Comment Re:who's on first? (Score 1) 787
Good point about minimizing damages. IANAL either, but I've had some basic training in business and IP law (mainly Canadian, but some American).
There is a basic business law principle that if you do not try to minimize your damages, you lose the right to collect those damages. Like if a tenant skips out and you don't try to rent the place, you can't recoup the lost rent from them. I think if you don't try to help the infringers reduce their infringement, like by pointing out the details of the infringement and providing an opportunity to fix it, you might lose the right to collect.
There are also the issues of whether any copying that might have occurred is (a) material, and (b) not purely functional. Even if 10 lines out of 5 million are in fact copied, that's not material. That's why you can legally photocopy a page or two out of a book in the library. If you copied the whole book, you would be breaking the law. And if the code is essentially identical for some purely functional reason, like it's the only way to do what has to be done. The example we were given involved output of a string of hex digits to a printer for initialization. The same printer requires the same initialization, so the fact that this was "copied" from one product to a competing one (when a programmer changed jobs) was non-infringing.
So even if there was any copying (and I'm certainly not convinced there was) there's a good chance it will be found non-infringing, or infringing but no damages awarded.
I imagine that IBM can, and will if necessary, keep this in court for years, until SCO is bankrupt. Then they might even buy the code dirt cheap from the receiver and open source it (that would be a nice ending).
There is a basic business law principle that if you do not try to minimize your damages, you lose the right to collect those damages. Like if a tenant skips out and you don't try to rent the place, you can't recoup the lost rent from them. I think if you don't try to help the infringers reduce their infringement, like by pointing out the details of the infringement and providing an opportunity to fix it, you might lose the right to collect.
There are also the issues of whether any copying that might have occurred is (a) material, and (b) not purely functional. Even if 10 lines out of 5 million are in fact copied, that's not material. That's why you can legally photocopy a page or two out of a book in the library. If you copied the whole book, you would be breaking the law. And if the code is essentially identical for some purely functional reason, like it's the only way to do what has to be done. The example we were given involved output of a string of hex digits to a printer for initialization. The same printer requires the same initialization, so the fact that this was "copied" from one product to a competing one (when a programmer changed jobs) was non-infringing.
So even if there was any copying (and I'm certainly not convinced there was) there's a good chance it will be found non-infringing, or infringing but no damages awarded.
I imagine that IBM can, and will if necessary, keep this in court for years, until SCO is bankrupt. Then they might even buy the code dirt cheap from the receiver and open source it (that would be a nice ending).
