H*

[JaJ_D]

Mircosoft HQ Redmond

A press spokesman for microsoft declared that Microsoft 7 year undisputed record, and title of "Biggest Pisstakers of The Year" had finnaly gone.

"We just could compete with the SCO Board" He was heard to say "Their tactics have been unbelievable! There are a lot of people, here at Microsoft, who are very unhappy - with alrights we should have thought of this"

His comments were into SCO latest tactic in the We-are-on-a-loser-but-our-share-options-are-rising -so-we-can-bail plan. The reason Microssoft is unhappy is becuase of SCO's tactic of getting developers to do all the work for them, with out paying, and the altering the licensing so apparently claiming the work as there own. Intersting in any other case this would be simply called "theft".

As the Microsoft spokesman summed up the anger and frustration many people at Microsoft feel, "why could we think of that - it was shear brilliance! Think of all the money we could save. Heads will role because of this"

Also today the Microsoft announced their latest offering. "In the world of computing", the spokesman said "there is a need for reliable, effective, cheap, stable, secure computing. It has to be said that our latest offering have fell a little way short. So it our pleasure to announce the release of 'Mircosoft Lin++'. It is a fully compatible Linux operating system, that only costs $129 per user licence".

More details of MS Lin++ to follow shortly"



Jaj

With tongue firmly in his cheek

I say we sue them for one MILLION dollars!

[Perlguy]

What? Oh.

One HUNDRED... BILLION dollars!

Re:Time to enforce the GPL?.....NO, this is bait..

[Dr_Marvin_Monroe]

Of course, the standard disclaimer IANAL applies, but this whole new mess that SCO has stirred up seems to have a purpose. A nefarious purpose, but a purpose none the less.

The more lawsuits now, the better their plan works. Remember, they are pursuing a plan of FUD, stock price manipulation and legal mudwrestling. They are not interested in really getting ANYTHING settled. I'm sure that Daryl is sitting in Utah right now, laughing while these headline come out. Their position as MS shill (licensing to MS and some bulls*%#t cross licensing of MS communication protocols under the settlement agreement to make it look as if MS is really sharing) and their disregard for the future viability of Linux (SCO not interested if it survives or not) has already been documented. They are not really interested in creating anything other than a sharkfest feeding frenzy over the code within Linux...trying to create an atmosphere around Linux that rivals their own sorded and utterly confusing legal past.

SCO's only purpose is to somehow stay in business and continue to dump these types of infuriating legal turd tidbits for the community to find. This serves as the legal equivilent to "..hey, look over there!..." While they trumpet to the entire world that "we're still alive, so we must be winning our case" That's a tactic used by MS in court too....

Do not allow them to change the subject. Their initial claim is "IBM put SCO's code in Linux"...make them prove that first!...Anything else is changing the subject. I do not beleve that there should be additional suits UNTIL the original suit is settled. There will be plenty of time to file after the IBM/SCO cage-match gets started.

They are doing this because they don't want you to notice how weak their hand is, and to drag everyone else into the mud also....don't fall for it, we'll pull SCO's body apart piece by piece in due time.... ....don't kill them yet, we need them alive so that we can torture them later!

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.

Not even similar

[DingoBueno]

So many of you Slashdotters think that committing copyright violations against RIAA is just fine, but as soon as someone does it to Linux, you're all up in arms.

No. When I listen to music, I just listen to it. I do not take it, repackage it, perform and sell it as my own, claiming to be the artist. On top of that, I do not send a letter to the artist demanding a licensing fee for their continued use of their work. I also do not claim I developed music theory, and that everyone else who uses it is commiting ip fraud.

Bozo

[ratboy666]

It is NOT illegal to make a copy of a sound recording in the US and Canada (no, I don't know about other jurisdictions).

It is illegal to mass duplicate music - and I agree with that.

The Copying rights for Linux are CLEARLY labeled, and every user is CLEARLY informed of them. It is illegal to not supply this information.

The Copying rights for CDs aren't particularly clearly stated. It takes a bit of digging to actually figure them out.

Sound recordings occupy a special place in Copyright law. Computer source programs are NOT the same thing at all.

Now, all of this has been hashed to death, but the thing that makes you a Bozo is:

The RIAA does NOT hold sound recording copyrights. The RIAA is simply a cartel representing its members.

Linux is not even a cartel. It is simply a trademark. There is NO cartel; copyright is held and defended by the individual authors, or, in some cases, has been assigned to the FSF.

Ratboy

WTF?

[t0ny]

I dont even use Linux, and SCO is really pissing me off.

DMCA?

[uucpbrain]

Forgive me for such an evil thought, but it occurs to me that it might be possible to demand that SCO's upstream provider shut them down for illegally distributing copyrighted software. Wouldn't that be the most ironic thing in the world?

MUAHAHAHAHAHAHAHA!

Class Action Lawsuit?

[bobbv]

There's all this talk about slashdotting their mailroom and taking them to small claims court. Hello? This situation is exactly what class action lawsuits are for. Someone needs to hire a lawyer and set up a class action lawsuit about breach of license. RMS seems like the logical person, since he's the one who started the whole thing and has been the strongest defender of the strong interpretation of the License. Then everyone who contributed--everyone who ever checked in (or even checked out)--code into something that SCO is overly restricting can join it.

The REAL fun, now it's non-USA, too

[dpilot]

So far the SCO mess could have been considered a "domestic squabble" between US-based corporations. There was a little noise in Europe and Australia over threats and such, but that died down fairly rapidly, and could have bogged down in the 'definition of thread' issue.

But this is different. Now SCO is violating copyright law, no ifs, ands, or buts about it. Obviously they're testing the GPL, and thinking about US law. But now they have to worry about the status of the GPL under other nations, as well.

Re:Unconstitutional? hahahah

[fishbowl]

>Has ANYBODY heard SCO's explanation of how the
>GPL is "unconstitutional"? Do they even have ane
>explanation?

They haven't given one, apparently.

Lots of people comment on how the GPL has "never been tested in court."

My lease agreement with my landlady hasn't been tested in court either, but unless there is something in every clause that is plainly illegal, it's a safe bet that the contract will prevail.

As distribution licenses go, the GPL is as simple as it gets. You can go through it line by line, and at every clause, ask "is it legal for two parties to enter into this agreement?"

The answer will be "yes." The only question in this case will be whether the agreement is valid between the two parties at suit (SCO, and IBM).
It may be a result of this lawsuit that one or both of those parties is found to be unable to agree to the GPL due to some other constraints. (For instance, I could sign a contract that said I will not distribute GPL software, and that would be binding.)

Now, SCO realizes that if it came to this, SCO would not get very many offers of an alternative license agreement, whereas IBM probably would.

But if there's anything *unconstitutional* about the GPL, in any of its clauses or as a whole, what's really frightening about that is the same finding would certainly invalidate many other licenses. I'd expect EVERY software license to have a problem, and it's hard to see how it wouldn't translate to "copyright law is unconstitutional."

The bottom line of the GPL is that it is an expression of an author's rights under copyright law. The question is, do I, an author, have the right to enter into this agreement, or do I not?

If not, there must be reasons. The circular argument won't cut it. The reasons have to be specific. "Because it's the GPL and the GPL is not valid" will never be the precedent. In Mcarthyist philosophy, the socialist colour of the license might be accepted as grounds for prejudice, but that isn't going to drive a contemporary judicial decision, not even in Utah.

So, clause by clause, we need reasons why any part of the agreement is illegal, in the State of Utah, in the US, or in any other jurisdiction. If you can find anything in the GPL that constitutes a breach of law, that parties are breaking the law merely by entering into it, the finding should be construed to apply to every other agreement sharing the same characteristics. A judge may not simply "ban the GPL." That would show clear prejudice and would be a blatant disregard for equal protection of the law.

There was some noise about "releasing GPL'd copyrights into the public domain" also.

If you want to get into "unconstitutional" territory, we need to start with the right of an individual not to be deprived of property without due process of law.

A settlement in a lawsuit between two parties unrelated to me, does not constitute process on the question of my property rights. That is simply not something that the judge has the authority to consider. The motion to release copyrights into the public domain would have to be filed against each and every individual work, and each and every author would be entitled to due process.

Some of them would be in a position to put up an even bigger fight than IBM, since the question would be even clearer.

FSF

[gr8_phk]

I will gladly make a large FSF donation if Linus will get off his fucking ass and have FSF represent him in this case. I'd appreciate if other developers would join him, and if other /.ers would contribute with dollars. If you've been wondering when "that time" would come, it's here now.

GPL isn't really powerless, proprietary checkable

[dwheeler]

I don't think you're seeing the full picture. All licenses are "powerless", but only in the same sense that all laws are powerless. There are laws against other kinds of stealing and of murder, but clearly many kinds of stealing and murder happen all the time. The power of law, and of licenses, is that if you break the law/license and get caught, there's a strong (deterrent) risk of being punished.

From that perspective, it's clear that SCO is not "getting away" with their actions. Instead, they're being sued by two organizations.

This case is becoming exactly what you asked for - a possible situation where the GPL is tested in the courts. It may not come to that; SCO could quickly back off on those points when it's trial time. But to get the GPL tested in the courts, you need someone willing to blatantly violate the license and continue to do so while in a trial. That's not happened before; violations are usually unintentional, and nobody's ever been willing to stay in court to fight the GPL. I think most lawyers have decided that it'd be far too risky to play that game, and their clients have some product or service that can make them money. SCO has nothing to lose.

By the way, you ask "What's gonna stop Microsoft from using Linux source in their next Windows version?" There have been persistent rumors that some major proprietary vendors (including Microsoft) are using GPL'ed code illegally in their proprietary code. However, they're just that, rumors, and it is not fair to allege that someone has committed a crime when there's no evidence that they've done so. Indeed, I think Microsoft takes copyright quite seriously and I would expect them to take many steps to prevent violating any licenses.

Currently it's difficult to detect stolen GPL code in proprietary programs. But in theory it's quite possible to compare proprietary machine code (possibly decompiled) with GPL'd source code. If anyone suspects that GPLed code has been wrongfully included in proprietary code, and the binary is available, feel free to create and use tools to do such checking.

right on, brother

[rodentia]

They've gone beyond the simple, day-to-day corporate malfeasance and arrogance. A simple boycott of their crappy products doesn't help because their only clients are those already locked into their platform. FSF needs to open a website taking donations strictly for the fight they *must* pick with these bastards.

If software libre means anything, the FSF *must* file a suit. Show me where to contribute. Moglen, et. al. just got job security for the next four years.

Re:Time to enforce the GPL?.....NO, this is bait..

[mpe]

The more lawsuits now, the better their plan works. Remember, they are pursuing a plan of FUD, stock price manipulation and legal mudwrestling.

I'm not sure of the logic here. They can't easily fight that many lawsuits at the same time. How many judgements against them would their stock price survive?

They are not really interested in creating anything other than a sharkfest feeding frenzy over the code within Linux...trying to create an atmosphere around Linux that rivals their own sorded and utterly confusing legal past.

What's so bad about wanting to them to the sharks.

Do not allow them to change the subject. Their initial claim is "IBM put SCO's code in Linux"...make them prove that first!...Anything else is changing the subject. I do not beleve that there should be additional suits UNTIL the original suit is settled. There will be plenty of time to file after the IBM/SCO cage-match gets started.

How does the IBM case affect the industrial scale copyright infringment they are now enguaged in? If anything waiting would weaken any copyright infringement actions, because they could use a "you knew on 31st October 2003, but did nothing until now" kind of defence.

Score one for the DMCA

[Greg Lindahl]

Why not send a DMCA takedown to their ISP?

SCO realy doesn't know what its done

[budgenator]

We use SCO at work and they are pissing me off too.
In all honesty I told the boss, SCO is sueing IBM, IBM will crush SCO and pave them over. Now we are replacing our SCO aplication server with a WinXP and a new application, we are a dental office and a vertical market for software. This used to be SCO's bread and butter, multi-user apps in dental/medical/vetrinary offices, restarants that sort of thing; now all gone these people are leary of Linux and now petrified of SCO leaving them without OS support again. I think all these types of markets will go to a microsoft based application, as their hardware gets obsolete.

If Microsoft isn't behind this, they should have been, SCO wins Microsoft wins, SCO loses, Microsoft wins!

Class-action? Group petitions? WTF?

[JGski]

Class-action suits?
Group petitions?
WTF?

Doesn't anyone learn anything from watching the news about Afghanistan or Iraq??? Why do think we're getting our butts kicked? Why is Ramadan now synonymous with Tet? Stabbing with a million little knives is always far deadlier and more effective than with a single large knife! Did Saddam plan it this way? Hell, yes! This precisely what the war-naysayers in the Pentagon was worried about.

J-H-C! Do the fixed and variable cost of engagement calculation. Learn something about Lanchester equations already! Why did Rumsfeld say "we're at a disadvantage... our cost structure is $1Bs and the resistance is $1Ms"? It's the fundamental weakness of centralized power against distributed power. It's a mathematical inevitability. It's why you don't jump into a guerilla war with a conventional force, unless you're an idiot or a shrub. Why do you really think open source kicks butt on proprietary source?

The most effective way to combat SCO's blatant copyright violation and rights theft is precisely to file a million separate C&D letters, followed by a million separate lawsuits, each for maybe only several $1K-100K each. To make this easy the EFF, open source lawyer, et al., should post a D&C template kit and a copyright lawsuit template kit (GPLed of course!) that can be taken to a local lawyer for a perfunctory blessing and establishment of legal figurehead.

Now, the overhead of addressing each and every suit (as SCO is required by law) is probably enough to burn out all their new venture money by itself and then some. To make it extra difficult and expensive, allocate the filings over every federal court district. Hey, lawyers do this calculation all the time!

But just case that isn't enough, follow through to step two. Next the EFF becomes a clearinghouse for a marketing and pr campaign against SCO based on all these D&Cs and suits. The campaign should focus on institutional investors, first and the general media. Add up the damages and publicize the enormous financial risk facing SCO and pretty soon even the most strident SCO supporters will be demanding they backdown or will be pulling their investments.

And then there's steps 3 and 4, but I won't go into those...

Sigh!
Group petitions?! Class-action?! Psshaww! This is war, unfortunately. You want to make yourselves an easy target for neutralization? Class-action has a single-point failure! Just like Lanchester's Convention-vs-Convention engagement you have a square-law force multiplier: double the legal clout and they get 4x better results. The only group action should be massively independent distributed action, just like open source development itself! Also like DDOS :-( The square-law multiplier and economies of scale (aka technology and financial resources) are neutralized and much more, by a distributed, asymmetric engagement. That also is a mathematical inevitability. That's how we lost Vietnam and how we'll probably lose in Afghanistan and Iraq. Perhaps we can finally learn something good from it.

JGski