SCO Attorney Declares GPL Invalid

chrullrich writes "According to heise (German, fishbait), SCO's chief counsel Mark Heise (unrelated) of Boies, Schiller and Flexner has declared that the GPL violates the US copyright law and is thus null and void. SCO's legal position is actually a little too crazy to believe: The GPL allows unlimited copies, the copyright law allows one. Therefore, the GPL is invalid. Apparently, they try to argue that the copyright law, in giving consumers the right to make one backup of their software without any permission from the copyright holder, outlaws any contractual agreement that allows users to make more than one copy." There's an Inquirer article in English. Apparently SCO is now using the Chewbacca Defense. Other SCO news: SCO reports a profit, examining SCO's contributions to Linux, an attorney summarizes the case.

Hold up a second...

So the GPL violates copyright law, eh? I thought the GPL is copyleft.

From the FSF website [fsf.org]:

Copyleft is a general method for making a program free software and requiring all modified and extended versions of the program to be free software as well.
...
In the GNU project, our aim is to give all users the freedom to redistribute and change GNU software. If middlemen could strip off the freedom, we might have many users, but those users would not have freedom. So instead of putting GNU software in the public domain, we ``copyleft'' it. Copyleft says that anyone who redistributes the software, with or without changes, must pass along the freedom to further copy and change it. Copyleft guarantees that every user has freedom.

So why is anyone talking about copyright When the GPL is specifically designed to provide copyleft? :)

Re:Hold up a second...

Well everyone knows that two wrongs don't make a right, but three copyrights make a copyleft :)

Re:Hold up a second...

Actually SCO's reasons for why the GPL is invalid is actually what makes GPL legally strong. It grants rights (unlimited copying and changes) that are prohibited if the user does not accept the license. Therefore, if someone makes more than one copy, or modifies the source code the defacto accept the license (or they are breaking the law).

Re:Hold up a second...

Perhaps SCO plans on pleading insanity (or stupidity, you choose) as their defense.

Re:Whoa! I think I know WHAT they're counting on

"hey! glad to see you? hows it been? come on over here and have a seat.. can I get you a drink? are you sure? cigarette? no? fine, fine...
Listen, I'm glad we had this chance to talk privately for a second, there was something I've been wanting to tell you, and I don't see any reason to discuss it it front of just everybody, right?
There is this little thing that everyone else on the planet has been aware of for quite a while now, that you just can't seem to get a grasp on......"

The law establishes a floor

What the law establishes is a floor - no license can prohibit the purchaser from making at least one backup/archival copy. Some vendors have tried to get around it by declaring the original media to be that single allowed archival copy, but I doubt that would stand up to a laugh test if it got to court.

It's common practice for lobbyists to try to convert floors into ceilings and vice versa during deliberation. That's why you'll occasionally see a group fight hard for a bill then suddenly oppose it - somebody managed to flip the sense of the bill. But you can't do that after the fact, especially for a product you don't own or produce. It's a silly as, oh, Red Hat claiming that copyright law prohibited any company from purchasing and installing more than a single copy of any Windows product.

If somebody rejects the GPL, they don't have the right to make or distribute ANY copies of the software.

(IANAL, but this is basic stuff that everyone should know.)

Re:The law establishes a floor

(IANAL, but this is basic stuff that everyone should know.)

Is it just me, or does anyone else read IANAL and pronounce it in your head as "I anal"? It drives me crazy.

Go ahead, mod me down as stupid or whatever, but I know someone else has to read it that way.

Re:The law establishes a floor

That would be iAnal(TM) the first in Apple's new line of internet enabled buttplugs.

Re:The law establishes a floor

Go ahead, mod me down as stupid or whatever, but I know someone else has to read it that way.
(Score:5, Insightful)

Is it just me or do posters always get modded up whenever they dare the moderators to mod them down?

Please mod me down, I'm a redundant, trolling, flamebait-loving dogmatist and I was a pro-DMCA lobbyist. And I'm sleeping with Darl.

Re:The law establishes a floor

Is it just me, or does anyone else read IANAL

You should run Privoxy. Great for suppressing advertising, but it also includes a webfilter with which you can change the content of pages before it gets to your browser. Like:

s/IANAL/I am not a lawyer/g

or

s/boxen/boxes/g

Makes reading slashdot much less annoying.

Re:The law establishes a floor

No, that was Asimov's little-known collection of sci-fi erotica.

Ok, karma dive.

Re:Hold up a second...

This is probably (it's untested, hence the "probably") untrue. One of the rights that is reserved for the copyright holders under Title 17 is the right to make derivative works. Modifying code would almost certainly be seen as making a derivative work, at least if the changes are more than an extremely minor patch or something, and hence a violation without the copyright holder's permission.

Re:Hold up a second...

"SCO's reasons for why the GPL is invalid is actually what makes GPL legally strong"

Exactly. I think this is just a floater for Boies, etc., to see how well it will fly. My bet is that the common reaction of "That's insane" will lead them to look for another strategy. Remember, they demanded a trial-by-jury. If they can test drive legal theories in the press, and gauge reaction, then that just works to their advantage.

Re:Trial by jury... *shudder*

All we need is one slashdotter on the jury and SCO is doomed. I just hope it isn't the penis bird man, the Natalie Portman stalker, or the grits fetishist.

I can see Boies during voire dire.

Boies: "Have you ever read Slashdot?"
Juror: uh.......yeah
Boies: "Your honor I move to have this juror excused."
Juror: "But all I ever post is hot grits and natalie portman posts."
Boies: "Oh, sorry your honor. We'll keep him."

What's good for the goose

If the GPL is invalid because it allows multiple redistributions, doesn't that make all of SCO's UNIX licenses invalid?

Or at least doesn't it indicate that there is no good faith on their part?

Publishers.

Forget site licenses. If SCO's logic were true, and it was not possible to grant someone permission to make copies, then you wouldn't be able to authorize a publisher to make copies of your work! So basically if you own a book by an author who retains the copyright to their book, then both you and the publisher are violating copyright law!

No... Wait... That's completely stupid, too. The whole reason we have copyright is so that the author can grant the right to copy to others, and request compensation in return. Unless we required all authors to self-publish, or transfer their copyright. Which I suppose SCO thinks is the case!

So is this Heise a moron, or does he think we all are? Does he actually not realize that copyright law prohibts only unauthorized copies, and that the GPL is a document which grants authorization? Or is he just hoping we won't realize that?

Either way: This is completely stupid.

Re:Hold up a second...

Yes, but if their case is as strong and undisputable as they say it is, then why would they even need to attack the validity of the GPL?

They are barely into the discovery phase of the law suit and they're already gasping for air?

This doesn't bode well for the credibility of the company.

Re:Hold up a second...

When the FSF refers to the GPL license as being a "copyleft" they're making a joke, because they're using COPYRIGHT law to ensure that the code remains freely available. Copyleft is not a principle the law recognizes.

Re:Hold up a second...

"Copyleft is not a principle the law recognizes."

And not a character the Unicode recognises.

Bastards.

Re:Hold up a second...

When the FSF refers to the GPL license as being a "copyleft" they're making a joke, because they're using COPYRIGHT law to ensure that the code remains freely available. Copyleft is not a principle the law recognizes.

Absolutely correct, and that's why invoking preemption isn't so crazy as many seem to think. The federal courts, in Vault Corp. v. Quaid Software [harvard.edu], held that Title 17 Sec. 117 [gpo.gov] of the U.S. Code preempted terms in Vault's shrink-wrap licensing, so there's precedent for applying the preemption doctrine to private contracts in copyright litigation.

Without knowing more about SCO's argument, we certainly can't argue on the merits of it, but there's always the possibility that some enterprising copyright lawyer has found a potential incompatibility between the GPL and copyright law. (Offhand, though, any argument based on Title 17 Sec. 117(a) seems specious to me, since I don't see how it could possibly affect the right to authorize copies and derivative works in Sec. 106 -- but IANA(IP)L.)

And, actually, *I* say :x!, but who's keeping track?

Re:Hold up a second...

Because Copyleft isn't a Law, it's just an idea. Copyright is a law.

However, that being said, Copyleft is BASED on Copyright. What they are saying is.. no matter what the license says, you can only make one copy. Of ANYTHING.

So the Book Publishers and Authors need to start suing the printing press companies, since they give them the "right" to make copies so they can sell them.

Re:Copywrong

"PC Load Letter?!? What the fuck does that mean?!?"

- Michael

Re:Hold up a second...

because there is legally no such thing as "copyleft" its something that RMS made up to stand for his ideas. Copyright is a a legal term defined by law treaty and convention. Copyleft is a concept that can only exist ontop of copyright.

Now in truth while IANAL, when he wrote the GPL rms did consult with law professors who created a document that should stand up in court.

SCO can say that it not valid, but they are probably wrong.
They could say that 2+2 = 5 but they would probably be wrong about that too.

Re:Hold up a second...

...for very large values of 2....

Jaysyn

Re:Hold up a second...

Because copyright law is well known and determined by the Berne convention.

Here are the pertinant facts

You cannot loose your copyright on something that you wrote. It is yours for life unless you assign it to someone

You can ceed it to someone else under a license, but your protection under copyright prevents them from every taking that license off you.

When you work for someone the copyright on the work you produce during the time that they pay you belongs to them, and they can do what they want with it. It is not clear what determines the copyright of items created for a company.

Copyright applies to code, text, music and video.

Copyright has a stronger status than a patent in law because it is easier to prove a violation of it (here is the *copy* that you have made instead of here is the *idea* you used) But items that are copyrighted by someone can be protected by a patent, and licensed items can be protected by patents. This is the killer for Linux and will be how people get it if they every get it, because if someone has a patent on a GPL'ed item they will be able to enforce that patent on derivitive works that are not covered by the GPL and it is argueable that a rewritten class is separated from the initial license because the copyright has now passed to the author of the rewrite (who can grant a license to the copyright, but not to the patent)

Re:Hold up a second...

From the Legal Law Institute [cornell.edu]

A copyright gives the owner the exclusive right to reproduce, distribute, perform, display, or license his work. See 106 of the act. The owner also receives the exclusive right to produce or license derivatives of his or her work. See 201(d) of the act. Limited exceptions to this exclusivity exist for types of "fair use", such as book reviews. See 107 of the act. To be covered by copyright a work must be original and in a concrete "medium of expression." See 102 of the act. Under current law, works are covered whether or not a copyright notice is attached and whether or not the work is registered.
Most countries have also accepted the Berne Convention for the protection of literary and artistic works [cornell.edu].

Article 9 specifically states:

(1) Authors of literary and artistic works protected by this Convention shall have the exclusive right of authorizing the reproduction of these works, in any manner or form.

(2) It shall be a matter for legislation in the countries of the Union to permit the reproduction of such works in certain special cases, provided that such reproduction does not conflict with a normal exploitation of the work and does not unreasonably prejudice the legitimate interests of the author.

(3) Any sound or visual recording shall be considered as a reproduction for the purposes of this Convention.

Article 12

Authors of literary or artistic works shall enjoy the exclusive right of authorizing adaptations, arrangements and other alterations of their works.

Practical examples: The copyright owner can set the price of the object being protected. Many university research projects release their source code on condition that the authors names remain on the files or that a credit is given somewhere within a derivative application.

SCO and UNIX

And people still wonder whether or not UNIX is really dying, when you see companies like SCO fighting tooth and nail, in any way that they can regardless of how despicable and embarrassing it is, to stop Linux. SCO basically gave up the UNIX business because of Linux.

Sun Microsystems doesn't seem to mind what's happening with SCO. I wonder why?

The penguin is insatiable. Better wake up and smell the coffee [slashdot.org].

There is no way to win!

It's not really relevant whether the GPL is valid or not.

If the GPL is compeletly invalid -- they have a singular problem : Distributing copywrited software without a license. Linus et all can sue for massive damages.

If the GPL is valid, they are in a boatload of shit anyway: How the fuck could they get EXT2 compatability in SCO Unix? They sure the hell didn't clean room it. I wanna see the code to their filesystems. How about the Linux Compatability crap? Clean room? NO FUCKING WAY!

any way you slice it, SCO is gettin' ready to get their butts kicked, but IBM, Redhat SuSE and others.

Re:There is no way to win!

What do they care about SCO Unix? I doubt they care if they sell another copy. Right now, SCO is a zombie that only exists for two reasons: (1) Sue as many people as possible and hope they win something before they're locked up in prison or the loony-bin. (2) Live-testing designer drugs.

Re:There is no way to win!

ext2 is available in FreeBSD, under the BSD license. SCO and even MS can take it and do whatever they want.

-molo

Ext2 compatibility

Dude, there are papers published about Ext2fs which describe the data structures in exquisite detail. You don't need to look at the code to write an ext2fs clone. I have written proprietary utilities to access ext2fs data structures. I know what I am talking about.

http://e2fsprogs.sourceforge.net/ext2intro.html
http://uranus.it.swin.edu.au/~jn/explore2fs/es2fs . htm

In addition, there are various commercial tools that read and write ext2, such as [partition-manager.com]
Ext2fs Anywhere.

So in that case, you're full of crap. I don't know if I am really qualified to comment on the other case, but doesn't BSD have linux compatibility? And isn't BSD available under a much less restrictive license? They could just adapt that code.

Re:SCO and UNIX

SCO is going straight for the Jugular...

Yeah, with a Q-Tip.

Pathetic.

Re:SCO and UNIX

well, now... finally we are getting to the heart of the matter. This latest maneuver is what this case has been about from the beginning: an attempt to kill the entire free software movement. This goes straight back to the Microsoft Halloween Letters, with the goal of finding some means of stopping Linux.

In fact, Halloween II [ilisys.com.au] raised the idea of pursuing exactly this: the effect patents and copyright in combatting Linux. Given the insightful analysis of one of our own [slashdot.org], there is pretty good evidence that Microsoft is playing the wizard behind the curtain. This is precisely the arena they wanted to test Linux in.

Hmm

I thought part the GPL was the copyright holder giving permission for people to make copies, etc..

Re:Hmm

Exactly.

This is not quite so dumb as it sounds, however. (Disclaimer - IANAL, I'm also Canadian) According to US law, there's 2 ways to release your work - with or without copyright. They seem to be arguing that the GPL invalidates itself since it doesn't seek to restrict how the work is distributed, and all GPLed works should therefore be in the public domain (no copyright).

OK, so it's really a bad argument, since the GPL does place restrictions on distrubuton, but it's likely the best of a bad lot.

Unfortunately for SCO, they're about to get on the wrong side of Microsoft too, since MS allows large coprorate customers to make unlimited copies of thier software, but with restrictions. Someone could use the precedent set by this case (should SCO win - HA) to invalidate those licenses as well.

All in all, I'd say RMS was at his insideous best when he crafted the GPL - delcare the GPL invalid, and all other IP licenses are fair game too.

Soko

Battle of Stalingrad?

"SCO, they're about to get on the wrong side of Microsoft too, since MS..."

Are you hoping for a Battle of Stalingrad situation, where there is really no site to cheer for?

Or is the Godzilla vs Rodan analogy more appropriate? Or would a simple shark feeding-frezny do.

This is what it's like when worlds collide....

Re:Battle of Stalingrad?

Or is the Godzilla vs Rodan analogy more appropriate?

IMHO this case will more resemble Bambi vs Godzilla. SCO's about to get squashed.

Or would a simple shark feeding-frezny do.

There's an old joke about sharks not eating lawyers out of professional courtesy. Draw your own conclusions.

Soko

Re:Hmm

... all GPLed works should therefore be in the public domain (no copyright).

So they are trying to sell licenses on something they attest in court to be public domain. I wonder if the right hand knows what the left is doing.