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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."
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
Mr. Hu is not a ninja.
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!
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?
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?
"If you want to improve, be content to be thought foolish and stupid." - Epictetus
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..
"You lied to me! There is a Swansea!"
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.
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.
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.
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
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 didn't know it was possible to invent a better kick me sign.
The preceding post was not a Slashvertisement.
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.
"This is why men never share their feelings; because women always remember." -Just Shoot Me.
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.
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.
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!
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".
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. ;-)
The thing about things we don't know is we often don't know we don't know them.
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.
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.
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?
Ruby on Rails Screencast
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.
--"You can lead a man to knowledge, but you can't make him think."
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
http://unmoldable.com W:"No one of consequence" I:"I must know" W:"Get used to disappointment"
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.
TODO: Insert witty sig
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.)
> 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.
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?
What? Oh.
One HUNDRED... BILLION dollars!
-- Windows security? Sure, which ONE would you like? -me
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.
....don't kill them yet, we need them alive so that we can torture them later!
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....
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.
ascii art
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
Just another "Cubible(sic) Joe" 2 17 3061
I dont even use Linux, and SCO is really pissing me off.
Manipulate the moderator system! Mod someone as "overrated" today.
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.
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.
Excuse the Unicode crap in my posts. That's an apostrophe, and slashdot is busted.
>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.
-fb Everything not expressly forbidden is now mandatory.
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.
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.
- David A. Wheeler (see my Secure Programming HOWTO)
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.
illegitimii non ingravare
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.
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!
Apocalypse Cancelled, Sorry, No Ticket Refunds
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! :-( 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.
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
JGski