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..

[robslimo]

I don't think this will be the Big Test (how much legal weight can Fyodor swing if SCO violates his decree?), but it may be the first of many similar actions that, collectively, might get something done.

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

Re:We live in interesting times..

[autocracy]

I wonder if one could say SCO has actually violated the license. They've certainly made all the effort in the world to bastardize it, but have they broken it by going against any provisions from the license?

Re:We live in interesting times..

[bhtooefr]

IANAL, but if I were a judge, I'd see that their declaring the GPL invalid is a disagreement with the GPL, which says that you can use the software, but not distribute it if you disagree with the GPL.

Re:We live in interesting times..

[rokzy]

if they're saying GPL is unconstitutional and allows enemy nations to develop WMDs, then I'm guessing they don't accept it.

and if you don't accept the license you can't distribute GPL software (assuming you accept copyright, which SCO do)

Re:We live in interesting times..

[Anonymous Coward]

Nope. SCO believe that all GPL'd software is really public domain, since the GPL is (allegedly) unconstitutional. And they think that, by getting the GPL ruled invalid, suddenly all this code will become public domain and fair game for anyone who wants it.

I can't wait for the collective Linux developers to sue them outright, should they get the GPL overturned, for copyright infringement (since the code does NOT actually go PD but rather reverts to standard copyright, which is of course more restrictive by default with regards to copying).

Re:We live in interesting times..

[dnoyeb]

I suspect that after this next "Big Test," everyone will still be waiting on the "Big Test."

Re:We live in interesting times..

[rokzy]

SCO may not *believe* they would be violating copyright law by ignoring the GPL, but ignorance is no excuse is it?

either way the law is against SCO.

Re:We live in interesting times..

[Curtman]

Finally those capitalist bastards will pay for their crimes. 'Eh comrades? 'Eh?

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..

[OmniGeek]

Yes, SCO has violated the GPL by attempting to force users to buy licenses from them in addition to the GPL (note recent /. story on this one, I forget the link). They can sell copies, but trying to hang additional license terms on existing users is a violation.

For that matter, SCO's refusal to accept the terms of the GPL in and of itself disallows them from redistribution under it; it would be VERY hard for SCO to convincingly argue they haven't refused to accept the terms of a license they claim is "unconstitional".

Thus, they're hosed twofold.

Re:We live in interesting times..

[Ianoo]

Yes, they have distributed Linux under a more restrictive license than the GPL. Therefore they are in violation.

Re:We live in interesting times..

[iapetus]

Have they forced users to buy licenses for nmap in addition to the GPL? My understanding was that the licenses were only to cover the kernel itself, which is where the disputed code lies. SCO may have violated the GPL in general, but not in this specific case. Looking at it dispassionately, I can't see that they've actually broken any aspect of the license with respect to nmap.

Whether they believe in the enforcability and constitutionality (is that a word?) of the GPL is kind of irrelevant - as long as they comply with the terms of the license in a given case.

Re:We live in interesting times..

[warmcat]

That is not actually true.

http://linuxupdate.sco.com/scolinux/ has their full distro for download.

(Blank credentials work fine in the authentication dialog: just click OK).

The thing with SCOX is they say one thing and do quite another. Tricky and Litigous Bastards.

Re:We live in interesting times..

[AllUsernamesAreGone]

Indeed comrade, SCO will be the fourth against the wall come the revolution!

Re:We live in interesting times..

[richardbowers]

IBM's already suing SCO for violating section 4 (and a few other sections, as well). The owner of NMAP's copyrights could sue in addition, and so could anyone who's contributed to Caldera linux, IMHO, though IANAL. (Yay, alphabet bingo!) I doubt that they'll be willing to spend the millions of dollars on lawyers that IBM is spending, though, so its not likely that it will be any more of a test.

As for the FSF and a GPL test - read Eben Moglen's speech transcript on Groklaw. He's not looking for a test, because he doesn't think they need one.

Re:We live in interesting times..

[lone_marauder]

I wonder if one could say SCO has actually violated the license.

Well, the GPL doesn't prevent SCO from charging for Linux code. But it does require SCO to distribute that code under the terms of the GPL. They can charge for providing the code, and for supporting it, but they can't prevent someone from freely copying the source and using it for other things, or distributing it for free. I think a strong case could be made that attempting to bully the rest of human civilization into paying a license fee for Linux, regardless of SCO's involvement in activities outlined in section 1 of the GPL, implies that SCO believes that Linux falls under a license other than the GPL. Since they've directly said that many times, I think the question is somewhat analogous to asking if a the unabomber is guilty of arson.

In fact, now that I think about it, that analogy is perfect.

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..

[lobsterGun]

No big test here. Whether SCO agrees with the validity of the GPL itself is not material to their distdibution of NMap.

Sco claims that they are charging a fee based on IP they claim to own that is included in Linux.

NMap isn't part of that. NMap is included on a seperate CD along with SCOs linux distro. It is not part of the distro. Even if it were part of the distro, so long as they are not attempting to "otherwise to copy, modify, sublicense or distribute" NMap, they would be fully within their rights to distribute it. As near as I can tell there is no voilation against NMap.

There is no clause in the GPL that says "This license does not apply to fukwads". If there were, then SCO would be screwed and NMap would be off limits to them.

Re:We live in interesting times..

[Curtman]

how much legal weight can Fyodor swing if SCO violates his decree?

This is very important IMHO. We need each and every GPL project being distributed by SCO to do this. Call it the shotgun attack if you like. The more times it is publicly made known that SCO is the one violating copyright, the better. It only helps show that its not the big bad Linux community who is in violation. As Eben Moglen said in his wonderful Harvard speech, it was not us who allegedly violated the AT&T contract, thats a matter of SCO vs IBM. If they want to smear us because of that, then they should suffer the wrath.

Re:We live in interesting times..

[Planesdragon]

I can't wait for the collective Linux developers to sue them outright, should they get the GPL overturned, for copyright infringement (since the code does NOT actually go PD but rather reverts to standard copyright, which is of course more restrictive by default with regards to copying).

Maybe. Or, maybe, the judge will realize the chaos and havoc that would cause, and rule that all software that has been released under the GPL is effectivly "released to the Public Domain."

Re:We live in interesting times..

[Anonymous Coward]

I'd see that their declaring the GPL invalid is a disagreement with the GPL, which says that you can use the software, but not distribute it if you disagree with the GPL.

Of course SCO is in a contract dispute with IBM over something that was released under the GPL. Regardless of their claims to the press and the public, in court they have claimed that IBM did not have the right to distribute the code under the GPL. That is not a claim that the GPL is invalid. It concerns the ownership of the intellectual property rights in the first place, not the validity of the license under which they were distributed.

That said, there is nothing wrong with putting SCO on notice that the only license that permits them to distribute many packages is the GPL. While they may be legally on safe ground now, if they contest any of the terms of the GPL in court, there is nothing preventing authors of GPL'ed code from simply saying that these are the terms that we will agree to, if you don't like them, you don't have to distribute our work. And in fact, since you won't accept them, we revoke your license. Goodbye, have a nice life.

Re:We live in interesting times..

[arkanes]

I don't believe, under the GPL, that USENIX has the legal power to do this. Sometimes sticking by your ideals sucks, because it means even shitty people like SCO get to use your code. Linux said something to this effect way back at the beginning.

Re:We live in interesting times..

[Shimbo]

Nope. SCO believe that all GPL'd software is really public domain, since the GPL is (allegedly) unconstitutional. And they think that, by getting the GPL ruled invalid, suddenly all this code will become public domain and fair game for anyone who wants it.

It's even more perverse than that. If they believed that, then (by distributing Linux) they would be putting their own code in the public domain. So what they are effectively arguing is: when *we* distribute GPLd code we keep all our rights. When you do it you lose yours.

Re:We live in interesting times..

[Curtman]

You have to accept the GPL to be allowed to distribute the work. If they declare it invalid publicly, isn't that a clear cut way to state that you do not accept it? If they don't accept the license, then what right do they have to ship GPL software with their crappy OS?

Re:We live in interesting times..

[mr_mischief]

If the license is invalid, then the work is still copyrighted, but without a license for anyone to use it. Therefore, if the GPL were held to be invalid, the right to distribute, make derivative works from, or make money from any software licensed by it would remain with the author, and only the author. IANAL, but this is pretty basic stuff.

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..

[muckdog]

Please explain how how downloading nmap a second time gives SCO a new license to NMAP. The GPL license is all or nothing. You don't have three license for SCO software like you would 3 licenses for Windows 98. The GPL states that if you violate the terms of the GPL license you (as in a legal entity, human or corporation) lose your license to distribute said GPLed software.

Re:We live in interesting times..

[Geek of Tech]

No Austin, the Cold War's over.... we won....

Re:We live in interesting times..

[alienw]

You can't just revoke the GPL because you want to. It is automatically revoked if the licensee violates it, but the author has no power to revoke the license. Otherwise, someone could simply pay, for instance, Linus Torvalds a lot of money so he makes Linux proprietary (i.e. revokes its license). This should not be possible.

Re:We live in interesting times..

[arkanes]

There has never in the history of copyright been any legislation, precedent, or case law that would support a judge doing that. The only possible way for this to happen would be for the US government to invoke emminent domain and claim the copyright for itself, thus moving it into the public domain. And I don't really see that happening.

Re:We live in interesting times..

[loucura!]

The copyright holder (in this case Fyodor), has absolute control over the creation in question (in this case nmap), when it comes to redistribution, creation of derived works, broadcast, et cetera. Since SCO is distributing nmap, Fyodor can refuse to permit it, and revoke their distribution license. Since he has monopoly control over the code he wrote, they have no recourse.

Well, unless they can convince a judge or jury that he really intended to release it into the public domain, and therefore relinquished control over it.

Re:We live in interesting times..

[Christianfreak]

Well first of all I doubt there are many judges that understand the amount of chaos it would cause, however even if their were it is a judges job to uphold the law not just do whatever they think is best. Such a ruling would automatically be appealed.

Interestingly enough if the judge were to rule the GPL invalid (wheither he ruled that the software would revert to copyright or to public-domain) you would see a strange alliance between proprietary and open source software makers. Any ruling that makes a software license void could probably be used to make others void to. The likes of MS certainly does not want that.

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..

[Geek of Tech]

Well, as long as SCO sticks by there current tactics, they will continue to be in violation of the GPL. As long as they are in violation of the GPL, they do not have rights to distribute any GPLed software. They deserve to get sued.

Re:We live in interesting times..

[Eggplant62]

In my reading of copyright law, theres nothing that would allow a copyright holder to retract a license, and the GPL doesn't have anything specifically granting that (most licenses do). Are you aware of any case law that supports the idea that a copyright creator can arbitrarily revoke a license it has already granted? Fyodor can certainly add a special condition to his latest version, though that would make his license not-free and therefore conflict with the GPL :P

What you're missing here is this:

SCO, with their silliness and shenanigans of trying to get the GPL rendered as invalid, along with attempting to extort additional licensing fees and conditions over Linux, has violated the GPL.

Read it again:

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.

By attempting to get users of Linux to cough up fees for SCO's extra license for Linux, GNU, and Fyodor's NMAP program as one of many other GPL'd program distributed with Linux and SCO's own product offerings, SCO is in violation of the GPL. Fyodor is well within his rights to terminate SCO's license to use the software. Once upon a time, Caldera very happily distributed GNU/Linux and Nmap for free, with all the conditions intact to remain in compliance with the GPL. By attempting to charge an additional licensing fee and dictating conditions that are not in line with the GPL's own, they are in violation.

Clear as mud, right??

Re:We live in interesting times..

[be-fan]

Linus couldn't do that. He doesn't own the complete copyrights to the code in the kernel.

Re:We live in interesting times..

[Vann_v2]

If Linus were the sole copyright holder of code in the Linux kernel or had the unanimous agreement of the contributors, yes, he could put the kernel under a different license. However, revoking a license to redistribute and changing the license under which software is redistributed are two different things. Your little id est doesn't hold.

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..

[B'Trey]

I don't believe, under the GPL, that USENIX has the legal power to do this. Sometimes sticking by your ideals sucks, because it means even shitty people like SCO get to use your code. Linux said something to this effect way back at the beginning.

First, USENIX has nothing to do with nmap. Two different stories.

Second, you'd be correct if the issue was simply one of an open source author saying "I don't like you, so you can't use my software. Nyaaa!!!"

However, that isn't the case here. There's a strong argument that SCO, by their actions of offering a paid license for their alleged intellectual property in Linux, has violated the GPL. That legally, ethically and morally terminates their right to the software under the GPL.

A neo-Nazi skinhead chapter of NAMBLA can use GPL'd software all day so long as they comply with the license. A combination orphanage and soup kitchen in the slums of the city that violates the GPL loses their right to use the software.

Re:We live in interesting times..

[larry bagina]

No he can't. He licensed and released the code under the GPL license. As long as you, I, SCO, Hitler, Osoma Bin Laden, Michael Landen, or joe sysadmin follows the terms of the GPL for that software, Fyodor can't do jack shit. SCO has claimed the GPL is illegal and/or unconstitutional, but that's irrelevant. What matters is if they will provide, for free/nominal cost, the source code for their version of nmap.

Re:We live in interesting times..

[autocracy]

He doesn't have absolute control over the current existing state of his code because it contains other code that isn't copyrighted by him which has been contributed by other users of the software. This gets vague in a lot of ways. What happens when a project forks? Who is the owner of a project where the code has been contributed by 100 individuals?

I think it is only by the binding of all these project through common licensing that the licensing will actually work - and hence why the GPL's chance is both in careful wording that already exists as well as the common public usuage of it. In this manner, breaking the terms of the license invalidates your use of code licensed under it. Otherwise, we risk invalidation of code snippets, and that gets really ugly. Even then, this argument can be debated up, down, and through the mud.

Re:We live in interesting times..

[B'Trey]

I thought I agreed with you (and even posted a comment to that end), but seeing your post has raised a question in my mind. When and where has SCO violated the GPL in regards to NMap?

Does violating the GPL in regards to one piece of software automatically justify removing your license to use any GPL'd software, or only that particular piece of software? In order for NMap to revoke their license from SCO, do they (or should they) have to show that SCO did or attempted to "...copy, modify, sublicense, or distribute..." NMap particularly and not just Linux in general?

IANAL either, but the issue seems legally troubling to me.

Re:We live in interesting times..

[TheLinuxSRC]

Eh? I'm lost. As you say, SCO can download a new license. That's not what's going on. USENIX has terminated SCO's distribution license of NMAP - completely. Even if SCO "downloads" a new license, they would be barred from distributing NMAP, since that's what USENIX's position is.

Are you trolling or is that an honest question? There are two seperate issues mentioned. 1. USENIX has written an open letter to Congress contradicting most of what SCO's letter to congress (pdf). 2. Nmap's creator has simply stated that due to GPL violations, SCO has no right to continue distributing nmap. He is not changing the license in any way. He is simply stating that the license to distribute has been violated, thus distribution rights are revoked.

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..

[Dalcius]

Seems pretty clear to me. They can't say "$699 a license" and call it a "distribution fee" which the GPL allows. They are in violation, no doubt.

I am curious, however, how the license could be revoked if they weren't in violation. My understanding is that programs like NMap are "released to the public" under the GPL. I know that you can distribute under multiple licenses, e.g. GPL to everyone, and another license for corporations who pay, but can you actually rescind a license once it's been granted without a "This license may be revoked for any reason" a la Microsoft?

IANAL :)

Cheers

Re:We live in interesting times..

[drewpc]

Isn't the Linux kernel distributed under the GPL? Can't SCO's license to distribute the Linux kernel be revoked? That would mean they couldn't sell any distributions of Linux and, subsequently, couldn't force people to buy licenses from them...right?

Re:We live in interesting times..

[tmasssey]

Here's the interesting thing about the law. IANAL, ...

You can work under two incompatible view of the facts. While SCO can argue until its blue in the face that the GPL is invalid, it can still take advantage of the GPL until it is proven to be invalid.

There is nothing that prevents a company from fighting against a law/license/etc. and simultaneously using the exact same law to their advantage. This happens *all* the time. The DMCA comes to mind. There's nothing in the law that says a company's policy or position needs to be internally harmonious...

Re:We live in interesting times..

[Farce Pest]

It's not a shotgun attack; it's the death of a thousand cuts. I like it, and I've been waiting for GPL'd projects to start doing this.

In other news, SCO's smoking gun

has finally been revealed.

Re:We live in interesting times..

[loucura!]

I'm not arguing from the GPL point of view, I'm arguing from the point of view of US Copyright Law, the Copyright holder has the right to choose who he allows to exercise his rights under Copyright, which allows for all sorts of nifty multi-licensing schemes.

The point is, that the GPL is not a contract, it's a license. License can be modified and revoked. Licenses can be applied unfairly, but contracts (in order to hold up in court) must be fair (well in that both parties must gain from the contract).

Re:We live in interesting times..

[tmasssey]

I'm arguing from the same point.

By you licensing a project under the GPL and by me redistributing it, you and I have entered into a contract. Actually, you have given me terms for license, and I have agreed to follow them. You can't unilaterally change it. Licenses and contracts *cannot* be revoked if the contract doesn't say it can be. If it could be, there'd be no SCO v. IBM: SCO's case would be open-and-shut.

You can't argue both ways: either both SCO and nmap can revoke their license, or they can't. Neither contract (arguably) has a revocation clause, so the standards for one should be the same for the other.

The question is, is SCO in agreement with the license? Clause 4 says they lose their license if they do not obey the restrictions of the license. Has SCO not included the nmap source code? Has SCO prevented anyone from redistributing the nmap code, in source or binary? It is not illegal to charge for GPL code, so that is not a problem. Assuming the other items are true (and nmap is not claiming that they're not), SCO is arguably in compliance; therefore, they cannot have lost their license.

Don't get me wrong: I'd love to see SCO lose their license to *all* GPL code. I'd love to see a GPL 2.1 expressly forbidding SCO, and all GPL projects to adopt it. But it wouldn't prevent them from distributing whatever code was previously released under the GPL 2.0.

Re:We live in interesting times..

[B'Trey]

IANAL either, but it seems to me that "accept this License," in this context, means "comply with the terms of," and not "morally or ethically agree with." I strongly doubt that one can legally terminate a license because another vocally objects to it so long as they comply with the terms.

If Richard M Stallman were to purchase a copy of Windows (this is a theorectical example, folks. Work with me here!), could MS terminate his license because he's publicly said all software should be free?

Re:We live in interesting times..

[Ieshan]

This isn't really that complicated.

Fyodor says that they will license their software for distribution under the GPL (and only the GPL). SCO continues to do this after saying the GPL is bunk. If SCO isn't following the GPL (because they don't believe in it), then they have no license to distribute this software.

That's all.

If one legally declares a contract to *not* be valid, one cannot follow it's terms [logical contradition].

Re:We live in interesting times..

[Permission Denied]

Since SCO is distributing nmap, Fyodor can refuse to permit it, and revoke their distribution license.

This is absolutely incorrect and disinformative. The GPL explicitly prohibits this kind of action. From section four:

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.

And from section six:

You may not impose any further restrictions on the recipients' exercise of the rights granted herein.

This means that the GPL explicitly forbids developers from choosing who can use and distribute the software. The only exception given in section nine dealing with patents, copyrights and geographical distribution exceptions.

When Fyodor licensed nmap under the GPL, he gave up certain rights, among those the right to choose who uses the software. Fyodor cannot "revoke" SCO's right to distribute nmap. He can only claim that SCO is violating the license and thus SCO's right to distribute is revoked.

This is not some technicality, but is rather fundamental the the FSF's idea of "Free software": the most important privilege the GPL attempts to protect is the privilege for anyone to use the software in any way. The license is absolutely clear on this.

In the past, certain developers licensed software with usage restrictions: for instance, one license I've seen said something akin to "anyone may use this software except members of the United States armed forces." The GPL prohibits these kinds of restrictions.

So the only way Fyodor can revoke SCO's right to use and distribute nmap if SCO is violating the license. He can change the licensing new versions but if SCO is not violating the GPL, SCO can continue distributing old versions of nmap and Fyodor has no recourse to stop them as the only way the GPL is revokable is in the case of non-compliance. This fact has been used to fork previously GPL'ed software when a company decides to commercialize the software and changes the license: the company still owns the copyright on their code which is part of the fork, but they have no right to say what people can do with their code as long as those actions remain in compliance with the GPL.

I'm surprised to see myself posting on licensing issues. I don't even agree with the all of FSF's ideology, but their license is very clear.

Re:We live in interesting times..

[johnnyb]

I think it's the statement that they have made publicly that the GPL is invalid. If they are redistributing nmap, and they don't believe the GPL is valid, then that means they haven't accepted the license and therefore cannot redistribute it.

Re:We live in interesting times..

[tmasssey]

As the copyright holder, you can put your code under 42 licenses. A *lot* of projects dual-license GPL and a proprietary-friendly license. This way, they can do *exactly* what the GCC people did: sell a proprietary copy of their license.

That has *nothing* to do with changing the license already granted to the code. It's no different from selling an item, or giving it away free with, say, a service contract. Just because you do one thing (charge for it) doesn't mean you can't do something else (give it away) under different circumstances. The two stances are incompatible, but perfectly legal.

It really boils down to this: show me where in the GPL it says that the copyright holder can alter or revoke the license? It says that, due to actions of the user the user may not be eligible to exercise the license, but there is absolutely no verbiage that says that the copyright holder can unilaterally revoke a user's rights.

So, there is only one question: is SCO in compliance with the license? The feelings of the copyright holder are meaningless, except that the copyright holder is the one that may or may not institute legal proceedings in the defense of their copyright. However, SCO does not have to agree with their interpretation: that's for a court to decide.

In other words, the nmap people saying that they're "revoking" SCO's right to use the code under clause 4 is no more or less legally binding than the GPL itself. Again, SCO is allowed to argue both sides: take advantage of the GPL with nmap, while saying that it's unconstitutional with IBM. Isn't justice grand?

Re:We live in interesting times..

[NeXTer]

Since SCO has stated that they consider the GPL null and void as well as in voilation of the consitution, copyright law and whatnot, SCO has effectively said they will not comply with the terms of the GPL.

Since the GPL is the only permission they have for distributing the software--since it's not in the public domain--they are no longer allowed to distribute any software that has been released under that license unless permission has been specifically sought and granted.

Like principles, licenses are not things you can disregard just because you don't like them.

Re:We live in interesting times..

[Trailer Trash]

This is very important IMHO. We need each and every GPL project being distributed by SCO to do this.

Yeah, great, so all the journalists who read through the nmap release notes or read slashdot will know all about it.

Hint: No journalists do either of those things.

Instead of putting witty comments in release notes, we need someone who'll back it up with a lawsuit. I'll chip in $100 to help them file a suit against SCO. It shouldn't be too difficult to win; they're very publicly infringing.

Re:We live in interesting times..

[WNight]

Yes, but SCO claims ownership of the Linux kernel (being that it's half their code, etc). If you tried to take away their right to distribute it they'd tie you up in court with the same lawsuit. Yes, it's what "we" should be doing, but it wouldn't produce easy results.

On the other hand, SCO has no hand in making Samba, or Apache, etc. These programs are pretty clearly seperate from any claim on the UNIX codebase. Ownership is a given and that makes for a much simpler court case.

Remember that Microsoft gave SCO a big chunk of cash, they intend to use every dollar to drag this out.

Re:We live in interesting times..

[slipstick]

I'm not picking on you but I needed to interject somewhere.

Far too many people are getting this wrong. SCO is hooped,

They have explicitly, in public, disavowed the validity of the GPL. Thus they have explicitly not agreed to the GPL. No matter what they say afterwards can save them. You can't pick and choose. You can't decide that the GPL doesn't apply for the linux kernel but it does for Nmap. So no matter if SCO has violated any other aspect of the GPL, they have violated the most fundamental property, they explicitly do not accept it!

Thus they have none,notta,0,zilch rights to distribute Nmap, they can use it in-house but they can't distribute it(the GPL is about distribution not use). Hell, SCO is automatically in violation of copyright law if they distribute ANY GPL'd software. Public statements disavowing the very license that gave them rights to distribute the software are a clear indication they don't agree to the license and thus they have no right to distribute other people's copywritten works.

Furthermore, the copyright holder of the work has explicitly disavowed a specific individual the "right" to distribute. Any further distribution of the work is a copyright violation no ifs,ands or buts about it. This is especially ironic for SCO since it's the GPL alone that would have given them the right to redistribute but since they don't agree to the GPL they have no other rights. I would just love to see this go to court.

Judge: "So you don't agree with the license?"
SCO: "No."
Judge: "What are you? Idiots? Summary finding
for Plaintif!"

Re:We live in interesting times..

[B'Trey]

From a MS EULA (case modified to avoid lameness filter):

By installing, copying, downloading, accessing or otherwise using the software product, you agree to be bound by the terms of this EULA. If you do not agree to the terms of this EULA, manufacturer and Microsoft licensing, inc. ("MS") are unwilling to license the software product to you. In such event, you may not use or copy the software product, and you should promptly contact manufacturer for instructions on return of the unused product(s) in accordance with manufacturer's return policies.

Different wording but seems similar enough in meaning to me.

Re:We live in interesting times..

[Anonymous Coward]

I think they were referring to an individual downloading and installing NMAP on their Unixware system. A particular system administrator is allowed to download and install GPL software simply by accepting the license, even if that OS may be distributed by SCO.

SCO on the other hand is not allowed to distribute GPL code directly since they do not accept the license, and under copyright law they have no rights to distribute outside of that license agreement.

Re:We live in interesting times..

[virid]

If FSF pulls together and attempts the same stunt that could cripple SCO. I don't know why we didn't do this earlier. This is getting good...

Re:We live in interesting times..

[Gadzinka]

One of SCO's legal arguments AFAIR is that some court, after finding GPL illegal (however they want to achieve it) could use the ``next best thing'' doctrine (I don't remember the exact latin term).

Their reasoning is that court could declare all GPL programs Public Domain following the intention of author to distribute software free of charge, free to use, free to modify.

I know that it is very streched, very dificult and stupid. Anything new?

Robert

Re:We live in interesting times..

[surprise_audit]

It really boils down to this: show me where in the GPL it says that the copyright holder can alter or revoke the license? It says that, due to actions of the user the user may not be eligible to exercise the license, but there is absolutely no verbiage that says that the copyright holder can unilaterally revoke a user's rights.

I don't know about revoking a user's right, but clause 5 states that:

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.

So, by publically asserting that the GPL is invalid, SCO leaves themselves wide open to copyright infringement lawsuits. Perhaps Fyodor should have used simpler wording: "Dear SCO, by not accepting the GPL you are illegally distributing a copyrighted work. Cease and desist immediately. Failure to do so will result in legal action."

Though I don't suppose the threat of legal action would frighten them at all. Perhaps siezure of all assets containing infringing material would get their attention. But then again, if nobody's buying SCO products, that probably won't frighten them much either.

Re:We live in interesting times..

[aaarrrgggh]

You would be surprised at the number of journalists that read slashdot, and the frequency of references it gets in the popular press...

Re:We live in interesting times..

[__past__]

But why would violating their license to redistribute Linux have any impact on their license to redistribute Nmap?

Re:We live in interesting times..

[oktaya]

What exactly did you win? Bragging rights?

Re:We live in interesting times..

[red floyd]

Samba has already made a statment about this. Go down to the "19th Aug, 2003" entry:

Because of this, we believe that the Samba Team must remain true to our principles and our code must be freely available to use even in ways we personally disapprove of.

Even when used by rank hypocrites like SCO.

Re:We live in interesting times..

[Nick_dm]

I think this is the point. It's true that "the licence" in clauses 4 & 5 does refer the specific agreement between distributor and user with regards to that one piece of software. But the GPL licence is consistent accross many different products. SCO have not simply disagreed with the licencing for Linux, they have attacked the GPL as a whole. You can't seriously claim the GPL is invalid and unconstitutional when regards to Linux but then claim the exact same licence is fine with regards to NMap.

It's a weird situation, I wonder what would happen if, for example, someone simply didn't redistribute source code? Would that count as rejecting the licence as a whole, or simply breaking the conditions in one instance? In this case at least however, I believe SCO's public comments could cause them to violate the terms of any GPL'd software.

Re:We live in interesting times..

[jmorris42]

You are not required to accept the GPL to use GPL licensed software. Use is outside it's scope. Neither are you required to accept the Microsoft EULA, since it is just a shrink wrap license and isn't legally binding.

However if you wish to MODIFY and/or REDISTRIBUTE software licensed under the GPL you must accept the license, renegotiate a different license with the author or violate the author's Copyright. See the difference?

Btw, you also must accept the Microsoft EULA if you want rights over and above what the standard copyright license aquired at point of sale gives you. For example, tech support, updates, upgrade rights, etc.

Re:We live in interesting times..

[Lehk228]

EULA is unenforceable unless it is on the outside of the box and you have to sign it before buying the software, once you have purchased a copy of software the "copying" that results from installing or running that software clearly falls under fair use, You don't need a licence to rip a CD to your computer, and you don't need a licence to install software beyond having the right to use every copy installed (This is not usually the case for buisness environments which work out deals and sign agreements for software)

Re:We live in interesting times..

[ckaminski]

And exactly what court of law determined that?

EULA's work because even if you choose not to accept them, your recourse is getting your money back. Whether your local retail outlet disallows such is irrelevant. If you paid for something, and detest the EULA, you have every right to return said software product, and any vendor refusing to refund your money is violating the law.

Which is why EULA's have had no serious challenges to date. Witness the "Great Redmond Refund Day" just last year. You too can talk your XP box back to Microsoft and demand your money back.

Re:We live in interesting times..

[inc_x]

> How about Stallman writing the GPL with the
> Express Purpose of spreading out software with
> source code, so that anyone that copy it,
> install it, and make derivitive works of it?

That is
a) not a matter of legislation, precedent, or case law and
b) the opinions of Stallman are irrelevant because, unless Stallman is the copyright owner, Stallman is not a party to the case.

> The express wishes of the copyright holder,
> and the reasonable consequences of the law,
> are what matters.

The express wishes of the copyright holder can be read in clause 5 and clause 7 of the GPL.

For example, from clause 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."

And from clause 7:
"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."

and
"it is up to the author/donor to decide if he or she is willing to distribute software through any other system and a licensee cannot impose that choice."

But even better, since the copyright holder is most likely in the courtroom in front of the judge, the judge can just ask the copyright holder what he wants.

Re:We live in interesting times..

[FatAlb3rt]

clue stick

Re:We live in interesting times..

[tiger99]

I think they have done that. They have commingled their code with GPL code, most probably in the Linux Personality Module, but in other places as well, and if proven, their Unix code will in fact now be under GPL. If that is proved in court, McFraud and his empire is history. I wonder if they became aware of that problem, and are trying to get rid of the GPL before they themselves are found out.

If they have illegally commingled code, the proper remedy is for the base code of Unix (not the legitimate extensions put in by licencees such as Sun, HP or IBM) to be GPL'd. End of problem. End of SCO. End of McFraud. Of course, if he had the merest glimmer of intelligence, he would have seen that it was essential to licence only the lines of SCO code for $699 or whatever he was asking, he failed to do that and demanded payment for the whole package, GPL code and all (and likely some BSD code, but that is OK legally, the BSD licence is very weak.)

But, coming back to the present issue, if they have attempted to restrict anyone's rights to use nmap under any of the conditions of the GPL, they have violated the GPL and can no longer distribute nmap. That is automatic, and can be enforced by the copyright holder very easily indeed. If the copyright holder can not afford a team of schysters, he can transfer his copyright to someone who can. That is his legal right. He can even sell the copyright for a nominal dollar, or cent, just to help make the transaction valid. But no-one, not even the author, can take the code out of GPL, so there is no way known, even if McFraud paid millions, that he could ever again legally use nmap or any other GPL software in his Linux distribution. Every copy of SCO from now on breaks the law. He has dug himself into a deep hole, with no escape possible. SCO can no longer distribute any GPL code. Bye, bye, Darl.

It is utterly pointless of McFraud and his schysters waiting 18 months for the trial, they are in deep trouble now. In many countries distributing GPL software in non-compliance with the licence, a clearly demonstrable breach of simple copyright law in every country signatory to the relevant conventions, is a criminal offence, punishable by fines and/or imprisonment. (The fact that SCO is sold for profit, not given away, makes it a matter for criminal law in the UK, for example). This is no longer a matter for the civil courts, it is a matter for the law enforcement authorities in every civilised country. Added to which, I will be very surprised if, when he goes after someone in the UK for licence fees, the UK part of SCO is not immediately charged with barratry. These guys are committing serious criminal offences right,left and centre. I know they will get away with it in the US, after all the DOJ did not even deal with the vile scumbags in Redmond properly, but SCO have already been fined in Germany. If McFraud wants to keep out of jail, he needs to start making some grovelling apologies to all the relevant copyright holders, just maybe, if they are feeling generous, they might not testify against him in court.

Whatever happens now should be up to the police or other appropriate law enforcement agency in every country where SCO Unix is sold. It is not a matter for the civil courts. It is in fact racketeering, others have frequently commented on stock manipulation and the other probable things taht are going on. AFAIK, if the scumbag of Redmond is, as we mostly suspect, the paymaster in all this, it makes the whole thing a criminal conspiracy in most civilised countries.

Re:We live in interesting times..

[mla_anderson]

No it's because they are changing the license for GPL code. GPL is not dependant on what you believe. However they are sub-licensing GPL'd software which is expressley forbidden by the GPL.

Re:We live in interesting times..

[br0ck]

Actually I think the opposite could happen since the 'next best thing' if the GPL is illegal is for normal copyright law to apply and this would forbids anyone from using or distributing the previously GPL'd materials without express permission.

The court shouldn't care that the author wanted to distribute freely, because it is clear that they were distributing under a restricted license that allows free use only if certain conditions are met and that if those rules aren't followed then free sharing privelege is revoked. This makes it clear that the original authors intent wasn't to just give everything away and completely throw out their copyright rights.

Re:We live in interesting times..

[kotfu]

The "Fyodor ripped their nmap license, so that must mean they can't distribute anything GPL'ed software" argument is rediculous.

Say I write some Stuff. I own the copyright. I want to license the work to others. I choose a license, say the GPL. My choice of licence applies to my "Stuff" (the GPL calls this the "Program"). The terms of my license have absolutely nothing at all to do with anything anybody else has written.

The GPL is not some mythical viral license that consumes everything it touches and assigns ownership to the GPL Goddess. It's the license I chose to distribute my code under. That license is between me and whoever uses my Stuff, not between me and anybody who chose to distribute their stuff under the same terms I did.

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:We live in interesting times..

[El]

Unfortunately, the Samba team has already declared that they are taking the moral high road on this, and will continue to let SCO use Samba -- even if they are being asses.

Re:We live in interesting times..

[TrentC]

Now this gets interesting: if SCO continues to distributed NMAP will the FSF start filing lawsuits?

Unless the FSF holds the copyright to nmap (or had it assigned to them), they have no legal standing with which to sue, as it's not their code being used in contradiction of the license.

This is why the FSF wants people to assign copyright to them for any contribution to FSF projects; it makes their recordkeeping and paperwork easier in case something like this happens.

Jay (=

Re:We live in interesting times..

[Phillup]

Except... GPL software is not "free of charge".

And people that use the GPL don't intend for it to be "free of charge". They just aren't charging money for it.

It has a cost. If you are not willing to pay the cost, you may not use the software.

What gets SCO in a tizzy is that the cost is not an amount of dollars... it is a behavior requirement.

And, we all know how good they are at behaving.

Re:We live in interesting times..

[dipipanone]

GPL is not dependant on what you believe.

Well, it is in a way. You have to accept the terms of the license to be able to redistribute the software. SCO doesn't believe that the license is legitimate, and is therefore redistributing it under it's own license. This redistribution is what bars them from use, but I don't see how you can have that without first believing that the license is invalid.

Re:We live in interesting times..

[AuMatar]

Ars Technica and Computer Buisness Review aren't huge circulations (and AT has the same type of readership as slashdot).

As for the Chicago Daily herald- I lived in Chicago for 21 years. The two papers are the Tribune and the Sun Times. Never heard of a Daily Herald.

Re:We live in interesting times..

[Dastardly]

Isn't the Linux kernel distributed under the GPL? Can't SCO's license to distribute the Linux kernel be revoked? That would mean they couldn't sell any distributions of Linux and, subsequently, couldn't force people to buy licenses from them...right?

This happens to be one of IBM's counter claims. Since, IBM has code in Linux that is under IBM's copyright, IBM has claimed that SCO is violating their copyright by attempting to sublicense IBM's code according to terms other than the GPL, and continuing to distribute Linux on its FTP site while claiming non-GPL rights.

I think this would explain why SCO has gone the GPL is invalid route, but they have not gone far enough. Let's assume SCO wins its claims. If one piece of code in Linux is copyright IBM, but not related to the System V contract, then IBM's counter claim also wins, since SCO has no rights to distibute, modify, or sublicense that IBM code except under the GPL. SCO actually needs to somehow claim that contributing code to Linux is contributing the code to the public domain, which I really can't see a judge going for, sinc copyrights can only be tranferred in writing, and it seems to me that a transfer to the public domain would also have to be in writing. IANAL

So, what happens if one party wins a breach of contract claim against another party that at the same time has won a copyright infringement claim against the first party?

Re:We live in interesting times..

[sirsnork]

OK I could be WAY wrong here since it's been a long time since I've played on the FSF site, but my understanding was this. If you GPL your program you have the option to transfer copyright(?) to the FSF. If Samba have done this then even if they are taking the moral high road the FSF can still file against SCO using Samba as the "killer app" (excuse the pun), since the FSF has the right to defend it weather the Samba team want them to or not.

Re:We live in interesting times..

[Heretik]

IANAL, but I'm pretty damn sure this is completely impossible.

The court can not just take away your copyright because of some flaw with your license. They can invalidate the license, sure. But think about it for a second.. for the court to "declare" your GPL program public domain, they literally have to take your copyright away from you.

Taking your copyright away from you for a problem with your license? Yeah, right - good luck, Darl. *rolls eyes*

ummm..

[Anonymous Coward]

Doesn't the GPL say you cannot discriminate against any group? Or is their license being revoked because they are in violation of the GPL?

Re:ummm..

[bhtooefr]

They're in violation of the GPL, by not fulfilling the terms necessary to be allowed to distribute the software under Section 4.

Re:ummm..

[fanatic]

But they are NOT violating the GPL with respect to nmap, are they? So can Fyodor really do this? Is he himself not, in fact, violating the GPL, perhaps? Don't get me wrong - I despise the SCOundels. There needs to be some way top pressure them. But by releasing under GPL, then saying 'oh I changed my mind for you guys', is Fyodor not actually duplicating some aspects of SCO's conduct?

Re:ummm..

[radja]

by not accepting the GPL's terms, they ARE violating with respect to nmap since they distribute nmap.

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

About time someone did it

[DarkMagician07]

It's good to see someone use the GPL back at $CO for what it is worth. If Fyodor hadn't, would anyone else?
I would hope so, but so far it doesn't seem to be happening. I can't wait for others to do the same. Maybe groups like Samba can muster up the courage to do the same to these guys. Since $CO seems to be touting integration with Windows networks, losing Samba would be one of the things that they couldn't afford to do.

Re:About time someone did it

[stevesliva]

To what extent would Apache, Samba, and NMap explicitly preventing SCO from distributing those packages affect SCO customers? Could SCO customers still obtain those packages on their own?

Re:About time someone did it

[BJH]

Sure they could - the customers are not SCO.

However, what's the advantage of spending big buck$ on a commercial OS if you immediately have to go and download a metric shitload of free software to make it usable?

Re:About time someone did it

[Nurseman]

Could SCO customers still obtain those packages on their own?
From a post above about the GPL rule #4 : 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.

I think this means the SCO can't distribute these tools, but that their customers can use these tools. IANAL but I read Groklaw

Re:About time someone did it

[krumms]

Since $CO seems to be touting integration with Windows networks, losing Samba would be one of the things that they couldn't afford to do.

Ah but grasshopper, you assume that SCO is in the software business.

If Samba falls in the woods and there are no Unixware servers installed, does anybody care?

Re:About time someone did it

[Ironica]

To what extent would Apache, Samba, and NMap explicitly preventing SCO from distributing those packages affect SCO customers?

If they took similar action to Fyodor, they would also pull *support* for the UNIXWare and OpenServer, which would definitely affect SCO customers.

Re:About time someone did it

[Arker]

I don't think Apache can do it, because their license is different. Samba could and should, but they've decided for the time being not to pursue it. There are a LOT of other software that could too - if they pull everything GPL out of their software they wouldn't have a usable system anymore.

Re:About time someone did it

[cortana]

I dunno why people buy Windows either!

Good Job

[Czmyt]

It's about time that someone took this stance and let's hope that others do as well. The free-ride double-standard is over.

I guess its

[AbbyNormal]

SCO's time to put up or shut up. This could be interesting in a few ways. If SCO continues to distribute NMAP, will USENIX sue on GPL grounds? That would be a great case to watch.

Re:I guess its

[Karamchand]

SCO's time to put up or shut up.

Uhm. How many times did we say that already in the past few months? ;-)

Bully for you...

[lauterm]

Good job. It is nice to see someone finally call SCO on the whole the GPL is invalid but we think we can still use software released under it issue.

Re:free software - no more

[3.5 stripes]

It's free with the condition that you must stay within the provisions of the GPL.

Maybe you're thinking of BSD?

Re:free software - no more

[C_Kode]

Sure it is. They didn't say users of SCO couldn't use it. They just said SCO can't distribute it. Althought, stopping support for SCO is another deal. Of course that doesn't mean someone else can't take the source and support SCO with it. As I noted though, all they have done is say SCO can't distribute it due to licensing infringements. (just as SCO said IBM did)

From the

[LittleLebowskiUrbanA]

"it's about time" dept.

Seriously, wonder what SCO will do if Samba and the other well known projects follow suit?

Re:From the

[grub]

Seriously, wonder what SCO will do if Samba and the other well known projects follow suit?

What they've been doing for the past year: hire more lawyers. SCO isn't a software company any more.

Re:From the

[jdh-22]

If SCO really beleives that the GPL is against the consitution, what makes you think they are gonna let NMap tell them what they can redistribute?

This puts SCO in a bad position:
1. If they agree with NMap on the terms, then they have agreed to the GPL license, thus contradicting themselfs.
2. Still insist the GPL is against the consitution, and still distribute NMap. This opens them up to other cases in which they might be suied over the GPL, thus costing them more money.

Re:From the

[slipstick]

NO!

Look this is real easy. Let's say SCO is correct and the GPL is unconstitutional. Than SCO(and everybody else distributing GPL'd software) is committing copyright infringement since nothing else gives you the right to modify or distribute the code, nothing! In the case of SCO it is worse because they supposedly actually believe their arguement so in their case they are knowningly committing copyright infringement(at least in their distorted world) and thus they should be held to the strictest rulings of the law.

So if SCO actually believes their own arguement(I highly doubt they do, their slimy but not that dumb) than what makes me believe they must let the Nmap author tell them what to do is copyright law. Absence any modifications by contract that's the only law that holds. Disavowing the GPL says there is no other contract in force, ipso-facto copyright law applies and bingo the Nmap author gets to say "piss off, further distribution of my copyrighted work by you is a clear copyright violation and you WILL be sued."

Time is right

[Anonymous Coward]

This is burning bridges, but I really can't see SCO coming to their senses, so their users should get a feeling for the kind of situation which SCO is asking for.

Re:free software - no more

[rtz]

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

Would someone from Samba and Apache

[Anonymous Coward]

please get on this bandwagon? Thanks.

Re:Would someone from Samba and Apache

[Roofus]

Apache isn't distributed under the GPL though, it falls under the Apache License. I don't believe SCO has ever made any statement as to the validity of the Apache License, and as such the Apache Foundation probably can't do anything about it.

This could get interesting

[GoMMiX]

What if SCO doesn't comply?

I doubt seriously that they will, so what will come of their non-compliance?

Probably nothing, really, but this may well be another part of the GPL put to the test. They've stepped up to the plate with Nmap - I hope they're ready to play ball.

Okay, now lets all get ready from some good FUD from Darl!

*GASP* "Ohh my, it appears we own code in Nmap too!"

Re:This could get interesting

[Tom]

What if SCO doesn't comply?

If they don't accept the GPL, then they need permisson of the copyright holder in order to copy or distribute.

Since that permission has been explicitly not granted, they can't even claim ignorance.

So they're guilty of copyright violation. The GPL doesn't even appear. Oh yes, and copyright violation is a crime with massive penalties, thanks to our friends over at the RIAA and MPAA.

Re:Oops.

[grub]

I don't think they are allowed to modify the licensing terms, that may only apply to their own software written in-house. If they could modify the terms then the GPL loses all its bite.

Re:Oops.

[26199]

You're allowed to discriminate against people who break the terms of the licence :-)

In fact you pretty much have to.

Re:free software - no more

[autocracy]

It's still free software in every sense. You need to consider that just as the folks from mplayer would still have mplayer be free software, the company that they're accusing of breaking the license by incorporating code from mplayer into a proprietary binary-only product would no longer have rights to mplayer.

The sandbox may be free for everybody, but you're still getting kicked out if you keep hitting the other kiddies in the head with your plastic shovel.

Re:Oops.

[LittleLebowskiUrbanA]

ummm...That's Debian' social contract *not* the GPl, dude.

Way to go, Fyodor!

[Noryungi]

I really appreciate his stand against SCO. Maybe a lot of other GPL projects (Gnome, KDE *hint* *hint*) may also decide to revoke SCO's right to use their software.

Picture this: a worldwide tribe of programmers, all saying to SCO that they can't use this or that program with OpenLinux, UnixWare and so on. If everyone sent $1 to the FSF to cover future litigation at the same time...

Re:Oops.

[Bob(TM)]

There was no discrimination; SCO opted out of accepting the licensing terms of the NMAP software. Since they have said publicly that they do not accept the GPL, usage of any GPL licensed software is immediately forbidden under the terms of the license. The NMAP folks simply pulled the trigger in textual form.

Slashdot backend code

[Anonymous Coward]

if (SCO topic)
goto http://groklaw.net
else if (Gadget stuff)
goto http://arstechnica.com
else if (Linux stuff)
goto http://linuxtoday.com
else if (good journalism stuff)
goto http://theregister.co.uk
else
goto http://news.bbc.co.uk
fi

Re:Slashdot backend code

[Jarnis]

You forgot couple of lines from there pointing randomly to new york times (free reg blaah blaah blaah...)

Re:Oops.

[Sam H]

As far as I can tell, this sort of thing violates the Debian Free Software Guidelines, rule number 5:
No Discrimination Against Persons or Groups

Of course, any license discriminates against this special group consisting of the persons who do not respect licenses. These guidelines should be treated as such, and not abusively taken to the letter.

Would someone from Samba & Apache ... needs

[adzoox]

Give them some knowledgeable attorneys, some time, and the 250K it would take to fight it - I'm sure they'd lend a hand.

Re:free software - no more

[steveit_is]

Actually, yes it is still free software. They have violated the existing GPL license, he is simply pointing out that after having violated that license, they no longer have any right to make use of the software. He isn't ammending the GPL, he's jsut making it obvious that they are violating it.

NO. Re:free software - no more

[Anonymous Coward]

NO. SCO is violating the GPL by placing additional terms on anyone's use of linux distrabutions. There's a clause in the GPL that states that any additional terms will cause their license to be terminated. Since SCO's GPL license is terminated, the copyright authors for nmap could do whatever they want. They could even sue.

Now let this be a lesson to all, don't violate the GPL! Nmap's action against SCO doesn't make it non-free, it's just that SCO has rejected the GPL and is using a product in violation of copyright law.

Forget SCO...

[cr@ckwhore]

Forget about the SCO item in the 3.50 changelog... the bigger news about nmap is that it recently appeared in "HaXXXor Volume 1: No Longer Floppy".

Which, OK... is kinda weird, but how often to well respected tools link to cheasy porn sites? http://www.insecure.org/nmap/nmap_haxxxor.html

From the changelog [OT]

[atarola]

To emphasize the highly professional nature of Nmap, all instances of "fucked up" in error message text has been changed to "b0rked".

I wish i could do this kind of stuff in my programming, it's freaking hilarious.

Cheers,
atarola

Re:From the changelog [OT]

[grub]

I wish i could do this kind of stuff in my programming, it's freaking hilarious.

man sed

;)

Re:From the changelog [OT]

[AndrewWood]

Tell me about it. As it is, I'm confined to keeping anything amusing in the comments, and all I have to worry about is the day my company gets as big as Microsoft and our code gets leaked to the net for the world to mock.

Er... on second thought, I probably don't have anything to worry about there.

One question.

[Sheetrock]

If you release software under the GPL and somebody you fundamentally disagree with (like SCO) starts to use it within the confines of the GPL, can you pull their right to use it?

Somehow, I doubt you can, and this may be something to address in the next iteration of the GPL. Too late for the pool of software out there, perhaps, but not for new versions.

Re:One question.

[10Ghz]

How do you suggest that the GPL should be changed? So that the author could block certain companies from using his software? In that case the software wouldn't be free software anymore! GPL should NOT be changed to allow that to happen!

Re:One question.

[flosofl]

Have you been paying attention at all?
Or do you just post without RTFA? (forgot - of course you do, it is /. after all)

They are invoking clause 4 of the GPL (read #5 as well). They are not doing this just because they don't like them. They are doing it because SCO has said the GPL doesn't apply to them. Since they are in violation of the GPL, they CANNOT modify or distribute NMAP.

That does NOT mean they cannot use it. It means they cannot include it (or any modified version) in their offering of whatever (UNIXWare, Linux, etc..)

USENIX letter

[howlatthemoon]

Great letter! Of course, it relies on congress seeing hypocrisy as a bad thing. Unfortunately, it is often par for the course.

No SCO Discrimination here.

[big-giant-head]

Generally defined discrimination is based: Age, Race, Nationaliy or Sex. Or some combination of those.

Hence unless SCO can somehow be defined as an Age Group?? No

Race?? No

Nationality ?? No

Sex?? M, F, or SCO - No

So to descriminate (legally speaking) you would have to revoke thier lincense based on one of these criteria.

However, if a licensee is behaving in bad faith, i.e. SCO, that is a legal ground for revoking thier license. I think it could easily be argued SCO is acting in bad faith through out this whole affair.

Obligatory $699 Joke

[AtariAmarok]

"Dear Mr McBride,
Please pay $699 for every installation of SCO Unix due to the presense of NMAP."

In USENIX Russia, Darl pays YOU $699!

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.

And SCO Cares cause?

[cyberlotnet]

Here is a company who in public says GPL is not legal. And these people are trying to use GPL against them.

SCO is not going to listen, they haven't listened to sense and reason since this whole thing started whats to make anyone think they will listen to a legal statement based on GPL which they declare is not legal to begin with.

In theory its great but unless nmap has the ability to back up its legal claims in court its pretty useless in this matter.

Re:And SCO Cares cause?

[iapetus]

Here is a company who in public says GPL is not legal. And these people are trying to use GPL against them.

Um. No they aren't. If SCO believes that the GPL is not legal, then they do not have a license to use and distribute nmap. Now they're being called on it. The default state of software where the copyright is held by someone else is that you do not have the right to use it, and just disagreeing with the license they're distributing the software under doesn't magically give you the right to steal their IP.

More interesting, however, is the question of whether nmap have the right to retract the license from SCO (IANAL, but I'm pretty sure they don't - that's part of the point of the GPL, after all). And a new license that explicitly denies SCO the right to use the code wouldn't be GPL-compatible, AIUI.

That said, in order to exercise their rights under the GPL, SCO have to agree to it. They can't claim it's an invalid license while at the same time agreeing to it in other cases. My guess is that they'll just ignore this problem and try to keep their two faces pointing different ways on the issue...

Re:And SCO Cares cause?

[Tuck]

Here is a company who in public says GPL is not legal. And these people are trying to use GPL against them.

SCO claiming that the GPL is not valid does not change the fact that the NMAP code is copyrighted, so in that case they are knowingly violating copyright law by shipping it.

Re:And SCO Cares cause?

[cpjackso]

Because if the GPL isn't legal - then standard copyright takes over. This is something along the lines of "you must make sure the author gives you permission to distribute the item", ie. SCO must check each item before the distribute.

The GPL is good because it provides you with rights if you follow the GPL. If you don't believe in the GPL - you don't have the rights that are given in the GPL.

As for others - who are screaming that this is a bad precedent - it's not. It's good in that NMap is using SCO's non-compliance with the GPL against them. If SCO doesn't agree with the GPL - then they must licence all code using standard copyright law.

It amazes me how SCO continue to distribute Linux code - yet say that part of it cannot be distributed because it is proprietary. They're distributing their own code under the GPL for free.

Re:And SCO Cares cause?

[the_mad_poster]

Fyodor is not "retracting" the license. The GPL clearly states that if you want to redistribute any code that has been licensed under it then you need to accept the GPL in its entirety. SCO has said the GPL is invalid, so they must not be accepting the GPL, so they haven't accepted a license at all.

They're not retracting a license because there's nothing to retract. If SCO won't accept the GPL, they have no license to distribute the software and are legally liable for violating. If SCO thinks that the license is invalid, that's fine. But then somebody needs to sue Darl's pants off (on second thought..) for copyright violations because they're distributing unlicensed software.

It would be sort of like you clicking "I Do Not Agree" on a Windows installation, then somehow getting the software installed anyway. Microsoft wouldn't RETRACT your license, rather, they'd sue you because you're using the software without one.

You're right though. Under the GPL, you can't explicitly deny anyone rights to distribute your code as long as they accept the GPL themselves. The problem is SCO has not accepted the GPL so they never had rights to distribute the code in the first place that could be revoked.

Re:And SCO Cares cause?

[Flyboy Connor]

It's true, SCO won't care a tinker's bit about what happened with NMAP and will continue to distribute it. If they would stop distributing it, it would confirm that they take the GPL seriously, and that's exactly the impression they do not want to give.

However, NMAP did something else: according to the release notes it removed compatibility with SCO's products. That means that SCO can not get a new version of NMAP, unless they create it themselves (and I seriously doubt SCO is interested in doing any programming), and their users will be b0rked if they download and install a new version of NMAP on their systems.

If a few more applications go the same way, SCO's own products will be seriously harmed. I don't think SCO is really bothered by this, seeing how they treat their own customers, but the point is that NMAP is doing something tangible that works outside the courts. That is, IMHO, a Good Thing.

Re:And SCO Cares cause?

[Shimbo]

It would be sort of like you clicking "I Do Not Agree" on a Windows installation, then somehow getting the software installed anyway. Microsoft wouldn't RETRACT your license, rather, they'd sue you because you're using the software without one.

Except that the GPL is far less dubious legally than Microsoft's EULA which could easily be tossed out in court (YJMV).

Re:And SCO Cares cause?

[nomadic]

SCO has said the GPL is invalid, so they must not be accepting the GPL, so they haven't accepted a license at all.

It doesn't matter what they say, it matters what they do. It's entirely possible that they've violated the GPL through their actions, but saying "the GPL shouldn't be held valid by the courts" doesn't automatically do that. Just like saying a criminal law violates the Constitution doesn't mean you've suddenly broken that law.

Can you smell the shareholder value now?

[scorp1us]

MMM a big steaming pile of crap. SCO forgot that an OS is nothing without apps. So as these apps start revoking themselves fromt he SCO distrib, the value of their product falls, along with the stock price, which is the exact opposite of what Darl wanted to do...

Looks like he'll prove himself the fool. I do feel bad for his family. He could have been something some day.

Re:Oops.

[Paladin2ez]

As far as I can tell, that clause generally meant political / social / economic groupings, as it applies to sexism/racism/sexualityism (yes I know, its not a word, coin it a term). In a case like this they are not being discriminated against for their thoughts or beliefs.

Any manufacturer can pull a product from usage on certian platforms if they feel it would give the competition further power (Companies distributing to specific game consoles for example).

Its just plain capitalism, and like it or not, that still drives alot of what we do.
Now these are the thoughts of one non-legally knowledgable person, so please others follow up with legalese if you are able.

Re:Oops.

[chamcham]

Nmap is still GPL. They didn't modify it. The debian guideline states that the license cannot discriminate against persons or groups -- the GPL is compatible w/ this statement / 'social rule' for debian. Nmap just invoked the part of the GPL that lets them revoke the license from an individual or group. Nmap is discriminating, not the GPL.

To that i say: rock on!

Re:Oops.

[bhtooefr]

SECTION 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.

I'd consider declaring it invalid is not accepting the license. Therefore, they're in violation of Section 5 (for distributing without agreeing to the license), and Section 4 (for distributing without being allowed to by the GPL, due to Section 5)

Will any big projects join in

[Albanach]

Losing nmap is unlikely to hurt SCO - anyone that needs nmap is going to be smart enough to download th gzip

Where it would get really interesting is if any other big projects pulled the plug. Imagine no Apache for SCO? (okay we should probably resolve the existing fight over the apache license before starting another) but what about no Samba?

I'm not entirely convinced that it's the right approach - I'd rather just see SCO beaten, but it'd sure hurt them if they lost some big pieces of software.

That's what the FSF is for

[SuperKendall]

Either the EFF or FSF should be able to help out - that's what they are there for. They can use part of our yearly donations to cover the cost (all you readers did give a donation to both orgainizations, right?)

Re:That's what the FSF is for

[jafuser]

You can set up with the EFF an automatically recurring monthly donation as well. I did this a couple years ago and have been donating $25/month to the EFF ever since I started.

How Many Feet Does a SCO Have?

[turgid]

Because surely it must have shot them all off by now.

Re:Bad move

[Lussarn]

I would agree with you but SCO doesn't follow the GPL (Adding other licenses on top) and call it unconstitutional among other things. And if they can't play by the rules of the GPL they should have no part of programs distributed under it. Thats why we have licenses in the first place.

Why is the open source community taking so long?

[cluge]

Hurray FyDoR! But nmap is one of many, many open source programs distributed by SCO. Why isn't the entire open source community tell SCO that their software can't be distrubted, things like KDE, Gnome, and the GNU projects tar, make et al? I belive that other open source projects should start demanding that SCO stop distributing them.

What to do with for enforcement? With so many pending legal battles against SCO, it would only be a matter of time before an IBM, Novel/Suse, or Redhat picks up the illegal acticity and uses it in court. Additionally it is an election year. I'm quite sure that if we as a community looked hard enough we could find a hungry DA.

AngryPeopleRule

Dorky GPL question:

[Asprin]

When I checked out the NMAP link, I eventually clicky=clicky-clicky'ed overt to the insecure.org homepage and saw (about halfway down) that part of the source for NMAP was featured in the movie Battle Royale.

So, this got me thinking: 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?

Just thought I'd ask, because I don't think that - other than the DeCSS - case, anyone's ever mentioned this possiblility.

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.

Uhhh...

[Scarpux]

IANAL and all that but I think the NMap folks are on shaky ground here. SCO has not attempted to "copy, modify, sublicense, or distribute the [NMap] except as expressly provided under [the GPL]".

They have attempted that with the Linux kernel however. So I don't see how SCO has violated the GPL with respect to NMap.

I do approve of the effort however.
Good luck with that

Re:Uhhh...

[scsirob]

They explicitely mentioned that the GPL is not a valid license scheme. That being stated, the fallback is copyright. If the copyright owner doesn't allow SCO to distribute the copyrighted work, then SCO better comply...

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:Uhhh...

[wfberg]

Yes they have said that the GPL is invalid.
However with respect to NMap and SAMBA they appear to be in compliance with their obligations.

I doubt that their statements would constitute a breach of the GPL under the law. However, IANAL.

When it comes to testing the GPL, it will have to happen in court. What would happen in court is that SCO would argue that they accepted the GPL in nmap's and SAMBA's case. Then, Fyodor's councel would call shenanigans, or as it's legally known estoppel. What the doctrine of estoppel says, is that you can't claim one thing to benefit from it, and then turn around to claim the exact opposite, which is what SCO would be doing; they claim the GPL is invalid as it applies to the kernel, then suddenly valid for nmap. You can't have your cake and eat it.

Besides, the GPL is not a contract; it's a license. SCO doesn't have to agree with it, they just have to abide by it. If they don't abide by it, fine, then get another license; many authors dual-license their code, as the GPL is a non-exclusive license anyway.

But the case gets even more twisted; you see, SCO is distributing the kernel, but at the same time, claims that it has rights to stuff that's in there, that they will not license under the terms of the GPL. Now, it's fine to claim some one stole your stuff. But the only right SCO has to then go and distribute the kernel is the GPL, which says, if distribute stuff tied into our stuff, you can't put any additional restraints or conditions on whomever you distribute it to.

SCO might claim that it's "no fair" to make people who distribute the kernel, or a derivative work, can't apply more restrictions. But that's certainly not true. But, it it were true, then the entire GPL would be invalid, since the principal reason of the GPL is to do precisely this. Yes, there's a "if any portion is found to be invalid, the balance shall apply", but the balance of the license is exactly the open source bit! So, no license for SCO. Again, can't have your cake and eat it; estoppel 101.

Re:Fyodor pulls nmap

[BJury]

Only problem is SCO would counter sue Linus. They cant counter-sue Samba, Apache, PostGreSQL, etc, as their software is not in dispute.

Re:Bad move

[Dunark]

This isn't about liking SCO or not liking SCO.

SCO has publicly denied the validity of the only license they have to distribute the software.
If they don't accept the license, they can't distribute the software. Distributing without a license is copyright infringement.

Danger Will Robinson

[warmcat]

SCOX trash talk the GPL in the press and on their website, but it seems to me they make a big effort not to wake that sleeping GPL dragon.

Hence they are still giving away Linux sources on their linuxupdate.sco.com site, as required by the GPL for three years minimum.

That they disrespected it and tried to undermine the GPL may be enough for Fyodor to decide he's mad as hell and isn't taking it any more, but to make a legal case they actually have to have violated some specific term(s).

Re:Danger Will Robinson

[warmcat]

See my post a bit lower down for a working URL.

If you come in to the site at / it redirects to a broken URL.

If you come in to /scolinux it asks for auth (but accepts blank credentials).

If you ask me they are complying with the letter of the GPL while making every efffort to obfuscate the fact they are still freely giving away under the GPL what they are trying to charge $699 to idiots for.

Re:Danger Will Robinson

[Tony-A]

Let's say you as a customer are using SCO software and are running into some sort of problem, real or imagined, that might be related in some way to nmap. Who you gonna call?
"Sorry, that's not supported" is the short form. Even the very existence of nmap on affected systems can be grounds for very short support calls.

Re:Danger Will Robinson

[warmcat]

Sure, it can hurt SCO Unix *users* to not have nmap support. The grandparent's point was getting from turning your back and being uncooperative to having a legal attack on SCO via the GPL is a journey.

Re:Bad move

[10Ghz]

I, for one didn't realise that owners could block companies from using their code and don't like it one little bit.

GPL (or any other license for that matter) basically says that "You may use/distribute this software as long as you agree to these terms". If you do not agree to those terms, then you lose the rights the license gives you. SCO disagrees with the terms of the GPL, therefore they lose the rights the license gives them.

More from press release

[Anonymous Coward]

"Added a new classification system to nmap-os-fingerprints. In addition to the standard text description, each entry is now classified by vendor name (e.g. Sun), underlying OS (e.g. Solaris), OS generation (e.g. 7), and device type ("general purpose", router, switch, game console, etc). This can be useful if you want to (say) locate and eliminate the SCO systems on a network, or find the wireless access points (WAPs) by scanning from the wired side."

4th section of GPL

[Quill_28]

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.

I am no license guru, what part of the GPL license did SCO violate?

Re:4th section of GPL

[Flyboy Connor]

SCO distributed the program while declaring the GPL void. So, they did not distribute it under the GPL. That's a violation of the very first line of section 4.

USENIX _not_ helping much...

[r_cerq]

They kind of screwed up in their response... Specifically:
SCO specifically argues that open source (free) licensing "undermines our basic system of intellectual property rights." This assertion lacks any legal justification and therefore appears to be merely self-serving. Nothing in our intellectual property laws requires inventors to charge substantial fees for access or use of their inventions. In fact, the laws of copyright and patents, which underlie the intellectual property rights that most often protect computer software programs, give their owners complete discretion in deciding how large their licensing fees should be, or, indeed, whether to impose fees at all.
They're mixing free beer and free speech. Stallanism aside, SCO is clearly attacking the freedom side of the GPL and USENIX is defending the freebie side.

Almost all of USENIX's text focuses on fees, and SCO's (feeble) threat is against the freedom to share code. I wonder if they know what the "Free" in "Free Software" means...

Re:USENIX _not_ helping much...

[JamesP]

They're mixing free beer and free speech.

EVERYBODY knows not to mix free beer and free speech... God, it's like mixing milk chocolate with Guinness...

Re:USENIX _not_ helping much...

[D. Taylor]

Well, in the same way, the laws give the IP owner complete discretion in deciding who can copy/share/modify their code too. Perhaps the USENIX text could have been clearer, but it is right, and it does make its point, IMO.

So let's all urge congress

[Teddy Caddy]

We all need to write our congressmen and let them know how we feel and what side we are on. Maybe one of the talented programmers out there could make a simple website that will send a canned message to the appropriate congressman. Then we can all got to the site and quickly send the message. Think about it... What in the hell does a congressman know about IT and operating systems? Shouldn't we give them advice on this one?

Nope.

[OmniGeek]

Fyodor (or any author of GPL'ed work, for that matter) can only do this 'cause SCO is violating the terms of the license. No one can arbitrarily block an individual or group from using GPL'ed code if they comply with the license.

BTW, Groklaw has an interesting thread where it is noted that any contract or license with discriminatory terms, (such as a hypothetical GPL clone that excluded SCO by name) is illegal under common law, as it would violate principles of general equitable conduct.

Move along, folks, nothing to see here...

Re:Fyodor pulls nmap

[BJH]

Ummm... you are aware that SCO's current product line does not consist of Linux distributions, but rather original UNIX kernel-based operating systems, and thus pulling SCO's right to distribute the Linux kernel does them no harm whatsoever?

The GPL cannot be tested in court.

[RedK]

Ok, this has been brought up a lot on Slashdot in the past few years, and I really think everyone should read this speech by Eben Moglen on why there will never be a test of the GPL in court (and a bunch of other interesting stuff). Here's the relevant portion :

Let me show you why. The grave difficulty that SCO has with free software isn't their attack; it's the inadequacy of their defense. In order to defend yourself in a case in which you are infringing the freedom of free software, you have to be prepared to meet a call that I make reasonably often with my colleagues at the Foundation who are here tonight. That telephone call goes like this. "Mr. Potential Defendant, you are distributing my client's copyrighted work without permission. Please stop. And if you want to continue to distribute it, we'll help you to get back your distribution rights, which have terminated by your infringement, but you are going to have to do it the right way."

At the moment that I make that call, the potential defendant's lawyer now has a choice. He can cooperate with us, or he can fight with us. And if he goes to court and fights with us, he will have a second choice before him. We will say to the judge, "Judge, Mr. Defendant has used our copyrighted work, copied it, modified it and distributed it without permission. Please make him stop."

One thing that the defendant can say is, "You're right. I have no license." Defendants do not want to say that, because if they say that they lose. So defendants, when they envision to themselves what they will say in court, realize that what they will say is, "But Judge, I do have a license. It's this here document, the GNU GPL. General Public License," at which point, because I know the license reasonably well, and I'm aware in what respect he is breaking it, I will say, "Well, Judge, he had that license but he violated its terms and under Section 4 of it, when he violated its terms, it stopped working for him."

But notice that in order to survive moment one in a lawsuit over free software, it is the defendant who must wave the GPL. It is his permission, his master key to a lawsuit that lasts longer than a nanosecond. This, quite simply, is the reason that lies behind the statement you have heard -- Mr. McBride made it here some weeks ago -- that there has never been a court test of the GPL.

It's quite simple see. The GPL cannot be tested in court, because if it is found invalid, the defendant can't continue to distribute the copyrighted work. If it is found valid, the defendant either has to abide by it's restrictions or can't continue to distribute the copyrighted work. Do you understand the pattern here ? Anyone who tries to fight it will only lose. That's the beauty of it.

Re:The GPL cannot be tested in court.

[nilsjuergens]

It's quite simple see. The GPL cannot be tested in court, because if it is found invalid, the defendant can't continue to distribute the copyrighted work. If it is found valid, the defendant either has to abide by it's restrictions or can't continue to distribute the copyrighted work. Do you understand the pattern here ? Anyone who tries to fight it will only lose. That's the beauty of it.

This proves one thing. RMS and his fellows at FSF are true hackers indeed. They even hacked the legal system to make it work for them. The GPL is so clever it brings tears to my eyes :)
cheers, Nils

Re:Bad move

[920]

Read the article and the linked message from NMap. They're not saying "You can't use this because we don't like you", they're saying "You have violated the terms of the license and therefore, it has been revoked". There's nothing wrong with this.

In other news today...

[MetaMarty]

SCO announces special rebates for third world countries.

"We want to help these countries by allowing them access to the best software at the best price. Our special prices start at $200 per CPU, even if they choose other Linux distributions then ours" says Darl Mcbride, CEO SCO.

Re:Oops.

[Joseff]

Makes you wonder if one of these situations are going to happen.

USENIX: SCO, You don't agree to the GPL so now you can't distribute our software.

Samba: Yeah! You can't use our software because of that either now!

USENIX: And we're not supporting your platforms anymore either.

Misc: Us too!

--After SCO has only a logo left to distribute--
SCO: C'mon guys it's only business, We were playing. We like the GPL now we really do!

Unlikely to hurt SCO

[nuggz]

Yes losing nmap is small, but illegally distributing it is big.
Assuming SCO does not want to risk a copyright violation suit, they will have to immediately stop distributing this entire CD.
If they continue to distribute it the fines could be substantial

Re:Unlikely to hurt SCO

[ekasteng]

I suppose they could have thousands of CD's there, but if no one buys SCO's stuff is that distributing?

SCO shares slowly drops...

[Zo0ok]

The SCO share is now well below $13. It hasnt been this low since august.

Seems like time is running out for our friends in Utah.

No, but maybe the NMAP team will...

[halivar]

...since, after all, USENIX didn't write NMAP. ;)

"Disagree with" != "doesn't accept license"

[mik]

Not exactly rigorousm, but:

• SCOX refuses to accept the terms of invalid licences.
• SCOX has stated that the GPL is not a valid licence.
• Therefore, SCOX refuses to accept the terms of GPL licences.

and then...

• GPL is the only license under which NMAP has been made available to SCOX.
• SCOX doesn't accept GPL licences.
• Therefore, SCOX has no licence to use/etc NMAP.

QED

Of course, SCOX probably will argue something along the lines of "GPL must == public domain for the good of the country". If this were to be true, then use of NMAP would not require a licence to use/etc... or maybe they'll say that they'll accept the terms of GPL until such time as it is declared invalid (effectively squirming out of this particular mess).

Yes and No.

[nuggz]

If they agree to the terms of the GPL, no you can't revoke their rights to use it.

If they do not agree to the terms of the GPL, they are committing copyright violation and hence have no rights of distribution.

I do not see how anyone can argue that they agreed to a licence they claim is unconstitutional.

Couldn't resist...

[CaptainAlbert]

Legolas: Ai! Ai! A Darlrog! A Darlrog is come!

Gimli: Calderin's Bane! (hides face)

Lindalf: Alas! A Darlrog. And I am already weary.
(to others) Fly! Over the bridge! This is a foe beyond any of you. I must hold the narrow way.
(to Darlrog) You cannot pass! I am a servant of the secret fire, wielder of the Flame of Finlandssvenskar. The dark fire will not avail you, Flame of Utah. Go back to the shadow! You cannot pass.

Anyone else notice this?

[Anonymous Coward]

Also part of their press release:

To emphasize the highly professional nature of Nmap, all instances of "fucked up" in error message text has been changed to "b0rked".

Re:www.sco.com

[cblguy]

Where ya been, living under a rock? ;)

In a response to the dDoS attack from the MyDoom virus (several weeks back), SCO pulled sco.com and replaced it with thescogroup.com

License already terminated

[minkwe]

They did not need to terminate SCO's license. It was already terminated when they claimed the GPL was invalid.

They could have just put them on notice of violation. This gives people the false impression that you need to explicitly terminate the license of a violator. You don't. The license is 'automagically' terminated if they person/entity does not accept the license.

Re:License already terminated

[Brandybuck]

Thank you Mr. Lawyer!

Actually, I greatly suspect that you are NOT a lawyer. Because your mini-analysis is quite incorrect. Your interpretation of the GPL is as erroneous as SCO's interpretation of the US Constitution.

Disagreeing with the GPL does not terminate your rights to distribute GPL software. Calling it unconstitutional does not terminate your rights to distribute GPL software. Being an asshole with the name "McBride" does not terminate your rights to distribute the GPL. The word "accept" in clause 4 has specific legal meaning. You "accept" the Microsoft EULA by clicking on a widget with a mouse cursor. Even if you shouted at the top of your lungs "I DISAGREE" while clicking that button, you have legally accepted that license. Shouting "under duress" might be a different matter, but irrelevant to the topic at hand.

Darl McBride has legally accepted the licenses for several GPL softwares by distributing those softwares. There is not need for him to sign any documents. There is no need for him to utter the words "I agree". There is no need for him to publically confess his sins before the public. HE HAS ACCEPTED THE LICENSE. And he is in full compliance (as near as I can tell) with it.

His later statements proclaiming his dislike for the GPL are irrelevant. Even claiming it to be invalid is irrelevant.

Fyodor is pulling a publicity stunt. He doesn't have a legal leg to stand on. And if SCO desired, they could rightfully sue him for breach of contract.

Open Source started with Ben Franklin

[bdsesq]

Franklin was a prolific inventor. He refused to patent his inventions. He maintained that there was nothing wrong with someone else copying his work and using it to earn a living.

He also opened the first lending library (file sharing anyone?)

It is too bad he didn't have the concept of freely sharing things codified in the US Constitution. What a difference that would have made.

Samba, PHP. Mozilla, Apache, Xfree86

[Short Circuit]

Mmm. Samba, PHP, Mozilla, Apache, XFree86. The last two may just do that in order to draw attention away from licensing issues. (Or to show we're all still in the same boat. However you want to interperet it.)

Maybe Perl too, but I'm not well versed on the Perl license or the Artistic License.

On second thought...

[Short Circuit]

On second thought, such a major backlash by the OSS community could absolutely destroy SCO's offerings, giving the impression that OSS software is dangerous to use as a core supplement to your products.

Re:On second thought...

[localman]

Only if one violates the licence. This is true of any software. It should always be dangerous to violate the license. In fact, SCO's whole gripe is that IBM violated their licence -- so this attack has nothing to do with OSS and everything to do with breaking the law.

Cheers.

Re:On second thought...

[finkployd]

I'm not so sure about that. SCO is clearly violating the GPL, in fact going so far as to say it is unamerican and in violation of the consitution. I don't think ANY company would continue to do business with you if you pulled that against them.

License WMA from MS then launch a multifront effort to claim it as your own, discredit MS, and convince congress that they are dangerous to national security and see how long they let you use their software.

Finkployd

Re:On second thought...

[unixbob]

If I understand this correctly, Fyodor is stopping SCO from distributing Nmap as a binary release. Although he is no longer explicitly supporting it, there is nothing stopping an end user from downloading the Nmap source and trying to compile their own binary (although there's no guarantee it will work because Fyodor isn't coding for the SCO platform anymore).

As an ISP this doesn't bother me (much). I don't wait for my vendor (Redhat / Sun Microsystems) to release versions of Apache for my webservers. I compile my own build and deploy that across all my servers.

This is also no different from Closed Source software. Vendors pick and choose which platforms they wish to support. Oracle support RedHat and Suse Linux but not Debian (IIRC). Closed source vendors constantly pick and choose which platforms to support; sometimes market forces dictate this, sometimes technical issues dictate this. OSS should be no different

Re:On second thought...

[Ryan Amos]

Or it will tell people "If you want to use OSS, you have to play by the rules." That way we don't get asshats like Darl McBride trying to make their own up like a 5 year old who loses a game of hide and seek.

Re:On second thought...

[FireFury03]

As far as I understand it, the "SCO cannot distribute" clause in the nmap licence does nothing since SCO is technically already banned from distributing GPL'd software by their breaches of (several hundred) GPL licences. All this does is makes the illegality of SCO distributing it more obvious. Either way, all the authors of GPL software that SCO is distributing could sue SCO for breach of licence.

SCO's defense is that they believe the GPL is void, however even if this is the case it doesn't help them since if GPL is void then noone has any rights to distribute the software - the copyright still belongs to the author. So they're basically damned if it's valid and damned if it's invalid.

Re:On second thought...

[BubbaTheBarbarian]

But perception is going to be the name of the game. This is the very reason that SCO gets as much press as it does. it would be far beeter to have five to ten big projects get together and pull the license then to declare open warfare.

If OSS acts in coordination and is organized about this, then it would work, otherwise it has that angry mob feel that we need to avoid.

Good idea

[GreatBallsOfFire]

If every open source project officially revokes SCO's license, they'd loose quite a bit. I think they would loose their TCP/IP support, if I recall correctly, because it is the BSD stack. Someone else already mentioned Apache yanking their licenses.

SCO also has a linux emulation API. At least at one point during this legal battle, SCO argued that the Linux API was embodied in Linux, and that this constituted an infringement on their copyright. However, SCO conveniently forgets about their Linux Kernel Personality. According to the SCO web site, "This environment does not contain a Linux kernel, but does contain the RPMs needed to run most Linux applications." So, anyone who owns code in these RPMs should also yank their code, crippling the SCO Unixware distribution. This could cause a major disruption in SCO's business, if properly executed.

Finally, I submit that Linus Torvalds should sue SCO for improperly incorporating the API into the SCO kernel and/or system libraries. The theory is that they could not have done this without viewing the code, and by doing so the code they've written is a derivative work of the Linux kernel. Properly executed, this could kill SCO altogether. Wouldn't that be enjoyable to watch.

Re:Good idea

[TheRaven64]

If every open source project officially revokes SCO's license, they'd loose quite a bit. I think they would loose their TCP/IP support, if I recall correctly, because it is the BSD stack. Someone else already mentioned Apache yanking their licenses.

SCO has not violated the BSD or Apache licenses, so their license to this code could not be revoked.

So, anyone who owns code in these RPMs should also yank their code, crippling the SCO Unixware distribution.

This is true, although again only GPL'd code could be revoked. Anything under other licenses would have to remain. Newer versions could be released under a license with a specific `No use by SCO' clause, but this would violate the FSF's definition of a free license.

Finally, I submit that Linus Torvalds should sue SCO for improperly incorporating the API into the SCO kernel and/or system libraries.

You can't copyright an API, so there would be no case.

The theory is that they could not have done this without viewing the code, and by doing so the code they've written is a derivative work of the Linux kernel

No, they could have implemented this by looking at the kernel documentation, or even by compiling small programs which call kernel functions using a Linux-targeting compiler and comparing the output with the source. This would be a really bed precedent to set, since if they won this then MS could sue the WINE project on the basis that `No one could implement the Windows API/ABI without having stolen and read the Windows source code.'

wrong

[Ender Ryan]

SCO distributes NMap. NMap is licensed under the GPL. SCO has stated it does not accept the GPL license. Not accepting the license prevents you from being allowed to distribute a GPLed work. SCO certainly is violating the GPL with regards to NMap, and any other GPL software they distribute.

SCO has revoked it's own rights under the GPL by not accepting the GPL. The language in the GPL that states that you must accept the GPL to be allowed to distribute GPLed products is pretty clear.

Re:wrong

[swillden]

The problem is by changing the license Fydor's code is no longer GPL'd. Instead it is similar to GPL.

They aren't changing the license. They're just attempting to enforce the license. SCO says it doesn't accept the GPL, therefore they have no license to distribute nmap, therefore insecure.org can file suit to make them stop.

The court will have to decide whether or not SCO's public statements against the GPL really constitute non-acceptance of the license, even though SCO may be complying with the terms.

Having to talk about this in open court is a real minefield for SCO, though, which is what's nifty about it.

Fydor has every right to license the software as he sees fit. However by adding the "except SCO" clause

He added no such clause. Read the statement again.

Re:Why give SCO ideas?

[Strog]

First they would have to acknowledge that the GPL is legit and withdraw their unconstitutional claim.

Then they would have to have created the original code otherwise the copyright doesn't belong to them. If they contributed anything to someone else's code then whoever wrote the original still has the copyrights to it. If they deny GPL then they have to fight it on copyrights. The best could do is try to sue the coyright holder for not compensating them for their contributions. I wouldn't put it past them but it seems unlikely.

If they did write the program themselves and are the coyright holders then I bet it would get dumped real fast and a free replacement would be written.

what about limiting program execution with uname?

[esarjeant]

What if a page from the Microsoft book is borrowed here.

Let's produced updated versions of popular packages (Samba, Mozilla, gcc, etc.) that check the platform name via uname(), /proc or somesuch; and report the program as unable to continue if a SCO operating system is found.

This would at least prohibit SCO from circulating newer versions without making modification to the code themselves. Of course, if they did this they would have to do so publically or would themselves be in violation of GPL.

Nitpick

[sammy baby]

Apache isn't distributed under the GPL. It's distributed under the Apache Software License (ASL).

Re:Nitpick

[Sxooter]

Sorry, but this isn't the playground, and apache can't just take their ball and go home. Unless SCO has violated the apache software license, the apache foundation cannot just suddenly remove the rights of SCO under that license because it "feels like it."

SCO has violated the GPL. Companies that distribute their software under the GPL have a right to withdraw the licensing of SCO because the GPL gives them that right due to the violation.

No such clause exists in the apache software license that if you violate the GPL they can pull your rights.

Re:Nitpick

[36526542DD]

True Apache can't stop SCO from using past or present versions of Apache (license changes aren't retroactive), but they can keep them from using future versions.

But I'd love to see GPL software agressively come down on SCO. SCO needs to be voted off the island.

5th section of GPL

[Fzz]

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.

In stating that the GPL is invalid, they are refusing to accept it, and therefore do not have the right to distribute GPL'ed software.

Very interesting play.

[Ironica]

Even if Fyodor doesn't technically have the rights to do this under Section 4 (it seems subject to interpretation), SCO has a couple of choices:

- Pull NMap to avoid issues, and thereby admit that the GPL might hold up in court.

- Continue to distribute NMap, and (hopefully) get sued.

If they get sued, they can present one of two cases:

- Fyodor doesn't have the right to do this under the GPL -- a case they might win, but wouldn't fit their party line.

- The GPL is invalid and therefore code released under it is public domain -- what they've been claiming, and a case they absolutely CAN'T win.

So they're totally screwed, assuming that someone (EFF donations anyone?) pays to sue them if they keep distributing. No matter what they do, they're going to prove themselves wrong about the GPL.

Re:Very interesting play.

[shish]

Some more info -

> Section 4 ... seems subject to interpretation

But section 5 isn't - "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"

> The GPL is invalid and therefore code released under it is public domain

not even that - if the GPL is invalid, it falls back to being Fyodor's personal copyright, and he can sue them for that instead.

Re:hmm

[radja]

GPL is not a free for all: you have to actively accept it, and stick to the requirements. by claiming the entire GPL as invalid, SCO does not accept the terms of the GPL, so the software reverts to normal copyright, which does not allow distribution and (in europe) does not even allow use (not sure if this also goes in the US. in european copytight law for software it is recognized that in order to run a program, you have to first make a copy of it in memory which counts as duplication)

Open comment to Darl

[Trolling4Dollars]

Hey Darl! I like this part of the Usenix open letter:

"Inventors who find they can't compete against lower-cot or free substitutes are compelled to find other things to sell".

I have a few suggestions for you:

1. You could always sell your sharky legal dept. and probably make loads more money than this whole fiasco will provide you with
2. Since you seem to know so much about where to get a good tan, you could get with the Queer Eye guys and open a chain. Of course, they might not want to have anything to do with you.
3. After you get out of prison, you could peddle your body to the highest bidder.

Just a few suggestions anyway you twerp.

(Oh my. What's Poor widdle Darl gonna do now? Sned his gang of wolves after me now?)

Re:Open comment to Darl

[JetScootr]

1. "you could always sell your sharky legal dept"... Actually, I think the sharks own Darl, not the other way around. I mean, who's gonna get shredded into bloody bits in this lawsuit?
2. That's not a tan, that's smoke and scorch marks from all the bridges he's burning behind him.
3. He could start while he's in prison. Unless he has a 300-lb roommate that calls him Cindy.

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.

another great part of the release notes for nmap

[little alfalfa]

Added a new classification system to nmap-os-fingerprints. In addition to the standard text description, each entry is now classified by vendor name (e.g. Sun), underlying OS (e.g. Solaris), OS generation (e.g. 7), and device type ("general purpose", router, switch, game console, etc). This can be useful if you want to (say) locate and eliminate the SCO systems on a network, or find the wireless access points (WAPs) by scanning from the wired side. >:|

The spirit of napster thrived with Martin Luther

[expro]

Martin Luther was an earlier advocate of file sharing of establishment-copy-controlled scripture texts with the masses. And many early Americans thrived on ignoring English copyrights.

They can only revoke for future versions.

[GodWasAnAlien]

They cannot change the license for software they have already distributed unless the license lets them do so, or the license is not valid for this case.

Unless they are using a modified GPL, they cannot "revoke" a license. The new software released could have a "everyone but SCO" license.

If, however, SCO, by stating that the GPL is invalid, has disagreed to the terms of it, then the softwares authors can simply declare that SCO has no legitimate rights to use their software.

Re:They can only revoke for future versions.

[dentar]

" 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."

It looks pretty clear to me that the GPL, since SCO has not accepted it, states that SCO can't MODIFY OR DISTRIBUTE the software, period. They can't "revoke" the license from SCO because SCO does not accept it. Therefore, SCO cannot modify or distribute nmap. They can still USE it, but can't distribute it.

Re:Response to code?

[mbrinkm]

I too haven't seen a response, but I believe the reason is that SCO did not identify any parts of System V code that were copied. They only identified sections from AIX and/or Dynix as being copied into Linux.

Basically, SCO changed from saying that the code from System V is in Linux to saying whatever any company developed and distributed with a Unix OS is a derivative work of System V and therefore owned by SCO. With this logic, any code that IBM developed for services on their Unix OS'es is now owned by SCO. This is such an idiotic argument that it's hard for me to think of a good way to rebuke it, other than "Are You F-ing Nuts?"

HATS OFF!!

[dentar]

Finally! Fyodor does what the Samba team SHOULD HAVE done. Hats off to Fyodor for getting the ball rolling. Let's hope that all the authors whose packages are on the skunkware CDs will have the wisdom to revoke from SCO the right to distribute them, since SCO does not accept the GPL.

Without skunkware, a SCO server is barely usable.

Re:HATS OFF!!

[KidSock]

Fyodor does what the Samba team SHOULD HAVE done.

No. This is stupid. By claiming to revoke any particular user's right based on political reasons is not consistent with the ideals of the Free Software movement. The nmap people are no better than SCO in this respect. This is precisely the kind of ammunition that the SCO Group can use to lend creedence to their claims. It can be used as just another split-hair to make it look like their being defensive.

Heh...

[Leomania]

So your tagline wasn't meant to be just funny, I guess... ;-)

Lead a class action

[Anonymous Coward]

Could the FSF take the lead in a class action suit, where the class consists of all GPL code owners that have products redistributed by SCO?

Re:Lead a class action

[Anonymous Coward]

Probably because IBM is currently suing them for violating the GPL, and IBM has a hellava lot more resources than the FSF.

Re:Lead a class action

[canajin56]

No, SCO is breaking Section 2b of the GPL by charging for the kernel, as they are NOT licencing their code in it free of charge to all third parties. You will note that this Section also states that putting two programs on the same CD/distrubution package does NOT put them under the same licence. So you can break the licence of one without touching the other, since they are NOT under the same licence. (This also means that you can include proprietary code without any problems)

Since they are breaking 2B., then under Section 4, their licence is void, and they may not redistribute at all. However, if they go up to a company running Redhat, and demand a fee, they have not violated the GPL at all: The GPL is only void if they sell copies of Linux complete with a licence to use the code. Of course, it is illegal to demand compensation for something you don't own, but unless they are charging it for their OWN copy, the GPL has nothing to do with it.

Further more, they are only charging for the Linux kernel. They are not charging for NMap, grep, gcc, Samba, perl, or anything else that may or may not be in a particular GNU/Linux distribution. As such, they have not violated the licence on these pieces of software. If the authors try to revoke SCO's right to this code, THEY are violating the GPL by not licencing it under the GPL to ALL third parties. SCO's right to the kernel is void by their actions (If they are selling licences to the kernel that they are distributing, and the licence sold is a condition of said distribution) but not their right to anything else.

Re:Lead a class action

[Sxooter]

But, no matter big the elephant that is IBM, the thousands of ant bites that is the FSF community is just as lethal.

And probably would make for better press.

Re:Lead a class action

[Arker]

You may be correct on the issue you're analysing, but consider that TSG has argued in court that the GPL is illegal. And remember that you don't sue anyone for 'violating the GPL' you sue them for copyright infringement. They then have to come up with a defense, and the GPL would be their defense against the infringement charge - it's not something the copyright holders need to bring up but rather a defense against them. Since TSG has and is arguing in court that the GPL is invalid, they should be therefore under an estoppel preventing them from then arguing that defense in another court. IANAL, and anyone wanting to sue them should definately talk to some folks that are about it, of course.

Re:Lead a class action

[mark-t]

If the authors try to revoke SCO's right to this code, THEY are violating the GPL by not licencing it under the GPL to ALL third parties

Show me where in the GPL it says this.

I think you are mistaken about what the GPL is.

First of all, it is impossible for the copyright owner to violate the GPL on the software that he himself wrote. He _owns_ the copyright, after all. The GPL does not take ownership of copyright away from the author.

Secondly, standard copyright law _always_ applies to any copyrighted work: permission to copy and distribute a copyrighted work is categorically forbidden without the permission of the copyright owner. In the case of GPL'd software, the GPL outlines the terms and conditions that one must simply agree to in order to obtain said permission. Where more conventional copyrighted works require express written permission from either the copyright owner or those explicitly authorized by him (such as a publisher), the GPL simply defaults to having given you permission that can be revoked by the copyright owner at any time should you fail to comply with the terms of the license.

who's behind this?

[spiritraveller]

I'll probably get modded down for this and told to take off the tin-foil hat, but...

It seems like Darl is doing someone else's lobbying for them.

There's a lot at stake here for a certain software monopolist. And most of Darl's arguments benefit that Redmond company more than SCO.

Why would it benefit SCO to lobby Congress against open source? It really doesn't. The more open source goes on, the more companies that SCO can sue. On the other hand, it does benefit a certain software company that actually SELLS software, and is currently suffering from open source competition.

Go ahead and call me a conspiracy-theorist. I think this is the best indication we've had yet that Microsoft is doing some under the table bankrolling of Darl's Misadventures (in addition to the above-table money they have already given SCO)... where there's smoke, there's fire.

Re:That's scary!

[frankie]

That means that ANY license that includes something like GPL's section 4 is uncontestable in court. So if Microsoft puts in their license agreement something

Nope. This is the HUGE difference between GPL-style "copyleft" and a typical EULA-style "copyright". The GPL gives you EXTRA rights to do things that normally would be impermissible under generic copyright law, whereas EULAs try to TAKE AWAY generic freedoms via licensing.

So if either license is invalidated, you can use legally-acquired software any way you want (aka more free than EULA), but no redistribution is allowed (aka less free than GPL).

Shoundn't everybody do the same

[wilddur]

Image that there is a clear notice in Samba, Apache Etc...

As the SCO group has broken the terms of the GPL by redistributing our program XXXX under conditions prohibited by the GPL they have automatically lost their rigth to redistribute our software under this license according to line ?? of the GPL. They have not right at all to distribute XXXX unless they pay for a new different license.

This includes:
-
-
-

If you have this software included with any of this products please contact us.

Re:That's scary!

[AaronGTurner]

Under UK law at least any terms that are obviously unreasonable (to a legally defined 'reasonable person' are invalid). It is on this basis that terms of some EULAs are invalid (possibly some Microsoft ones).

Under UK law at least, the test would be if the 'viral' nature of GPL is an unreasonable clause, so it is not entirely clear that the GPL itself cannot be challenged.

The question is whether code that was released under the GPL, if the GPL was declared invalid, would necessarily be returned to the original copyright holder, or if a judge could (in a second case) rule that code released under the GPL was effectively released to the public domain. I think this would have to be ruled on a case-by-case basis depending on the intentions of the authors.

But...Has SCO rejected the GPL in court?

[JeanPaulBob]

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.

Has SCO actually claimed in court has the GPL is invalid? It doesn't seem that estoppel applies to statements made to the press--SCO can say one thing to the media and another in court all they want. They only have to be consistent in official legal proceedings.

Re:But...Has SCO rejected the GPL in court?

[japhmi]

Has SCO actually claimed in court has the GPL is invalid? It doesn't seem that estoppel applies to statements made to the press--SCO can say one thing to the media and another in court all they want. They only have to be consistent in official legal proceedings.

Yes, but now SCO must either:
1. Claim that the GPL is valid, and that they are following it.

or

2. Claim that the GPL is invalid, and that they have no rights to distribute nmap.

Even if not in court, SCO will have to either look stupid or look stupid. If in court, SCO will either loose their entire case against the GPL; or will loose all rights to all GPL software.

Re:SCO is estopped from raising the GPL as a defen

[Peter Harris]

It's maybe more to do with the court of public opinion than a court of law.

Legally speaking, SCO have a valid license to distribute nmap - the GPL.

If (and this is a big if) enough challenges from developers of GPL software force SCO to admit that the GPL is valid, it will make them look even more confused than they already do. And maybe a few investors might hear what's going on too.

In the courts of course, their stance on the GPL will not last a day's hard scrutiny anyway.

if fyodor sues

[SHEENmaster]

Because they've already said that the gpl is invalid for their code that they redistributed under the GPL, they would have effectively already plead guilty to copyright violation. Sounds like some of that litigation fund could be put to better use with the NMap developers.

Is One Penny Source OK with SCO?

[uncadonna]

Let's hypothesize that SCO is correct and that free distribution of software should be considered subversive. I note that babysitting by grandmothers would also be considered subversive under the same argument (giving things away is communist). Grandma, after all, is interfering with the viability of the day care service industry! Che Guevara would be proud!

Let's leave that aside for the moment, and suppose the argument for some mysterious reason does not apply to most other services but does apply to software. Then marketplace competition will drive prices down, as I understand the theory. How low can they go, in SCO's view, before they become unconstitutional?

Suppose that someone comes up with a brilliant new software package called ninunec ("Ninunec Is Not Unix, Nor Even Close"). Suppose that person wants to give away ninunec, perhaps with the intention of proving his worth to scare up venture capital for an even more ambitious plan he has.

Under the theory that SCO is presenting to congress, he should not be allowed contribute his work into the public domain! since this constitutes "dumping". I'm sure this raises free speech questions, but let's leave that aside, too. What is the lowest constitutionally permitted cost, under SCO's argument. so that our genius can promote his wares and himself. Let's say he keeps a conventional copyright and charges a penny per source download.

As long as the cost remains low enough, the evil consequences that SCO attributes to open source remain. You haven't solved the alleged problem that SCO proposes by mandating that software cannot be free. It therefore becomes necessary under SCO's arguments to mandate a minimum price for ninunec, and for every other piece of software (and every other service that falls under the SCO guidelines) that ever enters the marketplace! (Good luck with that one.)

SCO's letters, aside from their usual dubious claims about ownership of code, make claims that amount to mandating a profit for their industry by preventing contributions from a volunteer sector. The only meaningful way to implement that position into law is 1) to create an exhaustive list of activities that are constitutionally impermissible without charging a fee and 2) to have a government body set mandated minimum prices in all those activities.

That's not the free enterprise model I've heard so much about. I think we should reconsider which position is the subversive one!

Right idea, wrong approach

[Anonymous Coward]

SCO has clearly not accepted the GPL. Which means that (barring any agreements they have made with individual authors) they have no license to either use or distribute any GPLd software.

Instead of banning SCO from distributing nmap, Fyodor should be suing them for copyright violation since they are clearly distributing it without a license.

Better still, form a class action lawsuit against SCO of people who hold copyright for GPLd software distributed by SCO for copyright violation. That a big enough cookie that you might find some laywers willing to go for it on speculation.

This incedentally is one of the reasons it makes some sense to assign copyright to the FSF. It's a lot easier for a single organization to press a lawsuit than to organize a class action with thousands of individual developers. Think herding cats.

Baby steps

[Syberghost]

While nmap is a great tool, I don't think this is going to have much effect on SCO.

Pull the license for something they can't easily do without, like Apache or ksh, and you might have something.

Re:Baby steps

[Darth RadaR]

Pull the license for something they can't easily do without, like Apache or ksh, and you might have something.

I'd suggest 'ifconfig'. I admined a SCO 2.1.3 box last year and their version of 'ifconfig' didn't bring up the MAC address of the NIC. Take away a few simple tools from SCO and it'll be too painful to admin.

BRILLIANT!

[ufpdom]

Very brilliant move.. Now if sendmail, apache would do the same it would definitely drive a nail into the SCO coffin. Im not a lawyer or anything but it would be very nice for many people to jump on this bandwagon. It would be quite evil for hardware manufacturers to do the same.. No Driver support for you! or.. No Soup for you!

Other tools that could be pulled

[raider_red]

This could also allow the FSF to pull such tools as GCC, binutils, and all of the C development libraries, which would make it very difficult to develop software or run certain programs under SCO's version of Linux.

Fyodor's decleration considered IRRELEVANT

[dhowells]

You are all forgetting one thing: The GPL allows modification and relicense. I can make a trivial modification to nmap and release it under the GPL without any such caveat.

I hereby grant permission to the SCO group to use under the GPL license dhowells-map which is similar to nmap but seperately licenced. Doesnt this fuck up fyodor's restriction. Although he can still sue them for violation for the violations of the GPL which they have already comitted, but not for continuing to use and redistribute dhowells-map

Re:Fyodor's decleration considered IRRELEVANT

[naarok]

At first I was going to dismiss your comment by saying that you can't change the license to non-GPL, and SCO has broken the GPL and thus could not distribute a GPLd piece of code.

Upon reflection, I think they may only be violating the GPL license of the kernel. If this is so, then you are correct. Until they violate the GPL license of dhowells-map, it could be distributed by them.

The more I think about this, the more complex I see the licensing issues of a typical Linux distribution are. There are probably hundreds(thousands?) of different copyright holders on those distribution's disks. Breaking the license of any one, would not break the license of all the others. A nasty company could pick their battles and only violate the licenses of a few pieces of the distribution where they feel they can get away with it.

I wonder if a clause could/should be added to the GPL stating that violating a clause of the GPL of any licensor, violates the GPL of all GPL'd code? So if you broke the license for any one piece, the whole pie would be taken away.

Re:Fyodor's decleration considered IRRELEVANT

[Eric Damron]

I'm afraid that you are incorrect. If you modify the source code from a GPL'd project you must release it under the SAME GPL license. It specifically states that you CAN NOT sublicense it or change the conditions of the original license in any way.

Re:Fyodor's decleration considered IRRELEVANT

[k_head]

That is why the FSF suggests that you turn over your copyrights on GPLed code to them. If they can gather all the copyrights in one place then it's easier to defend.

Help pay for the piper.

[Njall]

One of the reasons I became an Associate member of FSF is to help the piper. Put your money where your popcorn is going and become a producer of the show!

Legal babble

[spawnofbill]

I've read the majority of the public SCO documents, and i have to say, they're either really desperate, they've got yes-men for lawyers, or the head of their legal department is a 11-year old who's trying to imitate his lawyer daddy. In every single document SCO claims that the GNU GPL violates U.S. copyright law, and also the DMCA. BUT THEY NEVER SAY HOW!!! I don't know if they live under a rock, but every legal commentator i've seen on the net says they have absolutly no case! They would be laughed out of court! I'm starting to think that MS is paying them to go on with the case in order to boost their Anti-open source propoganda that they're firing at the common man. SCO's and MS's stuff almost sounds like it came straight from a computer-literate Senator McCarthy!

Fighting SCO

[kumanopuusan]

I wonder if the best way for coders to fight against SCO isn't just to code open source alternatives to every single one of SCO's software products. Is there currently any reason for a customer to stay with SCO other than the cost of changing their existing infrastructure?

Cross licensing???

[buchanmilne]

There's a strong argument that SCO, by their actions of offering a paid license for their alleged intellectual property in Linux


I assume here you mean the Linux kernel, not other software which may run on Linux and they may have provided.

has violated the GPL.

No, they have violated the license agreement for the Linux kernel (hint: If I violate some proprietary software, nothing affects the license on the competitors software licensing, even if they use identical wording ..).


That legally, ethically and morally terminates their right to the software under the GPL.


Ethical and moral aren't involved here, and legally, they only lose the right to distribute the software in question.

Satisfying the license agreement for the kernel (or not) has nothing to do with them satisfying the license agreement of other software.

If this were the case, it might be that people distributing nmap with this additional license restriction would lose their license to distribute the Linux kernel!

Sorry, but for the nmap author to do this, he has to show that SCO distributed nmap with additional restrictions.

In unrelated news....

[Lonath]

HOLY CRAP! From the SCO Website!

Feb 27, 2004

For immediate release:

SCO Group of Linden, Utah announced the first end-user lawsuit designed to further their SCOSource program to get people to properly license SCO IP currently being distributed in Linux. SCO has filed suit against the owners of insecure.org who, according to Netcraft, are running Apache/Linux.

Asked for comment, SCO Group CEO Darl McBride responded: "It is a terrible day when IP owners have to resort to a lawsuit to protect their valuable IP interests. insecure.org had months to do the right thing and respect SCO IP by signing up for our SCOSource program, but they blatantly ignored our generous offer. It appears that the only option left open to us is to take our case to the courts where we will ultimately prevail. So, it is with great sadness and regret that the SCO Group announces this lawsuit, because we don't do business this way. It just goes to show you how far these IP terrorists will go to destroy the valuable creations of hard-working Americans. Nobody likes a lawsuit, but we have a right and a duty to protect ourselves and the Constitution of the United States from the evil axis of IP destruction that is the Open Source community."

Why didn't Fyodor just dual license?

[ValentineMSmith]

After reading the press release (and several of the comments here), it almost looks like Fyodor was trying to do what TrollTech did with the QT libraries a while back: do a dual license scheme.

For TrollTech, if you were developing GPL'ed software, you could use their toolkit, but if you were doing proprietary software, you had to buy some sort of license.

IANALJAP (IANAL, just a programmer), but what would stop Fyodor from doing the same thing? This software is offered under two licenses: the GPL if you are anybody but The SCO Group, or the No License if you are The SCO Group. This way, we don't have to have these long arguments about section 4 or 5 of the GPL, and life is good. I realize that this may be against the spirit of the GPL, but, according to section 2:

Thus, it is not the intent of this section to claim rights or contest your rights to work written entirely by you; rather, the intent is to exercise the right to control the distribution of derivative or collective works based on the Program.

So, is this legit? Personally, I'd really like to see the SAMBA or GCC folks do something like this (no offense to Fyodor, but losing the rights to distribute SAMBA would hurt SCO a LOT more than losing the rights to distribute NMap.

*doh* Brain cramp, ignore the above...

[TrentC]

After rereading the submission and copy of nmap's release notes, I see that Fyodor isn't revoking SCO's license to nmap because he doesn't like them, he's accusing them of violating the GPL and telling them their license to use nmap is revoked as a result.

On that thought, I think Fyodor is missing a bet here; IIRC, the penalties for intentional copyright infringement can be quite large. (After all, isn't that what SCO originally accused IBM of?) He should talk to a lawyer and get them to draft a "cease and desist" letter to SCO.

If they want to use his code for free under the GPL, they have to abide by it. Otherwise, if they want to license it separately, they should have to pay $$$ just like a "real, Constitutional" license agreement.

Jay (=
(Maybe there should be a slew of copyright registation requests sent to the Library of Congress for source code...)

In case it was over looked.....

[Stumbles]

Version 3.50 press release also mentions the following (which is rather nifty);

Added a new classification system to nmap-os-fingerprints. In addition to the standard text description, each entry is now classified by vendor name (e.g. Sun), underlying OS (e.g. Solaris), OS generation (e.g. 7), and device type ("general purpose", router, switch, game console, etc). This can be useful if you want to (say) locate and eliminate the SCO systems on a network, or find the wireless access points (WAPs) by scanning from the wired side.

Emphasis mine.

Part of having free software

[IshanCaspian]

is ensuring that others preserve those freedoms. Think about it this way...if you believe in freedom, why don't you believe in the freedom to kill people? It's because that freedom comes at the cost of a greater freedom, the freedom to continue living. Just so, the freedom to take away other people's freedom, as SCO is doing by violating the GPL, is incompatible with ensuring that everyone can reap the benefits of free software. In short, "free software" is only free insofar as you preserve for others the freedoms that you were given.

Re:The spirit of napster thrived with Martin Luthe

[belroth]

It wasn't just early Americans. Until sometime in the 50s iirc if a book wasn't first published in the US then US law didn't recognise the copyright. It was quite a scandal in the UK in the late 19th & early 20th Centuries how US publishers pirated the best sellers.

Only a hundred or so years to go from not respecting copyright to the DMCA and perpetual copyright...

SCOs letter regarding copyright, copyleft

[killmeplease]

I read Darl's letter and was appaled that he misses the point of the GPL entirely. Though the copywrite laws are there to encourage commercial growth and the ability to create wealth from IP and brand names, you should inversely be able to ensure your work will not be used for profit for the good of humanity / the general public. The GPL, rather than ensuring a stiffling of cemmercial work, ensures the prosperity of public works. The GPL makes software freely available because those who contribute are excercizing their rights to allow people access to use and distribute their work, without the ability to with hold their work on GPL projects and make money from those changes without redistributing source changes under the GPL. This ensures that the creators interest in keeping their work protected is safe from commercial theft or commercial managment.

I think Darl should look at the fact that many PhDs, Graduate Students would love to work on AIX, Solaris, or any other flavor of commercial UNIX to make modifications, do research, or improve their product merely for the fact of learning. Operating on these systems is impossible for most students and professionals and this is the reason Linux was created and the reason that it continues to be a force in the software world. People are tired of spending money to Companies for a product that they would rather create and contribute to themselves. If we live in a country where you cannot create a free product without profit motive (many companied make money selling and supporting Linux by the way), I am suprised and shocked at our greed. This is like saying you cannot make art that people can view frrely or you cannot have a pot luck and not charge the guests for eating it. The fact that this is software has little to do with the issue unless A) Foriegners make a supercomputer using Linux, in a situation where they could not circumvent the law and use another UNIX, B) We are using a commercial UNIX to copy code from and the vendor that created the code is unwilling to let that information go. I think in the case of B), that SCO does not have a case bacuase IBM never copied the snippets of code from Sys V, because everyone knew through work on BSD and Minix in college what the Sys V code ideas were that made a real Unix like OS. IBM copied their own work and used their developers to make the changes to Linux that they made to AIX. These changes are what make AIX a powerhouse and will bring Linux to the next level.

Obligatory Red vs Blue Quote

[Atmchicago]

"That's exactly it, Private. War's over. We won. Turns out you're the big hero. We're holding a parade in your honor. I get to drive the float. And Simmons here...IS IN CHARGE OF CONFETTI!"

SCO rejected the GPL absolutely

[Xtifr]

SCO has filed a statement with the court (in response to IBM's counterclaims) saying that the GPL is (among other things) "unenforcable", "void and/or voidable", and "unconstitional". This could be read as prima facie evidence that they do not accept the terms of the GPL, which is a requirement for distributing any GPL'd software.

If they'd confined themselves to press releases questioning the legality of the GPL, then I think you might have a point. But they've basically stated in open court that they do not accept the GPL at all, therefore they're in violation of section 5 of the GPL with respect to any and all GPL'd programs. (Thanks to the smart folks at Groklaw for pointing this out.)

NMAP should know better

[ratboy666]

There really isn't a challenge under GPL.

What should have happened, is that SCO should not have been offered a license (GPL or otherwise) for the new NMAP code.

No license -- and SCO can't distribute. You can't ADD stuff to the GPL, but it *is* ok to not offer.

Just tell SCO "I'm sorry, but everyone *except* you can license under GPL. You can't...".

The GPL won't let you retract an existing license.

But new code doesn't have to be exclusively under GPL licensing terms.

There is *one* problem -- if the NMAP folk license under GPL to another party, the third party can redistribute to SCO. So SCO can *use* the software. But the original copyright holder can simply tell them that they have no right to copy.

Remember folks, it *is* a monopoly!

Ratboy

Re:SCO letter to Congress is to protect their

[fishbowl]

"Pump and Dump" is vernacular language for something that people seem to think is illegal, or wish was illegal, but it's not illegal. The SCO folks have probably kept their toes ever so slightly on the "legal" side of the line.

They have followed a bold, irresponsible course, they have made many public statements that are plainly false -- but they have also stopped short of securities fraud or perjury.

Maybe they'll mess up and cross that line, but they haven't yet.

In the mean time, you should have been investing in SCO, and making some money off this fiasco. There won't be much warning when it's time to head for the hills, but there will be some. So far, if you'd followed the analysts' advice on SCO, you'd have made money.

There really hasn't been anything for the SEC to be interested in. What crimes do you suggest they have committed, exactly? Until the various court cases are decided, it's all still based on open questions.

The Australian letters are a bit of a counter example. They may have broken Australian laws. I'm sure that has them scared in Utah.

Re:SCO is estopped from raising the GPL as a defen

[Arker]

TSG (please don't call them SCO, they are not the Santa Cruz Operation, which as bad as it was in some way doesn't deserve to be associated with these morons) has danced around this very carefully. They don't ask their customers to buy the 699 licenses. Only other folks (like Red Hat customers for instance.) And if you read the license they're supposedly selling, it goes through amazing contortions to avoid actually saying what they're licensing to you when you buy it. It doesn't claim to be a license for Linux, or for anything else specific, their FUD campaign to the contrary.

The Obvious Choice

[OzBeserk]

Given the questions over whether he SCO has violated the GPL and whether he has the right to enforce it, I don't think turning to the courts is the best solution

What if instead of simply not supporting the SCO platform in the future, he actively put a sheck in there that crippled the software if running on the Unixware platform?

If SCO found themselves having to hire engineers to change code to work on their platform (rather than marketing & PR people) they might rethink defaming the GPL.

Of course all this is based on the premise that they still want to produce software, not lawsuits.