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.

Re:Hmm

You conveniently ignore the history that lead up to the GPL. You also conveniently ignore the fact that people continue to release code with copyleft licenses when they could simply release such code under the public domain. If there were no real motivation for developers to protect their code thusly, the GPL would languish in obscurity. The fact that it gets used enough to annoy people is proof of it's utility.

The GPL did not come about because RMS felt like being a nuisance. It was a response to a real problem. That problem was developer dissatisfaction caused by commercial interests assimilating "pubic domain" source code.

The GPL was created to keep RMS's contributors happy, not just to spearhead some idealistic crusade.

Copyleft achieves one VERY important thing: developer participation.

Not everyone is pleased at the prospect of being an UNPAID microsoft employee.

Well fuck

The GPL is the only OSS license I would ever release my work under. Why the hell should I let anyone profit off of my work without giving anything back. Especialy fuckheads like you?

I should be able to release my code how I want. If you don't like it, then don't fucking use it.

If the only choice was All rights reserved or public domain, then I would choose rights-reserved over PD any day.

Donate?

Who said anything about 'donate'? Why would I want to 'donate' code to anyone for any reason? Why on earth would I want to 'donate' my code to you? You're a dick. If I want to GPL something, that's my choice. I don't give up 'ownership' of the code in the way I would if I put it in the public domain.

Re:Hmm

Acutally, I'm kind of hoping that the end result of this is exactly what you're saying: you can either copyright something, or you can release it into the public domain. That you can't release something into the public domain with restrictions, even well meaning ones like community licenses.

So, then, there are two possibilities:

• the author has the right to copy his work. NO ONE ELSE DOES. Period.

• The author releases it into the public domain, and EVERYONE can copy it.

And (you seem to be suggesting), if the author lets ANYONE make multiple copies, the document automatically goes into the public domain.

So, if you publish a book, you've let the printer make multiple copies and the book's in the public domain. If MS lets some business make multiple copies of Windows, it's in the public domain and we ALL can copy Windows. No author has the right to enter into an agreement to let his friends, associates or family make copies: doing that would eliminate his copyrights.

Wrong.

The problem with your idea is the ``... release something into the public domain with restrictions ...'' part. If it's in the public domain, it's not restricted. That's what public domain means. Everyone has the right to use it; no one has the right to restrict another from using it.

If you choose to make a copyrighted work available to others, and extend to them some of the rights which copyright law reserves to you, that's your right, and it doesn't, EVER, put that work into the public domain. That's what the GPL and the BSD licences do: they relax some of the restraints of copyright for those who abide by the licence.

To say that an author can't do that is to restrict his right of contract, and it's pure foolishness to suggest. From reading the babelfished version of the Heise article, I can't really tell what SCO is proposing for a theory, but I can't imagine anything that could ever fly.

We actually had a standing order here NOT to use OSS because of licensing questions, until I got the rule whittled down to exclude BSD, Apache and a few other licenses. The managers here thought that the money spent on exploring the legality of products based on top of GPL'd code was not worth the time they saved developers.

That's exactly why some folks use the GPL. If you want to play with our toys, play our game. If you don't want to play nicely with us, get your own stinking toys. I commend your manager's honesty.

Re:Hmm

you can either copyright something, or you can release it into the public domain.

I can't tell from context if this is your thought, or if you are paraphrasing someone else. Either way, WRONG

Copyright gives the holder certain rights in relation to their creation.

If the copyright holder then choses to exercise those rights and LICENSE the use of their creation under the GPL (hint, the 'L' comes from the word License, not copyright...) then they have not given up ANY of the rights they held under copyright. In fact, the GPL BUILDS on rights granted under copyright - if something is not copyright (i.e., public domain) then GPL CAN'T apply.

Public Domain says "This belongs to everyone, I have no legal rights to it."

Copyright says "This is mine, and I have legal rights."

GPL says "This is mine, and I have legal rights, BUT one of those rights allows me to allow you to use it under license from me, with restrictions. One restriction is you must keep this license text with the software. Another is that if you make modifications to MY creation AND DISTRIBUTE THEM (derivative works?), they must also be licensed under this same license - you can not infringe on my copyright rights. If you do not want to distribute your modifications under this license, then you may not distribute them based on MY copyright rights."

My point is that GPL does not invalidate any part of copyright law, it actually is based on what rights are given under copyright.

"Insightful?" Grrrrrrr... GPL !=Public Domain!

The GPL does NOT make works public domain. If they were public domain I could take any GPL project, compile it, and sell it with a shrinkiwrap license (see: Apple & BSD). The GPL is specifically crafted to PREVENT this from happening by allowing the unlimited sharing of works WITHOUT putting them into the PD and making them succeptible to the BSD situation just mentioned.

Furthermore, if I am the creator of a GPL project there is nothing at all to prevent me from making the code I wrote and making it both GPL and shrinkwrap.

That's the whole point of copyright: you can "give away" your rights for one method of distribution and not lose control of the work. GPL is absolutely, completely and utterly NOT "public domain."

...and I declare SCO "petunias"...

but that doesn't make it so. Anyway, if it is invalid, then Linus should file suit immediately regarding their unauthorized distribution.

Re:...and I declare SCO "petunias"...

Based on the continuingly insane SCO claims, I'd say that massive head trauma, or the smoking of some really bad weed got us into this mes to begin with...

Re:...and I declare SCO "petunias"...

Interesting points about their earnings announcement:

1) Profits were $3.1 million
2) According to a story over at Infoworld [infoworld.com], Microsoft may have paid $6 million for their Unix license.
3) Out of $20.1 million in revenues, $7.3 million came from SCOsource, which is the unit driving this whole nonsense.
4) And according to SCO itself [yahoo.com], they've spent around $1 million on legal costs so far related to the IBM suit.

Bottom line: SCO's fundamental business is still in a death spiral. Take away the legal fees and the SCOsource revenue, and the rest of the biz lost around $2.2 million, on revenues of $16 million...

Re:...and I declare SCO "petunias"...

doh! Should've checked the numbers one last time. Make that, "lost $2.2 million on revenues of $13.8 million."

So I can't copy something I create?

They're trying to say that if I create something (it doesn't have to be a software program, call it a book) that I can't allow other people to copy it? What baloney!

Re:So I can't copy something I create?

They're trying to say that if I create something (it doesn't have to be a software program, call it a book) that I can't allow other people to copy it? What baloney!

I see no mention of how many copys are allowed from the ppl that wrote the law here [copyright.gov].

Re:So I can't copy something I create?

In Soviet Russia authority questions you..oh wait, that really did happen in Soviet Russia, nevermind.

Re:So I can't copy something I create?

No, they are agruing that whatever you create doesn't belong to you.
I am waiting for the next SCO press conference where McBride will announce that "all your bases now belong to us".

PS: M$Bride knows that the only way they can getout of prizon sentence in the end is to demonstrate their insanity now. So far it's working well...

Re:So I can't copy something I create?

They're trying to say that if I create something (it doesn't have to be a software program, call it a book) that I can't allow other people to copy it?

That does appear to be their argument. IANAL, but I cannot imagine that any judge could be convinced that the provision of the copyright law that allows you to make a backup copy, even if you don't have the permission of the copyright owner, somehow constrains the owner from permitting you to make modifications or copies or whatever.

To me, this just makes it abundantly clear -- as if further proof were necessary -- that SCO has no desire for this lawsuit to ever see the inside of a courtroom.

I think SCO is beginning to feel cornered -- not before time. In their earnings webcast today, they presented a "defense" of the stock sales by corporate insiders, which somehow left out how all these pre-planned sales happened (coincidentally, I'm sure) to start right after the lawsuit was announced.

Chewbacca Defense?

You mean SCO is going to go after George Lucas?

in additional news...

SCO has declared that the earth is actually flat, that you *can* dig a hole to China, and that the moon is, in fact, made of green cheese.

Review of Attorney's Summary

After reading the attorney's article in ZDNet, while I enjoyed it, I have to make a couple comments as he's simply missing the point on one point he made and outright wrong on another point.

First, on point two he states:

2. SCO has a duty to mitigate damages. Any plaintiff complaining that it is being injured by wrongful conduct has a duty to mitigate its damages. In order for SCO to assert claims against Linux users, it has to take reasonable steps to lessen the harm that it is suffering. This means giving Linux users the opportunity to remove the infringing code from Linux. SCO's refusal to identify the Linux code in question is hard to defend. SCO says that it can't do so, because it would be akin to showing a thief his fingerprints so that he can clean them off. But that makes no sense. The "fingerprints" are available in many forms, and can be traced electronically. Keeping the Linux community guessing about the code seems more tailored to running up the damages than preserving evidence.

While it is most assuredly true that parties in a contract have a duty to mitigate their damages, that mitigation duty hasn't been applied as far as I can tell to copyright infringement. And even if it is applied to copyright issues, the duty to mitigate only goes to the question of the amount of damages sustained by the plaintiff, not to if the defendant is infringing.


Second, in point four he stated that:

4. SCO may have set a ceiling on recovery. SCO has already announced a licensing program with specific license rates. In the worst case, and unless and until SCO makes a much clearer and more public case that its code has been stolen, SCO is not likely to recover from individual users more than it has announced its license fees to be. Why pay now when you can pay later or quite possibly not at all?

First, it is clear that SCO is offer a per seat license at 50% and will increase after a certain date (Oct. 15>) Second, statutory damage amounts are provided by law to those who have a registered copyrighted work infringed. This amount is above any "ceiling" that Mr. Carey may mistakenly assert that exists.

Finally, Mr. Carey is right. If SCO's claims are without merit, then they have placed themselves at a huge risk of a substantial judgment against them. Of all our sakes, I hope that this is the case.

Re:Review of Attorney's Summary

that mitigation duty hasn't been applied as far as I can tell to copyright infringement

In at least one case, it has been applied. Someone was denied damages because they didn't mitigate their damages even though it was found that the other work did infringe on theirs.

And the judge in that matter is the same Judge Kimball who is presiding over this case. In the opinion, he said "Had Jacobsen voiced his disapproval in 1996, Hughes would have had the opportunity to take the offending material out of the books".

Only one copy, huh?

So shareware and freeware programs have been illegal all these years... thank you so much SCO, for clarifying this point. NOT!

when do we get a SCO section on /.

Seriously, there is a post every 2 days about SCO.

Re:when do we get a SCO section on /.

topic 88, Caldera

So if this actually gets upheld...

... will there be a massive shift to BSD-style licenses. I like the BSD license just fine, but I'd be concerned that if the GPL is ruled invalid, that the BSD license wouldn't be valid either.

Sigh....

Not Even Judge Judy Would Go Along With This

... will there be a massive shift to BSD-style licenses. I like the BSD license just fine, but I'd be concerned that if the GPL is ruled invalid, that the BSD license wouldn't be valid either.

Good God, don't you people think before you type? Or, more to the point, have those who have moderator priveleges today been passing the crack pipe around a little more frequently than usual?

The argument being used in this incredibly weak attempt to overturn the GPL is that it violates copyright law because the creator of the work is offering terms more liberal than copyright's default restrictions.

Now, for those slow on the uptake, what does a Microsoft site license do? Yup, it grants (in exchange for money) a more liberal right to copy than that otherwise offered by copyright law.

And, for those even slower on the uptake, what does the BSD-style license do? Yup, you guessed it again. It offers a more liberal right to copy than that otherwise offered by copyright law, just like the GPL. The specific restrictions BSD-style licenses impose are different from those of the GPL (and don't think for a minute it doesn't impose restrictions, however benign. If it didn't impose restrictions, the work would be in the public domain. Instead, you are required to maintain the copyright notice ... a clear restriction, albeit a benign one), but the net effect is to allow greater lattitude for people to copy the work than the default otherwise permitted under copyright law.

Which part of this progression escapes you? If in some perverse miscarriage of anything remotely resembling rule of law, much less justice, the GPL were to be ruled invalid on this basis, that would spell instant death by precident to not only the GPL, but BSD-Style licenses, Creative Commons style licenses, Artistic Licenses, and, yes, corporate site licenses of the variety Microsoft, Sun Microsystems, and just about every other software company on the planet eagerly offers their customers in exchange for cold, hard cash. For about three minutes, before an appeals court slaps a stay on the judgement, hears the case, and overturns the ruling.

Any other outcome would mean we could say goodbye to the software industry, the online content industry, and probably a whole slew of other industries we're not thinking of as well, upon which copyright law touches in one way or another. Not to mention saying goodbye to 220+ years of precident.

There is absolutely no chance this argument will hold up. It will be interesting to see if any lawyers are disbarred or fined for even bringing this argument to court.

IANAL, but I am a sapient being with a three digit IQ, which is all this level of insight really requires.

howto: disable caldera news

go here http://slashdot.org/users.pl?op=edithome [slashdot.org]
and check Caldera under topics, then hit save.
I'm sure i'm not the only one tired of these sco articles.

Re:howto: disable caldera news

what are you doing posting here then? that option must be working really well... ;)

Re:howto: disable caldera news

It's all well and good that you're tired of SCO articles, but this one is *highly* important...Important enough, I think, that the editors could "override" your Caldera selection.

The GPL is being formally challenged in court. I fail to see how that *couldn't* be "News for Nerds" or "Stuff that Matters". This affects *everyone* here, and hundreds of millions of people that don't read /. . The future of Free Software is contingent on the outcome of this allegation.

This is stupid

This interpretation also eviscerates the book publishing industry. After all, how can an author own copyright on a book, and then allow a publisher to go and violate that copyright by tossing off hundreds, thousands, even millions of unwarranted copies? Why has nobody stopped this outrage before?

Because authors and publishers make a contract?

The GPL is, in a sense, also a contract. It says, "We're giving these rights to you. You don't have to agree to our terms, but if you want the rights we give to you, you have to agree to our other terms." The GPL doesn't modify copyright laws, any more than a contract an author makes with a publishing house does.

Sheesh.

Re:This is stupid

I am not a lawyer, and this is not legal advise.

Copyright law is the basis of the GPL. Copyright law says that the original holder of the copyright has the exclusive right to copy a work. The only way you can copy a work that has Copyright protection is with the permission of the author (or some other cases involving fair use that aren't relevant to this post). Most Copyright business happens as a result of contracts between the Copyright holder and those that make copies. In the book industry, the author sells his right to make copies, in some fashion, to the publisher. The publisher then creates the copies consistant with the contract, sells them and gives the author the amount of money that he or she is due (sometimes this figure is $0). This is no different than the FSF granting permission to copy a work based on a set of terms and conditions. People that publish 'political' or 'religious' works often do similar things. Many pamphlets I see contain words to the effect of "verbatum copies of this may be made without charge or further permission of X, the lawful copyright holder of this work." The GPL is based solidly in contract law, and is very similar to other software licenses in that it grants the ability to copy in a certain way, so long as certain terms are obeyed. The fact that the details of these terms differs is somewhat irrelevant when one is testing the validity of the licenese. To the extent that they are lawful is the only test that matters. And since they are lawful, SCO's claims not-with-standing, the contract is valid.

SCO's claims do merrit some analysis. The core of their complaint, is that federal law precludes copying. However, the copyright law specifically states that the copying cannot happen, absent permission. They seem to have conveniently overlooked the permission part.

Title 17, chapter 1, section 106 states: the owner of copyright under this title has the exclusive rights to do and to authorize any of the following: (1) ..to reproduce the copyrighted work in copies ...

The other sections of the copyright act just restrict the extent to which restrictions can be made on the restrictions to make copies. Section 117 is the one that sco is likely relying on. Notice its wording:

(a) Making of Additional Copy or Adaptation by Owner of Copy. - Notwithstanding the provisions of section 106, it is not an infringement for the owner of a copy of a computer program to make or authorize the making of another copy or adaptation of that computer program provided: (1) that such a new copy or adaptation is created as an essential step in the utilization of the computer program in conjunction with a machine and that it is used in no other manner, or (2) that such new copy or adaptation is for archival purposes only and that all archival copies are destroyed in the event that continued possession of the computer program should cease to be rightful.

Notice here how the law allows additional rights to copy. It does not say that other types of copying is necessarily prohibited, just that the author cannot prohibit the actions listed. SCO's argument seems to state that it is the other way around: since federal law requires copyright holders to allow these sorts of copies, it only allows these sorts of copies to be made. That's a stretch by my standards.

SCO's legal team

I've often heard of companies having a crack legal team, but this is the first time that I've heard of one being on crack.

HH

Wow, simply amazing

And SCO is paying how much per hour for this legal mastery?

The future of SCO.

I think they will combine forces with Banyan and Lantastic to usher in a new era of useless has-beens.

What a joke. Johnnie Cochran must be part of their legal team.

... and why wouldn't they?

if the gpl is -legal- then they have no legal legs to stand on.

-of-course- they'll 'declare it' illegal.

thank goodness their lawyer's opinions matter only slightly more than my cat's.

Copyright...

The GPL is a license that allows people to use a work. Copyright is the owners method of ownership of a work. These licenses describe the way a work can be used. The GPL is a specific type of license. It retains the ownership of the work, yet allows the work to be distributed. Because it maintains ownership by a specific owner (eg Linus for the Linux kernel), it is constant with copyright law. Just because you use an GPL work doesn't mean you own it. I'm fairly sure this is how it works, but IANAL.

chewbaca defense

If they can use the chewbaca defense, I'm calling SHENANIGANS!!!

Witty, lightly sarcastic headline

Vague expansion of witty idea, looking like every other one-liner predictably posted to the thread.

--
Pointless and/or overly-geeky quote

Uncontrollable Outrage?

This is just so ridiculous that the only thing that keeps the sanity is that *eventually* SCO shit will tumble down - may not be weeks, but definitely a few months to a couple of years.

SCO press releases make the (former) Iraqi Information Minister look "forthcomingly honest" and makes Faux news "fair and balanced". Heck, it makes Steve Ballmer look sedated.

S

In other news...

SCO has announced an agreement with the Business Software Alliance to raid data backup centers. SCO CEO Darl McBride was quoted as saying "These renegade 'backup' centers are no more than a front for illegitimate software duplication. Any customers who are found to have multiple 'backup' copies of any of SCO's intellectual property will be required to pay additional licensing fees, according to the number of processors in the machine that served as the source for these illicit duplicates."

Future targets, according to the press release, may include schools, small businesses, and FTP 'mirrors', which not only house myriad copies of copyrighted works, but also make them available to further illegal duplication by end users.

SCO Claims that copyright law prohibiting multiple backups of information may also cover music, movies, and published works. The RIAA and MPAA were reportedly intrigued, but unavailable for comment.

--Jasin Natael

His argument is invalid

US Copyright law guarantees the right to make one backup copy. That's fair use. It does not prohibit the copyright owner from allowing more than one copy. That would be absurd and the wording of the law does not resemble that at all. I have no doubt that he knows his own argument to be utterly false, but his job is to try and prove it in court anyway.

Re:His argument is invalid

Absolutely correct.

You have the right to make one copy, not the limitation to be allowed only one even if your license and contract agree to more than one. The law here allows ONE copy where a contract is silent, it does not command a limitation where a contract speaks of more.

This kind of arguement makes lawyers look bad. If I were IBM I would file for sanctions against this lawyer.

The purtainent chapter of the Copywrite Code [copyright.gov] reads:

117. Limitations on exclusive rights: Computer programs53 (a) Making of Additional Copy or Adaptation by Owner of Copy. -- Notwithstanding the provisions of section 106, it is not an infringement for the owner of a copy of a computer program to make or authorize the making of another copy or adaptation of that computer program provided: (1) that such a new copy or adaptation is created as an essential step in the utilization of the computer program in conjunction with a machine and that it is used in no other manner, or (2) that such new copy or adaptation is for archival purposes only and that all archival copies are destroyed in the event that continued possession of the computer program should cease to be rightful.

sco

sco .. drugs are bad mmmmmmmm-kay?

This would make other licenses illegal

Unless I'm reading this wrong this would also invalidate any site license for software, which allow for unlimited copies (albeit with some restrictions), it would also make freeware and pretty much everything else given away illegal. No court is going to buy this argument and deny the right to give things away. On the other hand, if SCO had sold something that had be GPL'd they might have a case that they had the right to sell it, but I really don't find anyone believing the "Hey You Guys, no giving away things for free" argument.

SCO Went Over This In The Conference Call

Parahpased/loosely transcribed events of the SCO financial conference call (I was multitasking on other work). It is biased, but you should get the gist of things.

rah rah rah

go sco

we made money. our market cap went from 10 million to over 140 million making it one of the leaders on the Nasdaq (Go lawsuit go!).

we r the "leader" in the Unix market.

over 100 parties have seen the code

our linux license was based on "demand". LOL. (because people who came and looked at the code inquired as to whether they would offer a license). that's demand?

companieS have been signing up! (no mention of who or how many). I didnt know ONE was plural.

4Q revenue to grow to 22-25 million due to ScamSource licensing

there are two Operating System platforms in the world. Windows and Unix. Microsoft owns Windows, we own Unix. We don't have a VERSION of Unix, we own ALL of it.

we will see this case through to the end despite what our competitors say (red hat: unmentioned by name).

the industry is being divided into two camps: those who respect IP and the those who are trying to destroy it. the "silent majority" is firmly behind SCO.

legal position is ROCK SOLID.

we continue to gain in credibility.

Q&A:
Budgeted Legal Expenses?
We have spent less than half of what we budgeted so far. Million/quarter range. 600,000-700,000 so far. they include these costs in as "costs of sales".

Guidance on First Linux License you sold?
Confidential. sorry, no.

The GPL
building your company around a GPL licensed software is like building your HQ on quicksand.
Even Linux companies that are pro-Linux are scared that their code "will get sucked into the GPL machine". Pure FUD.

Linux License
If you bought SCO linux, the binary license will be given to you for free.

Our "heritage line of software" wont grow but not because everyone hates us and thinks the product sucks, but because of the global economic slowdown.

Do you have new licensees?
Umm, hmmm, hummina, ermmmm, we are projecting we will for next quarter!

More GPL
When we were more involved in Linux, companies came in and said "how can you get involved with this beast.
There is NO WARRANTY in the license. This is problematic.
We look forward to going into a courtroom and dealing with these GPL licenses. We are very confident.

Insider Trading
When their shares vest, it causes the executives a tax event and this is the only way they can pay those taxes.

Darl McBride
My goal is to get money back on the shares I put into the company in 2000. The strike price on those is 56 dollars a share.

rofl. Good luck buddy.

Silent Majority?

"I would say that the silent majority is behind SCO in this case," McBride said.

In the RED Corner, weighing in at $140M, we have the Self-Proclaimed Siiiilent Majorrrity. . .

And in the BLUE corner, weighing in at One Hunnnndred and Fifty Beeeellion Dollars, The Heavyweight Champion of Patent Litigation, DEEEEEEEEP POCKETTTTTTTS!!!!

Round 1.

Fight!

Not How I Expected the GPL to be Challenged

This current ploy by SCO sounds like it doesn't hold any water. On the other hand, there is one part of the GPL [gnu.org] that I am unsure how well would stand up to quick witted lawyerisms in a court of law. The section

You may modify your copy or copies of the Program or any portion of it, thus forming a work based on the Program

seems too open to interpretation from my layman's perspective. I'm actually quite surprised that no one's ever gone to court over exactly what it means to say their application is based on another application with regards to what the GPL has to say. If a project with 1000 source files, totalling a million lines of code uses some GPL code in one of the routines that performs some utility function, is the application based on the GPL program? According to armchair lawyers on Slashdot the answer is YES, however would a judge and jury see it the same way?

Re:Not How I Expected the GPL to be Challenged

Actually, the SCO case is quite strong, and in a way, that's what makes it so weak. I consult with lawyers and have discussed this issue in depth. I have read the applicable laws, and the definitions. And I am worried. But not about what you would think.

I am worried about the refined definition of "derivative works" that will come out of the case, and if I will be able to reuse source code from books, personal projects, and from online sources. I am NOT worried about SCO, or Linux failing, or the GPL not being enforcable.

I'm actually quite surprised that no one's ever gone to court over exactly what it means to say their application is based on another application with regards to what the GPL has to say. .... According to armchair lawyers on Slashdot the answer is YES, however would a judge and jury see it the same way?

On the first point, There was one major case that went to court about derivative works, the issue of AT&T and Berkeley's Unix implementations. If/When this goes to court, the settlement documents will have to be opened, and we'll all get to see some interesting things, including the likely posibility that SCO does not have the rights that it is asserting. There have been a few other cases that were clearly deriviatvies (according to the wording of the law), but there have been no relavent cases other than the earlier one about Unix where the border of derivative works in software has been established.

On the second question, that's exactly what is at stake in the case. That's what the lawyers see, but many geeks try to ignore. It's the reason that so many geeks and laywers were mad when software was declared to be subject to copyright and trademark laws, rather than exempt as science. I argue it is more like science because it must be an iterative improvement, and less like art. But I digress. See 17 USC 101 [bitlaw.com] for the actual legal definition of derivative works and related terms. Or, if you don't want to bother following the link...

Excerpt from 17 USC 101:

A "derivative work" is a work based upon one or more preexisting works, such as a translation, musical arrangement, dramatization, fictionalization, motion picture version, sound recording, art reproduction, abridgment, condensation, or any other form in which a work may be recast, transformed, or adapted. A work consisting of editorial revisions, annotations, elaborations, or other modifications which, as a whole, represent an original work of authorship, is a "derivative work".

Remember that This has not been decided in any legal case yet. So let's not say that it is decided, but look at the extremes. We know that whatever is decided must lie within the extremes, so if we examine the extremes we'll know what to expect.

In a very strict reading of the definition, ANY unix-style OS could be claimed to be a recast, transformed, or adapted verion of some earlier unix OS. The Posix standard also could be considered a derivative work. If your software interfaces with that OS, it must use OS-provided interfaces and data structures. While your application may be an original work of authorship, it could easily be argued that it is a derivative work of the OS. (It contains content that was developed by another author.)

Rinse, Lather, Repeat. Include in your rinse-lather-repeat cycle that new systems, including embedded devices, also use the same concepts that are contained in other OS's. They have to be programmed in some language, probably C, and that language was derived from the Bell Lab's work.

So from this extreme, we can see that SCO owns everything. That is a strict reading of the law.

Lets take the other extreme. In a very lax reading of the definition, it moves us back to common-law. We can then say that any copying for inter-operation and communication purposes is not a deriva

no GPL means SCO is and was infringing copyright

If there is no GPL they are infringing on the authors copyright.
They are selling this product.

Infringing copyright for financial gain is a criminal offense. By arguing that SCO does not have a license to distribute Linux definately hurts them.
To actually hurt ANY Linux distributer they would have to #1 prove they don't have a license to distribute. #2 be a copyright holder.

This is so obvious to me leads me to think that they really are MS monkeys and this may be the strongest attack they could muster.

Wrong

From one of the linked articles:

How does that work then? According to Heise, federal law only lets people make a single backup copy of software, and that makes the GPL void under US law.

This is a gross misunderstanding of copyright law!!!

Copyright dictates that the copyright holder has final say on who, exactly, will have permission to copy a work. The single backup copy issue is "fair use", and has nothing to do with this.

The GPL works *WITH* copyright by telling recipients that the author has explicitly granted them permission to further distribute their works only so long as they comply with the terms of that license. If they do not wish to comply to those terms, they do not have permission from the author to distribute. End of story.

I've Got It Figured Out

I've got it figured out. SCO is trying to throw out so many baseless accusitions, and fill the air with so much nonesense, that we simply become numb, unable to deal with it, or respond in a coherent manner.

It's like a two year old that keeps arguing that the sky is, in fact, green, and that he'll never grow up to be a basketball player if you don't let him eat cookies for breakfast. It's cute the first couple of times, then becomes slightly annoying, but eventually you are so baffled by the shear stupidity that you stop tyring to correct him, stop trying to prove your point, and simply say 'yes, dear.'

That, my friends, is SCO; Litigation through Temper Tantrum.

Copyright law

What about this:Desmond McBribe...
anyway something serious:

For the USA Copyright law: here [copyright.gov]
See paragraph 106 wich says:

Subject to sections 107 through 122, the owner of copyright under this title has the exclusive rights to do and toauthorize any of the following:

(1) to reproduce the copyrighted work in copies or phonorecords;

(2) to prepare derivative works based upon the copyrighted work;

(3) to distribute copies or phonorecords of the copyrighted work to the public by sale or other transfer of ownership, or by rental, lease, or lending;

(4) in the case of literary, musical, dramatic, and choreographic works, pantomimes, and motion pictures and other audiovisual works, to perform the copyrighted work publicly;

(5) in the case of literary, musical, dramatic, and choreographic works, pantomimes, and pictorial, graphic, or sculptural works, including the individual images of a motion picture or other audiovisual work, to display the copyrighted work publicly; and

(6) in the case of sound recordings, to perform the copyrighted work publicly by means of a digital audio transmission.

Sounds clear to me....

License Nazi

Umm... right. Except the GPL license is an agreement by the creator to FOREGO copyright restrictions. I mean, if the creator of something can't decide how their work can and can't be used..... WTF!?!?

ROTFLMAO

Dear Darl,

Thanks, I needed that. Can't remember when I heard something so goddamn funny. I nearly blew Mountain Dew through my nose on that one.

What, you're serious?! Ssnnnorrkkk!!! Damn, that's even funnier! Have you guys thought about doing a stand-up routine somewhere?

Really. Just too f'ing funny. Pardon me while I wipe the tears out of my eyes.

You're the best,
Bill Gates

Finally, a Substantive Claim from SCO

Why is SCO claiming that the GPL violates copyright law? IBM poignantly noted, a while ago, that SCO distributed any disputed source code under GPL. Hence, according to IBM, the disputed source code is available for any use allowed by GPL. That is a very strong argument by IBM.

To counter this argument, SCO claims that GPL itself is invalid. Hence, even if SCO did previously distribute the disputed source code under GPL, SCO is still entitled to demand royalties because GPL violates the law.

Finally, SCO has a substantive claim. Apparently, the court case will finally come down to one issue: "Is GPL valid and enforceable?" If the answer is "yes", then SCO does not have a case.

BWAHAHAHAH!

Do you know what this means?

Since SCO issued their own version of Linux, bound by the GPL, if they were actually able to get the GPL declaired invalid, this means any intellectual property of theirs that was released in that variant is now in the public domain.

Ok then, SCO's guilty of copyright infringement.

Well, in that case, if GPL is invalid, it logically follows that SCO is guilty of copyright infringement. After all, if SCO has sold N copies of their Linux distribution, then SCO must be guilty of N-1 counts of copyright infringement for each and every software application that was included in the distribution under the terms of the GPL.

Obviously this is sheer nonsense. Yes, I'm trying to derive logic from an illogical fallacy. But, it's a slow news day, and I find that trying to make sense of SCO's legal argument is rather a cheap way to amuse oneself and pass some free time.

Certainly, they cannot be serious. That naturally leads to a question how could they possibly even think of coming up with such a big, fat whopper. I mean, you have to be doing some serious drugs in order for such a thought to enter your mind, through nothing but random, natural processes.

I think this is nothing more than a knee-jerk response to IBM's countersuit. SCO's got blindsided when IBM's countersued them for violating the GPL. I'm sure that SCO has planned their legal strategy (or whatever passes for one) in advance, and must've considered all kinds of potential responses from IBM to their original suit. They must've considered many possibilities, but it never considered that IBM would respond by countersuing them for violating the GPL.

Dollars-to-doughnuts SCO didn't even realize that large portions of the Linux kernel, which SCO themselves sold, were copyrighted by IBM, and licensed under the GPL, and IBM is now suing SCO not just for violating the GPL in general (which would be somewhat difficult, since IBM would have no real standing to sue) but IBM is now suing SCO as a copyright owner, and for full-fledged copyright infringement.

This is serious stuff. The GPL itself is not even the primary focus. Just forget about the "controversial" copyleft aspect of the GPL. Pretend for a moment that SCO had some kind of a license from IBM on IBM-copyrighted code, and they distributed the code in violation of the license agreement. Or they had no license at all. And now, IBM is suing them for copyright infringement. That's exactly what's happening here, and GPL just happens to be the terms of the original licensing agreement.

SCO didn't expect it this kind of a response, and got caught, flatfooted. So now they're scrambling to figure out how to respond to charges of full-fledged copyright infringement. I guess they figured that their best chance is to try to declare GPL invalid, and hence the idiocy from their legal beagle. So now, I'm waiting for them to explain exactly what kind of a license would then they believe to have to sell IBM's copyrighted code.

Q&A re: SCO vs. IBM by Lawrence Rosen

Position paper from an attorney over at OSI. [osdl.org]

huh

what? huh? what? huh?

wtf? this is wrong... Copyright law allows one backup copy, and such other copies as are necesary to use the software, unless the copyright holder grants permission to make more.

That does it!

IBM: That does it! Shenanigans! Shenanigans!!!
SCO: What are you doing?
IBM: I'm declaring Shenanigans on you. This lawsuit is rigged.

SCO says it's invalid, so pay up!!!

Oh, well. If SCO says the GPL is invalid, then obviously it's time to pay up [byu.edu]!!!

Site licenses?

Wouldn't a legal ruling along these lines make all commerical site licenses invalid as well? Can they really be arguing that the owner of a copyrighted work doesn't have the right to contractually license duplication rights to others? Wow, that's just plain nutty. --M

SCO's agreement with IBM

If copyright law forbids a license that allows multiple copies to be made, presumably this means that parts of SCO's agreement with IBM for use of the old Unix code base are invalid.

Come to think of it, SCO's source code agreements with everyone else (including Sun and MS) are probably invalid also. This is hilarious.

I am now waiting for SCO's explanation on how code in Linux can still be a secret in spite of the fact that tens of thousands of people regularly look at it. Next, we can learn how patent law does not permit Novell to retain Unix patents when relinguishing the source code and why SCO really does have the right to keep talking about its right to the 'Unix' IP (when it is supposed to have no such right because it does not even own the Unix trademark).

By their logic

Any software that doesn't allow one copy also has an invalid license. Ergo by preventing me by license or DRM (digital restrictions managment) from making my one copy, the license is also invalid. Not that I'm rooting for the one copy thing to knock down the GPL, I'm just saying this is a two-edged sword that could also be used against draconian liceneses and DRM measures. Regardless, this bears watching. You can't argue that it works for more than one and than counter that you mean it can work for less than one.

You're the worst damn lawyer I EVER seen!

They've totally lost it. If the GPL is invalid what exactly is giving them permission to distribute people's GPL'd code in their Linux distro?

Idiots.

TWW

Some praise for RMS

I know it's popular to rag on RMS - and he sometimes comes across as a kook - but the implications of the GPL in this legal mess really make me sit back and admire it.

It seems to me the GPL acts as a balancer against a changing legal climate - the more "IP" friendly and less "fair use" friendly that climate becomes, the stronger the GPL becomes.

Brilliant.

So if SCO does win based on this argument...

So if SCO does convince some court of law that this is a valid argument, they'll self-destruct.

How on earth can SCO get theri own product CDs pressed if the CD production company is only allowed to make one copy from the master? ;)

Yaz.

SCO, lying (and threatening) outright

Consider this from Wired 09.2003 (80):

Are you afraid of being remembered as the man who killed open source?
McBride: People ask why we haven't sued Red Hat. We haven't sued Red Hat becase then the GPL grinds to a screeching halt, and all shipping distributions of Linux must stop. This whole process is going to make Linux and open source stronger with respect to intellectual property. Today there is no vetting process to make sure the code that goes into open source is clear. We're trying to work through the issues in such a way that we get justice without putting a hole in the head of the penguin.

So they say they don't want to bring the GPL to a screeching halt, but we can see that a) that was bull and b) that was their intent the whole time--to claim the GPL was invalid. Despite all the nice-talk, that has been their intent all along--to bring the GPL to a screeching halt and to stop mainline distributors in their tracks.

This was in September's Wired, so when did this interview take place to get published? At least a month to two months earlier. These guys have a long and detailed game plan. We may think they are idiots and wrong, but they are by no means "winging it".

I personally think these guys are going to lose, but anyone who thinks they are not skilled and very dangerous lawyers is fooling themselves. Thank goodness IBM (with lots of money and good lawyers) is taking them on and not some ragtag OpenSource or FSF outfit. We'd get crushed.

Um...okay...

If the obviously brain damaged shitheads at SCO wants to play like that, fine, let them. It can work to our advantage.

Since SCO claims the GPL is invalid and therefore SCO is not bound by it, then that works both ways. Authors of the software are not bound by it either. Therefore, everyone who has ever written a line of code that is used anywhere in GNU/Linux should now inform SCO that their rights to distribute the author's code has been withdrawn, royalties for any future distribution will be required, and royalties for past distribution are now due...just like SCO is wanting to do to IBM. If they want to play games, then dammit we can play games too. Batter up!

Lawyer

I spent the better part of four years as a lawyer drafting and negotiating software licenses worth millions.

If this is the real position of SCO, that the GPL is invalid because of no restriction on the number of copies... I am utterly speechless. This is the most retarded legal assertion I have ever heard.

In fact, this tidbit coupled with the revelation that it is Sequent's code that is the whole basis of this dispute has completely reduced SCO and its allegations, for me anyway, to utter nonsense without the slightest doubt.

As to Mr. Boies' stellar legal reputation, don't forget that big-name partners very often flash grins and sign up clients without a whole lot of thought about the merits of a case. (Happened quite often in my firm) Very often plebes in the bowels will then do all the shit-disturbing to see if there's really a case for the big-name partner to win.

I think Mr. Boies will enjoy his retainer on this one then wash his hands and move on to his next case. Publicity will only help him. I wonder if it's possible that Mr. Boies took any shares in lieu of payment and has already cashed them in? Our firm also used to do that too!

Check the lawyer's point #6.

6. Even if Linux contains SCO code, you might not be infringing. If you run devices with Linux pre-installed, your system might not be using copies of the files that SCO says are infringing. Since nobody knows yet what portions of Linux are alleged to be infringing, it is too early to tell.

Nobody uses every feature in Linux. This seems to imply that a company that uses Linux can reply to SCO's blackmail letter with something like, "We don't use all of Linux, so please tell us what code is infringing so we can tell if we're using it." Since SCO is keeping that a secret, the letter still has not given you the information you need to determine if you're infringing, so you're clear until SCO reveals where the infringement is.

At that point, the infringing code will be written out and the problem goes away.

$1M in legal fees per quarter???

In the news.com article, it states "He [McBride] said the company had spent between $600,000 and $700,000 on legal expenses since March, less than half of the $1 million per quarter it has budgeted for such costs."

SCO is budgeting $333k per month to go up against the company that took on the part of the United States government that literally prints money and won?

Before reading this, I was willing to discount the comments about Darl and his merry men being on crack, but after reading this the only question I have is:

Darl, where can I find some of what you're smoking, swallowing, snorting or injecting?

myke

Dear Darl,

I'm sorry I wasn't clear in our last conversation.
What I meant to say is "Get crack team of lawyers", not "Get that team of lawyers some crack".

Sorry for any inconviences

In breaking news from the former USSR:

In soviet Russia, the GPL declares SCO invalid.

Ummm...

I always thought of copyright and license to be two seperate things.. I can hold the copyright, but give you a license to distrubute it anyways you feel, thats the jist of GPL..

If they are saying that copyright only allows one copy, then there's many many companies that will have issue with this.. Think of software that allows 5 copies installed... Usually, they are called 5 user, yes you got it, licenses.. Not copyright..

Here is the timeline

SCO is bleeding money. Darl McBride, a young ambitious twit with no idea how to save the company is preparing for the worst.

Enter Microsoft and their legal department. They "suggest" that SCO make a play for Linux. Of course McBride says "What's in it for me, my stock is in the can, and a lawsuit this big will bankrupt us."

Microsoft's answer (delivered by Ballmer) "Make the play, we'll make sure you and the stockholders get a great deal when we buy you out. In the meantime, it slows the progress of Linux and allows us to test the weaknesses in the GPL (which we hate)".

Darl goes after IBM first because it is following the licencing trail. Next, it goes after users (FUD for Microsoft's cause). Finally, it goes after the GPL. THAT is the real legal test. Even though it looks like a lost cause, SCO doesn't care, the buyout is in place.

When this is all said and done, M$ will buy out SCO (worth $120mill, chump change for M$). Then they will sit around and tell large buyers (i.e goverments and F500s) "SEE all the trouble you can get into with that "free" software? Is it really worth it to you to trust your business to a bunch of immature geeks and their "quaint" licence? This could happen again ANY DAY!!!"

For the cost of lawyers and the $120 million for SCO, M$ gets a great piece of sales FUD to push. They MIGHT get IBM to back off of the Linux train, and they might even cripple Linux for a bit by getting features (NUMA, SMP) removed.

This is getting so obvious.

Very bad move

Challenging the GPL is a stupid move, even for SCO. Consider an analogy: Suppose I make a deal with Microsoft to sell copies of Windows XP. After distributing a few thousand copies, I call up Microsoft to taunt them. "When I signed that contract with you guys, I had my fingers crossed. I never had a valid agreement to copy your software at all. I totally pirated it! Muahahahaha!" Now, would this really be an intelligent move, or just a way to beg for lawsuits and/or jail time? Remember, GPL software is still copyrighted, which means distributing it is illegal without permission of the copyright holder(s). All the GPL does is spell out under which circumstances the author is willing to grant you that permission. Take away the GPL and this becomes a plain vanilla case of copyright infringement. By refuting the GPL, SCO essentially admits to being nothing more than an illegal warez operation.

extending this notion further

now i'm not a lawyer, don't pretend to be, but it would seem that this argument would also make things like shareware and freeware illegal as well not just open source, right? any software (or song or whatever) where the creator says, "make copies of this for your friends and give them away." would be illegal? so then this interpretation of copyright law has much broader implications than open source.

Preemption of Contract is a Zero Traction Argument

Preemption of a license agreement is a dead loss argument these days. The Federal Circuit took up that question in a far more important context: enforceability of a no-reverse-engineering provision. Their answer: no preemption.

In the Bowers v. Baystate opinion [findlaw.com], the Federal Circuit considered the enforceability under Copyright preemption of a shrink-wrap no-reverse engineering provision. They held that there can be no preemption of a contract, even if it flies squarely into fundamental Copyright Policy like fair use and first sale doctrine. The Section 117 provision argument here is a far, far more attenuated argument.

Though it is pretty clear to me that provisions like the no-reverse-engineering clauses are clearly unconstitutional, I couldn't get the Supreme Court to get excited enough to take up the case in my Amicus brief [ieeeusa.org] on behalf of IEEE policy on no-reverse-engineering clauses [ieeeusa.org]. Maybe next time.

But in the meanwhile, Boies et al. are running squarely into the teeth of the most recent Circuit Court case addressing the point, and it won't be pretty for them.

RMS on SCO...

Here's a good, recent Q&A with RMS that should have been included in the article list... here [ofb.biz].

A pertinent quote:

TRB: Does the fact that, as is often pointed out, the GPL has not yet been tested in court concern you?

RMS: No wise person looks forward to a major battle, even if he expects to win it. Rather than being concerned that we have not yet tested the GPL in court, I'm encouraged by the fact that we have been successful for years in enforcing the GPL without needing to go to court. Many companies have looked at the odds and decided not to gamble on overturning the GPL. That's not the same as proof, but it is reassuring.

And in other news...

About 10,000 Linux advocates laughed themselves to death today, France is now confused about weather to add their share of the dead nerds to the heat death toll. In an official response to the sea SCO's chairman said there will now be weekly wild assertaions until the case is lost... errr he meant won.

That's good then

I won't have to read it then, Tried before always got a headache.

Well..

I declare SCO it be invalid.

There that should solve all our problems!

Copyright != License

Hmm Whats this in Websters Dictionary?

\Cop"y*right\, n. The right of an author or his assignee, under statute, to print and publish his literary or artistic work, exclusively of all other persons. This right may be had in maps, charts, engravings, plays, and musical compositions, as well as in books.

ok Now lets see License...

\Li"cense\ (l[imac]"sens), v. t. [imp. & p. p. Licensed (l[imac]"senst); p. pr. & vb. n. Licensing.] To permit or authorize by license; to give license to.

Hmm, and their paying this guy as a Attorney?

CLUE FOR SCO: THE GPL IS NOT A COPYRIGHT!! It is a license between the author of said works, and user of said works.

Why is SCO fighting the GPL?

What advantage would SCO have by nullifying the GPL? Perhapse they discovered that the source of the code in question which they claim was copied out of SVr4 instead was copied from Linux into Unixware? If this is the case, then SCO is screwed (as if they were not screwed anyway). Perhapse they know this and thus are trying to limit any damages they might have due to this.

After all, they have offered absolutely zero credible evidence to back their claims that the Linux kernel contains their code.

-Aaron

This is classic poker

SCO is exhibiting all the signs of a classic poker bluff.

Declaring the GPL invalid? Terminating IBM's AIX license? Sending unsolicited invoices to companies that use Linux?

BLUFF.

They've got a mish-mash of cards in their hands that amount to absolutely nothing, and they keep smirking and pushing these massive piles of chips into the pot hoping the world will back down.

Be prepared to take the Greyhound home, boys - you're going to lose everything.

There's something being overlooked here...

SCO has been going on about Linux being in violation of the law, IBM being in violation of the law, Linux users being in violation of the law, and now, incredibly, the GPL being in violation of the law on the grounds that copyright ownership prohibits you from transferring copying privileges, all of which point to the big question that nobody so far has asked:

Isn't having an entire company full of people smoking crack in violation of the law?

'Course, SCO has already won (short term)

I think we (as led by mass media) are missing the point of SCO's venture. SCO's senior management are actually quite smart and cunning, and are getting exactly the results that they want (even if it will cost them the company).

The court date for SCO vs. IBM has been set to sometime in 2005. In the mean time, they have a pretty nifty scheme involving an absurd pending lawsuit, even more absurd press releases to match, Slashdot readers (&al) to provide free publicity, and gullible potential CEOs that are only asking where to send the check (and how much to put on it). 'Course, they'll stifle the use of Linux in some environments too, but hey, those are environments that probably should not be using Linux in the first place.

To put it in simpler terms - the lawsuit has nothing to do with legal issues such as license violations, copyrights etc. It's a ridiculous case that they are bound to lose, and they know it.

They are only trying to boost the stock price of their dying company long enough that their insiders can unload some shares. Sort of a highly publicised pump'n'dump scheme, if you will.

We saw the evidence yesterday, when some execs dumped some stocks (at a price higher than, say, back in May...).

Too bad this scheme is probably a little bit to the side of what the SEC normally would prosecute.

-tor

The reason for the anti-GPL declaration

If anyone has noticed this is not the first time that SCO has railed against the GPL. In their response to the IBM countersuit, they accused IBM of trying to divert attention away from the "real case" and claimed that IBM should idemnify Linux users and move away from the GPL.

This, in conjunction with today's amazing declaration by that lawyer, says to me that SCO is definitely on an anti-GPL agenda. Why? Perhaps because part of IBM's countersuit is an alleged GPL violation by SCO, and given that SCO threats of trying to gain money by billing Linux users and the strange idea of a binary only licence for Linux is clearly against the GPL, SCO is probably scared that they might very well lose this portion of the case.

It might very well be a ploy by Microsoft using SCO as a proxy to demolish the GPL, and given that the large majority of SCO's FUD has been directed against Linux the signs do tend to point in that direction. But that is something for the DOJ to investigate.

More probable is that it is partly an idea based on some lawyer deciding that SCO has a good case in winning the case on derivative works, mixed in with a clever marketing department deciding to use the suit as a tool to push stocks up.

I do however think that the mainstream press is no longer taking SCO's statements as seriously as they did in the beginning. The sheer volume of SCO press releases and the high level of contradictions within those releases pointing towards a strategy being made up as they go along is boring and irritating even the most anti Linux reporters out there. The statements by SCO especially those relating to Linux (no problem in the beginning , then the 1500 letters, then the threat to sue Linus, then the retraction, then the wierd pricing scheme and the binary licence being compliant with the GPL, then the decalration that the GPL is null and void) might frighten some PHBs and encourage some day traders, but it will wear off as time goes on and people tire of SCO's embarassing craziness in public.

This is very good news

The fact that SCO is grasping at such small (and obviously non-boyant) straws is in indicator that SCO never really thought this one through. With millions of dollars at stake, they have no better answer to the GPL than this.

Not quite time to go out in the streets and celebrate, but I have a big smile on my face.

Man, that's a really dumb legal theory

Heise is claiming that the GPL contract (a license is a subspecies of contract) is invalid because it allows *more* copying than the (alleged) default limit of 1 backup in copyright law.

If his theory is true, then the obvious corollary is that all publishing contracts between a software author and a software publisher are also invalid, as they also allow the publishers to make more than one copy. This, of course, is stupid and wrong.

Actually, the law doesn't state how many backups you can make, the legal staute (17 USC 117 [copyright.gov]) states:

Section 117. Limitations on exclusive rights: Computer programs

(a) Making of Additional Copy or Adaptation by Owner of Copy. -- Notwithstanding the provisions of section 106, it is not an infringement for the owner of a copy of a computer program to make or authorize the making of another copy or adaptation of that computer program provided:

(1) that such a new copy or adaptation is created as an essential step in the utilization of the computer program in conjunction with a machine and that it is used in no other manner, or

(2) that such new copy or adaptation is for archival purposes only and that all archival copies are destroyed in the event that continued possession of the computer program should cease to be rightful.

[ ... other stuff ...]

In other words, it says, you can make "a copy", but it doesn't say "one copy", you can make a copy and then make a copy and then make a copy...; it also says "all archival copies [must be] destroyed". The legal standards for interpreting a statute say that all elements are presumed to have meaning; the "all archival copies" clause clearly envisions an owner with multiple archival copies. The omitted sub-section B also clearly states that multiple backup copies are permitted.

In other, other words, SCO is blowing really, really, really weak smoke.

This is turning into a laugher...

contempt of court?

Um, if SCO's lawyers do ever argue this in front of a judge, does this sort of stupidity count as one of the things for which a judge can declare the lawyer in contempt? Something along the lines of "Mr. SCO Lawyer, in recognition of your extreme ignorance of copyright law and for wasting our time, I'm fining you $500."

Re:Are you PURPOSELY being thick?!?

The GPL does not have to be recognized by the copyright office in order to be valid.

Copyright dictates that *only* those who have been permission to distribute a copyrighted work may do so (Note, *distribute*, not merely copy.... copyright law is actually quite relaxed on the allowance of copying for purposes of fair use).

The GPL outlines what terms a person must agree to in order to acquire permission from the copyright holder to distribute copies of the works.

Therefore, simple failure to abide by those terms while continuing to distribute such works is plain ordinary copyright infringement.

Re:Are you PURPOSELY being thick?!?

this argument as put forward by SCO's councel seems pretty damned thin. Anorexic. Thin-sliced deli meat.

No, it's not thin, it's transparent. Invisible. Non-existant. A fart in a sewer.

I'm wondering why everyone is posting in a manner that suggests they didn't even understand the argument?

Perhaps because they do understand the argument, and the conclusion it draws is so laughably stupid it's unbelieveable.

What SCO is claiming is that since the JPL is not a recognized framework under the law

Yes, and this is the part that falls under "laughably stupid" - no contract that hasn't been to court is a "recognized framework" - but that doesn't mean that every contract that hasn't been validated by a judge is invalid.

any contradiction between the two should result in what U.S. copyright law saying winning out.

And (again) this is NOT a logical conclusion - people give up their rights in contracts every day. The NDA that SCO wants people to sign to see the alleged infringing code forces people to give up their right to free speech - does this mean that the NDA is unenforcable? Of course not.

They then further say that since U.S. copyright law allows for only one backup copy, any provision stating otherwise in the JPL is null and void under U.S. copyright law.

And this is their second unbelievably bone-headed, colossaly stupid statement.. The US copyright law allows for one backup copy without the permission of the copyright holder (and this is not entirely correct.) Note that key phrase. The GPL is exactly what gives them that permission.

Those two points, when taken together, is their argument. And contrary to what so many seem to be saying, it is a logical conclusion to draw.

It's only logical if you decide to throw away the concept that people are free to enter into contracts as they see fit - which is ludicrous.

It has NO logic behind it. At all.

it does make sense on the surface

If you define "the surface" as "believe everything they say, without applying any kind of logic-check to it at all", then you may be correct. But as soon as you decide to engage your brain, you see that it's totally and completely without merit of any kind.