The cost of prosecuting a bogus patent infirngement claim is even more horrendous than defending against one. True, even that is not something an ordinary Joe would be able to handle financially but, for that matter, almost no litigation is. I do agree with you, however, that the patent/copyright system needs to be fixed, especially with regard to software. My thinking: 1) object code should not be independently copyrightable (but could constitute 'copy' of source code for infringement purposes) as it is created by machines, not people (founding fathers no way conceived or intended that machines would qualify as authors); 2) Complete copy of source code should be deposited in order to obtain registration of source code (ala other types of works); 3) Nonobviousnes standard should be more rigorously applied wrt software patents.
I know a lawyer who loves linux/gnu. To him, this SCO thing is the most interesting thing to happen since LOTR movies. He wishes that it was feasible to specialize in OSS issues. He would sue SCO just for the sheer fun of it.
What many people also fail to realize is that the USPTO is not the final arbiter as to what constitutes a valid patent. That is, the validity of all patents are subject to challenge in court (either by way of defense to claim of infringement or by way of preemptive challenge to patent). True, the patent holder enjoys a presumption of validity wrt to his patent, but this only affects the burden of proof; it is of small avail wrt a bogus patent. So, the moral of the story is, next time some asswipe like SCO tries to stick its lame patent in your face, just say: screw you; sue me.
Someone here posed the question: Then what did M$ buy from SCO? Answer: Two things, and Jack left town. Seriously, it is doubtful that M$ was unaware of the state of the SCO/Novell deal when it did its licensing deal w/ SCO last week. It was probably even aware of SCO's recent attempts to acquire Unix IP from Novell. So, why did M$ buy a meaningless license from SCO? Answer: pure FUD baby. Questions of 'bankrolling' aside, M$'s "signing on" to SCO position served to bolster the apparent credibility of SCO's FUD campaign, which is pure gold to M$. Novell's demonstration that SCO really didn't have much to license goes to show that the FUD must have been M$'s primary motivation for buying the license from SCO. Now, go ahead everyone, get mad.
I think that this eventually *has* to happen. The whole idea of M$ Linux reminds me of the Roman adoption of Christianity. I be that the effects will be similar: 1) Widespread proliferation of the creed, and; 2) Corruption. (It will be up to the "true believers" to maintain the integrity of OSS once M$ becomes the 'official' linux distribution.)
You and your "lawyer" suck. What make you so sure that some "IP-owning company" won't lay claim to some portion of windows code? After all, claims are easy to lay and lawsuits are easy to file. Besides, assuming that you'r e not in the business of distributing code for profit what do you think is the potential liability (=liklilhood of liability * extent of liability) for end users resulting from SCO's claims? (uh, it's negligible.) But, its your deal so go ahead and using crappy windows, pay their licensing fees and be bound by their terms. That way, you automatically get what you deserve. (As a side benefit for you, you won't have to learn any substantial amount of IT.)
I'm not sure what you're trying to do here, and I'm even less sure that you can necessarily help IBM. Even if you're successful in finding some people who had 'unrestricted' access to SCO's so-called trade secrets, this may not be dispositive of SCO's claims against IBM. Reason: IBM may have agreed (i.e., promised) to treat certain matter as trade secret matter pursuant to some contract that it entered into with SCO (or its predecessor, etc.). In such case, if IBM failed to respect the confidential nature of the matter, SCO may still have claims against IBM irrespective of the prior disclosure of the matter to third parties. (This all would depend on said contract.) Of course, such a thing would be IBM's problem (not the OSS community at large). (Nothing in this comment is intended to support or validate any of SCO's positions, claims or FUD; on the contrary, I say that SCO has nothing and is nothing.) Linux Wins!
Re:Should the GPL be used to legitimize theft?
on
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1) "are you arguing that the thief's publication is legitimate?" -- No. But that doesn't really matter in view of the owner's publication under GPL. (that's why I call this situation 'wierd') 2) SCO doesn't forfeit any copyright, its just that they gave the world a license to use the copyrighted matter. Maybe SCO does want to lose vs IBM, but I doubt it. [BTW, there are other threads from prior/. articles re SCO explaining why a naked claim of mistake will not help SCO.] 3) Well, nobody promised SCO that business would be easy. Heck, if making money off of GPL'd software were easy, everybody would do it. Some advise for SCO: a) Chose your business partners carefully; b) Don't tell anyone about any of your critical "trade secrets"; c) If you think that it might matter in the future, check everything that you plan to release under GPL a thousand times over with a fine-toothed comb to make sure it doesn't contain any trade secrets or copyright matter that you don't want set loose into the wild GPL.
Yeah, as I posted in a separate thread (darn), I don't really see how end users face much potential liability in these kind of cases, anyway. It's not copyright infringement to "use" someone's copyrighted software; it's only infringement to unauthorizedly *copy* it, *make derivative works* from it, or *distribute* unauthorized copies and dervative works. The kinds of copies that end users make (e.g., backups) are specifically authorized under copyright law. Beyaond all this, what sorts of damages can the complaining copyright holder really expect to obtain against an end user who accidentally infringed? Typical case: not much; not worth suing over. OSS is perfectly safe for end users. Linux Wins!
Re:Should the GPL be used to legitimize theft?
on
Today's SCO News
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· Score: 2, Insightful
I can't imagine how your analogy has anything to do with the SCO situation. Who is the publisher and who is the theif? Are your books published under some license analogous to the GPL? Did the thief publish under such a license? Oh well. Look, if SCO lost some IP due to its publication under the GPL, that's only due to its own lack of diligence, IBM's wrongful conduct, the inherent nature of trade secrets, the inherent nature of copyrights, the inherent nature of license agreements or some combination thereof. The primary cause of SCO's wierd predicament really isn't the GPL. (Although anyone who really wants to see it that way certainly can.) It's easy to precent the GPL from gobbling up your IP lack pack-man: just don't release anything under the GPL or, if you do, make damn sure that you know what it is that you're releasing. (The latter is a good business practice anyway.)
Re:How about a SLAPP suit by FSF
on
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Heh heh. SLAPP = Strategic Lawsuit Against Public Participation. It's what bad guys use to shut good guys up on matters of public importance. Probably not something the FSF would want to do. In any event, I'm not sure that SCO's FUD harms the FSF in any special way, i.e., any more than it harms any linux user. Reason: The FSF does not own the linux kernel copyrights and it is presently unclear what, if any, GNU product is involved.
SCO's FUD Debunked-Linux Wins!
on
Today's SCO News
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· Score: 2, Interesting
It beats me why any linux users would be leastwise intimidated by SCO's recent FUD. SCO said "...liabilitity....may...rest with the end user." If so, I'd sure like to know how such a thing could be. SCO claims no patent protection wrt to the 'UNIX IP.' Although, there might be some contract-based trade secret wrt IBM (i.e., IBM and SCO agreed that some matter would be treated as trade secret), if the matter has been publically distributed, it ain't no trade secret as far as anyone else is concerned. That leaves only copyright. ----- Now, how could an end-user's use of SCO's UNIX IP in connection with his running linux result in any liability to that end-user? It's not copyright infringement to "use" someone else's copyrighted material. It's only infringement to violate one of the specifically enumerated exlcusive rights conferred by copyright law, i.e., exclsuive rights of reproduction(copying), modification (derivative works), distribution and other rights not relevant to computer software. See United States Code section 106. The only one of these that most end users are going to engage in at all is 'reproduction'. However, a certain amount of copying of computer software by the user is specifically allowed under the copyright law. See U.S.C. section 117.
So, even in the worst-case scenario where SCO actually has some copyrighted material embedded in the kernel, what do end-users care? Although companies that copy/modify/distribute linux as a business might have a [very] few concerns, end users do not have to think twice about using linux. Linux Wins!
What a great point. Not only is this a likely selling point for IBM, its a relatively cheap one for them to come by. What I mean by that is, the risk associated with any particular shop getting sued for copyright infringement by SCO or whomever (and losing) is pretty minute. Even in a worse case scenario, what are the damages? Very small; hardly worth the time/effort required to sue. (Forget about statutory damages; those are discretionary and depend, generally, on bad intent.) Shoot, this is such a great thing for IBM, that they might not be in too much of a hurry to finish off SCOI in litigation. Shoot, 'linux-IP idemnification' might be the next scam insurance racket.
"If you violate the GPL, you are fucked"? Who's gonna fuck you? The FSF? You mean, like the way FSF is fucking SCO? Wow, that's one heck of a fucking. Doh! Look, the original issue here wasn't what happens when you violate the GPL but, rather, was whether there were any significant ambiguities in the GPL such that the existence of a "violation" would be clear in all cases. That one may be "fucked" in the case of an actual violation does not speak to this issue. (I concede that it is possible to violate the GPL.)
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"If there were any loopholes in the GPL at all, someone would have tested them by now." What the hell do you think SCO is doing *right now*? Granted, SCO is not rasing the GPL as a claim in their litigation against IBM, but that's not what a GPL violator would do (IBM will raise GPL as defense). Instead, they release their own IP under their general GPL'd linux distribution and go on to act like the GPL doesn't matter: sue IBM, threaten linux users, etc. Your 'lack of violator' argument as proof of the non-ambiguity of the GPL fails by SCO's mere existence.
Moreoever, an argument to the effect that the GPL is unambiguous in most common cases does not support the proposition that the GPL is absolutely unabiguous and bullet-proof in all cases. (I forget what the formal name for this fallacy is, but it is a fallacy.)
Re:Kernel developers and FSF file lawsuit against
on
Today's SCO News
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· Score: 1
How about the tort: 'slander of title'? (Used to compensate property owners from diminution in value of their property based on false publications by others disparaging the quality of the owner's title to the property and thus adversely affecting the property's marketability.)
The cause of action usually comes up in the real property context but is applicable to personal property as well. I don't know whether it could apply to intellectual property such as copyright or patent (I doubt it.) But here, the slandered property could be the physical copies of any company's (e.g., SuSE, RedHat) linux distribution!
How's that for creative thinking?
Re:Kernel developers and FSF file lawsuit against
on
Today's SCO News
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· Score: 1
I don't thing that the FSF can do this, as it doesn't 'own' the copyright in the kernel (do they?). Rather, the various authors of and contributors to the kernel own the copyrights in the kernel and so one or some of them would have to sue.
I don't think that returning the money would even help them. The bargain that SCO made was this: SCO gets free GPL'd code to copy/modify/distribute + $$$ from paying customers in exchange for GPL'ing whatever it was copied/modified/distributed. The owners of the GPL'd code (kernel developers) given to SCO already gave it and their intended beneficiaries (i.e., the public) already received SCO's GPL'd code. It was a three-way deal, not readily rescinded as per an ordinary contract. (As if the nonmonetary consideration could actually be 'returned') Besides, the GPL, by its own terms, is not wholly rescindable.
OOOOOO, scary. I'm impressed by Mr. Moglen. He impressess and scares the heck out of me. Now, if he could only do the same for SCO/M$. Btw, what does "absolutely solid" mean? Does it mean, like, "its way cool, I like it" ?
Hmmmm. I think this thread got mangled by semantics. I'm probably mostly to blame for that. I'll do us both a favor and throw up the white flag. Congratulations.
I do not wish to claim that I am an attorney (who would?) and prefer no deference, but: 1) I haven't yet seen a single thing relevant to the present situation wherein SCO claimed any copyright in anything linux-related. However, SCO's action against IBM is all about trade secrets. Honestly, though, I think that SCO's FUD against the linux community mean to *impliedly* allege copyright violations. 2) In this [wierd] case, if SCO's IP [to use their phrase] was contained in their own linux distributions then, at least on its face, that IP was distributed under the GPL. The prima facie case for GPL having thus been made, it would be SCO's burden to establish that the GPL somehow did not apply to its claimed IP. This would be a very hard case. The analogy to stolen personal property is not a good one; personal property and intellectual property are governed by disparate laws. 3) I'm not sure that I understand this question. Copyright generally gives authors the exclusive right to copy, modify, distribute, etc. their works. This means the right to exclude others from doing so. Of course authors of copyrigted works can chose not to exercise some or all of these rights of exclusion and its OK if someone pays them money (or other consideration) in exchange for the author's agreement not to do so. This is what a license agreement is. The effect of invalidity of a license agreement varies and depends on many things (often, on the terms of the license agreement itself.) For example, just because one part of a license agreement is deemed *invalid* its doesn't necessarily mean that the whole agreement and the license granted under it is *void.* However, in the event of total failure of a license agreement, it is true that the would-be licensee has no right to copy/modify/distribute/etc. the copyrighted work and any such use would constitute infringement. (That is my undertainding of things, anyway.)
"I'm talking about software; nothing more, nothing less."
OK, but that's one case which is a subset of the set of "all cases." Also, ask around. You may find that its not too logical for a developer to expect to feed his family by creating GPL'd software.
"So, are you saying that a company should lose their property in the event that an employee releases proprietary code, without corporate permission, and that code now in the wild winds up included in a GPL'd app which his/her company happens to distribute?"
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"Should" is a meaningless word. I prefer "will" as in: 1) A general publication of trade secret matter will result in loss of trade secret status irrespective of the [wrongful] nature of the general publication; 2) A claim of 'inadvertent' release of code under the GPL will not ipso facto render the GPL unenforeable; Rather, the party seeking relief from the mistake would have to demonstrate existence of traditional elements requisite to aplication of contractual mistake doctrine and mere claim of mistake in insufficient;
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" Does that mean the previously propritary code is now covered under the GPL even though the IP holder doesn't indend this to be so? "
A party's subjective intent is rarely relevant in a contract determination. The important question is what did the party's words and actions reasonably lead the other parties to the agreement to believe.
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"Is this a proper outcome for copyright law? I certainly don't think so."
You're partially right here. Licensing matters are not copyright law matters. Rather, licensing matters are contract matters. U.S. copyright law does not regulate licensing. (cf. assignments).
"" One of my employees releases the lib 'a' source under the GPL without corporate knowledge or acquiescence. "
Corporations are artificial entities: they can have no more actual "knowledge" than can my coffee maker. However, if the employee who released the code had so much as "apparent" authority (i.e., wrt to outsiders relying on the act) then its tough beans for the corp.: It's GPL City. What constitutes apparent authority may vary from case to case but if releasing software under open licenses (or otherwise) is what the employee generally does, or if the corp. lacks any diligence in preventing/detecting/remedying the problem, or if the reliance and detriment to outsiders is great, the corp. is going to have a long long row to hoe in order to get any relief from a corp. Contractual mistakes are often made but relief therefrom is seldom granted.
It's not enough just to read the GPL; you have to imagine how it would apply and operate under a virtually infinite variety of circumstances. (Granted the set of plausible circumstances is large but not infinite.)
Let me put this concept into computer tech/coder terms. Suppose you build this bitchin' OS; you test it on your hardware and it seems to work perfectly w/ no bugs. Then, someone else tests it on a different machine and it crashes. Does that mean the program is broke? The answer depends on what one means by "broke." It hardly matters what you call it because no matter what you call it you're going to need to modify to make it work on the new/different hardware.
Likewise, over time, do not be surprised to learn that the GPL, too, needs some tweaking and that the need therefor was exposed through litigation. (Even the FSF knows this and has specifically provided for future revisions.)
(In the above analogy, the OS is the license agreement and the hardware is the set of circumstances upon which the license agreement oeprates.)
Hope that helps.
Slashdot Mirror
. . . by claiming through an open letter to the world that it owns some 'IP' in the virus' source code. Oh, wait... that doesn't work.
The cost of prosecuting a bogus patent infirngement claim is even more horrendous than defending against one. True, even that is not something an ordinary Joe would be able to handle financially but, for that matter, almost no litigation is. I do agree with you, however, that the patent/copyright system needs to be fixed, especially with regard to software. My thinking: 1) object code should not be independently copyrightable (but could constitute 'copy' of source code for infringement purposes) as it is created by machines, not people (founding fathers no way conceived or intended that machines would qualify as authors); 2) Complete copy of source code should be deposited in order to obtain registration of source code (ala other types of works); 3) Nonobviousnes standard should be more rigorously applied wrt software patents.
I know a lawyer who loves linux/gnu. To him, this SCO thing is the most interesting thing to happen since LOTR movies. He wishes that it was feasible to specialize in OSS issues. He would sue SCO just for the sheer fun of it.
What many people also fail to realize is that the USPTO is not the final arbiter as to what constitutes a valid patent. That is, the validity of all patents are subject to challenge in court (either by way of defense to claim of infringement or by way of preemptive challenge to patent). True, the patent holder enjoys a presumption of validity wrt to his patent, but this only affects the burden of proof; it is of small avail wrt a bogus patent. So, the moral of the story is, next time some asswipe like SCO tries to stick its lame patent in your face, just say: screw you; sue me.
Someone here posed the question: Then what did M$ buy from SCO? Answer: Two things, and Jack left town. Seriously, it is doubtful that M$ was unaware of the state of the SCO/Novell deal when it did its licensing deal w/ SCO last week. It was probably even aware of SCO's recent attempts to acquire Unix IP from Novell. So, why did M$ buy a meaningless license from SCO? Answer: pure FUD baby. Questions of 'bankrolling' aside, M$'s "signing on" to SCO position served to bolster the apparent credibility of SCO's FUD campaign, which is pure gold to M$. Novell's demonstration that SCO really didn't have much to license goes to show that the FUD must have been M$'s primary motivation for buying the license from SCO. Now, go ahead everyone, get mad.
I think that this eventually *has* to happen. The whole idea of M$ Linux reminds me of the Roman adoption of Christianity. I be that the effects will be similar: 1) Widespread proliferation of the creed, and; 2) Corruption. (It will be up to the "true believers" to maintain the integrity of OSS once M$ becomes the 'official' linux distribution.)
You and your "lawyer" suck. What make you so sure that some "IP-owning company" won't lay claim to some portion of windows code? After all, claims are easy to lay and lawsuits are easy to file. Besides, assuming that you'r e not in the business of distributing code for profit what do you think is the potential liability (=liklilhood of liability * extent of liability) for end users resulting from SCO's claims? (uh, it's negligible.) But, its your deal so go ahead and using crappy windows, pay their licensing fees and be bound by their terms. That way, you automatically get what you deserve. (As a side benefit for you, you won't have to learn any substantial amount of IT.)
I'm not sure what you're trying to do here, and I'm even less sure that you can necessarily help IBM. Even if you're successful in finding some people who had 'unrestricted' access to SCO's so-called trade secrets, this may not be dispositive of SCO's claims against IBM. Reason: IBM may have agreed (i.e., promised) to treat certain matter as trade secret matter pursuant to some contract that it entered into with SCO (or its predecessor, etc.). In such case, if IBM failed to respect the confidential nature of the matter, SCO may still have claims against IBM irrespective of the prior disclosure of the matter to third parties. (This all would depend on said contract.) Of course, such a thing would be IBM's problem (not the OSS community at large). (Nothing in this comment is intended to support or validate any of SCO's positions, claims or FUD; on the contrary, I say that SCO has nothing and is nothing.) Linux Wins!
1) "are you arguing that the thief's publication is legitimate?" -- No. But that doesn't really matter in view of the owner's publication under GPL. (that's why I call this situation 'wierd') 2) SCO doesn't forfeit any copyright, its just that they gave the world a license to use the copyrighted matter. Maybe SCO does want to lose vs IBM, but I doubt it. [BTW, there are other threads from prior /. articles re SCO explaining why a naked claim of mistake will not help SCO.] 3) Well, nobody promised SCO that business would be easy. Heck, if making money off of GPL'd software were easy, everybody would do it. Some advise for SCO: a) Chose your business partners carefully; b) Don't tell anyone about any of your critical "trade secrets"; c) If you think that it might matter in the future, check everything that you plan to release under GPL a thousand times over with a fine-toothed comb to make sure it doesn't contain any trade secrets or copyright matter that you don't want set loose into the wild GPL.
Yeah, as I posted in a separate thread (darn), I don't really see how end users face much potential liability in these kind of cases, anyway. It's not copyright infringement to "use" someone's copyrighted software; it's only infringement to unauthorizedly *copy* it, *make derivative works* from it, or *distribute* unauthorized copies and dervative works. The kinds of copies that end users make (e.g., backups) are specifically authorized under copyright law. Beyaond all this, what sorts of damages can the complaining copyright holder really expect to obtain against an end user who accidentally infringed? Typical case: not much; not worth suing over. OSS is perfectly safe for end users. Linux Wins!
I can't imagine how your analogy has anything to do with the SCO situation. Who is the publisher and who is the theif? Are your books published under some license analogous to the GPL? Did the thief publish under such a license? Oh well. Look, if SCO lost some IP due to its publication under the GPL, that's only due to its own lack of diligence, IBM's wrongful conduct, the inherent nature of trade secrets, the inherent nature of copyrights, the inherent nature of license agreements or some combination thereof. The primary cause of SCO's wierd predicament really isn't the GPL. (Although anyone who really wants to see it that way certainly can.) It's easy to precent the GPL from gobbling up your IP lack pack-man: just don't release anything under the GPL or, if you do, make damn sure that you know what it is that you're releasing. (The latter is a good business practice anyway.)
Heh heh. SLAPP = Strategic Lawsuit Against Public Participation. It's what bad guys use to shut good guys up on matters of public importance. Probably not something the FSF would want to do. In any event, I'm not sure that SCO's FUD harms the FSF in any special way, i.e., any more than it harms any linux user. Reason: The FSF does not own the linux kernel copyrights and it is presently unclear what, if any, GNU product is involved.
It beats me why any linux users would be leastwise intimidated by SCO's recent FUD. SCO said "...liabilitity....may...rest with the end user." If so, I'd sure like to know how such a thing could be. SCO claims no patent protection wrt to the 'UNIX IP.' Although, there might be some contract-based trade secret wrt IBM (i.e., IBM and SCO agreed that some matter would be treated as trade secret), if the matter has been publically distributed, it ain't no trade secret as far as anyone else is concerned. That leaves only copyright. ----- Now, how could an end-user's use of SCO's UNIX IP in connection with his running linux result in any liability to that end-user? It's not copyright infringement to "use" someone else's copyrighted material. It's only infringement to violate one of the specifically enumerated exlcusive rights conferred by copyright law, i.e., exclsuive rights of reproduction(copying), modification (derivative works), distribution and other rights not relevant to computer software. See United States Code section 106. The only one of these that most end users are going to engage in at all is 'reproduction'. However, a certain amount of copying of computer software by the user is specifically allowed under the copyright law. See U.S.C. section 117. So, even in the worst-case scenario where SCO actually has some copyrighted material embedded in the kernel, what do end-users care? Although companies that copy/modify/distribute linux as a business might have a [very] few concerns, end users do not have to think twice about using linux. Linux Wins!
What a great point. Not only is this a likely selling point for IBM, its a relatively cheap one for them to come by. What I mean by that is, the risk associated with any particular shop getting sued for copyright infringement by SCO or whomever (and losing) is pretty minute. Even in a worse case scenario, what are the damages? Very small; hardly worth the time/effort required to sue. (Forget about statutory damages; those are discretionary and depend, generally, on bad intent.) Shoot, this is such a great thing for IBM, that they might not be in too much of a hurry to finish off SCOI in litigation. Shoot, 'linux-IP idemnification' might be the next scam insurance racket.
"If you violate the GPL, you are fucked"? Who's gonna fuck you? The FSF? You mean, like the way FSF is fucking SCO? Wow, that's one heck of a fucking. Doh! Look, the original issue here wasn't what happens when you violate the GPL but, rather, was whether there were any significant ambiguities in the GPL such that the existence of a "violation" would be clear in all cases. That one may be "fucked" in the case of an actual violation does not speak to this issue. (I concede that it is possible to violate the GPL.) ----- "If there were any loopholes in the GPL at all, someone would have tested them by now." What the hell do you think SCO is doing *right now*? Granted, SCO is not rasing the GPL as a claim in their litigation against IBM, but that's not what a GPL violator would do (IBM will raise GPL as defense). Instead, they release their own IP under their general GPL'd linux distribution and go on to act like the GPL doesn't matter: sue IBM, threaten linux users, etc. Your 'lack of violator' argument as proof of the non-ambiguity of the GPL fails by SCO's mere existence. Moreoever, an argument to the effect that the GPL is unambiguous in most common cases does not support the proposition that the GPL is absolutely unabiguous and bullet-proof in all cases. (I forget what the formal name for this fallacy is, but it is a fallacy.)
How about the tort: 'slander of title'? (Used to compensate property owners from diminution in value of their property based on false publications by others disparaging the quality of the owner's title to the property and thus adversely affecting the property's marketability.) The cause of action usually comes up in the real property context but is applicable to personal property as well. I don't know whether it could apply to intellectual property such as copyright or patent (I doubt it.) But here, the slandered property could be the physical copies of any company's (e.g., SuSE, RedHat) linux distribution! How's that for creative thinking?
I don't thing that the FSF can do this, as it doesn't 'own' the copyright in the kernel (do they?). Rather, the various authors of and contributors to the kernel own the copyrights in the kernel and so one or some of them would have to sue.
I don't think that returning the money would even help them. The bargain that SCO made was this: SCO gets free GPL'd code to copy/modify/distribute + $$$ from paying customers in exchange for GPL'ing whatever it was copied/modified/distributed. The owners of the GPL'd code (kernel developers) given to SCO already gave it and their intended beneficiaries (i.e., the public) already received SCO's GPL'd code. It was a three-way deal, not readily rescinded as per an ordinary contract. (As if the nonmonetary consideration could actually be 'returned') Besides, the GPL, by its own terms, is not wholly rescindable.
OOOOOO, scary. I'm impressed by Mr. Moglen. He impressess and scares the heck out of me. Now, if he could only do the same for SCO/M$. Btw, what does "absolutely solid" mean? Does it mean, like, "its way cool, I like it" ?
Hmmmm. I think this thread got mangled by semantics. I'm probably mostly to blame for that. I'll do us both a favor and throw up the white flag. Congratulations.
I do not wish to claim that I am an attorney (who would?) and prefer no deference, but: 1) I haven't yet seen a single thing relevant to the present situation wherein SCO claimed any copyright in anything linux-related. However, SCO's action against IBM is all about trade secrets. Honestly, though, I think that SCO's FUD against the linux community mean to *impliedly* allege copyright violations. 2) In this [wierd] case, if SCO's IP [to use their phrase] was contained in their own linux distributions then, at least on its face, that IP was distributed under the GPL. The prima facie case for GPL having thus been made, it would be SCO's burden to establish that the GPL somehow did not apply to its claimed IP. This would be a very hard case. The analogy to stolen personal property is not a good one; personal property and intellectual property are governed by disparate laws. 3) I'm not sure that I understand this question. Copyright generally gives authors the exclusive right to copy, modify, distribute, etc. their works. This means the right to exclude others from doing so. Of course authors of copyrigted works can chose not to exercise some or all of these rights of exclusion and its OK if someone pays them money (or other consideration) in exchange for the author's agreement not to do so. This is what a license agreement is. The effect of invalidity of a license agreement varies and depends on many things (often, on the terms of the license agreement itself.) For example, just because one part of a license agreement is deemed *invalid* its doesn't necessarily mean that the whole agreement and the license granted under it is *void.* However, in the event of total failure of a license agreement, it is true that the would-be licensee has no right to copy/modify/distribute/etc. the copyrighted work and any such use would constitute infringement. (That is my undertainding of things, anyway.)
"I'm talking about software; nothing more, nothing less." OK, but that's one case which is a subset of the set of "all cases." Also, ask around. You may find that its not too logical for a developer to expect to feed his family by creating GPL'd software.
"So, are you saying that a company should lose their property in the event that an employee releases proprietary code, without corporate permission, and that code now in the wild winds up included in a GPL'd app which his/her company happens to distribute?" - "Should" is a meaningless word. I prefer "will" as in: 1) A general publication of trade secret matter will result in loss of trade secret status irrespective of the [wrongful] nature of the general publication; 2) A claim of 'inadvertent' release of code under the GPL will not ipso facto render the GPL unenforeable; Rather, the party seeking relief from the mistake would have to demonstrate existence of traditional elements requisite to aplication of contractual mistake doctrine and mere claim of mistake in insufficient; - " Does that mean the previously propritary code is now covered under the GPL even though the IP holder doesn't indend this to be so? " A party's subjective intent is rarely relevant in a contract determination. The important question is what did the party's words and actions reasonably lead the other parties to the agreement to believe. - "Is this a proper outcome for copyright law? I certainly don't think so." You're partially right here. Licensing matters are not copyright law matters. Rather, licensing matters are contract matters. U.S. copyright law does not regulate licensing. (cf. assignments).
"" One of my employees releases the lib 'a' source under the GPL without corporate knowledge or acquiescence. " Corporations are artificial entities: they can have no more actual "knowledge" than can my coffee maker. However, if the employee who released the code had so much as "apparent" authority (i.e., wrt to outsiders relying on the act) then its tough beans for the corp.: It's GPL City. What constitutes apparent authority may vary from case to case but if releasing software under open licenses (or otherwise) is what the employee generally does, or if the corp. lacks any diligence in preventing/detecting/remedying the problem, or if the reliance and detriment to outsiders is great, the corp. is going to have a long long row to hoe in order to get any relief from a corp. Contractual mistakes are often made but relief therefrom is seldom granted.
It's not enough just to read the GPL; you have to imagine how it would apply and operate under a virtually infinite variety of circumstances. (Granted the set of plausible circumstances is large but not infinite.) Let me put this concept into computer tech/coder terms. Suppose you build this bitchin' OS; you test it on your hardware and it seems to work perfectly w/ no bugs. Then, someone else tests it on a different machine and it crashes. Does that mean the program is broke? The answer depends on what one means by "broke." It hardly matters what you call it because no matter what you call it you're going to need to modify to make it work on the new/different hardware. Likewise, over time, do not be surprised to learn that the GPL, too, needs some tweaking and that the need therefor was exposed through litigation. (Even the FSF knows this and has specifically provided for future revisions.) (In the above analogy, the OS is the license agreement and the hardware is the set of circumstances upon which the license agreement oeprates.) Hope that helps.