The SCO Boomerang and the Strength of Linux

karvind writes "PJ of Groklaw has written an insightful article on benefits flowing from SCO's litigation: GPL stands up in court, the community bonded more tightly than ever, encouraged increased support for FOSS and last but not the least heightened awareness of the benefits of using GNU/Linux systems. Article is also on Yahoo and NewsFactor."

Comments

GPL

[Lehk228]

The GPL was not "tested in court" the lawsuit was a contract dispute between SCO and IBM. Though i think it may have resulted in a few more PHB's hearing about linux and maybe being curious how it could save money to switch.

Re:GPL

[vadim_t]

None is needed, as the other post says.

If I understand it correctly, it works like this. When a company is about to go to court, they realize that the GPL is the only thing that gives them the permission to distribute the code. If they try to argue that the GPL doesn't apply, then they suddenly have nothing in their favour at all and are clearly guilty of copyright infringement.

No wonder it never went to court, because it's clearly an unwinnable situation.

Re:GPL

[gvc]

I cannot parse your sentence. I think you are saying that SCO v. IBM does not test the GPL. It certainly does. IBM's eighth counterclaim says:

"124. SCO has infringed and is infringing IBM's copyrights by copying, modifying, sublicensing and/or distributing Linux products except as expressly provided under the GPL. SCO has taken copyrighted source code made available by IBM under the GPL, included that code in SCO's Linux products, and copied, modified, sublicensed and/or distributed those products other than as permitted under the GPL. SCO has no right -- and has never had any right - to copy, modify, sublicense and/or distribute the IBM copyrighted code except pursuant to the GPL."

Re:GPL

[aug24]

You don't seem to quite get how the GPL works (as don't many, many people, including Darl McLies). Apologies for the slightly reactionary tone of that sentence, but it's important to understand exactly what it is and how it will be used in court... read on:

The GPL is a license to use copyrighted software. As such it will never be 'tested in court' in the sense you describe. However, it is a (perhaps the only) defence against a charge of copyright infringement, where the code user cannot demonstrate some other license to use the software[1].

In fact, SCO is using it as its defence in the 8th (iirc) counterclaim, which is where the court then will determine if SCO has fulfilled all the licence terms. That is all the 'test' it will ever get, and all we will ever need.

Once you understand that, the idea suggested by Darl that all GPL works should be declared Public Domain becomes clearly visible as the idiotic idea it is: it would involve stripping copyright from hundreds (thousands!) of works for the benefit of exactly the same type of people who are currently having copyrights extended so they can continue to make money off long-dead artists (eg Sonny Bono).

Justin.
[1] AFAIK there is nothing to stop the owner of some code both relieasing under the GPL and simultaneously licensing it for commercial use for money. After all, why should the owner of some code not do as he/she wishes with it?

Re:GPL

[Xformer]

Clearly an unwinnable argument, that I clearly remember SCO trying to use earlier in this whole mess. Their lawyers tried to proclaim the GPL as invalid, and that argument was tossed pretty quickly.

Therefore, the GPL was tested in court, and it stood rather well.

Re:GPL

[hacker]

"The situation I propose is that the original developer announces that anyone using the software now needs to pay a licensing fee, claiming that the GPL is not a valid license to begin with..."

Also not possible, since the GPL is simply a license to copy and redistribute copyrighted software, if the GPL is revoked, I still have been granted rights to the version I was given, via the U.S. Copyright system. I am free to do whatever I wish with it, including rebrand it as my own and sell it as a competing product.

When the GPL is stripped away, what is left is a stronger legal standing, not a weaker one. Trust me on this, We've been fighting 3 cases of GPL violation with our FSF-appointed attorney in towe, for the last 4-5 years now. Commercial companies seem to think because we're "spare time hackers", we can't afford attorneys, and that they can pick and claw at whatever pieces of our code they wish. They are sorely mistaken.

In the case of a GPL investigation, if the violation of that license is proven to be accurate, all rights to continue to use that GPL'd code are revoked, making EVERY SINGLE SALE OR DOWNLOAD of that GPL code from that point, a United States Copyright Violation, subject to fines of $20,000/USD to $200,000/USD per-incident. Its VERY expensive to violate the GPL.

In one case, the vendor took our project, every single piece of it, slapped their own names on it, removed ours, stripped out the licensing, put their icons on it, and began selling it to "partners", without letting them know that it was based on GPL code (and without transferring that GPL license to those "partners"). Since they were openly advertising that it was "their" product, written by them (they gave copies away by the thousands at "beaming" kiosks at tradeshows), this was now what is called a "Lanham Act Violation", otherwise known as "...false designation of origin". When we approached their "partners" and asked for source, we were directly threatened by the CEO of the original violating company with bankruptcy and other things. I quote: "If we end up in court, I will bankrupt these guys! I have millions of dollars of investor money to play with..."

It never ceases to amaze me how stupid and ignorant companies like this continue to be, but the number of GPL violations continues in the industry every single day, there are thousands of known violators out there right now, just waiting for someone to slap them with an injunction and a subponea to audit their source code.

Once someone grants you rights to a piece of software, it cannot be revoked after the fact.

Gamer's Advisory: Cursed Boomerang of SCO

[rewinn]

... is not effective against charging penguins!

There's a reason it wasn't tested in court

[Anonymous Coward]

The GPL is so robust that, when violators are confronted with it, they invariably fold. It has been a complete non-issue. Even SCO does not argue that the GPL is invalid, only that the FSF and IBM haven't enforced it fairly.

The GPL is a work of sheer genius.

Re:There's a reason it wasn't tested in court

[Corpus_Callosum]

The license itself may be a work of sheer genius, but the idiotic, uncompromising fanaticism and elitism of the GPL crowd drives people away.

They generally are uncompromising, elite fanatics. But I would hardly call their behavior idiotic. What drives every GPL swinging fanatic is the lucid realization that if the source is closed, the software will eventually rot and die. Why would anyone in their right mind want to depend on anything that is guaranteed to rot and die? If we take software to be the bricks and mortar of the world's communications and data infrastructure, then we also have the additional variable of control. Do you want private companies controlling world infrastructure? These are the central themes of the open-source religion and for people that give a damn, they are strong themes.

Free software is not always the solution. Proprietary software does not need liberation. You can't make as much money with open source software as you can with closed source software. Making profit is a good thing.

If the proprietary software is something that is expected to exist for a long time, participate in public data infrastructure and/or is of very high importance, then there are some very compelling arguments that it should indeed be liberated.

It is not even completely clear that you can make more money with proprietary software. The largest and most profitable computer company in the world is open-sourcing practically everything these days, they believe it is good for business. You know the one, with three blue letters?

Re:There's a reason it wasn't tested in court

[vadim_t]

I don't see the point.

The GPL crowd drives some people away. Some Microsoft fans draw me away. Apple fans drive other people away. So what? Everybody is attracted and repelled by one thing or another.

IMHO, proprietary software is not a solution, it's sometimes a necessary compromise when there's no other alternative. In that sense it works well for vertical applications. For nearly everything else, I'd say it's a big disadvantage since usually you get stuck with a single vendor and lock-in.

Re:There's a reason it wasn't tested in court

[nickco3]

You can't make as much money with open source software as you can with closed source software.

That all depends on whether you sell software or buy it. If you are not a software salesman, your bottom line will be better with open source.

Making profit is a good thing.

Let's all nail shutters over our windows to make the power company more profitable.

Re:There's a reason it wasn't tested in court

[DashEvil]

Uh, IBM makes most of its money off hardware. The fact that it uses Open Source software to leverage that hardware is quite irrelevant. Your point is misleading.

How about we compare corporations like Red Hat to Microsoft. I think that argument is much more compelling.

Re:There's a reason it wasn't tested in court

[mrhartwig]

Actually, no. IBM makes more money off services than either HW or SW. I didn't find their 2005 annual report quickly, but the trend toward services (vs. HW) has been going for several years now; here are the 2004 revenue numbers:

• Services: $42.6 B
  
• HW: $28.2 B
  
• SW: $14.3 B
  
• Financing: $ 2.8 B
  
• Other: $ 1.1 B
  

Adding that up, it looks like services top HW & SW combined.

I believe IBM's use of OSS to leverage their services business is quite relevant. I do suspect that the majority of their services don't have anything to do with OSS, but my (uninformed) opinion says the % is growing, and will continue to grow for a while.

Re:There's a reason it wasn't tested in court

[stankulp]

"The license itself may be a work of sheer genius, but the idiotic, uncompromising fanaticism and elitism of the GPL crowd drives people away."

You can say the same thing about Microsoft's "Business Software Alliance."

Re:There's a reason it wasn't tested in court

[belroth]

You can't make as much money with open source software as you can with closed source software. Making profit is a good thing.

This is true if you are talking about companies that sell software. Companies that 'merely' use software while carrying out their real business to make money will have reduced overheads. In this case it's quite possible to make more money with FOSS than proprietary software, making money is indeed a good thing.

For example I've been writing software for over twenty years and none of it has ever been sold, it's all been in-house to support the business functions of the various companies for which I've worked. FOSS is very useful as it means I don't have to squeeze any more budget to pay for proprietary software which may be 'end of lifed'.

And more concern

[nurb432]

"will i be sued if i use this free software"

Microsoft is placing full page ads based on this angle in trade magazines now.

While the reality of being sued may ( or may not exist ), they are doing their best to instill the fear of it into businesses, so they will stay with 'safe' software.

With all the free press, its only helping Microsoft do this.

Re:Bonded more tightly than ever, huh?

[Anonymous Coward]

Bitkeeper along with Apple's lack of contributions back to the BSD community (yeah yeah "darwin, darwin", I mean compared to IBM's and other ppl's contributions linux) has to be the best example of why the GPL kicks the ass of these other licenses and off proprietary.

Mention anything in favour of the GPL and some BSD troll will try and make out that you are some group-thinking slashbot who hasn't considered the issues. But no, I have considered the issues, and the GPL works out damn fine.

And on another BSD troll issue, they always look down on linux because it's a "toy". Yeah well let's just have a look at the troubles in FreeBSD 5 then hey? Linux, although certainly not perfect (take note of what I just said please), is nothing to sniff at technically.

Now I don't mind the BSD licence, it's cool. Most BSD guys are cool (again take note). I just hate that part of the BSD culture which looks down it's nose at the GPL like anyone who supports it is some script kiddiot. There are reasons for it, damn good reasons.

And yes there are linux ppl trolling BSD also, but they are normally full-on joking rather than being serious like the BSD elitist trolls. "BSD is dying" isn't half as bad or serious as some poncy "you are an inferior being because your linux "distro" is a toy next to the awesome power of my SMP implimentation on my *BSD box"

fuck em if they can't take a joke.

Re:Annoying and Compulsory RMS Troll

[GNUALMAFUERTE]

1: Calling the system by it's proper name is trolling?, wow.
2: You want RMS to die?, do you want 20 years of fight against the stablishment, the GPL, the FSF, and 60% of the software on your average distro to die with him too?.

You sir, are an uneducated bastard.

Microsoft AD reference

[nurb432]

No url, but here is the magazine and page #:

March 7 edition of Information Week ( print version ) Pages 30 and 31.

Entited "Adding up the costs of linux vs. windows? Be sure to add the intellectual property risks, too."

I have seen it elsewhere too, but that is the only hard refrence i can remember.

Re:Insightful?

[Anonymous Coward]

If it's bad for big business, it will get crushed.

The other reply points out how many billions GNU/Linux is currently worth and is projected to be worth in the next few years. That's how much it is worth to the tech companies that sell computers.

Why is GNU/Linux the juggernaut that it is today? Why has it been growing at 50% compound annual growth rate for more than a few years and projections put it at the same compound growth rate for the next 3-5 years depending on who you ask? At that continued growth rate, if it can be sustained and the analysts project it out at that rate for 3-5 years so they believe it can be sustained, it will eclipse Microsoft to become the #1 operating system on servers. It already is #1 on blades. Why all this? Because companies and industry see the value in GNU/Linux powered systems. The real value is competition, no lock-in from Microsoft, no lock-in for ridiculous priced Sun hardware. GNU/Linux, x86, and AMD/64 have made servers commodities, broken the OS and cpu monopolies.

The value that isn't stated in the numbers of the other post is the hundreds of billions of dollars in value in the US (and worldwide, but we're addressing your regulatory comment) that companies outside of tech, but who are dependant on computers for their revenue and earnings, the value that they place on GNU/Linux.

Does Daimler Chrysler sell blades? Servers? Embedded devices? Desktops? They are an automotive company, not a computer hardware company. But they saw the value in GNU/Linux, and they became "well known to be a Linux shop". So a multi-billion dollar, Fortune 500, non-tech company sees tremendous value in GNU/Linux. Any guess whether the rest of the companies in the Fortune 500 see value in GNU/Linux?

Any guess in which lobbying direction the other 450+ (excluding Microsoft and some of the tech companies that are dependent on Microsoft dominance) companies of the Fortune 500 will send their lobbyists when it comes to lobbying legislators to flex WTO muscle?

As for Microsoft, they can't do anything at all. Other posts are mentioning that Microsoft will start enforcing patents or funding other companies to do this. As soon as they do this, anti-trust rears its head. Perhaps the only thing Microsoft fears more than GNU/Linux is the threat of being broken up into pieces like Ma Bell. This already has been suggested (by a judge iirc), where Microsoft would be broken up into Operating System and Office, or it can be taken far further, breaking up additional units (like the Great Plains Software and other divisions).

Microsoft got a pass with the current anti-trust situation in the US. They are well aware this can change overnight based on their anti-competitive actions, or based on a change in government administration in the US. That's why Intel is treading carefully with AMD and allowing them to exist. They can shut down AMD overnight by simply cutting prices and riding it out cushioned by their cash reserves for a few or more years. Japan brings up interesting questions on anti-trust with Intel. Does Intel have any of the anti-competitive contract/compensation requirements with US hardware manufacturers like it has with the manufacturer that complained in Japan? Tech journalists should start asking these questions, hopefully others will pick up the questions and keep asking Intel. If they do and it is found out, AMD will pick up major market share (and possibly Dell as a customer) once those illegal contracts are banned and action is taken against Intel, if the contracts exist.

GNU/Linux may be worth 15 billion now and 50 or a 100 billion in the next few years, but it is worth far more to non-tech companies who will prevent going back to the Unix & Microsoft lock-ins of the past with every fiber of their being.