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IP Atty Says SCO Wants Judge to Rule GPL = Public Domain
Tuesday, October 28 2003 @ 01:07 PM EST

Douglas Steele, Esq., has written an article about SCO's claim that as a matter of law, the GPL is unenforceable, void and/or voidable.

Douglas Steele is a Tokyo-based IP attorney and a member of the New York bar. He is also a contributor to XPde, a free software project.

He has a warning about SCO's new legal tactic, and it is his view that SCO is trying to get the judge to declare all works released under the GPL for the last 3 years put into the public domain. Note his remarks about downloading from the Caldera FTP also. He isn't saying SCO will succeed. He is saying this is what he understands they are trying for.



Charity begins @ home: SCO, Linux and the Cy Pres doctrine

SCO's Reply to IBM's Amended Answer with Counterclaims makes a claim that, while not surprising considering the source, is shocking given its content. SCO maintains that, as a matter of law:

"The General Public License ('GPL') is unenforceable, void and/or voidable..."

While Groklaw readers may be howling with laughter, there is an implicit claim here that puts SCO, if not to the left of Richard Stallman, at least in the company of Lawrence Lessig.

The obvious retort to SCO's claim that the General Public License is void or voidable as a matter of policy is to note first their hypocrisy in having distributed, modified and then redistributed software under the GPL and then to assert that if the GPL is void, then SCO itself is an infringer. It does not, however, necessarily follow that SCO is an infringer if the General Public License is void.

The Copyright Act gives an author a limited monopoly on an original work once fixed in a medium of tangible expression. Distribution and modification are among the exclusive rights that define the monopoly. Absent a license, only the author can distribute or modify a work and it is the General Public License that is the legal authorization underpinning most free/open source software (FOSS). If the GPL were to be held void by US courts, it would seem to recast all the distributing and modifying done with FOSS in the last twenty years as copyright infringements. But there is a feature of the US Copyright regime that makes this outcome unlikely.

If the GPL were voided, an extraordinary and unexpected liability would be visited on most of the developers, distributors and companies that have been involved FOSS. Copyright infringement is a variant of strict liability and neither intent or knowledge of infringement is necessary to establish liability. Put simply, neither ignorance of the law nor that one's action constituted infringement are defenses. Absent the GPL, virtually all distribution and modification that occured within or continued into the statute of limitations (3 years) would be suddenly be actionable as infringement. Statutory damages of "not less than $750 or more than $30,000" are available per infringement.

If it were this simple though, one could visit SCO's website, where they continue to distribute GPL'd software under the Caldera brand (http://www.caldera.com/support/download.html) and drive up their liability to Linus Torvalds, Richard Stallman, et. al. by downloading their Linux offerings. Unfortunately, downloaders would be adding to their own liability at the rate of $750 per download.

SCO has an implicit claim along with their explicit attack on the GPL. The implicit claim is that the GPL is not simply void but also that the act of releasing software under the General Public License is tantamount to having donated it to the public domain. They are asking the court to apply a common-law doctrine from the law of wills and estates to the law of copyright and software licensing.

The cy pres doctrine (cy pres is from French for "so near" or "as near as possible") is a principle of law that courts use to save charitable bequests from failing of their objective if they become impossible to fulfill. Using the doctrine, a court substitutes another charitable purpose which it believes approaches that of the original as nearly as possible. In this case, rather than allowing the 'bequest' of GPL software creators to fail entirely, (and therefore making SCO liable for infringement), SCO appears to be asking court to dedicatate GPL'd works to the public domain. Should SCO be successful it its effort to kill the GPL it would, in rich and bitter irony, make Stanford Law professor Lawrence Lessig's campaign to reclaim the public domain the unexpected beneficiary. Just think of it as Darl McBride's attempt to have Linus Torvald's cake, and eat it too.

************

This document is licensed under the Attribution/Share Alike Creative Commons license. Http://creativecommons.org/licenses/by-sa/1.0/

************

Douglas Steele is a Tokyo-based IP attorney and a member of the New York bar. He is also a contributor to XPde, a free software project. The views expressed in this article are the author's and not necessarily those of Groklaw, XPde or his firm.


  


IP Atty Says SCO Wants Judge to Rule GPL = Public Domain | 393 comments | Create New Account
Comments belong to whoever posts them. Please notify us of inappropriate comments.
IP Atty Says SCO Wants Judge to Rule GPL = Public Domain
Authored by: Anonymous on Tuesday, October 28 2003 @ 02:14 PM EST
So, let me get this straight...

SCO is trying to void the GPL so as to make all GPL'd submissions over into
copyright violations.

But if the GPL fails, it's more likely that the GPL submissions will all become
public domain, which will

(a) still make all the GPL submissions (now recast as public domain submissions)
into copyright violations

or

(b) make SCO a laughingstock (as if they aren't already) because they are
trying to collect license fees on something that's in the public domain.

[ Reply to This | # ]

IP Atty Says SCO Wants Judge to Rule GPL = Public Domain
Authored by: Anonymous on Tuesday, October 28 2003 @ 02:17 PM EST
For this strategy to succeed, SCO would need to convince that GPL approximately
equals PD. I think that none of the contributors of GPL-ed software would agree
with that: if they believed so they would have released to PD instead, or the
BSD license, or one of many other options.

(not authored - written)

[ Reply to This | # ]

IP Atty Says SCO Wants Judge to Rule GPL = Public Domain
Authored by: Anonymous on Tuesday, October 28 2003 @ 02:18 PM EST
It's an interesting argument you run here, but, unless the US legal system is
unable to distinguish a charitable trust from a copyright license, surely doomed
to failure. Is the US legal system so devoid of principle, that doctrines
applicable in one area of law can be applied in totally different areas of law,
which are underpinned by completely different policy goals.

I, for one, hope that the principles of the English Common Law are still upheld
in the US, and that sanity prevails. I mean, if the law of charitable trusts
can be applied in respect of copyrights, why not the law of finders?

Matt

[ Reply to This | # ]

_Viral_ GPL v SCOSpeak
Authored by: Anonymous on Tuesday, October 28 2003 @ 02:19 PM EST
Has anyone else here observed that SCOs' definition of derived works is as
_viral_ as the GPL? In the small minds at SCO, if their definition of derived
works is not valid, it follows that the GPL is not valid.

On one hand we have a conscious choice of license, on the other blatant piracy.

I leave it to the reader to decide who is being moral, ethical, legal and
responsible.

Dan M

[ Reply to This | # ]

What about the Berne Convention?
Authored by: Anonymous on Tuesday, October 28 2003 @ 02:23 PM EST
Programmers and organisations around the world (including the U.S.) who
distribute their works under the GPL expect their copyright to be safeguarded
under copyright laws and the Berne convention treaty. If they wanted to put
their works in the Public Domain, they'd have done so. I wish an attorney
specialising in international IP issues had mentioned the Berne convention and
the duties of the countries which ratified it. Before U.S. courts decide to
equate the GPL with Public Domain, they will think long and hard, I'm sure,
about the implications of their decision, both inside the U.S. and abroad.

[ Reply to This | # ]

IP Atty Says SCO Wants Judge to Rule GPL = Public Domain
Authored by: Anonymous on Tuesday, October 28 2003 @ 02:23 PM EST
two things:

Wouldn't that law allow the person donating the give (or code) to clarify what
they want to do? So if the GPL is invalid, Linus, how do you want to licence
your code? I understand if its a foundation and the donator is dead and can't
speak anymore, but that isn't the case for the most part here.

And a question for all of you, has SCO said WHY they think the GPL is not
valid/constitutional? I haven't heard a _reason_ yet.

[ Reply to This | # ]

IP Atty Says SCO Wants Judge to Rule GPL = Public Domain
Authored by: Anonymous on Tuesday, October 28 2003 @ 02:23 PM EST
Si six scies scient six cyprès, six cent six scies scient six cent six cyprès!

(pronounced: sisisisisisipre, sis[en]sisisisis[en]sisipre)

[ Reply to This | # ]

What about the value of IP in the Internet Age(tm)?
Authored by: stanmuffin on Tuesday, October 28 2003 @ 02:27 PM EST
So it seems that SCO, the highfalutin' self-proclaimed Royal High Guardian of
Intellectual Property in the Internet Age(tm), wants to nullify thousands of
other people's copyrights.

I'm speechless.

[ Reply to This | # ]

IP Atty Says SCO Wants Judge to Rule GPL = Public Domain
Authored by: Anonymous on Tuesday, October 28 2003 @ 02:36 PM EST
Ob IANAL: I posted this same thought yesterday, that SCO probably wants to
"take ownership" of Linux themselves, by having other's
contributions declared public domain, but keeping ownership of
"their" code, e.g. what IBM, SGI and others donated but SCO claims
as SysV derivative and therefore belonging to SCO. In this fashion, part of
what is today GNU Linux would become public domain, and part would be SCO-owned.
This would build a foundation for their "SCO Linux IP license", and
they'd charge everyone for the kernel (binary only probably).

SCO doesn't realize they're so morally detestable that I and most other people
I know would sooner buy an all-Redmond OS and applications before I'd ever let
1 byte of SCO-owned proprietary code on any computer I had control over.

You have to admit SCO are real, proper, black hat villans of the old school;
playing for the big jackpot of world domination, not dreaming the little
ambitions of petty, ordinary thieves.

Their plan will fail, of course, because of the amazing ineptitude and bumbling
of their handling of the case combined with being in the wrong legally in my
IANAL-but-educated mind. We're all heard of examples where a good advocate has
taken a loser case and made it pay despite long odds, and that would have been
the biggest fear for the free software world, with a competent firm like Boies
& Co. are rumoured to be.

I wonder how Darl feels about being the evil villian in this little
techno-opera? Does he have a big red self-destruct countdown button in his
office he can push to blow up his secret lair when the heroes in the form of
process servers with court orders and subpoenas close in on his evil plot, while
he makes his escape with his trusty Persian cat in a mini-rocket-pak? Will he
laser-ray his evil minions for failing to achieve success with his plot to take
over the world?

[ Reply to This | # ]

IP Atty Says SCO Wants Judge to Rule GPL = Public Domain
Authored by: MathFox on Tuesday, October 28 2003 @ 02:42 PM EST
IANAL. But there is the very rhetoric question whether a simple district judge
would declare a commonly used licence void and invalid upon request of a party
that used the same license in distributing its products.
I guess the answer is implied in the question... I wouldn't be surprised if
Pamela told me the juridical term for such a request, but I forgot, sorry!

What is more interesting IMO, is to go through SCO's list of affirmative
defences and filter out the red herrings. It would allow us to debate the
relevant defences more thouroughly.

---
MathFox gets rabid from SCO's actions.

[ Reply to This | # ]

IP Atty Says SCO Wants Judge to Rule GPL = Public Domain
Authored by: rand on Tuesday, October 28 2003 @ 02:43 PM EST
SCO maintains that, as a matter of law: "The General Public License ('GPL') is unenforceable, void and/or voidable..."

I've never seen any actual theory or case law that might support that (see sig). You might as well say "The Law of Gravity ('LOG') is unenforceable, void, and/or voidable." Unless and until SCO presents some absolute proof, I'm going to keep laughing.

...neither ignorance of the law nor that one's action constituted infringement are defenses.

However, all GPL's works carry an assurance by (all) the copyright holder(s) that the user has permission to copy the work (under certain conditions, of course). IF GPL is invalid, wouldn't that constitute a defense of innocent infringement and bar any owner from collecting damages, statutory or not? Can an owner collect damages if she/he gave permission, valid or not, for the copying to take place?

The cy pres doctrine...is a principle of law that courts use to save charitable bequests from failing of their objective if they become impossible to fulfill.

But most of the "bequesters" in this case are not dead; they can plainly indicate to the court their wishes if the "bequest" is impossible to fulfill. Many would choose alternate license, I'm sure, or choose to withdraw their contribution. How many would vote for public domain? If they had wanted anything like that to begin with, it was available. And the "objective" of the GPL is fairly obvious: open and free use of code without releasing it into the public domain.

---
#include IANAL.h

[ Reply to This | # ]

IF the Judge Rules the GPL is Unenforcable
Authored by: Ruidh on Tuesday, October 28 2003 @ 02:50 PM EST
And if that ruling survives appeals up through the appeals process. That's a
big if.

There's really no basis for ruling the GPL unenforcable. It's a simple,
straightforward license grounded in Copyright Law. Whoever executes a GPL for
their own code, exercises the exclusive rights which are thers to grant or to
deny.

That SCO distributed code under the GPL is a strong indication that they, at one
time, considered it valid. Courts look down upon people who take advantage of
the benefits of a license but later wish to disavow its validity. The
presumption is that if you've taken advantage of the benefits, you have
admitted its validity.

Also, under current US Copyright Law, Copyright automatically is conferred on
copyrightable works. You need to explicitly place something in the public domain
in writing. The days when you could lose copyright protection by publishing
without notice are long gone.

[ Reply to This | # ]

IP Atty Says SCO Wants Judge to Rule GPL = Public Domain
Authored by: Anonymous on Tuesday, October 28 2003 @ 02:50 PM EST
Ugh, that just sent an shiver down my spine.

I surely wouldn't want the destruction of Open Source to be my legacy.

I wish I could truely understand SCO's point of view. I just can't fathom
that they could understand what they doing and have absolutely no moral
objection to it. If they do understand, it becomes far too easy to imagine them
sitting in a boardroom twisting their mustaches and cackling evilly.

I guess I'm just not wired the same way. *shrug*

[ Reply to This | # ]

No more valid than "derivative"
Authored by: Anonymous on Tuesday, October 28 2003 @ 02:51 PM EST
This seems just as unlikely a stretch as claiming Linux as a derivative work
(e.g. I wrote murder mystery, so if you write a murder mystery, it's a
derivative and you owe me money).

Besides, putting it all into the public domain would ruin SCO's revenue model
of Linux as a derivative, would it not?

Stuart Thayer

[ Reply to This | # ]

How is downloading copyright infringement?
Authored by: Anonymous on Tuesday, October 28 2003 @ 03:03 PM EST
Surely the act of downloading is not copyright infringement? By downloading, I
did not make the copy, the site from where I downloaded "made" the
copy and provided it to me.

It's as if I bought a used book, but the seller also kept a copy. I did not
infringe the copyright, the seller did.

Now I know the RIAA would have us believe that the simple act of downloading
creates a liability for the downloader, but I always thought that it was in fact
only the uploader who violates the law.

Comments?

[ Reply to This | # ]

A more reasonable strategy for SCO
Authored by: Anonymous on Tuesday, October 28 2003 @ 03:05 PM EST
First, IANAL BIWALOTVSAL (I am not a lawyer, but I watch a
lot of TV shows about law).

As far as I know, if you sign a contract, and a certain
provision/section in the contract is in contradiction with
the law, only the relevant section is void, and not the
whole contract.

GPL is a kind of contract, and in case the judge finds a
problem with one element in this contract, there is a
possibility this part alone would be declared
"unenforcable" and not GPL as a whole.

I think it would be more reasonable for TSG to choose this
path and fight only the part that hurts them the most. I
do not think there is any way they could convince a judge
that the GPL is contradicting the law.
There is chance, however, that they could convince the
judge that in the narrow case which is relevant here, GPL
is not enforcable.

[ Reply to This | # ]

Taken to it's logical conclusion...
Authored by: Anonymous on Tuesday, October 28 2003 @ 03:15 PM EST
... SCO seems to be saying that anything you don't have to pay for to get a
copy of should be declared public domain. TV shows? Free. Radio broadcast?
Free.
That copy of Internet Explorer? Free.
Anything on the New York Times Website? Free.

I'm going to like this new world.

-btb

[ Reply to This | # ]

IP Atty Says SCO Wants Judge to Rule GPL = Public Domain
Authored by: Steve Martin on Tuesday, October 28 2003 @ 03:19 PM EST

Just two questions:

  1. Can an American judge declare software written by foreign programmers as public domain? (Can he in effect revoke the copyright rights belonging to non-American programmers? Does he have the jurisdiction?)

  2. Why "three years"?

  3. [ Reply to This | # ]

IP Atty Says SCO Wants Judge to Rule GPL = Public Domain
Authored by: Anonymous on Tuesday, October 28 2003 @ 03:28 PM EST
IANAL by any means, but it seems to me that this strategy is doomed to fail. If
I'm understanding this correctly, cy pres is invoked in the case of wills where
the precise endowments specified are impossible. In that case, the court orders
the "next best thing", attempting to keep with the spirit of the
endowment as best they can. And they are forced to do so because (and here's
the really important bit) they cannot go back to the person who wrote the will
and ask them what to do. He's dead, Jim.

But that's not the case here. The original copyright holders of Linux and most
(if not all) GPL'd software are still very much alive. If the GPL is voided,
the court can very easily go back to the original copyright holder and ask them
if their intent in using GPL was to approximate a public domain offering. I'd
imagine that a court ruling that GPL = PD would be met almost immediately with
challenges by the actual copyright holders.

[ Reply to This | # ]

IP Atty Says SCO Wants Judge to Rule GPL = Public Domain
Authored by: geoff lane on Tuesday, October 28 2003 @ 03:31 PM EST
While this would seem to match SCOs actions, there are some problems.

First, all source correctly licensed by the GPL has an explicit copyright notice -- this plainly indicates the wish of the author that the material remains under copyright.

Second, public domain status cannot just happen, it must be either the result of long unrestricted public use or an explicit declaration. To argue that material distributed under a legally flawed license immediately becomes public domain would be a surprising interpretation of the law of the UK and US. So surprising that all media related companies would immediately demand clarification of, or changes to, the law.

Finally there is the clause, This program is free software; you can redistribute it and/or modify it under the terms of the GNU General Public License as published by the Free Software Foundation; either version 2 of the License, or (at your option) any later version. which would appear to provide for the automatic adoption of modified versions of GPL should flaws be discovered.

[ Reply to This | # ]

IP Atty Says SCO Wants Judge to Rule GPL = Public Domain
Authored by: kbwojo on Tuesday, October 28 2003 @ 03:41 PM EST
IANAL so this is only my opinion.

Sorry, but I find several faults with this theory. Even if the GPL is
invalidated there are several issues with this doctrine and the outcome may not
be as Douglas Steele has stated. Lets start by looking at the definition.

CY PRES DOCTRINE:
a rule that when literal compliance is impossible the intention of a donor or
testator should be carried out as nearly as possible.

The first thing we can see is that it requires a Donor.

Donor:
person who makes a gift of property.

I believe this fails because by GPLing their software people are not donating
their code; they are only giving people permission to use it.

Permission
1. [n] the act of giving a formal (usually written) authorization
2. [n] approval to do something


The second thing I see is that we need a Testator.

Testator:
a person who makes a will

I don't recall ever hearing about any code that has been given through a will
to open source, if it has been is most likely a small amount and would only
effect that code.

Lets just go one step beyond this, after all I could be wrong about the Donor or
Testator part. Does this then mean then that this code would be placed in the
public domain? No, it does not mean that it will be placed in public domain. The
last part of the definition states “should be carried out as nearly as
possible”. In order for it to be carried out as nearly as possible a judge
would have to look at the GPL as a guide for the wishes in which this software
was donated or willed. Considering that the GPL is all about protecting the
copyright I think that there are better options available for it to be carried
out as “nearly as possible”. For example putting it under the BSD license would
be closer to the donors/testators wishes than it would be for it to get put into
public domain.

[ Reply to This | # ]

GPL vs other less restrictive
Authored by: Anonymous on Tuesday, October 28 2003 @ 03:45 PM EST
IANAL BUT, look at what the ruling would effect. There are works that can be
freely used as long as attribution is given. Damages can and are awarded when
someone takes a copyright work, whose use requires attribution, is used without
the propper attribution. What Sco is asking for, logically implies that such a
license is also the public domain.

Take the case of works licensed for non commercial use. If a judge can and does
rule that the gpl is the equivalent of the public domain this will weaken every
license of that type.

I also don't see where 3 years can be considered to come from. Either the
license places works in the P.D. or it doesnt.

[ Reply to This | # ]

IP Atty Says SCO Wants Judge to Rule GPL = Public Domain
Authored by: mitphd on Tuesday, October 28 2003 @ 03:47 PM EST
It is Norman French. Just like "Oyez, oyez, oyez" to open a court
session, or "La Reyne le veult" when Elizabeth II decides to agree
to an Act of Parliament.

Blame William the Conqueror.

[ Reply to This | # ]

Dumb Question
Authored by: DaveAtFraud on Tuesday, October 28 2003 @ 03:58 PM EST
I'm having trouble seeing how SCO requesting that the GPL be invalidated is
pertinent to their complaint against IBM. Leaving out lots of detail:

1) SCO sued IBM for breach of license/contract for allegedly providing pieces of
SCO's IP to Linux. That this IP was supposedly incorporated into Linux under
the GPL is interesting but not central to the issue. In theory, the same issue
would exist if IBM had donated the IP in question to the public domain, used a
BSD license, etc.

2) IBM counter sued SCO for patent violations. The patents in question are
specifically IBM IP and have nothing to do with the GPL.
3) Many have pointed out the SCO published the same Linux code under the GPL as
they are suing IBM over providing to Linux. The key item here is that SCO
published the code for all to see; not that they then attached the GPL to it.
Publishing the code *in any form* weakens their claim to injury by IBM; that the
publication was under the GPL is interesting but not pertinent.

IMNSHO, the judge in this case should throw out SCO's attack on the GPL as not
within the scope of the issue at hand. That is, whether the GPL is valid or
invalid is not pertinent to the case.

If SCO wishes to challenge the GPL, they should sell a modified version of some
choice piece of Linux and not provide the source code. The FSF will oblige them
by challenging their breach of the GPL. If they then wish to say the GPL is
invalid, unconstitutional, causes cancer, etc. they will have the correct forum.
The validity of the GPL is not germane to the questions in this case.

---
Quietly implementing RFC 1925 wherever I go.

[ Reply to This | # ]

International Implications
Authored by: PM on Tuesday, October 28 2003 @ 03:59 PM EST
Even if SCO persuaded a judge to release GPL stuff into the public domain, this
would apply within the USA only unless SCO managed to get a favourable ruling in
other 'significant' countries eg EU, GB, Canada, Australia, Japan, China etc.

Otherwise I have visions in the future of IBM, FSF etc imposing a 'Big Mac
tax' (say 10 cents on each hamburger sold) on MacDonalds sales rung up via SCO
Linux driven tills in countries other than the USA.

I can just see 1,500 letters being sent out to non-USA MacDonalds franchisees
demanding this royalty.

[ Reply to This | # ]

RIAA may want to file AMICUS CURIAE
Authored by: Anonymous on Tuesday, October 28 2003 @ 03:59 PM EST
Seeing as SCO has just threatened everyones copyrights, including but not
limited to the RIAA (MEMBERS), MPAA(MEMBERS), every licensing agreement for free
broadcast, the basis that the DMCA operates on and a few other things, I would
be surprised if all parties concerned don't clamor to get into this act.

[ Reply to This | # ]

IP Atty Says SCO Wants Judge to Rule GPL = Public Domain
Authored by: nabet on Tuesday, October 28 2003 @ 04:01 PM EST
As previous posters have successfully argued, it is unlikely that invalidating the GPL would cause GPL'd code to become public domain software.

However, there is no doubt in my mind that SCO would love to see GPL'd code become public domain, because then such code would no longer be a competitive threat.

Note that SCO is not going after BSD Unix, because it's effectively in the public domain already. Yes, BSD code is copyrighted, but the license permits you to modify and distribute it without any restrictions other than keeping the copyright notices intact. Thus BSD code is not a competitive threat, because any company can use that code in their own proprietary projects, thereby making their products "as good as" BSD Unix.

Linux is another story altogether. The GPL prevents any company from using Linux code in their proprietary products, because then they'd have to make their source code public as well. This makes Linux a very definate competitive threat: it's as if they are competing against a proprietary product, except they can't compete on price, only on features, and they can't simply copy those features directly from Linux.

This is why SCO wants to destroy the GPL. They consider it an affront to capitalism, because Linux is "not playing fair". In their narrow-minded view, source code that is freely available should not have any kind of legal protection, because they believe there is no way for software companies to compete against such software. Hence SCO wants the GPL declared invalid, and the copyrights on all GPL'd software rendered null and void.

[ Reply to This | # ]

IP Atty Says SCO Wants Judge to Rule GPL = Public Domain
Authored by: jre on Tuesday, October 28 2003 @ 04:11 PM EST
Eben Moglen has pointed out that the legal theory Mark Heise seemed to be espousing (as quoted in the Aug. 14th Wall Street Journal) is beyond wacky.
I read that article in the WSJ, and I remember a comment by another legal expert (wish I could recall the name and exact words) to the effect that judges are aware of the economic consequences of their actions, and that he thought most judges would be loath to throw out a successful and widely used license, if only because of the disruption that would cause.
But back to Eben Moglen. He reports uniform success in enforcing the GPL over a period of ten years. In fact, he says,
"Just this month I have been working on a couple of moderately sticky situations. 'Look,' I say, 'at how many people all over the world are pressuring me to enforce the GPL in court, just to prove I can. I really need to make an example of someone. Would you like to volunteer?'''
Of course, now he has his volunteer.

[ Reply to This | # ]

IP Atty Says SCO Wants Judge to Rule GPL = Public Domain
Authored by: Anonymous on Tuesday, October 28 2003 @ 04:16 PM EST
Reading this the only thing that pops into my mind is to paraphrase Linus' Law:
"Given enough eyeballs, all legal maneuvers are shallow."

[ Reply to This | # ]

IP Atty Says SCO Wants Judge to Rule GPL = Public Domain
Authored by: KBellve on Tuesday, October 28 2003 @ 04:17 PM EST
IANAL.

But, couldn't other people submit briefs to the court as a friend of the court?
I hear about "Friend of the Court" briefs all the time. FSF,
developers and many others could possibly do this. The FSF could make standard
brief defending GPL, then give a copy it to each Linux developer. Each developer
than could sign it and submit it to the court. Imagine getting thousands of
them...

[ Reply to This | # ]

Priorities?
Authored by: Anonymous on Tuesday, October 28 2003 @ 04:20 PM EST
Really.. this is all worst-case-scenario-mongering.

To start with, is there any guarantee that the judge will even adress IBM:s GPL
defense claim?

Even if that does happen, does that guarantee that the judge will bother with
the question of the GPLs validity?

Even if that does happen, is it likely the GPL would be found invalid?

Even if that does happen, is it likely all GPL code will end up in the public
domain?

Really.. I doubt it. The GPL is not central to this case, and I don't think the
judge will think so either.

[ Reply to This | # ]

  • Priorities? - Authored by: Anonymous on Tuesday, October 28 2003 @ 04:24 PM EST
    • Priorities? - Authored by: Anonymous on Wednesday, October 29 2003 @ 03:39 PM EST
      • Priorities? - Authored by: Anonymous on Monday, November 03 2003 @ 07:48 PM EST
Torvalds, RMS, IBM, FSF (etc) must die
Authored by: Anonymous on Tuesday, October 28 2003 @ 04:20 PM EST
A charitable bequest needs to be reinterpreted because the person(s) involved
are no longer around to ask their view.

Linus, RMS, IBM, FSF (etc) are still around

Do they all have to die before this principle of law could apply?

[ Reply to This | # ]

Non-Issue or Pandora's Box?
Authored by: Scott_Lazar on Tuesday, October 28 2003 @ 04:29 PM EST
Okay, here's a side question/evil notion:

What affect (if any) would the invalidation of the GPL have on those companies
(just one so far, HP) who do or would offer Linux indemnification?

In the deepest recesses of my mind, I'm picturing all the recent efforts of
SCOG and Microsoft (through their comments and their vassals in the media)
pushing and ridiculing companies such as IBM and Redhat for not indemnifying
their customers. I'm wondering if that push was/is in at least part an effort
to cause these companies to hemmorage red ink. If once they were to indemnify,
they would then be left 'holding the bag' if the GPL were struck down.

Scott

---
LINUX - Visibly superior!

[ Reply to This | # ]

IP Atty Says SCO Wants Judge to Rule GPL = Public Domain
Authored by: inc_x on Tuesday, October 28 2003 @ 04:31 PM EST
I think SCOs claims are pretty much in line with what was
established on Groklaw for some time already: SCO will need
to get the GPL invalidated in court in a very specific way in
order to safe its ass.

The narrow corner they are in makes that they have to make
the most bizarre claims in order to have halve a chance.

A more plausible defense seems to be 26:
> Defense 26 seems to be saying that IBM can't countersue
> for copyright (GPL) violation unless *every* author of Linux
> is onboard the suit.

That's actually an interesting point because it has also been
raised by a german professor who recently reviewed the GPL
in relation to German law. The reasoning would then be that
Linux is a collective work made by a group of people and that
only the group as a whole would be able to enforce its
copyright but not individual members of the group.

This issue must surely have been in court before already in
the context of musicians who operate in a band. Does anyone
know any case-law in that area?

See also
http://www.ifross.de/ifross_html/home2_2003.html#ARTIKEL28a
(I now notice that that seems to claim the opposite, so maybe I
read the original german paper wrong.)

[ Reply to This | # ]

Cy pres -- alternative scenario
Authored by: Anonymous on Tuesday, October 28 2003 @ 04:47 PM EST

Just for the pleasure of it, assume that the worst happens, the GPL is
invalidated, Linus is assassinated by Columbian hitmen, and the cy pres
principle is called upon.

This means that a closest solution to the GPL V2 must be found. Why not GPL V3,
as would be published by the FSF precisely in order to address the would-be
problems in V2? Since there is an explicit provision in V2 for that, it would
make very good sense to argue that this is indeed the closest thing to the
copyright holders' wishes.
Either that, or ask them.

[ Reply to This | # ]

Perhaps SCO doesn't care about winning
Authored by: mitphd on Tuesday, October 28 2003 @ 05:18 PM EST
It appears that SCO may not be as stupid as they appear at first glance. If, as we all suspect, what they are really being paid for is creation of FUD around IBM, SGI, and Linux, then all they really need is a legal theory that has enough weight to avoid summary dismissal, sanctions against SCO's lawyers, and lawsuits against SCO executives. All may agree that the SCO GPL position is far-fetched, but if a judge accepts that it has enough value to at least be argued, then SCO's minions get:
  1. years more of legal proceedings, with attendant opportunities for FUD, and
  2. the ability to keep their big windfalls, courtesy of Microsoft and the mysterious $50M investors (if they are not one and the same).
  3. relative immunity for the lawyers and executives when SCO implodes in the end.

Of course, shareholder suits will be inevitable, but you can be sure that every step was based on "advice of counsel" (or will appear to be by the time the suits are filed). If the legal arguments at least have some merit, it will be hard to argue that SCO's actions were out-and-out fraud.

[ Reply to This | # ]

Public Domain? Why?
Authored by: Anonymous on Tuesday, October 28 2003 @ 05:23 PM EST
I wonder what makes him think they are shooting for the Public Domain? I can understand why; it would save SCO in a few areas of their case, primarily that it still distributes software that resides under a license (GPL) it is challenging in court. In IBM's countersuit, this is one of their charges against SCO.

But nothing indicates it they are seeking Public Domain status on all of this code. If he is assuming their attack on the GPL, and it's possible invalidation, suddenly makes the code Public Domain, isn't that reaching a bit? Don't the original authors *still* retain copyright?

[ Reply to This | # ]

IP Atty Says SCO Wants Judge to Rule GPL = Public Domain
Authored by: Anonymous on Tuesday, October 28 2003 @ 05:23 PM EST

IANAL, but Mr. Steel suggests that SCO is trying to
1. Get the GPL voided
2. Get the Judge to use the "cy pres doctrine" to effectively change the license from the GPL to Public Domain on the principle that the Public Domain comes as close as possible to what the original Copyright Holder (FSF/Linus/etc) wanted.

It seems to me that point #2 is simply impossible. The GPL v2, section 7 explicitly states what the Author wants to have happen if the GPL is voided

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.

So the Judge wouldn't need to guess at what the Author wants to happen, he already knows.

[ Reply to This | # ]

HOGWASH
Authored by: gumout on Tuesday, October 28 2003 @ 05:31 PM EST



"The cy pres doctrine (cy pres is from French for "so near"
or "as near as possible") is a principle of law that courts use to
save charitable bequests from failing of their objective if they become
impossible to fulfill. Using the doctrine, a court substitutes another
charitable purpose which it believes approaches that of the original as nearly
as possible. In this case, rather than allowing the 'bequest' of GPL software
creators to fail entirely..."

Every author who contributed to Linux released his work
for charitable "use" under the GPL.
The GPL is a nonexclusive license.

''transfer of copyright ownership'' is an assignment,
mortgage, exclusive license, or any other conveyance, alienation,
or hypothecation of a copyright or of any of the exclusive rights
comprised in a copyright, whether or not it is limited in time or
place of effect, but not including a nonexclusive license." ---
Copyright Act of 1976

Notice the exception "nonexclusive"?

Placing a copyrighted work in the public domain transfers all excluse
rights of ownership to the public domain.

Every author who released his work under the GPL knew he by forbidden by
the Federal Copyright Act from transferring his ownership. Are you asking me to
believe that since every author released his work under a license that is
forbidden to transfer ownership of copyright, that a court could find that the
"nearest charitable purpose" of the authors was to transfer their
exclusive rights of ownership?

There's a big, big, big difference between giving your neighbor permission to
"use" your car and transferring ownership by title.

This is speculation is tortured HOGWASH.






---
Software will never be free until the last CEO has been
strangled with the entrails of the last lawyer.

[ Reply to This | # ]

IP Atty Says SCO Wants Judge to Rule GPL = Public Domain
Authored by: Anonymous on Tuesday, October 28 2003 @ 05:43 PM EST
In reading through all this, I'm wondering what precedents have there been
where licenses are ruled unenforcable, or invalid. If we can wade through these
cases and see what factors caused those licenses to be invalid, we may
understand this thing better. I'm not saying that GPL is unenforcable, but
rather we need to understand where those guys are coming from.

[ Reply to This | # ]

[Kind of OT] SCO and C++
Authored by: Anonymous on Tuesday, October 28 2003 @ 05:45 PM EST

While reading this article, I was searching the Quote DB and ran across this gem of a quote:

...And C++ programming languages, we own those, have licensed them out multiple times, obviously. We have a lot of royalties coming to us from C++. It was interesting to see the depth of Caldera's intellectual capital. -- Darl McBride, 2002-08-15

Based on the numerous falsehoods and contradictory statements SCO has made regaring their "IP", I did a bit of googling and found this on Wikipedia:

Ownership of C++

Nobody owns C++. Stroustrup and AT&T are not paid royalties for the usage of C++. (Emphasis in form of italics is mine.)

I did a few more searches, but could not find anything that named SCO as the "owner and/or licensor" of the C++ programming language.

I know this is not directly related to the SCO vs. IBM or Red Hat vs. SCO. However, if in fact SCO is not the "owner and/or licensor" of the C++ programming language, it does show a longer term patter of SCO (or at least Darl) issuing false statements regarding SCO's "IP".

Minimally, it would be an interesting (and hopefully short) research project related to SCO's pattern of behavior and statements since Darl and and others took over SCO circa June/July 2002.

Regards,

Fredrick

[ Reply to This | # ]

Co-Ops and Credit Unions
Authored by: Anonymous on Tuesday, October 28 2003 @ 05:49 PM EST
If Mr. Steele is correct, then I suspect that SCO's argument in court will be
along these lines:

1. SCO will point to the statements of certain FSF members who have expressed an
opinion that intellectual property and copyright laws should not exist.

2. SCO will then use those statements to claim that the goals of GPL software
publishers are destructive (i.e. go against the U.S. constitution) and therefore
should not be honored.

That argument is wrong, of course. The majority of developers who release their
software under the GPL (not to mention IBM et al) simply desire to share their
software, for mutual benefit, with others who are willing to do the same.

The legitimacy of that goal is not changed by the fact that GPL'd software
represents tough competition for companies like Microsoft, nor by the fact that
many customers choose GPL'd software (such as Linux) in order to escape their
dependence on certain closed-source software, like Windows.

We have seen many past instances where customers have banded together to give
themselves a better deal than they were getting from existing businesses. For
example, farmers formed co-ops for marketing their produce when existing buyers
had conspired to keep prices artificially low. Likewise, co-op stores were
formed, often to get around the abuses of a "company store". Credit
Unions were another creation designed to give its members a better deal than
they could get from the banks.

In my opinion, those early cases were precedents for the type of sharing that
takes place in Open Source software, and in order to declare the GPL invalid, a
judge would also have to find Co-Ops and Credit Unions to be invalid.

[ Reply to This | # ]

IP Atty Says SCO Wants Judge to Rule GPL = Public Domain
Authored by: tazer on Tuesday, October 28 2003 @ 06:00 PM EST
I don't think it's even a remote possibility that a judge would eliminate the
copyrights of thousands of individuals, without at least verifying their intent.
This would be a huge burden for any organization to overcome and would probably
be enough to prevent a judgement in this direction.

If the judge were to just say, all source code licensed under the GPL is now in
the public domain, without verification of the copyright holders intent, then
IBM could clearly license their copy of SYSV under the GPL and it would be in
the placed in the public domain as well.

This is why verification of copyright holder intent has to occur, otherwise,
there would be a HUGE rash of lawsuits arising from this decision, throwing the
US legal system into chaos.

I would be inclined to believe that a judge would forego the aforementioned
scenario and instead resolve the issue by requiring ammendments be added, or
changes be made, to the GPL where there are serious legal questions.

I can only think of a couple of reasons why SCO would even consider pursuing
this course of action:
1) They have code that was GPL'd and probably won't be able to prove their
case to reclaim it. And, if they can't reclaim their GPL'd code, then proceed
with a scorched earth campaign to make sure that everyone can have all code
under the GPL.

2) They have misappropriated GPL code into their proprietary products and need a
decision on this issue, in their favor, to eliminate the potentially massive
copyright infringement suits that will be filed against them when their
proprietary code is reviewed.

Clearly SCO is trying to subtly pull the wool over the judges eyes and are
hoping for the best. Just like Stowell saying that everybody else is infringing
on IBM's patents, so they shouldn't be held accountable for damages. But, the
fault in that particular argument, is that, while trademark and copyright status
can be lost if you don't pursue violators, patents can be selectively enforced.
Just look at the case Microsoft just lost, and with the amount of money
Microsoft can throw at a lawsuit, it would be ludicrous to think they didn't
notice that lawsuits haven't been filed against Mozilla, Opera and others,
especially if they could have won the case with that evidence.

It seems to me that someone gave SCO a bunch of Chinese handcuffs and this is
the end result.

[ Reply to This | # ]

new attorney quotes
Authored by: Anonymous on Tuesday, October 28 2003 @ 06:28 PM EST
New article with new attorney quotes

http://www.technewswor ld.com/perl/story/31975.html

[ Reply to This | # ]

IP Atty Says SCO Wants Judge to Rule GPL = Public Domain
Authored by: Anonymous on Tuesday, October 28 2003 @ 06:53 PM EST

I've read about 100 comments so far, and am surprised at the large number of suggestions for how to demonstrate the "closest intent" of the copyright holders. Quoting from the GPL:

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...

In other words, their intent is clear: Invalid GPL means no copying allowed.

[ Reply to This | # ]

IP Atty Says SCO Wants Judge to Rule GPL = Public Domain
Authored by: arch_dude on Tuesday, October 28 2003 @ 06:53 PM EST
By this reasoning, any published work violates the export control laws, since
the creator of that work cannot prevent a third party from exporting it. This
leads to another way out of this silliness: I think that there is a principle of
law to the effect that the law cannot compel an impossibility. The judge could
observe that as it is impossible to prevent publicly available information from
reaching anyone on earth via a third party, the export control laws are
therefore without effect with respect to published works. Please note: The judge
would distinguish software that is a published work from proprietary software.
Proprietary software would still be a "device" under the meaning of
the export control laws, and binaries would still be covered under the export
control laws. So: anyone subject to the export control laws cannot deliver a
binary to a proscribed party, so the inability to deliver the source is moot.
These same people are still free to publish source under the GPL.

If this approach is not permissibloe for some reason, each living copyright
holder could be consulted. Alternatively, the FSF can write GPL v3 and then
anyone at all may elect to re-release all of the code under GPL v3.

Unfortunately, SCO's strange construction has yet another twist: it simply
means that anyone subject to US export control laws cannot distribute binaries
derived form GPL'ed code. It does not mean that they cannot publish GPL'ed
source, except to the extent that they cannot publish source at all.

[ Reply to This | # ]

IP Atty Says SCO Wants Judge to Rule GPL = Public Domain
Authored by: PM on Tuesday, October 28 2003 @ 07:17 PM EST
The reasoning in the previous article could be developed further to say that
open source software is just too dangerous to have around and therefore the
whole process has to be controlled as envisaged with Palladium. In other words
software engineering would be reduced to a mediaeval craft where entry comes at
a large price (it was seven years free labour I think.

Anyway if USA went down that line it is doubtful the rest of the world will buy
into it.

[ Reply to This | # ]

SCO Kills The Internet
Authored by: converted on Tuesday, October 28 2003 @ 07:30 PM EST
I've been following groklaw and the SCO/IBM case since
this whole thing began, reading every article, every
comment, followed every link. Suddenly tonight, thinking
of the consequences of a judgement in SCO's favour, it
dawned on me. Why am I a Linux convert? My love for the
language of the internet. The mechanics behind today's
globally distributed interactive collective mind. Why does
this matter? Well, I converted to Linux because it was the
environment most conducive to my new found passion, and
according to all the research I did at the time (1996),
most of the internets infrastructure was built on open
standards and open source.
With this in mind, I can't see how any judge, anywhere
could conceivibly make a decsion to kill the internet.
IMHO

I'm told I have an over active imagination, at least thats
what the voices say.

[ Reply to This | # ]

SCO Wants Judge to Rule GPL = BSD
Authored by: Anonymous on Tuesday, October 28 2003 @ 07:30 PM EST
Everybody seems to have latched on to the public domain idea, but for SCO's
nefarious plan to work, they don't need all the Linux code to be fully public
domain.

Converting all GPL code to a BSD-style license would work just as well for them,
and at first blush sounds more reasonable to a judge who might not be
technically inclined. Maybe they have something from the earlier AT&T case
up their sleeve for this.

In closing, I'll note rumors that a significant chunk of Windows code is
reportedly taken from BSD. I think Microsoft would consider Linux much less of a
threat without the GPL.

[ Reply to This | # ]

IP Atty Says SCO Wants Judge to Rule GPL = Public Domain
Authored by: tazer on Tuesday, October 28 2003 @ 07:33 PM EST
One of SCO's main contentions about GPL software, is that it devalues their
proprietary counterparts. This is an argument specifically in regards to the
end result of distributing GPL software, and not specifically about the actual
availability of source code to the public.

I think that by successfully defeating this argument, would prove case
shattering to SCO's ends. Microsoft distributes software that is essentially
free. I might have paid for Windows XP, but I didn't pay for the Movie Editor
that I dowloaded for the Windows Update site. If Microsoft, being a monopoly,
can distribute free software and devalue those who are trying to make a living
on pay-for versions of similar software, then it would seem to me that GPL
software has a precedent to use as a defense.

[ Reply to This | # ]

I've heard this cartoon before.
Authored by: Sunny Penguin on Tuesday, October 28 2003 @ 07:41 PM EST
So Darl, How will we take over the world tonight?

---
You can't SCO all of the people, all of the time.

[ Reply to This | # ]

PJ the Judge needs help!
Authored by: gumout on Tuesday, October 28 2003 @ 07:43 PM EST
PJ,
Sweet and charitable girl that you are, you must help Judge Kimball give away
the farm. Looks like he may need some research assistance.

ftp.irs.gov/pub/irs-tege/eotopice81.pdf

"Charitable testamentary trusts in the following states need a dissolution
provision in the trust instrument to satisfy Reg. 1.501(c)(3)-1(b)(4) because
these states have either expressly rejected or have never applied the cy pres
doctrine:

Alaska
Arizona
Hawaii
Idaho
Montana
Nevada
New Mexico
North Dakota
South Carolina
Utah
Wyoming"


---
Software will never be free until the last CEO has been
strangled with the entrails of the last lawyer.

[ Reply to This | # ]

Court will take line of least resistance - and not go on a side-trip
Authored by: Anonymous on Tuesday, October 28 2003 @ 07:52 PM EST
IANAL, but I believe that the judge will be fully aware of the import of the case, and consequences of any potentially such broad decision.

He will therefore make his decision as NARROW as possible.

I think he will try to frame his ruling within the context of SCO v IBM case

He may rule that the GPL is unenforceable by IBM in these circumstances

He may rule that the GPL is enforceable by IBM in these circumstances

He's unlikely to go on a side-trip and start ruling on the rights of others who are not even parties to the suit. He'll just say the court can defer general decisions as they are not applicable to this case.

Furthermore, I think if he does rule the GPL is unenforceable by IBM in these circumstances, unless somehow ALL IBM's copyrights belong to SCO (unlikely I think), he will read the GPL agreement for guidance on what happens to the copyrights (i.e. they remain with IBM, but potentially can't be enforced, say because of IBM's misconduct).

If he rules IBM's copyrights can't be enforced by IBM in this case, he might even defer the GPL issue completely.

[ Reply to This | # ]

once again
Authored by: Anonymous on Tuesday, October 28 2003 @ 08:18 PM EST
as i have said many times before. if the gpl is declared invalid then all
opensource licenses are. i doubt that everyone wants that since all code that
people have of opensource(bsd,MIT,open etc...) would then be public domain. and
think how much code the gov has created that are now by law public domain. same
goes with companies and just go down the list. it cannot work to claim the gpl
invalid it would create a horrific precedent that would create a continual
domino effect until even regular copyrights would have to become declared
invalid because if you go through opensource style licenses you come across alot
that would be akin to normal copyright but they are also akin to a more loosly
bases license and which is akin to so on and so on.. all and all one goes down
it would have to said all software licenses are invalid. all software would be
public domain, think about it thats all im saying......

[ Reply to This | # ]

  • once again - Authored by: tazer on Tuesday, October 28 2003 @ 11:59 PM EST
Dual-licensed code
Authored by: Anonymous on Tuesday, October 28 2003 @ 08:33 PM EST

An interesting thought on SCO's strategy.

Some responses:

(1) Most of the authors are still living, so cy pres is not required as the rights holders are capable of applying another license of their choice (including a GPLv3 which could address any shortcomings identified by the court).

(2) Dual-licensed code has already made a preference not to be placed in the public domain known.

(3) Other jurisdictions might well baulk at reaching the same conclusion as the US jurisdiction. A considerable amount of Linux is not under US copyright law, but is made available to US users via the Berne Convention's recognition of foreign copyrights. A re-negotiation of aspects of the Convention would be required, and the ratification of the modified treaty would be new law most likely suplanting the court's decision.

(4) The effect on other software licenses which also contain flaws would be interesting. Microsoft may yet rue giving money to SCO :-)

[ Reply to This | # ]

New MozillaQuest Article
Authored by: stevem on Tuesday, October 28 2003 @ 08:34 PM EST
http://www.mozillaquest.com/Linux03/ScoSource-29-HP-SCO-Indemnification_Story01.
html

- stevem

[ Reply to This | # ]

  • Idiocy - Authored by: Anonymous on Tuesday, October 28 2003 @ 08:45 PM EST
    • Idiocy - Authored by: Maserati on Tuesday, October 28 2003 @ 09:50 PM EST
    • Idiocy - Authored by: PJ on Wednesday, October 29 2003 @ 04:53 AM EST
  • New MozillaQuest Article - Authored by: stevem on Tuesday, October 28 2003 @ 08:48 PM EST
IP Atty Says SCO Wants Judge to Rule GPL = Public Domain
Authored by: Anonymous on Tuesday, October 28 2003 @ 08:35 PM EST
From 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.

.....the GPL adds terms to allow copying...it does not surrender any. Hence, if
it is invalidated, I would think that it would simply revert to standard
copyright laws...and we all would be screwed.

IANAL, but at least I think..

[ Reply to This | # ]

IP Atty Says SCO Wants Judge to Rule GPL = Public Domain
Authored by: Anonymous on Tuesday, October 28 2003 @ 08:58 PM EST
In my dreams...

Judge: Let me get this straight. You want the court to rule that the work of
thousands of programers who licensed their work under a specific license to be
available for general public usage and for the good of the general public, so
long as specific guidelines are followed that disallow claimed ownership by a
specific company as no longer their own works and that they have somehow made a
wrong choice that releases their work as public domain?

SCO: Yes, your honor.

Judge: I hereby declare Unixware to be in the public domain. What comes around,
goes around. Good day.


[ Reply to This | # ]

SCO Trips Over Their Own Feet
Authored by: Nathan Hand on Tuesday, October 28 2003 @ 09:22 PM EST

I couldn't write fiction as funny as this.

SCO spokesman Blake Stowell said SCO doesn't offer indemnification, or legal protection, for use of Samba... assuming responsibility for a Samba lawsuit, he said, "I don't think we could."

But wait... wasn't SCO demanding that IBM and Red Hat offer indemnification for use of Linux? But SCO refuses to do the same thing for Samba. I'm confused!

SCO's Web site states unambiguously that it's not possible to offer indemnification on GPL software: "Some customers have asked their Linux distributors to indemnify them against intellectual property infringement claims in Linux. The Linux distributors are unable to do so because of the terms and conditions in the General Public License," a page describing SCO's Unix license said.

SCO has been suggesting that IBM should indemnify its Linux customers. "If IBM is so confident that Linux is free and clear, why don't they indemnify their users against any lawsuit SCO could bring against them?" Stowell said.

[David] Byer [IP Attorney with Testa Hurwitz & Thibeault] seemed bemused by the whole situation.

Bemused doesn't even begin to cover it. SCO claims it's not possible to indemnify software licensed under the GPL, yet they demand that IBM do the impossible, and then claim "victory" when IBM doesn't do it.

[ Reply to This | # ]

Why stop at the GPL?
Authored by: Anonymous on Tuesday, October 28 2003 @ 09:46 PM EST
Is there something so magically different about the GPL that sets it so far
apart from the plethora of other OSI approved licenses, that it and only it
could be declared void? It seems to me that if the GPL is shot down, then all
of the other OSI approved licenses would be shot down as well. So assuming
there's merit to SCO's arguments, what's to prevent other, non-OSI approved
licenses from being declared void as well?

[ Reply to This | # ]

REVEALED! SCO's legal theory of why GPL invalid REVEALED?
Authored by: Anonymous on Tuesday, October 28 2003 @ 10:15 PM EST
From CNET article http://news.com.com/2100-7344_3-5098610.html

SCO offered no details in its court filing, but it said in a statement,
"Article 1 Section 8 of the U.S. copyright law says that Congress can
regulate copyrights, not the FSF or any other organization."

Okay, you're probably thinking that's a simple misunderstanding of the GPL

However I believe that they will try to focus on sections such as section 9 of
the GPL (and/or possibly other sections relating to FSF controlling the GPL
license documents):-

9. The Free Software Foundation may publish revised and/or new versions
of the General Public License from time to time. Such new versions will
be similar in spirit to the present version, but may differ in detail to
address new problems or concerns.

Each version is given a distinguishing version number. If the Program
specifies a version number of this License which applies to it and "any
later version", you have the option of following the terms and conditions
either of that version or of any later version published by the Free
Software Foundation. If the Program does not specify a version number of
this License, you may choose any version ever published by the Free Software
Foundation.


i.e. SCO will say that if the author essentially abrogated his rights to
determine the license to the FSF, and this is the violation they claim

[ Reply to This | # ]

SCO Speak to English Dictionary
Authored by: Sunny Penguin on Tuesday, October 28 2003 @ 10:56 PM EST
We need a new dictionary to convert the SCO Weasel/Devil language into non
Weasel/Devil English:

Here is a starter phrase:
IBM cannot use the GPL against us, because the GPL is invalid.

Translation:
Mea Culpa; We stole code from Linux for Unixware. We had fired all our
programmers, we had to do something.

---
You can't SCO all of the people, all of the time.

[ Reply to This | # ]

Way off-topic...
Authored by: rand on Wednesday, October 29 2003 @ 12:17 AM EST
...but as long as you're going to be up all night catching up on the latest Groklaw, you might as well enjoy the light show.

---
#include IANAL.h

[ Reply to This | # ]

IP Atty Says SCO Wants Judge to Rule GPL = Public Domain
Authored by: burySCO on Wednesday, October 29 2003 @ 12:18 AM EST
I suspect Douglas Steele is definitely onto something here.

But I doubt whether SCO (the company) will directly benefit by whatever happens;
by the time this farce if over they'll be such an outcast organization that
no-one will do business with them (if not already). This is looking more &
more like the suits that are running things at SCO have some agenda other than
whether or not the SCO company itself survives until court.

So I wonder what company -would- benefit by the destruction of the GPL (starts
with M as in Monopoly perhaps?) and if the SCO execs are really acting on their
behalf, and for what payment? At first I thought this was just a stock
pump&dump scheme, I didn't believe the "SCO is Microsoft's
dog" conspiracy theory. Now I'm not sure...



---
My jabber handle is burySCO@jabber.org

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IP Atty Says SCO Wants Judge to Rule GPL = Public Domain
Authored by: Anonymous on Wednesday, October 29 2003 @ 12:24 AM EST
This is pretty much offtopic but I read an interesting headline: "SCO attacks open-source foundation"

RMS is going to have a hernia when he sees the Free Software Foundation referred to as the "Open Source Foundation." :P

[ Reply to This | # ]

IP Atty Says SCO Wants Judge to Rule GPL = Public Domain
Authored by: tazer on Wednesday, October 29 2003 @ 01:12 AM EST
According to US Copyright Law - Chapter 5
§ 504. Remedies for infringement: Damages and profits4

(a) In General. — Except as otherwise provided by this title, an infringer of copyright is liable for either —

(1) the copyright owner's actual damages and any additional profits of the infringer, as provided by subsection (b); or

(2) statutory damages, as provided by subsection (c).

(b) Actual Damages and Profits. — The copyright owner is entitled to recover the actual damages suffered by him or her as a result of the infringement, and any profits of the infringer that are attributable to the infringement and are not taken into account in computing the actual damages. In establishing the infringer's profits, the copyright owner is required to present proof only of the infringer's gross revenue, and the infringer is required to prove his or her deductible expenses and the elements of profit attributable to factors other than the copyrighted work.

(c) Statutory Damages. —

(1) Except as provided by clause (2) of this subsection, the copyright owner may elect, at any time before final judgment is rendered, to recover, instead of actual damages and profits, an award of statutory damages for all infringements involved in the action, with respect to any one work, for which any one infringer is liable individually, or for which any two or more infringers are liable jointly and severally, in a sum of not less than $750 or more than $30,000 as the court considers just. For the purposes of this subsection, all the parts of a compilation or derivative work constitute one work.

(2) In a case where the copyright owner sustains the burden of proving, and the court finds, that infringement was committed willfully, the court in its discretion may increase the award of statutory damages to a sum of not more than $150,000. In a case where the infringer sustains the burden of proving, and the court finds, that such infringer was not aware and had no reason to believe that his or her acts constituted an infringement of copyright, the court in its discretion may reduce the award of statutory damages to a sum of not less than $200. The court shall remit statutory damages in any case where an infringer believed and had reasonable grounds for believing that his or her use of the copyrighted work was a fair use under section 107, if the infringer was: (i) an employee or agent of a nonprofit educational institution, library, or archives acting within the scope of his or her employment who, or such institution, library, or archives itself, which infringed by reproducing the work in copies or phonorecords; or (ii) a public broadcasting entity which or a person who, as a regular part of the nonprofit activities of a public broadcasting entity (as defined in subsection (g) of section 118) infringed by performing a published nondramatic literary work or by reproducing a transmission program embodying a performance of such a work.

(d) Additional Damages in Certain Cases. — In any case in which the court finds that a defendant proprietor of an establishment who claims as a defense that its activities were exempt under section 110(5) did not have reasonable grounds to believe that its use of a copyrighted work was exempt under such section, the plaintiff shall be entitled to, in addition to any award of damages under this section, an additional award of two times the amount of the license fee that the proprietor of the establishment concerned should have paid the plaintiff for such use during the preceding period of up to 3 years.

[ Reply to This | # ]

More SCO press coverage
Authored by: Anonymous on Wednesday, October 29 2003 @ 01:26 AM EST
More SCO press coverage

http://www.fundalarm.com/hilights.h tm

[ Reply to This | # ]

Waiting unbearable
Authored by: Anonymous on Wednesday, October 29 2003 @ 01:45 AM EST
Gosh the waiting is getting unbearable

I can't wait for IBM's reply brief on the motion to compel. I'm hoping it'll
to be a good one.

A decision of SCO's motion in the Red Hat suit, would be a nice snack if that
came out first

Any idea when we might see either of these?

[ Reply to This | # ]

IP Atty Says SCO Wants Judge to Rule GPL = Public Domain
Authored by: Anonymous on Wednesday, October 29 2003 @ 02:35 AM EST
Taking this line of reasoning one step farther, SCO may be planning to either 1)
have releasing software under the GPL declared a capital crime; 2) have OSS
developers declared "enemy combatants" subject to indefinite
imprisonment without recourse to legal counsel; or 3) use the $50 million they
now have to put out mob hit contracts on OSS developers. This would explain the
importance of the "cy pres" doctrine.
The GPL seems simple enough (especially compared to the mind numbing EULAs that
MS users have to wade through). As long as someone shows up in court to oppose
this nonsense, SCO cannot possibly prevail.
Where would we be without IBM and Red Hat? Sorry, and Eben Moglin. Is anyone
paying him for what he is doing?

Bob Gleitsmann

[ Reply to This | # ]

export control argument is bogus
Authored by: dulitz on Wednesday, October 29 2003 @ 02:49 AM EST
As I understand it, TSG's export control argument is that the GPL requires
distribution to all, export controls prohibit distribution to some, the GPL
entirely prevents distribution if any of its requirements cannot be met, so
therefore the GPL never allows distribution. Then they make various follow-on
claims.

However, the GPL does not require distribution to all. Section 1 of the GPL
governs the distribution of source code only. For rights licensed under this
section, there is no requirement that you distribute source code to anyone who
asks, only that when you distribute source code you must tell the recipients
about their rights to the code under the GPL. Section 1 is a useful license
standing by itself, even without sections 2 and 3: it allows you to distribute
unmodified source code to people of your own choosing.
In particular, section 1 allows you to choose not to distribute source code
illegally, while still distributing source code to others.

Section 2 of the GPL governs the distribution of the source code of derivative
works. For rights licensed under this section, there is no requirement that you
distribute source code to anyone who asks, only that when you distribute source
code you must cause the derivative work "to be _licensed_ ... to all third
parties under the terms of this License" (GPL 2b, emphasis added). Again,
section 2 does not require you to distribute source code in contravention of
law; it simply requires you to license the derivative work to all, even to those
who may not legally obtain it. In other words, if an unrelated party illegally
provides the work to someone in violation of export control regulations, you may
not sue for violation of your license.(*)

Section 3 of the GPL governs the distribution of object or executable code. For
rights licensed under this section, there is no requirement that you distribute
code to anyone who asks, only that when you do distribute code you satisfy _one_
of conditions (3a), (3b), or (3c). For rights licensed under paragraph (3a),
there is no obligation to distribute code to anyone who asks, only that when you
distribute object or executable code you must accompany it with the source code.
For rights licensed under paragraph (3b), there is an open-ended obligation to
distribute source code to anyone who pays a minimal fee, so the mechanism of
paragraph (3b) may not legally be used for distributions of export-controlled
code. For rights licensed under paragraph (3c), there is no obligation to
distribute code at all; paragraph (3c) may be legally used if (3b) was used by a
party not bound by export control regulations.

In summary, my argument is threefold. Firstly, each of sections 1, 2, and 3 are
standalone, severable provisions, and standing alone, each confers a valuable
benefit (distribution) even if other provisions are struck. Secondly, none of
sections 1, 2, or 3 impose requirements that are incompatible with export
control law, because the licensor may comply with the license by distributing
code widely while still refusing to distribute code illegally. A licensor of
export-controlled code may not rely upon the mechanism of paragraph (3b) to
satisfy the obligations of section (3), but the mechanisms of paragraphs (3a)
and (3c) may be chosen.

Thirdly and finally, distribution of source code as required by paragraph (3b)
is always legal, since source code is speech subject to the protections of the
First Amendment, and the export control regulations cannot survive strict
scrutiny. So in fact even the mechanism of paragraph (3b) may be used to
satisfy the obligations of section 3.

(*) Of course, if I were to enter into a commercial license for an
export-controlled work with a party to whom I am prohibited by law from
distributing the work, the specificity of such an agreement, and the
remuneration I received in exchange, would be evidence of my intent to illegally
distribute the work. But a blanket license, offered to all, to use the work is
not evidence of any intent or agreement to illegally distribute the work.

[ Reply to This | # ]

IP Atty Says SCO Wants Judge to Rule GPL = Public Domain
Authored by: Anonymous on Wednesday, October 29 2003 @ 03:53 AM EST
If we take these claims to the extremes

Judge: Why did you steal this car?

Accused: I didn't steal it.

Judge: But you were caught driving it 100 miles from where the owner left it.

Accused: Its like this, your honour. I was walking down the street and saw
this nice black XKR8 parked at the side of the road. It was a public road and
we all know that public roads are in the public domain. This car was obviously
in the public domain. As no-one owns whats in the public domain, I hopped in
the car, hot wired it and drove it away. I was free do do what I wanted with
it, as it was in the public domain.

Judge: Explaination accepted. Not guilty!

This is the convoluted, falacious reasoning is what the SCO FUD-mongers want
their "media experts and analysts" to publicise widely.

[ Reply to This | # ]

GPL and anti-trust law
Authored by: Anonymous on Wednesday, October 29 2003 @ 05:22 AM EST
The GPL is invalid because...

It's an illegal pricing fixing cartel designed to set the price at software at
$0

Although you are allowed to sell GPL products, the design of the license is
designed to use economics to drive the price down to $0 (because everybody has
the right to resdistribute, so unlimited supply and limited demand).

Participants in the cartel include IBM, Sun, HP, CELF, Sony, Fujitsu, Siemens,
SGI, Microsoft (MS services for UNIX product), etc.

The goal of the cartel and nature is clearly expressed in the FSF's documents
and manifesto.

SCO/Caldera, by refusing to participate in the cartel's pricing fixing
activities, should not be penalized, and therefore should not be prevented from
benefiting from access to key technology.

P.S.
(Isn't price fixing mostly, or usually, or perhaps even always, about
maintaining high prices).

P.P.S.
Work-round on last point: "This version or later" clause in the GPL
will allow the members of the cartel to subsequently raise prices once they have
eliminted their competition by mass product dumping at low prices.

[ Reply to This | # ]

new article
Authored by: Anonymous on Wednesday, October 29 2003 @ 05:55 AM EST
new article by Shankland (who wrote the cnet article)

appears similar, but I don't think it's identical (I didn't check), to the
version on cnet

http://www.silicon.com/software/os/0,39024651,39116660,00.htm

[ Reply to This | # ]

How the GPL violates export laws
Authored by: Anonymous on Wednesday, October 29 2003 @ 06:10 AM EST
The GPL says if you give somebody the binary, you must give them the source.

Obviously if giving somebody is in a country to which export is not allowed, you
could avoid problems by not giving them the binary in the first place, or simply
not giving them anything.

However consider these scenarios:

1. John Walker Lindh downloads the binary to Linux while in California. He then
moves to Afghanistan and joins the Taliban. Once there, he reads the GPL and
realizes he is entitled to the source code. He then, in accordance with the GPL,
requests you give him the source!

2. Saddam Hussein's forces cross into Khafji in Saudi Arabia during the 1991
Gulf war. While occupying the town, the find a disk with a copy of Linux
binaries. Reading the GPL, the Iraqi captain, realizes he is entitled to copy
the disk, so does so, and gives copies to his superiors back in Iraq.
Furthermore, after being driven out of town, and after the war, the head of the
Republican Guard, tries this war booty disk. He discovers it only contains
binaries. He notes the GPL and therefore believes he is entitled to a copy of
Linux source code.

3. You send a copy of Linux to your penpal in Venezula. Unknown to you, she is
an aide to elected (but unpopular with the Bush adminstration) leader, Hugo
Chavez. In between fighting general strikes, Hugo Chavez, tries this Linux thing
and likes it. He reads the GPL and sees he is entitled to copy the disk. Chavez
then copies the disk, and gives the copy to his friend, Fidel Castro, when he
comes on a diplomatic visit.

[ Reply to This | # ]

SCO Says "GPL != PD"
Authored by: Anonymous on Wednesday, October 29 2003 @ 06:25 AM EST
I was just browsing through the archives, and I thought I'd point out the
following quote, from a SCO website (the link is in the orignal article, which
is in the archives under the name "Now they are starting to look at the
GPL?").

"Printed below is the GNU General Public License (the GPL or copyleft),
under which Linux is licensed. It is reproduced here to clear up some of the
confusion about Linux's copyright status--Linux is not shareware, and it is not
in the public domain. The bulk of the Linux kernel is copyright ©1993 by Linus
Torvalds, and other software and parts of the kernel are copyrighted by their
authors. Thus, Linux is copyrighted, however, you may redistribute it under the
terms of the GPL printed below. . . ."

[ Reply to This | # ]

IP Atty Says SCO Wants Judge to Rule GPL = Public Domain
Authored by: Anonymous on Wednesday, October 29 2003 @ 06:50 AM EST
Let's for a moment assume, that the U.S. Courts have the right to place GPL-ed
work of U.S. citizens into the public domain.

The Linux kernel also contains copyrighted works of people who are not American
citizens.

Does the U.S. Courts have the right to place THEIR WORK into public domain, just
because it declares that GPL is void?

[ Reply to This | # ]

"cy pres doctrine" won't work
Authored by: Tsu Dho Nimh on Wednesday, October 29 2003 @ 07:31 AM EST
"cy pres doctrine" comes into play frequently when a person makes a
charitable bequest in a will, and the charity goes out of existance. Obviously
at this point, the writer of the will can't be asked about Plan B for their
property.

If Granny left $500,000 and a plot of land to a local animal shelter and the
shelter has stopped operation, the greedy grandkids can't get it. "cy
pres" could be invoked and the bequest would go to whatever organization
most closely fit the description of the original recipient's activities.

This can lead to horrendous legal catfights if there are multiple organizations
trying to step into the shoes of the original recipient.

[ Reply to This | # ]

Contradiction?
Authored by: Anonymous on Wednesday, October 29 2003 @ 12:09 PM EST
If SCO succeeded in getting all GPL'd software from the last 3 years into
public domain, and SCO distributed the "infringing" material under
GPL, didn't SCO just place their own IP in public domain? I think I'm
getting a brain cramp.

[ Reply to This | # ]

IP Atty Says SCO Wants Judge to Rule GPL = Public Domain
Authored by: Anonymous on Wednesday, October 29 2003 @ 12:17 PM EST
Let's assume that SCO succeeds. Now, all GPL'd code is public domain. Where
does that get them? All of the Linux kernel is public domain. SCO's code,
which they claim IBM copied, is found in the Linux kernel. SCO themselves
distributed (and continue to distribute) this code under the GPL, meaning all of
it is in the public domain.

So...they're suing IBM for taking SCO's "secrets" from the public
domain and putting them...IN THE PUBLIC DOMAIN????

Yes, I now see how they're going to win:

"Hi, Your Honor. My name is Darl McBride. I'd like to sue IBM, and do
so by advancing a legal theory that, if successful, would completely defeat any
possibility of recovery against IBM. Wait, why are you laughing?"

[ Reply to This | # ]

Caldera understood the GPL
Authored by: Sunny Penguin on Wednesday, October 29 2003 @ 01:58 PM EST
From Caldera Open Server docs

Where did Linux come from?

Linux was started in the early 1990s as a small research project by a Finnish college student named Linus Torvalds. Soon after Linus started his project, hundreds of others began to participate in its development via the Internet. A cooperative venture grew in which thousands of people were working together to create a new operating system. The inclusion of the GNU utilities from the Free Software Foundation (see http://www.fsf.org) and the release of Linux under the Gnu General Public License (GPL) furthered the spread of this work. The GPL provides that the source code to the software is released with the product and that no one can restrict access to it. Software licensed under the GPL license is sometimes referred to as Open Source software. With this type of software, anyone can examine and extend the source code, but all such work must be released for public use. Other licenses provide for inclusion of source code with its associated software, but to date the GPL is the most common Open Source license. NOTE: Programs that run on Linux don't have to be licensed under the GPL or any other Open Source license. Thousands of commercial applications that you can run on Linux (such as Corel WordPerfect 8 or Oracle 8 Server) use commercial licenses; they are not "GPLed," and do not include source code, thus they cannot be freely distributed. The Linux product you have purchased is built upon the work of thousands of individuals, then assembled and packaged by Caldera Systems, Inc. More complete histories of Linux and the free software and Open Source development communities are available in many of the online and printed resources named at the end of this chapter.

link to Caldera GPL definition

This is cute too, Caldera SEC docs:

RISKS RELATED TO LEGAL UNCERTAINTY WE COULD BE PREVENTED FROM SELLING OR DEVELOPING OUR PRODUCTS IF THE GNU GENERAL PUBLIC LICENSE AND SIMILAR LICENSES UNDER WHICH OUR PRODUCTS ARE DEVELOPED AND LICENSED ARE NOT ENFORCEABLE.

The Linux kernel and certain other components of our products have been developed and licensed under the GNU General Public License and similar licenses. These licenses state that any program licensed under them may be liberally copied, used, modified and distributed freely, so long as all modifications are also freely made available and licensed under the same conditions. We know of no instance in which a party has challenged the validity of these licenses or in which these licenses have been interpreted in a legal proceeding. To date, all compliance with these licenses has been voluntary. It is possible that a court would hold one or more of these licenses to be unenforceable in the event that someone were to file a claim asserting proprietary rights in a program developed and distributed under 9 14 them.

Redhat could use this next part, I think SCO knows controversy

Any ruling by a court that these licenses are not enforceable, or that Linux operating systems, or significant portions of them, may not be liberally copied, modified or distributed freely, would have the effect of preventing us from selling or developing our products, unless we are able to negotiate a license to use the software or replace the affected portions. These licenses could be expensive, which could impair our ability to competitively price our products.

Link to Caldera SEC Docs

Caldera/SCO had Madame Cleo beat hands down.

---
You can't SCO all of the people, all of the time.

[ Reply to This | # ]

IP Atty Says SCO Wants Judge to Rule GPL = Public Domain
Authored by: Anonymous on Wednesday, October 29 2003 @ 05:43 PM EST
This article implies that Lawrence Lessig wants the GPL to fail and all code
under it fall into the public domain.
I think that is a gross misrepresentation of what Lessig wants. Lessig has many
times promoted the GNU licenses, he has not wish to see them fail.

[ Reply to This | # ]

OT: Linux vs. UNIX vs. FreeBSD - wondering.
Authored by: Anonymous on Wednesday, October 29 2003 @ 06:45 PM EST
worldyroyster asked some questions about the BSD's. To paraphrase him: He
wanted to know why IBM - and the world + dog - ended up using Linux instead. I
thought I'd post it out of the nest to avoid the odd line wrapping behavior
I've noticed lately.

You'll probably be sorry you asked:-) First the code in FreeBSD isn't based on
AT&T's. It's was written by people that AT&T could accuse of mental
contamination. BSD was always derived from Unix until version 4.4-lite. If you
wanted a UC Berkeley distribution you paid about a $1000 dollars for a tape to
help defray costs of making the distribution and to support development. You
also had to have an AT&T license.

IIRC I first heard about FreeBSD when it was announced in an e-mail originating
from the University of Montana. It came out a little after NetBSD in late 1993.
They were both based on Bill Jolitz's 386BSD. Jolitz and his wife were working
on their own version 0.1 at the time. He had done the original BSD386 ports for
UC Berkeley, and started some of the early unsuccessful attempts at making an
unencumbered 386 port. The CSRG had finally gotten serious about making an
unencumbered version. Dr Dobbs Journal started a series about Bill's 386BSD
work that got a lot of people interested.

UUNET was founded in 1988(?) when AT&T and their partially owned partner SUN
got tired of paying the bulk of the long distance costs for everyone's UUCP
e-mail. They had made it a violation of their terms of use. One of the old relay
site system admins saw this as an opportunity and founded UUNET. They became the
first big commercial computer telecommunications service providers using mostly
leased lines. There were others that sprang up too. They all used TCP/IP but
would not handle each other's e-mail. AT&T sold their 20 percent interest
in SUN and announced plans to buy NCR. SUN immediately purchased a share in USL
as a partner. Finally in 1991, the independent service providers like UUNET got
together and agreed to connect their networks in Virginia. The commercial
Internet was off and running.

UUNET was still using Sun servers and Sun OS, but that was being slowly replaced
by SVR4. Many folks didn't like it or SUN because they had gotten horrible
support. In one notorious example, everyone waited for a year and a half to get
a serial port bugfix. A source code license for SVR4 cost $200,000 dollars. OSF
members had reported spent $150 million on their own OSF/1 development. That was
like the earlier BSD's, it still required an AT&T license. UUNET saw all of
this free Net/2 Unix stuff as another great business opportunity.

As I understand it, they underwrote the entire BSDi venture in the early days.
Bill Jolitz was one of the founders. He left BSDi abruptly when he found out
that the unencumbered version he was working on was also going to be just
another proprietary one. He wanted to keep making something for research and
education that a student (like Linus) could afford to use either at work, in
school, or at home. He accused all of the Berkeley CSRG staff of seeing the
handwriting on the wall, and wanting to get-rich-quick off of the their Berkeley
work by going to work for BSDi. By a strange coincidence many of them eventually
did. BSD was publicly funded research work after all. BSDi did send their
"Jolitz works" back to Berkeley for inclusion in 4.4BSD - in much
the same way Codeweavers today supports the Wine project. This seemed to be the
first disagreement over how to support free software development. Many people
confuse BSDi with the free software movement. It wasn't free, but came with
source code. The license didn't allow any redistribution, and it cost $899. As
I recall it, it was much better than any of the free products and many other
commercial products like Interactive's 386.

This story then is alot like Microsoft when they under-estimated "The
Internet". AT&T always viewed BSD as a good thing until it no longer
meant one of their licenses was part of the bundle. Now it was a tool in the
hands of their commercial telecommunications rivals. The deal with BSDi and
UUNET had an exact parallel with Netscape/AOL/SUN's battle royale with MS.
These BSDi and UUNET people represented a new front in AT&T's battle for
telecommunications hardware and software hegemony.

When AT&T took on BSDi in court, and then the Regents too, it really had
little to do with Jolitz and his free software for the 386. He was no longer
working with any AT&T code, and 386's weren't used in commercial
telecomminications all that much. He kept on with his new version of 386BSD.
This "free" BSD development never stopped during the USL v BSDi
trial. Like todays cases the claims keep changing. First trademark, then trade
secrets, then copyrights. Jolitz - like Linus today - wasn't really directly
involved. The one thing that seems to have been held in reserve was the USL
patents. That's probably what kept commercial licensees like IBM, Digital, HP,
SGI and Sequent signed to the licenses immediately after 1984. AT&T wasn't
SCO. They had been the largest company in the world, and could still afford to
act like it when IBM signed SOFT-00015 in 1985.

The whole saga of Bill Jolitz and his free version of 386BSD 0.0 is a long and
interesting one. People simply got tired of waiting for him to finish 386BSD
1.0, and in the meantime he quit accepting their patches. His version didn't
come out until Dr. Dobbs Journal released it in 1995. They were asking $99. It
was a staggering failure. The documentation was all in MS Word format, and
Jolitz himself never supported it at all. NetBSD also forked into OpenBSD at
about this same time. These different projects are all on good terms these days
- except for matters relating to the Jolitz's and their relative importance.
They are disliked by many BSD folk, but some go so far as revising the history
to practically expunge them.

Anyway, by 1994-95 you had Jolitz 386BSD, BSDi's BSD/386, Jolitz work on
included in 4.4BSD & 4.4 Lite, NetBSD, and FreeBSD that were all different
forks and animals. Many in the BSD community had trouble deciding what to do and
which set of leaders to follow. Linux offered you a choice of Linus or ...
Linus. I don't think it was any more complicated than that. People liked Linus
and they still do.

The BSD and OSF/1 folks came from an environment where AT&T licenses were
required, so nothing in their terms required you to waive any other license you
might happen to have. In fact NET/1 was perfectly useless without a Unix kernel
from somewhere else. I've pointed out BSD's connection to longhaul
communications on non-Intel stuff. Linux started on the 386. Those were usually
running at 16MHZ and had 1 to 4 meg of RAM back in those days. I can remeber
when I wanted one more than anything. I can also remember when an Alpha running
much slower than my present rig was simply unimaginable and beyond the budget of
most smal companies The improvements and ports of Linux that happened after 1995
were important, but would not have mattered if they weren't matched in
performance gains and price drops in Intel and AMD hardware. IBM, HP (Compaq,
Digital), SGI and etc. are simply facing reality these days. You can lead the
market, but you can't make it go or scale (Merced) anywhere it doesn't want
to. The commodity stuff today works great for 99% of all applications or
situations. I also think they like the regime imposed on derivatives by the GPL.
That's because it keeps them more honest in their dealings with one another. If
you look at the companies that partnered in USL and OSF are the same ones we see
today in the Open Group, the Consumer Electronics Linux Forum, United Linux (IBM
and HP), and such. They have partnered, cross-licensed and consorted for decades
- and fought like the Hatfields and McCoys along the way. Bell Labs is even
giving away Plan 9 for free, essentially what they did the early versions of
Unix. Perhaps they have all finally figured out that there are bigger and better
things to fight over than an OS kernel.

[ Reply to This | # ]

IP Atty Says SCO Wants Judge to Rule GPL = Public Domain
Authored by: Anonymous on Wednesday, October 29 2003 @ 07:59 PM EST
The ironic thing is that if Linux were placed in the public domain, it would at last be open source.

It's not open source now, though. It's licensed under the GPL, and the GPL does not conform to the Open Source Definition because it discriminates against a group of people (commercial programmers) and a field of endeavor (the creation of commercial software).

So, maybe it'd be a good thing if Linux, etc. were dedicated to the public domain. They'd at last be what they were claimed to be, but were not.

[ Reply to This | # ]

why does the court have to guess
Authored by: Anonymous on Wednesday, October 29 2003 @ 09:07 PM EST
Why would the court have to guess the intent of the charitable contribution
under "cy pres"? Since most of the creators of the charitable
contribution are still around, one can simply ask them what they intend to do
with their copyrighted software if the GPL were declared invalid. And I bet
that giving it to SCO for free is not their intent.

[ Reply to This | # ]

great test case
Authored by: Anonymous on Wednesday, October 29 2003 @ 09:30 PM EST
SCO's claims are so ridiculous and unfounded that this is a great test case for
the GPL: the GPL will survive this easily and it will be stronger as a result.

[ Reply to This | # ]

Why this argument will fail
Authored by: Anonymous on Wednesday, October 29 2003 @ 10:17 PM EST
1. Anything licensed under BSD (or other free software) licence would have to be
pronounced "public domain" too. Big upset for a lot of people.

2. No judge makes decisions in a vacuum. Whoever it may be, I'm sure he/she
will read the reasons for the existence of GPL and its purpose. As RMS clearly
states, the problem with putting software in "public domain" is that
it gets hijacked by people that don't play fair. Therefore the GPL - to
perpetuate the software freedom. Judge is unlikely to ignore that.

3. Copyright is property. Making judgements that it is OK that the property is
no longer property on the basis of "you allowed everyone to use it
freely" is a slipery slope for any judge or jury. Next thing you know,
you'll have people that have occupied someone's piece of land for an extended
amount of time asking to pronounce that land "public domain". No
judge wants to go there.

4. Copyright holders of GPL-ed software would sue the hell out of everyone.

[ Reply to This | # ]

Judge more likely to substitute GPL with another Open Source License
Authored by: Anonymous on Thursday, October 30 2003 @ 10:04 AM EST
Qoute from article:

"The cy pres doctrine (cy pres is from French for "so near" or
"as near as possible") is a principle of law that courts use to save
charitable bequests from failing of their objective if they become impossible to
fulfill. Using the doctrine, a court substitutes another charitable purpose
which it believes approaches that of the original as nearly as possible."

If GPL is declared void (Unlikely, but for the sake of discussion, lets assume
this) it is more likely that one or another "Open Source License"
will be nearer to GPL's original intention than Public Domain. After all, one
important aspects that the poor judge has to consider is that no GPL contributor
had said that they denounce any copyright claims and he has the duty the protect
this.

[ Reply to This | # ]

IP Atty Says SCO Wants Judge to Rule GPL = Public Domain
Authored by: PJ on Friday, October 31 2003 @ 12:41 AM EST
I'm happy to tell you that Doug is going to do a followup article. Many
of the issues you raised in your excellent comments will be addressed.
Also the preemption matter. So stay tuned. He says it'll be ready
probably next week some time.

[ Reply to This | # ]

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