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SCO Now Willfully Violating the GPL 1043

Posted by CmdrTaco
from the this-just-gets-more-interesting dept.
Pogue Mahone writes "According to The Register, SCO is now distributing Linux code under a more restrictive license than the GPL. This is a violation of copyright, since only the GPL gives them any rights to distribute the code. Time for every single developer who has contributed code to the kernel to send a Cease and Desist letter to SCO."
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SCO Now Willfully Violating the GPL

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  • Hmm.. question.. (Score:3, Insightful)

    by rylin (688457) on Friday October 31, 2003 @11:21AM (#7358072)
    Not only should people send a C&D letter, but can't they also take scox to at least small court?
    Not that I know smack about law or anything
    • Re:Hmm.. question.. (Score:5, Informative)

      by harlows_monkeys (106428) on Friday October 31, 2003 @11:27AM (#7358187) Homepage
      Not only should people send a C&D letter, but can't they also take scox to at least small court?

      It's been a while since I studied Civil Procedure, but I believe that federal courts have exclusive jurisdiction over copyright matters, and so small-claims court could not hear such cases, since they are state courts.

      • Re:Hmm.. question.. (Score:5, Interesting)

        by fliplap (113705) on Friday October 31, 2003 @11:42AM (#7358387) Homepage Journal
        But this isn't soley a copyright case. This is a simple contract/license dispute. You, as a kernel developer, gave SCO a license to distribute your work, they aren't living up to thier end of the bargain.
      • WTF? (Score:5, Funny)

        by t0ny (590331) on Friday October 31, 2003 @12:40PM (#7359174)
        I dont even use Linux, and SCO is really pissing me off.
        • by budgenator (254554) on Friday October 31, 2003 @03:28PM (#7361330) Journal
          We use SCO at work and they are pissing me off too.
          In all honesty I told the boss, SCO is sueing IBM, IBM will crush SCO and pave them over. Now we are replacing our SCO aplication server with a WinXP and a new application, we are a dental office and a vertical market for software. This used to be SCO's bread and butter, multi-user apps in dental/medical/vetrinary offices, restarants that sort of thing; now all gone these people are leary of Linux and now petrified of SCO leaving them without OS support again. I think all these types of markets will go to a microsoft based application, as their hardware gets obsolete.

          If Microsoft isn't behind this, they should have been, SCO wins Microsoft wins, SCO loses, Microsoft wins!
    • Re:Hmm.. question.. (Score:5, Interesting)

      by Waffle Iron (339739) on Friday October 31, 2003 @11:36AM (#7358312)
      Not only should people send a C&D letter, but can't they also take scox to at least small court?

      Small claims court? If each and every music track put on a publicly accessible share is worth tens of thousands of dollars in fines, think of how much you could get from somebody who is illegally distributing a complete server operating system. With the number of source files involved, you could stand to make $Millions!

    • Re:Hmm.. question.. (Score:4, Interesting)

      by el_gordo101 (643167) on Friday October 31, 2003 @11:49AM (#7358473)
      Obligitory IANAL, blah, blah, but shouldn't it be possible to form a class-action suit against SCOX on behaf of all of the contributing devlopers? Just a thought.
  • by Kierthos (225954) on Friday October 31, 2003 @11:21AM (#7358075) Homepage
    we'll Slashdot their mail room....

    Are they even obligated to legally respond to any C&D letters? IANAL, so I have no idea...

    Kierthos
    • Re:That's right (Score:5, Insightful)

      by dougmc (70836) <dougmc+slashdot@frenzied.us> on Friday October 31, 2003 @11:27AM (#7358184) Homepage
      Are they even obligated to legally respond to any C&D letters?
      No, nobody is. But cease and desist letters are usually sent with an understanding (at least they attempt to foster the understanding) that if they are ignored, further legal action will be taken, such as a suit. Sending a C&D letter is cheap, but if all you want to do is scare somebody into stopping, they're often effective.

      They don't do much to SCO, however. Somebody will have to actually sue.

      As always, I am not a lawyer.

      • Re:That's right (Score:4, Informative)

        by Angram (517383) on Friday October 31, 2003 @11:50AM (#7358503)
        Letters like a C&D are sent with a timeframe - either they comply or it will go to court as of a certain date (typically a month in Small Claims Court). Basically, that letter (which should be sent with a Return Receipt, etc., is proof that they were made aware of the issue and were given time to resolve it. Without it, the court may just tell you that you have to give them a chance and throw out the case.

        I'm no lawyer, but I was trained in Small Claims Court counselling (don't ask).
      • Re:That's right (Score:3, Interesting)

        by wfberg (24378)
        Are they even obligated to legally respond to any C&D letters?

        No, nobody is. But cease and desist letters are usually sent with an understanding (at least they attempt to foster the understanding) that if they are ignored, further legal action will be taken, such as a suit. Sending a C&D letter is cheap, but if all you want to do is scare somebody into stopping, they're often effective.


        How about send a DMCA notice?
    • Re:That's right (Score:5, Informative)

      by jchawk (127686) on Friday October 31, 2003 @11:29AM (#7358222) Homepage Journal
      IANAL, but we have had to send a handful of cease and desist letters. Our lawyers advised us to send 2 copies of the letter. 1 copy goes by certified mail and the other goes in the regular mail. Get a recept that both were sent, that way if it goes to court you have proof you sent the letter, even if they don't sign for the certified letter.

      Finally if you are really worried you can pay a constible to serve them papers. Once they are served, they are responsible for this information even if they throw the papers in the trash without reading them.
  • by corby (56462) * on Friday October 31, 2003 @11:22AM (#7358090)
    SCO Group is to resume distributing Linux, but only if you agree to a new "IP license" which implicitly supports SCO's intellectual property claims.

    So SCO can distribute code they do not own, and I can download the code I do not own, so long as SCO and I agree to our own made-up license for distributing this IP.

    Don't you see where this is headed? SCO is entering the music distribution business!

    Under this precendent, they will be able to host MP3s for major-label artists, even though the do not own the IP for the songs. Anyone can download the music, so long as you agree with SCO on the licensing terms!

    Long live the Darl McBride Dance Dance Revolution!
    • by cgenman (325138) on Friday October 31, 2003 @12:09PM (#7358730) Homepage
      Yes. SCO seems to be under the delusion that assertions made in court are TRUE until proven FALSE. That, for example, if a license is declared invalid the item falling under the license is immediately in the public domain. Or that a company which has allegedly been wronged is entitled to payments during the discovery phase of the trial, rather than after a ruling has been made. Or that claiming copyright infringement is the equivalent of proving copyright infringement.

      In the spirit of SCO, I would like to begin the Great Darl McBride Sales-A-Bration! Darl has wronged both me and my family, and owes us his entire estate. How much do I hear for a slightly used 4.2 liter 2002 Jaguar S-Type R?*

      *Anyone participating in the Great Darl McBride Sales-A-Bration implicitly agrees that the Great Darl McBride Sales-A-Bration is completely legal and enforceable. All US judges and members of congress are required to take part in the Great Darl McBride Sales-A-Bration. Some restrictions apply, which we will announce at the appropriate time in the future.
  • by l2718 (514756) on Friday October 31, 2003 @11:23AM (#7358110)
    So far this was between IBM and SCO. However, now the major copyright holders for the GNU/Linux system can assert themselves.

    In particular, should the FSF (GNU project) sue SCO for license violation?
    • by Platinum Dragon (34829) on Friday October 31, 2003 @11:32AM (#7358269) Journal
      IANAL, of course. This is Slashdot, we all play lawyers here.

      The FSF and the kernel hackers could have a field day with SCO right now. This, along with the aborted attempt to sell binary run-time licences that restrict rights in a similar fashion, may be exactly the mistakes the GNU/Linux copyright owners have been waiting for.

      I'm pretty sure SCO's public statements about the invalidity of the GPL, combined with the GPL's own statements that any disagreement over the terms of GPL-code distribution kicks the whole package back to standard copyright and thus makes SCO's own continued distribution illegal as hell, will make this case a laugher. For all of SCO's claims that the GPL is anti-copyright and unconstitutional, the licence itself makes clear that if the conditions can't be fulfilled or the licence is found to be unenforceable, standard copyright law applies--which means, unfortunately for SCO, the code they're trying to distribute is not automatically public domain, and thus they have no right to distribute any code they can't claim direct ownership for. It just means the authors would have to come up with another way to licence their code, either collectively or individually--and SCO would be in no position to make demands.
      • I'm pretty sure SCO's public statements about the invalidity of the GPL, combined with the GPL's own statements that any disagreement over the terms of GPL-code distribution kicks the whole package back to standard copyright and thus makes SCO's own continued distribution illegal as hell, will make this case a laugher.

        Except that the brunt of SCO's claim is that Linux, being a Unix derivative, is really the copyright of SCO (having bought the System V copyrights, or so they claim; Novell says otherwise),
        • Except that the brunt of SCO's claim is that Linux, being a Unix derivative, is really the copyright of SCO (having bought the System V copyrights, or so they claim; Novell says otherwise), so the copyright and licenses can only be decided upon and enforced by SCO.

          For this claim to have any merit, SCO must prove that:

          a) IBM or another party they attack willfully contributed SysV code to the Linux codebase, and it is still there.

          b) The licences agreed to by IBM or another party gives SCO the right to any
        • Just to be clear, SCO hasn't asserted, except in press releases, any ownership over Linux whatsoever. Theres no courtcase whatsoever. The scope of thier actual, legal claims in the IBM case are for more restrained (although still laughable, imo) than thier statements to the press.
        • by Twylite (234238) <twylite AT crypt DOT co DOT za> on Friday October 31, 2003 @12:58PM (#7359466) Homepage
          If SCO owns Linux, as they claim, they can assert their copyrights and the GPL simply doesn't exist on Linux anymore

          This is incorrect. If you create a derivative work without the permission of the copyright holder (of the original), you own the copyright on the derivative. The copyright holder of the original work has no claim to your derivative.

          HOWEVER, if you attempt to exercise any of your intellectual rights regarding your (derivative) work (i.e. publication, distribution, etc) every copy you make of your work will be an infringement of the copyright of the copyright holder of the original.

          This is well established in international law. This page [ivanhoffman.com] provides commentary on Xu Liu vs. Price Waterhouse LLP et. al, which illustrates a similar issue. Apart from this there are (several) cases in which the the rights to a motion picture derived from a book were limited (in terms of time) and not renewed: the distribution of the motion picture was found to be infringing, but in no case has the court found that the derivative work (the motion picture) is owned by the book's copyright holder.

          The result is that SCO cannot claim ownership of Linux. All it can claim is that Linux is an infringing derivative, and that is therefore has a claim against anyone who has used and/or copied Linux.

      • by Dr_Marvin_Monroe (550052) on Friday October 31, 2003 @12:16PM (#7358847)
        Of course, the standard disclaimer IANAL applies, but this whole new mess that SCO has stirred up seems to have a purpose. A nefarious purpose, but a purpose none the less.

        The more lawsuits now, the better their plan works. Remember, they are pursuing a plan of FUD, stock price manipulation and legal mudwrestling. They are not interested in really getting ANYTHING settled. I'm sure that Daryl is sitting in Utah right now, laughing while these headline come out. Their position as MS shill (licensing to MS and some bulls*%#t cross licensing of MS communication protocols under the settlement agreement to make it look as if MS is really sharing) and their disregard for the future viability of Linux (SCO not interested if it survives or not) has already been documented. They are not really interested in creating anything other than a sharkfest feeding frenzy over the code within Linux...trying to create an atmosphere around Linux that rivals their own sorded and utterly confusing legal past.

        SCO's only purpose is to somehow stay in business and continue to dump these types of infuriating legal turd tidbits for the community to find. This serves as the legal equivilent to "..hey, look over there!..." While they trumpet to the entire world that "we're still alive, so we must be winning our case" That's a tactic used by MS in court too....

        Do not allow them to change the subject. Their initial claim is "IBM put SCO's code in Linux"...make them prove that first!...Anything else is changing the subject. I do not beleve that there should be additional suits UNTIL the original suit is settled. There will be plenty of time to file after the IBM/SCO cage-match gets started.

        They are doing this because they don't want you to notice how weak their hand is, and to drag everyone else into the mud also....don't fall for it, we'll pull SCO's body apart piece by piece in due time.... ....don't kill them yet, we need them alive so that we can torture them later!
        • by mpe (36238) on Friday October 31, 2003 @02:36PM (#7360719)
          The more lawsuits now, the better their plan works. Remember, they are pursuing a plan of FUD, stock price manipulation and legal mudwrestling.

          I'm not sure of the logic here. They can't easily fight that many lawsuits at the same time. How many judgements against them would their stock price survive?

          They are not really interested in creating anything other than a sharkfest feeding frenzy over the code within Linux...trying to create an atmosphere around Linux that rivals their own sorded and utterly confusing legal past.

          What's so bad about wanting to them to the sharks.

          Do not allow them to change the subject. Their initial claim is "IBM put SCO's code in Linux"...make them prove that first!...Anything else is changing the subject. I do not beleve that there should be additional suits UNTIL the original suit is settled. There will be plenty of time to file after the IBM/SCO cage-match gets started.

          How does the IBM case affect the industrial scale copyright infringment they are now enguaged in? If anything waiting would weaken any copyright infringement actions, because they could use a "you knew on 31st October 2003, but did nothing until now" kind of defence.
      • by bill_mcgonigle (4333) on Friday October 31, 2003 @12:22PM (#7358924) Homepage Journal
        IANAL, of course. This is Slashdot, we all play lawyers here.

        Can't we just get a checkbox on our preferences page that says "I'm a lawyer". Then we can have a little shark icon that displays next to our username.
    • by dpilot (134227) on Friday October 31, 2003 @01:06PM (#7359562) Homepage Journal
      So far the SCO mess could have been considered a "domestic squabble" between US-based corporations. There was a little noise in Europe and Australia over threats and such, but that died down fairly rapidly, and could have bogged down in the 'definition of thread' issue.

      But this is different. Now SCO is violating copyright law, no ifs, ands, or buts about it. Obviously they're testing the GPL, and thinking about US law. But now they have to worry about the status of the GPL under other nations, as well.
  • by moehoward (668736) on Friday October 31, 2003 @11:23AM (#7358120)
    Hasn't the slashdot crowd been clamoring for a test of the GPL since day one?

    Why is this a bad thing?

    Fine. Take them to court. Seems pretty simple at this point. Both sides want the same thing. A legal test of the GPL. Shouldn't we be celebrating?
    • Hasn't the slashdot crowd been clamoring for a test of the GPL since day one?

      Only the morons. There's nothing to test. If the GPL isn't an applicable license, code licensed under it can't be redistributed in any fashion without some new license. But since the copyright holder gets to determine the license, there's little reason the GPL shouldn't be a valid one.

      • >If the GPL isn't an applicable license, code licensed under it can't be redistributed in any fashion without some new license.

        Thats the sort of questions that need to be answered.

        If I release code that says "You may use it if you give me your first born." and then that is found illegal/unenforcable, do I get to try a to retroactively apply a new license or have I released something which has no enforcable license? (Not enforcable so others can legally ignore it.)
        • A contract that is invalid for any reason isn't binding. Because you need a binding contract to allow you to copy a copyrighted work, if the contract wasn't valid you'd be right back at the start, with you having a copyrighted work and someone wanting it. They wouldn't get it free because of this, any more than you'd get a car for free because the dealership misspelled your name on the contract.
    • by sphealey (2855) * on Friday October 31, 2003 @11:34AM (#7358294)
      Hasn't the slashdot crowd been clamoring for a test of the GPL since day one?

      Why is this a bad thing?

      In the long run, the SCO suit is a very good thing for Linux and the GPL. The weakest possible opponent filed the weakest possible challenge under the most disadvantageous circumstances with overt support from Microsoft. Assuming a victory of some sort for IBM, RedHat, and the GPL (looks likely but of course not certain) solid case law will be laid down on the most advantageous terms for Linux.

      In the short term though Linux will have to endure a little pain and FUD, but that's OK: "whatever doesn't kill me makes me stronger [unless it leaves me a cripped wreck!]"

      sPh

  • Come on... (Score:3, Insightful)

    by MoeMoe (659154) on Friday October 31, 2003 @11:24AM (#7358131)
    We already knew the SCO were up to no good. They are just re-affirming what we already know. SCO seems to want revenge for a crime that hasn't been commited... How long do you think it will be until Linus files for a class action suit?

    The only true question I must ask considering that the SCO knew the consequences is... why?
  • From SCO's eyes (Score:3, Insightful)

    by tekiegreg (674773) * <tekieg1-slashdot@yahoo.com> on Friday October 31, 2003 @11:24AM (#7358132) Homepage Journal
    Speaking from SCO's eyes, the Linux developers violated SCO's user agreements. So it's essentially a retaliatory move I take it. However, even in a court of law 2 wrongs don't make a right. I can only hope for a speedy resolution to this whole mess so even SCO could go back to doing something normal and productive, instead of shooting themselves in the foot all the damn time (do they even have any foot left?)
    • Re:From SCO's eyes (Score:3, Insightful)

      by aug24 (38229)
      However, they are violating the rights of *all* kernel contributors and they only allege infringement by IBM's kernel developers.

      Hence there are an awful lot of innocent people out there with whom SCO are breaking their licence terms. Got get 'em!

      Justin.

  • Understand.. (Score:4, Insightful)

    by adeyadey (678765) on Friday October 31, 2003 @11:25AM (#7358146) Journal
    If the GPL *is* invalid, as SCO claim, then the code reverts back to being the copyright of the individual contributers, who can then sue them for breach. Either way they are stuffed..
  • Ramifications (Score:5, Interesting)

    by Shadow2097 (561710) <shadow2097@NosPaM.gmail.com> on Friday October 31, 2003 @11:28AM (#7358195)
    If they invalidate the GPL in this manner and get away with it, won't they just have the effect of providing legel precedent for throwing out ALL software licenses and EULAs? Surely this move has got to be one of the STRANGEST moves yet by SCO.

    Assuming that their actions of late (starting with the IBM lawsuit) have been directed under the advice of their team of lawyers, who the heck gave the approval for this? Even IF they somehow invalidate the GPL, are their lawyers so short-sighted that they can't see this coming back to haunt not just SCO, but the entire commercial software industry?

    -Shadow

  • Conspiracy Theory (Score:3, Interesting)

    by TexVex (669445) on Friday October 31, 2003 @11:28AM (#7358197)
    I would like to once again put forth the theory that SCO is in fact on the side of open source -- that what is really going on is, they are just working a win-win-win deal where they make a little bank while getting the GPL upheld in a court of law as they go out of business with a bang!
  • by Rahga (13479) on Friday October 31, 2003 @11:28AM (#7358203) Homepage Journal
    Is that right now, their actions are in violation of the GPL, and while they can claim that they believe the GPL is unenforcable and void, that does not mean it is until the courts say so.

    Essentially, what they are doing RIGHT NOW is as wrongheaded as pirating and selling the latest sets of MSDN.

    The other issue is their notion that an invalid GPL means that all copyrights on Linux source code also becomes invalid and the work enters public domain. I'm no copyright expert, but I really doubt that's the way this works in the real world.
    • Essentially, what they are doing RIGHT NOW is as wrongheaded as pirating and selling the latest sets of MSDN.

      It's actually worse, because the price you pay for free software is so much more reasonable than the monopoly rents (not to mention restrictive licensing!) Microsoft is charging. No sharecropping for me thanks.

  • by pecosdave (536896) on Friday October 31, 2003 @11:30AM (#7358225) Homepage Journal
    I didn't know it was possible to invent a better kick me sign.
  • death by 1000 cuts (Score:4, Insightful)

    by Ffakr (468921) on Friday October 31, 2003 @11:31AM (#7358250) Homepage
    I think the idea of individual developers taking SCO to small claims court is actually a really good idea.
    Small claims verdicts are usually not all that tough to win. You go in, show you own the code, show the judge the GPL that was attached to the code. Of course SCO won't/can't send out a lawer for every regional small claims court session so they pretty much default.
    You get a 1000 developers winning $1,500 a pop against SCO and it starts to hurt the bottom line.
    Not to mention an ever growing list of losses against the corporation.
    • by Zathrus (232140) on Friday October 31, 2003 @11:49AM (#7358476) Homepage
      Small claims court isn't going to touch copyright issues. For one thing, copyright is a federal law, not a state one, much less county. A county small claims court has no jurisdiction, and there is no such thing as a federal small claims court.

      If you actually want to sue SCO you have to do it the right way -- file a lawsuit in your local federal court.

      Have fun. Enjoy going broke from lawyers fees. Expect to be fired from your job because you need to be in court so often (if you didn't hire a lawyer). Understand that whatever the ruling is, if it goes to appellate court you cannot represent yourself (at least in criminal cases; not sure about civil). Oh, and proving ownership of the code should be enough fun, since SCO's lawyers are likely to hound you over whether or not you actually wrote it, what sources (books, consultation on IRC, etc.) you used while composing it, and so forth.

      For the love of GNU, stay out of this. Do not let SCO drag you or any other OSS advocates into court. Sadly, this may force FSF's hand and cause them to enter into a lawsuit with SCO as representation for all of the developers that contributed to anything SCO is relicensing. I really think this is what SCO wants, although I cannot fathom what they expect to gain from it. Are their lawyers really that certain that the GPL can be broken, and that the judge will rule that the code is actually public domain? (note - this would still allow them to sue over copyright violation, since you cannot place anything into the public domain that is not yours. Of course, this tenant of copyright law is one of the parts that strengthens the GPL, which they're now trying to break.)
  • by JamesSharman (91225) * on Friday October 31, 2003 @11:32AM (#7358271)

    To understand the extent of the hole that SCO have dug for themselves, you have to look at the full extent of GPL software that is out there that they are relying on, and then read clause 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.

    Now read it again. You are not required too accept this licence (they don't, they claim it is contrary to the us constitution, us copyright law yada yada yada). But nothing else gives you permission to modify or distribute the program. Considering the wording of this in the GPL (IANAL so please correct me if I'm wrong) this paragraph effectively removes all rights for SCO to distribute ANY GPL software, not just Linux.

    Lets go on and look at another clause.

    6. Each time you redistribute the Program (or any work based on the Program), the recipient automatically receives a license from the original licensor to copy, distribute or modify the Program subject to these terms and conditions. You may not impose any further restrictions on the recipients' exercise of the rights granted herein. You are not responsible for enforcing compliance by third parties to this License.

    You may not impose any further restrictions (which is obviously exactly what they are trying to do). Incidentally the first bit states that a copy is licensed by the original licensor (not the distributor) which in the case of the contested code is IBM, this both means but SCO should be going after IBM and not end users, and in my interpretation also suggests that SCO did not release there code under the GPL by distributing Linux (if there actually is any in there) since IBM would still have been the licensor.

    And now the bombshell that it's seems SCO are completely unaware of.

    7. If, as a consequence of a court judgment or allegation of patent infringement or for any other reason (not limited to patent issues), conditions are imposed on you (whether by court order, agreement or otherwise) that contradict the conditions of this License, they do not excuse you from the conditions of this License. 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. For example, if a patent license would not permit royalty-free redistribution of the Program by all those who receive copies directly or indirectly through you, then the only way you could satisfy both it and this License would be to refrain entirely from distribution of the Program.

    If you agree to SCO's new licence you are agreeing that they have a right to charge a royalty. However not only is the issuer (SCO) breaching GPL but the recipient would be if they then distributed (since they are accepting that a licence is payable to SCO) so in effect SCO are in double breach.

    IANAL, But I wish I were, someone is going to make some serious money fighting this one.

    • by Twylite (234238) <twylite AT crypt DOT co DOT za> on Friday October 31, 2003 @01:16PM (#7359701) Homepage

      I'm going to be somewhat of a Devil's Advocate here. The problem with the GPL is the same as the problem with any shrink-wrap license: there is a combination of the private law of contract and the property law of copyright at work.

      Consider the following simple license: "This software is Copyright. All Rights Reserved. You may receive and use a single copy of this software is you have paid the author $20. You agree to waive your fair use rights."

      What does that mean, legally? Copyright law gives the holder certain rights, and gives the user of a legitimate copy certain rights. Now the holder has attempted to use his rights in conjunction with (a presumed) demand for the product and the law of contract to remove the statutory rights of the user.

      So the user takes a screenshot of a menu from the program for a review in his blog. Now what? Arguably the user has not infringed on the copyright because fair use is a statutory defense against infringement. But the user has broken the contract. The effect of breaking the contract is (typically) to invalidate it and make the breaker liable for damages. Only the breaking of the contract, in this case, also terminates the right afforded to the user to use the legitimate copy. So by keeping the screenshot in the blog, the user is infringing copyright, because fair use only applies if you have a legitimate copy. Nasty.

      More subtly, this contract also contradicts the doctrine of first sale. It requires payment directly to the author, and in the case of infringement the "onwership" of the copy is revoked, and cannot be transferred.

      Let's look at this from a different angle. Another author releases his work into the public domain, but only distributes it to his web site, where he has a click-wrap license agreement: "This work is in the public domain and you may download and use one copy, but you may not copy it, distribute or publish it, or modify it in any way". No use of copyright at all, just the law of contract. Would this contract be considered legally valid? If so, is there a point in copyright at all?

      When Microsoft claims their license locks an operating system to a particular hardware system, we object and say the license is invalid. But many of the same arguments hold against the GPL because ultimately the GPL, like a commercial EULA, is a combination of contractual and copyright law, and is largely untested ground.

  • by MongooseCN (139203) on Friday October 31, 2003 @11:33AM (#7358276) Homepage
    IANAL but how about every coder who has contributed to Linux, get together and file a class action lawsuit against SCO? SCO's current move violates everyones contribution to Linux. I think a lawsuit that combines as many FOSS developers as possible is the only way the GPL will get the financial backing to fight SCO.

    Someone should put up a website that will coordinate this effort. Someone, or some group, should get a lawyer and discuss the problem. I would start something but I know nothing about law.
  • Awesome! (Score:3, Interesting)

    by Captain Rotundo (165816) on Friday October 31, 2003 @11:33AM (#7358279) Homepage
    I remember the simpler days. Back when falmes wars would be fought over the defendability of the GPL in court. Its was interresting conversation then but all speculation. Now we finally may have a chance to see it.

    I say good! Let SCO violate the GPL blatently, and let it go to court. Lets put it all on the line and see once and for all what the courts say about the GPL. Of course I believe the GPL is rock solid and will prevail, but even if it doesn't we'll have it settled and know what has to change.

    Imagine the insanity if all the code has to be re-licensed! - things like this point to everything that is wrong with our so-called "intellectual property" system. Sane people using common sense can clearly see the intent of the GPL, and if not it can be discussed easily. But we can't do it that way, why? because the world is filled with assholes and degenerates that will do every thing they can to lie and cheat and get away with it.

    Too bad the legal system isn't as simple as common sense, then the authors of the code could go to a judge and say "any child with half a brain can see our intent, and that SCO is violating that intent" :) - of course the whole reason for the GPL wouldn't exist if it weren't for proprietary software makers exercising the 'rules' in a much harsher way.
  • Indemnification (Score:4, Insightful)

    by Doesn't_Comment_Code (692510) on Friday October 31, 2003 @11:34AM (#7358291)
    Has SCO made an offer to indemnify all the users or redistributors of their illegal license?
  • by gvc (167165) on Friday October 31, 2003 @11:38AM (#7358335)
    In spite of the fury in Groklaw and here, I don't see that SCO's actions constitute anything new. They have distributed and continue to distribute Linux. And they have claimed and continue to claim that they are entitled to additional licencing restrictions/revenues on this code.

    As of this summer, they have claimed an additional encumbrance on Linux; that it contains their IP and that users have to pay them additional money. GPL is very clear that they can't distribute the software and also enforce these additional restrictions.

    The fact that they are restricting their ftp downloads is moot. They continue to distribute code that they claim is not free and clear, and this distribution is not in accordance with the rights granted to it by the copyright holders.

    In their response to IBM's complaint, SCO did not even attempt to claim that they were in compliance with the terms of the copyright holders. Instead their defense was to claim that those terms were invalid.

    SCO has essentially stipulated that they operate outside GPL; this newest action seems insignificant to me.
  • by mao che minh (611166) on Friday October 31, 2003 @11:39AM (#7358353) Journal
    In between the absurdity and jokes, we have forgotten how serious and profound this whole fiasco is. It's pretty sad when a collection of companies can't defeat a community-developed operating system, so they must resort to dramtic and exotic legal tactics. All of those billions of dollars, all of those employees, and they can't beat an operating system that is largely developed by volunteers.

    What's really sad is that they are allowed to get away with it. In Germany, SCO has already been prevented from spreading lies and making baseless allegations in public. I enjoy and respect the liberty that is "freedom of speech", but I wouldn't categorize what SCO, Microsoft, and Sun are doing as merely "freely speaking".

  • by lynx_user_abroad (323975) on Friday October 31, 2003 @11:40AM (#7358368) Homepage Journal
    Wouldn't it be possible to send their upstream provider a DMCA takedown request, alleging illegal distribution of copyrighted works?

    I don't think someone representing the Free Software Foundation would have any problem convincing anyone that at least some of the files in their distro are (c) by the FSF.

    Of course, SCO, with their current state of mind, could simply strip-off all the (improper, from their point of view anyway) copyright attributions and continue distributing. ;-)

    • Follow up (Score:3, Interesting)

      by poptones (653660)
      it would appear "the community" has already taken care of the take-down part.

      ERROR
      The requested URL could not be retrieved

      While trying to retrieve the URL: http://www.sco.com/support/linux_info.html

      The following error was encountered:

      * Read Timeout

      The system returned:

      [No Error]

      A Timeout occurred while waiting to read data from the network. The network or server may be down or congested. Please retry your request.
  • by Jeremy Erwin (2054) on Friday October 31, 2003 @11:44AM (#7358424) Journal
    I'm not an a SCO customer, and am unlikely to ever be one, so I can't register my product. Does anybody have a text copy of this new IP license?
  • Will Linus Sue? (Score:5, Interesting)

    by Ridgelift (228977) on Friday October 31, 2003 @11:45AM (#7358431)
    the SCO Group is to resume distributing Linux, but only if you agree to a new "IP license" which implicitly supports SCO's intellectual property claims.

    Since Linus Torvalds is the trademark holder for the name Linux, does this mean Linus will sue SCO?
  • by deanj (519759) on Friday October 31, 2003 @11:45AM (#7358443)
    What's wrong with SCO? Do they think Linux is an MP3 file or something??
  • by MattTC (45020) on Friday October 31, 2003 @11:47AM (#7358456) Homepage
    Although willfully violating the GPL/copyright law seems like an insane thing to do, it actually isn't.

    Lets assume that SCO is convinced there actually is proprietary code in the Linux kernel. Therefore, by inviting suits to be brought against them, they are bringing the targets for countersuits out into the light.

    They proably hope that there will be a class action, and can countersue the whole class for using their proprietary code.

    It's an interesting, if machiavellian legal strategy.
  • actually... (Score:5, Interesting)

    by thoolihan (611712) on Friday October 31, 2003 @11:47AM (#7358460) Homepage
    This makes perfect sense for SCO to do. Their whole claim stands on the GPL being invalid. If you're betting the farm on the case, why would they care if they are held liable for violating the GPL? If it stands up there won't be an SCO left to sue.

    SCO is throwing a hail mary. I'm not suprised they are sending as many receivers as possible. (Note I said this makes sense, I didn't use the word ethical or correct)

    -t
  • by JaJ_D (652372) on Friday October 31, 2003 @11:50AM (#7358494)
    Mircosoft HQ Redmond

    A press spokesman for microsoft declared that Microsoft 7 year undisputed record, and title of "Biggest Pisstakers of The Year" had finnaly gone.

    "We just could compete with the SCO Board" He was heard to say "Their tactics have been unbelievable! There are a lot of people, here at Microsoft, who are very unhappy - with alrights we should have thought of this"

    His comments were into SCO latest tactic in the We-are-on-a-loser-but-our-share-options-are-rising -so-we-can-bail plan. The reason Microssoft is unhappy is becuase of SCO's tactic of getting developers to do all the work for them, with out paying, and the altering the licensing so apparently claiming the work as there own. Intersting in any other case this would be simply called "theft".

    As the Microsoft spokesman summed up the anger and frustration many people at Microsoft feel, "why could we think of that - it was shear brilliance! Think of all the money we could save. Heads will role because of this"

    Also today the Microsoft announced their latest offering. "In the world of computing", the spokesman said "there is a need for reliable, effective, cheap, stable, secure computing. It has to be said that our latest offering have fell a little way short. So it our pleasure to announce the release of 'Mircosoft Lin++'. It is a fully compatible Linux operating system, that only costs $129 per user licence".

    More details of MS Lin++ to follow shortly"



    Jaj

    With tongue firmly in his cheek
  • by Zocalo (252965) on Friday October 31, 2003 @12:00PM (#7358612) Homepage
    I wonder what stance the Samba team is going to take on this? They (quite rightly, IMHO) stood by and let SCO bundle the Samba package with SCO Unix because they were doing so without breaking the GPL, only bending it. Now that, they are applying further restrictions to the license and are in clear breach of the GPL they could tell SCO to stick it without the slightest stain on the conciences that let SCO continue to distribute Samba in the first place.

    I'm sure the remaining users of SCO Unix are going to love how their plans to integrate their systems with Windows are going to have to be shelved until SCO can write their own (like that's ever going to happen). SCO strategy update:

    • Piss off IBM
    • Get counter-sued by IBM
    • Piss off OSS community
    • Get sued by RedHat, SuSE...
    • Violate GPL
    • Get sued by EFF
    • Piss off SCO customers
    • Lose significant chunk of customer base
    • ???
    • Profit^H^H^H^H^H^H Devastating loss & jail time (oops!)
    I wonder if Jack Valenti or Hilary Rosen have doing some moon lighting they didn't tell us about.
  • by Perlguy (17814) on Friday October 31, 2003 @12:09PM (#7358735) Homepage
    What? Oh.

    One HUNDRED... BILLION dollars!
  • AFAIK, SCO is only challenging the GPL within the US court system. Regardless of the outcome, the US doesn't dictate license validity to the rest of the world -- only their own country.

    And so far as I am aware, many (although certainly not all...) kernel and other core Linux developers live outside the US.

    I think it's time for these developers to rise up and smack SCO within their own countries. If SCO is redistributing their work outside the confines of the license the copyright holders provide it under, SCO is in violation. And if developers in enough countries where SCO does business file lawsuits, SCO's going to have to hire a massive army of lawyers to deal with all of them, hitting SCO's coffers.

    I know that if SCO were to start redistributing any of my GPL'd code under another license without my prior permission, I'd be hauling them into Canadian court to answer for their actions.

    Yaz.

  • DMCA? (Score:3, Insightful)

    by uucpbrain (541924) on Friday October 31, 2003 @12:43PM (#7359240)
    Forgive me for such an evil thought, but it occurs to me that it might be possible to demand that SCO's upstream provider shut them down for illegally distributing copyrighted software. Wouldn't that be the most ironic thing in the world?

    MUAHAHAHAHAHAHAHA!
  • by bobbv (162542) on Friday October 31, 2003 @12:56PM (#7359431)
    There's all this talk about slashdotting their mailroom and taking them to small claims court. Hello? This situation is exactly what class action lawsuits are for. Someone needs to hire a lawyer and set up a class action lawsuit about breach of license. RMS seems like the logical person, since he's the one who started the whole thing and has been the strongest defender of the strong interpretation of the License. Then everyone who contributed--everyone who ever checked in (or even checked out)--code into something that SCO is overly restricting can join it.
  • FSF (Score:5, Interesting)

    by gr8_phk (621180) on Friday October 31, 2003 @01:22PM (#7359762)
    I will gladly make a large FSF donation if Linus will get off his fucking ass and have FSF represent him in this case. I'd appreciate if other developers would join him, and if other /.ers would contribute with dollars. If you've been wondering when "that time" would come, it's here now.
  • by Greg Lindahl (37568) on Friday October 31, 2003 @03:15PM (#7361181) Homepage
    Why not send a DMCA takedown to their ISP?
  • by JGski (537049) on Friday October 31, 2003 @03:33PM (#7361379) Journal
    Class-action suits?
    Group petitions?
    WTF?

    Doesn't anyone learn anything from watching the news about Afghanistan or Iraq??? Why do think we're getting our butts kicked? Why is Ramadan now synonymous with Tet? Stabbing with a million little knives is always far deadlier and more effective than with a single large knife! Did Saddam plan it this way? Hell, yes! This precisely what the war-naysayers in the Pentagon was worried about.

    J-H-C! Do the fixed and variable cost of engagement calculation. Learn something about Lanchester equations already! Why did Rumsfeld say "we're at a disadvantage... our cost structure is $1Bs and the resistance is $1Ms"? It's the fundamental weakness of centralized power against distributed power. It's a mathematical inevitability. It's why you don't jump into a guerilla war with a conventional force, unless you're an idiot or a shrub. Why do you really think open source kicks butt on proprietary source?

    The most effective way to combat SCO's blatant copyright violation and rights theft is precisely to file a million separate C&D letters, followed by a million separate lawsuits, each for maybe only several $1K-100K each. To make this easy the EFF, open source lawyer, et al., should post a D&C template kit and a copyright lawsuit template kit (GPLed of course!) that can be taken to a local lawyer for a perfunctory blessing and establishment of legal figurehead.

    Now, the overhead of addressing each and every suit (as SCO is required by law) is probably enough to burn out all their new venture money by itself and then some. To make it extra difficult and expensive, allocate the filings over every federal court district. Hey, lawyers do this calculation all the time!

    But just case that isn't enough, follow through to step two. Next the EFF becomes a clearinghouse for a marketing and pr campaign against SCO based on all these D&Cs and suits. The campaign should focus on institutional investors, first and the general media. Add up the damages and publicize the enormous financial risk facing SCO and pretty soon even the most strident SCO supporters will be demanding they backdown or will be pulling their investments.

    And then there's steps 3 and 4, but I won't go into those...

    Sigh!
    Group petitions?! Class-action?! Psshaww! This is war, unfortunately. You want to make yourselves an easy target for neutralization? Class-action has a single-point failure! Just like Lanchester's Convention-vs-Convention engagement you have a square-law force multiplier: double the legal clout and they get 4x better results. The only group action should be massively independent distributed action, just like open source development itself! Also like DDOS :-( The square-law multiplier and economies of scale (aka technology and financial resources) are neutralized and much more, by a distributed, asymmetric engagement. That also is a mathematical inevitability. That's how we lost Vietnam and how we'll probably lose in Afghanistan and Iraq. Perhaps we can finally learn something good from it.

    JGski

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