USENIX Responds to SCO; Fyodor Pulls NMap

ronys writes "The venerable USENIX organization has written a fine response to SCO's letter to Congress. As they point out, 'USENIX was here before SCO. USENIX was here before Linux.' Short and well written." And Reece Arnott writes: "As part of the NMap Press Release for the latest version of NMap, is a statement that explicitly revokes SCO's licence to redistribute it. From the press release: 'SCO Corporation of Lindon, Utah (formerly Caldera) has lately taken to an extortion campaign of demanding license fees from Linux users for code that they themselves knowingly distributed under the terms of the GNU GPL. They have also refused to accept the GPL, claiming that some preposterous theory of theirs makes it invalid (and even unconstitutional)! Meanwhile they have distributed GPL-licensed Nmap in (at least) their "Supplemental Open Source CD". In response to these blatant violations, and in accordance with section 4 of the GPL, we hereby terminate SCO's rights to redistribute any versions of Nmap in any of their products, including (without limitation) OpenLinux, Skunkware, OpenServer, and UNIXWare. We have also stopped supporting the OpenServer and UNIXWare platforms.'"

Comments

We live in interesting times..

[grub]

For those too lazy to look up Section 4 of the GPL:

4. You may not copy, modify, sublicense, or distribute the Program except as expressly provided under this License. Any attempt otherwise to copy, modify, sublicense or distribute the Program is void, and will automatically terminate your rights under this License. However, parties who have received copies, or rights, from you under this License will not have their licenses terminated so long as such parties remain in full compliance.

Now this gets interesting: if SCO continues to distributed NMAP will the FSF start filing lawsuits? This might be the "Big Test" everyone has been waiting for.

/me makes a bowl of popcorn and sits back to enjoy the show.. (as an aside, does anyone know what compiler SCO uses to generate their binaries?)

Re:We live in interesting times..

[BJH]

No, the FSF will only generally defend the GPL for software where the copyright belongs to them (i.e. software written by the FSF or which has had its copyright assigned to the FSF by its author).

The simple reason is that only the copyright holder can sue someone for violating that copyright.

Re:We live in interesting times..

[rubberpaw]

Aha, but it's not a question of the GPL being invalid. They're not arguing that. Rather, they, as licensor of nmap, are revoking the license. The original licensor of the software has more power than redistributors. This is why some organizations are able to provide multiple licenses for their software.

If you were a judge, the question of the GPL would be less pertinent than the question of whether or not Nmap.org has the right to revoke the license. And the answer is: yes.

Re:We live in interesting times..

[triptolemeus]

Are there other popular open source products whose authors can agree to make a similar statement?

Samba is the first that comes to mind (and would have a major influence).

Re:We live in interesting times..

[Anonymous Coward]

Of course they have the authority to do this. Let's take a look at each sentence of section 4 of the GPL, which is what USENIX invoked:

4. You may not copy, modify, sublicense, or distribute the Program except as expressly provided under this License.

Okay, you have to play by the rules in this document. In particular, note the third thing you're not allowed to do -- you can't sublicense.

Any attempt otherwise to copy, modify, sublicense or distribute the Program is void, and will automatically terminate your rights under this License.

So when SCO started saying "You need to use our license to use this GPL code", that sublicensing terminated their rights to use the code under the GPL.

However, parties who have received copies, or rights, from you under this License will not have their licenses terminated so long as such parties remain in full compliance.

Anybody who previously received copies of the code from SCO is fine, as long as they didn't do any of the 4 things that this section says you aren't allowed to do.

IANAL, but USENIX's action seems to be in compliance with this section of the GPL.

Re:We live in interesting times..

[polin8]

Unmentioned by relevant section 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.

SCO refuses to accept the GPL as valid. If the GPL is invalid the software does not become public domain, it reverts to traditional copyright - eg., specific, rather than general, permission from the (C) holder.

Re:We live in interesting times..

[TheLinuxSRC]

Ripped straight from The GPL (emphasis mine)

4. You may not copy, modify, sublicense, or distribute the Program except as expressly provided under this License. Any attempt otherwise to copy, modify, sublicense or distribute the Program is void, and will automatically terminate your rights under this License. However, parties who have received copies, or rights, from you under this License will not have their licenses terminated so long as such parties remain in full compliance.

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.

Thus it would seem that if you disagree with the GPL (which SCO has stated publicly on several occasions) you have no right to software licensed under the GPL. However I post to /. and thus IANAL.

Re:We live in interesting times..

[double-oh three]

New York Times: http://www.nytimes.com/2004/02/02/technology/02boo ble.html?ex=1076389200&en=fa84beea109b9d88&ei=5062 &partner=GOOGLE
Ars Technica:
http://arstechnica.com/news/posts/10778 53182.html
Computer Buissness Review:
http://www.cbronline.com/currentnews/b69e c9e24cdfa eb480256e39003855ab
Chicago Daily Herald:
http://www.dailyherald.com/business/busin ess_story .asp?intid=3804089
Reuters Via San Diego Union-Tribune:
http://www.signonsandiego.com/news /computing/20040 220-1336-tech-apple-pepsi.html
CNN Stories:
http://search.cnn.com/cnn/search?source= cnn&invoca tionType=search%2Ftop&sites=cnn&query=slashdot

So to sum it up, Yes; Slashdot is read by the news media and is in many, many stories.

Re:We live in interesting times..

[shepd]

On CNN?

In stories by the AP?

Business pages of the Sunday paper?

Answer? YES! :-)

Re:free software - no more

[rtz]

RTFA, they are not changing the license. They are invoking a clause in the existing license.

Re:Bad move

[steveit_is]

That is not what this is about, it is quit simply about Fyoder enforcing an already existing clause of the GPL (4). He's not ammending the thing to lock SCO out. He is just making it a little more clear that having violated section 4 they are no longer entiteled to make use of or distribute NMap.

Re:Uhhh...

[l3pYr]

Quoted directly from 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.

I would say that SCO's declaration of the GPL as unconstitutional and illegal would be equivalent to not fully accepting the terms of the license. And because distributing programs under the GPL is prohibited unless you accept the GPL (see above), SCO has no legal right to distribute GPL'd code.

Re:Dorky GPL question:

[Anonymous Coward]

Since NMAP source is GPL, does it's inclusion in Battle Royale make the movie a derivative work and therefore also subject to the GPL?

Of course not. If, in a film, somebody walked past a bookshelf, and you saw the books on it, would that make the film a derivation of the books? It's the same sort of thing. NMAP in this instance is just a prop.

SCO is estopped from raising the GPL as a defense

[Frater 219]

the licence itself is not accepted, hence the licence reverts to standard copyright, which does not allow distribution.

The GPL isn't a contract, which has to be "accepted" by the receiving party to be effective. It is a straight copyright license. So that argument would not fly -- except for one thing: equitable estoppel.

"Equitable estoppel prevents one party from taking a different position at trial than they did at an earlier time if another party would be harmed by the change[d] position." -- Wikipedia

In other words: You can't argue in a custody suit that you're the child's father and then argue in the following child-support suit that you aren't.

The GPL, as Eben Moglen points out, is a distributor's defense when accused of copyright infringement by an author: "I'm not infringing -- because this author granted me permission to copy, under this here license." However, SCO have argued elsewhere that the GPL is invalid. Therefore, even though the GPL is a valid license, and would be a valid license for SCO's use of nmap, SCO is estopped from raising it in court as a defense.