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Copyright Preemption -- Explaining the "GPL is Unconstitutional" Claim
Thursday, October 30 2003 @ 12:13 AM EST

Copyright Preemption is a very murky area of the law. That is perfect for any party wishing to survive a summary judgment motion. Some cases have gone one way; others have gone the opposite way. You've probably heard or read some of the shrinkwrap cases, and yes, they belong in this pot.

To understand where SCO is coming from (so as to counterpunch, not so as to have empathy), and the upside down way they are trying to use preemption, it's important to understand the whole issue of copyright preemption. When does federal law preempt state law claims and when doesn't it? Here are some resources.

First, what is copyright preemption and when does it come into play?:

Most court's today follow Professor Nimmer's "extra element" test for equivalent rights, described by the Second Circuit as follows:

When a right defined by state law may be abridged by an act which, in and of itself, would infringe one of the exclusive rights [of a copyright owner under Section 106], the state law in question must be deemed preempted. . . .

Conversely, when a state law violation is predicated upon an act incorporating elements beyond mere reproduction or the like, the rights involved are not equivalent and preemption will not occur.

Harper & Row, Publishers v. Nation Enterprises, 723 F.2d 195, 200, 220 U.S.P.Q. (BNA) 321 (2d Cir. 1983), rev'd on other grounds 471 U.S. 539, 105 S.Ct. 2218, , 85 L.Ed.2d 588 (1985). As the Altai court notes the "extra element" must be more than just an intent or state-of-mind requirement: it must be an extra substantive element that has independent analytical content, beyond mere violation of one of more of the rights of a copyright holder specified in Section 106.

The idea is to avoid duplication and to make sure that no state law adds to or takes away from copyright law. For example, courts generally will prevent a contract that prohibits reverse engineering or fair use. I hear you protesting, But that is exactly what EULAs do. Yes, that is correct, and as you know, some EULAs have been upheld. But in other cases, they have not. There are two listed at the end of this article, with links, so you can read them. The contrary rulings are what I mean about murky.

There are two schools of thought and two lines of cases. One holds that parties are free to contract almost anything they wish. The other holds that the public interest must be preserved. SCO is cynically arguing for the latter, while simultaneously trying to destroy software distributed under a license specifically designed to promote a public good. Here's a description of the two competing schools:

A. Two Competing Views of Copyright-Freedom of Contract v. Public Domain

The particular ProCD issue-defining the allowable range of contract with respect to noncopyrightable data-brings two extreme competing views of the purpose of copyright into focus. One view (for simplicity, referred to as the "freedom of contract" view) contends that copyright merely provides a bundle of rights to copyright owners to help them avoid the transaction costs of contracting with each purchaser of the copyrighted material. In this model, copyright functions much like Article 2 of the UCC-as a boilerplate contract to govern the parties' relationship in the absence of a contrary agreement. Nothing prevents the parties from contracting around the rights granted by copyright or, in the case of data not protected by copyright, from creating their own property rights through private contract. In the freedom of contract model, any distinction between the contract and preemption inquiries collapses. As long as the contract passes muster under traditional common law contract and the UCC, its provisions-even those affecting copyright-type rights-are not subject to preemption.

Another view (for simplicity, referred to as the "public domain" view) argues that copyright represents a legislative scheme carefully balanced to advance the public interest by providing an incentive to authors to create while safeguarding the free flow of the information on which such creativity is based. In this model, there are immutable rules around which the parties cannot contract because the public interest cannot be sacrificed on the altar of two-party agreements. The problem is in defining exactly which provisions of the copyright law are immutable and which are not, in a manner more definitive than simply stating "We know immutable rules when we see them." The public domain model thus distinguishes between the contract and preemption inquiries. Merely because a contract is enforceable under traditional contract law does not mean that it is not preempted by copyright law. The difficulty lies in identifying under what circumstances provisions of an otherwise enforceable contract are preempted.

What is the part of copyright law that mentions preemption?:
The specific statutory basis for preemption is section 301(a), which provides as follows:

On or after January 1, 1978, all legal or equitable rights that are equivalent to any of the exclusive rights within the general scope of copyright as specified by section 106 in works of authorship that are fixed in a tangible medium of expression and come within the subject matter of copyright as specified by sections 102 and 103, whether created before or after that date and whether published or unpublished, are governed exclusively by this title. Thereafter, no person is entitled to any such right or equivalent right in any work under the common law or statutes of any State.

In summary, the Copyright Act provides that no state may provide protections (statutory or common law) for Tangible Works that are equivalent to the Exclusive Rights. Several important observations:

" As discussed above, not all Tangible Works qualify for copyright protection, but the statute preempts state laws even when the Tangible Work does not qualify for copyright protection.

The statute does not preempt all state laws that relate to Tangible Works; it only preempts state laws that provide "equivalent rights" to any of the Exclusive Rights.

The statute applies to all state laws, whether common law or statutory.

There is also a broader concept of copyright preemption that applies merely by virtue of the existence of the Copyright Act itself. That is, it is clear that Congress intended to "occupy the field" of copyright protection by enacting the Copyright Act, even apart from the specific provisions of section 301(a). However, the case law analysis of preemption has been substantially identical whether the courts view the issue under the specific provisions of section 301(a) or under the broader Copyright Act implied preemption approach.

If copyright preemption does not apply, the plaintiff can bring a state law claim. The plaintiff may also be able to bring a copyright claim as well. In other words, while a finding of copyright preemption means a claim must be brought under the Copyright Act or not at all, a finding of no copyright preemption permits any manner of claim to be brought, including a Copyright Act claim (if one exists).

.... The treatise Nimmer on Copyright. . . states that a state law relating to protection of a Tangible Work is preempted by the Copyright Act unless liability under the state law requires some "extra element" that goes beyond the Exclusive Rights. . . .

The finding that preemption does or does not apply does not stop the inquiry. If preemption limits a plaintiff to claims under the Copyright Act, the plaintiff may or may not win for a variety of factors that depend on the actual claim and the provisions of the Copyright Act. Similarly, the fact that the plaintiff is permitted to bring a state law claim does not mean that the plaintiff will win the state law claim. Again, winning or losing depends on the facts and the particular state law right in question.

And here is a piece of the best overall explanation of this area of law, but I recommend you read the whole article:
{22} A reliance on contracts for protection, the declining cost of contracting, and the incentive to price at a fine-grained level that varies for each buyer, bring us to the issue of the enforceability of contracts for the use of digital works. Contract law itself, of course, provides some limits to the enforceability of contracts: fraud, duress, and the like are always concerns whether for digital works or anything else. But works of authorship have their own special contractual problems arising from the possibility that copyright law might preempt the terms of a contract.

{23} The Copyright Act expressly provides that in some situations, a state law or right will be preempted, leaving copyright law itself as the only applicable rule. [11] Section 301 of the Copyright Act preempts any attempt under state law to protect something when two conditions are met. First, the "something" must fall under the subject matter of copyright as an original work of authorship fixed in a tangible medium of expression. Second, the state law at issue must provide rights that are "equivalent" to those provided by copyright. In addition to this "statutory" preemption of state law, preemption may also be available under a general analysis relying on the Constitution's Supremacy Clause. [12] This latter approach asks whether a state law "stands as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress"; [13] if so, the state law may be preempted even though the preemption prerequisites of section 301 are not satisfied. [14]

{24} Though obviously grounded in the need to avoid conflicts between federal and state law, the preemption doctrine has experienced at best an inconsistent interpretation by the courts, as other commentators have noted. [15] Preemption questions under copyright law can arise with regard to nearly any state law that might apply to informational works. For example, cases have dealt with trade secret law, [16] unfair competition law, [17] invasion of privacy, [18] conversion [19] and the right of publicity, [20] as well as the law of contract.

{25} The preemption issue arises when authors' or users' copyright rights appear to be either enlarged or reduced by contract. To the general question whether contracts may deal with copyrighted material, the answer is obviously yes. After all, the Act gives copyright holders the exclusive right to reproduce their works. Nevertheless, authors sell or assign that right to publishers by means of contractual agreements all the time. Indeed, even the Act's legislative history reveals that "nothing in the bill derogates from the rights of parties to contract with each other and to sue for breaches of contract. [21]

{26} A simple transfer of rights is therefore unlikely to be challenged on preemption grounds because such transfers are the revenue-generating means of authors' creative efforts. The preemption challenges are more likely to relate to the attempted contractual extension of copyright rights beyond those granted by the Copyright Act, or the reduction of the rights that users have traditionally enjoyed apart from contract.

{27} The following contrasting cases illustrate the problem, and show that courts have yet to reconcile the notion of contracts and copyrights. [22] In Warner Bros., Inc. v. Wilkinson,[23] the district court held that states may impose restraints on what would otherwise be valid contracts relating to copyright rights. However, in Vault Corp. v. Quaid Software Ltd.,[24] the Fifth Circuit held that states may not authorize contracts that restrain otherwise valid copyright rights.

{28} Warner Bros. involved "blind bidding," a common practice in the motion picture industry. With "blind bidding," motion picture distributors require that theater owners agree to certain conditions before offering a movie to the viewing public. Such conditions are not themselves surprising, but with blind bidding, the theaters must agree to the conditions before they are allowed to view the entire movie. For example, the conditions may include guaranteeing certain minimum royalty fees. This practice has been considered so odious to theater owners that in many states, the theater owners persuaded the state legislatures to enact statutes forbidding or curtailing the practice. Motion picture owners and distributors then challenged the statutes on federal preemption grounds, claiming that they so impermissibly interfered with the copyright rights of distribution and public performance that they conflicted with federal copyright policy.

{29} The challenges, brought in several states, by and large failed. The essential judicial response was that copyright interests are not affected when states govern the terms of commercial transactions, including the terms of contracts. [25]

{30} Vault v. Quaid involved the opposite situation. Instead of a state statute prohibiting certain contractual terms, as in Warner Bros., Vault featured a state statute that expressly validated a particular type of contract: the 'shrink wrap' license. A "shrink wrap" license is simply a set of terms printed inside the heat-shrunk wrapping of the commercial software. These terms constitute an "offer" that the buyer is said to accept by the act of tearing open the plastic wrapping. Evidently concerned that such license agreements could be challenged as adhesion contracts or invalidated on grounds of unequal bargaining strength, the Louisiana legislature expressly validated them. [26]

{31} The dispute in Vault arose when a software developer, Vault, Inc., produced a computer program called "Prolok" that rendered other commercial software impossible to copy (a feature desired by software companies to reduce the "piracy" of their programs). Relying on the validity of such licenses, Vault sold Prolok with a shrink-wrap notice that expressly forbade "reverse engineering" or similar analyses of its copy-protection scheme.

{32} Another software company, Quaid, Inc., nonetheless made copies of the Prolok program precisely to reverse engineer its anti-copying scheme. Quaid then sold its software that disabled the Prolok anti-copy mechanism and permitted copying. Vault sued Quaid for copyright infringement and lost. The court held that section 117 of the Copyright Act specifically allows the copying of computer software when such copying is (1) an essential step in the use of the software and (2) accomplished as part of the process of running the program. Using this interpretation, the court found Quaid's actions to be permissible, even though they violated the license restrictions. The Louisiana statute that effectively prevented the running of such programs by validating Vault's license restrictions therefore conflicted with the Copyright Act and was preempted. [27]

I also found this intriguing case, which held that the Copyright Act can't preempt unless the act of infringement takes place entirely within the US:
With respect to alleged copyright preemption, the court first noted that, while the Copyright Act explicitly preempts certain state claims, the Act itself does not apply to extraterritorial acts of infringement. Thus, if the defendant's allegedly infringing acts are viewed as having occurred in Canada, rather than in the United States, then the Copyright Act would not apply, and, hence, plaintiff's state law claims would not be preempted. Pursuant to its recent en banc ruling in Subafilms, Ltd. v. MGM-Pathe Communications Co., the court then observed that, in order for the Copyright Act to apply, the alleged infringement must be "completed entirely in the United States." Here, defendants, at most, initiated or authorized an infringement, which was completed in Canada when the signal was illegally intercepted. Thus, the Copyright Act did not apply and, therefore, cannot preempt the plaintiff's state law claims.
So, I'm wondering if anyone downloaded from SCO or Caldera's website over the years while in Europe? I'm guessing they did. I know that the server for the German web site is currently in the US, in Utah, but has that always been true? And would that person in Europe downloading or SCO offering for download their Linux products on a European server be sufficient to block a preemption? I don't know. I'm just putting up the idea, so others who will know will give it a thought.

Well, plenty to think about. Here is a page that lists some intellectual property cases. Here are some cases from the list and from the articles referenced above. I haven't read them all myself yet, but we might as well do it together:

Baltimore Orioles, Inc. v. Major League Baseball Players Association, 805 F.2d 663 (7th Cir. 1986), cert. denied, 480 U.S. 941 (1987).

Harper & Row, Publishers v. Nation Enterprises, 723 F.2d 195, 200, 220 U.S.P.Q. (BNA) 321 (2d Cir. 1983), rev'd on other grounds 471 U.S. 539, 105 S.Ct. 2218, , 85 L.Ed.2d 588 (1985)

Wendt v. Host International, Inc., 125 F.3d 805 (9th Cir. 1997).

National Basketball Association v. Motorola, Inc., 105 F.3d 841 (2d Cir. 1997).

Wrench LLC v. Taco Bell Corp., 256 F.3d 446 (6th Cir. 2001).

INS v. Associated Press, 248 U.S. 215 (1918) (defined quasi property right in news gathering, equity case), explained here: "Original software (both source and object code), computer programs, and data bases may be protected by the law of unfair competition. Evolving from the landmark case of International News Service (INS) v. Associated Press, the law protects the originator against misappropriation by competitors of his work product and his investment capital risks. The rationale for the doctrine lies in the equity court philosophy of preventing and mitigating unjust enrichment. Until recently, however, the courts tended to limit the application of the unfair competition doctrine to the facts in the INS case. In one recent case, the courts stated that a valid, unfair competition claim had been advanced where, for commercial advantage, a competitor had misappropriated the benefits and property rights of and had exploited his business values.

Similarly, where reproductions of original recordings were pirated and marketed under a different label, another court upheld the plaintiff unfair competition claim.

Suntrust Bank v. Haughton Mifflin Co., Case Number 01-12200 (11th Cir., May 25, 2001)

ProCD, Inc. v. Zeidenberg, 86 F.3d 1447 (7th Cir.), rev'g 908 F. Supp. 640 (W.D. Wis. 1996). Shrinkwrap license not preempted by federal copyright law. Rights created by contract viewed by court of appeals as not equivalent to any of the exclusive rights under copyright. protection.

Vault Corp v. Quaid Software Ltd., 847 F.2d 255 (5th Cir. 1988). Reached opposite conclusion: that copyright law preempted state law that forbade reverse engineering and upholding shrinkwrap.

More federal preemption cases here.


Copyright Preemption -- Explaining the "GPL is Unconstitutional" Claim | 92 comments | Create New Account
Comments belong to whoever posts them. Please notify us of inappropriate comments.
Copyright Preemption -- Explaining the "GPL is Unconstitutional" Claim
Authored by: Anonymous on Thursday, October 30 2003 @ 12:47 AM EST
I don't see how this helps SCO. Doesn't it all just preempt (fall back) to
plain old copyright law. And if so isn't SCO then guilty of distributing
without a valid license anyway?

[ Reply to This | # ]

Doesn't this only apply to state laws?
Authored by: Khym Chanur on Thursday, October 30 2003 @ 01:12 AM EST
So, as far as I can tell, this only applies to state laws. If IBM were
contersuing SCO via the GPL based on a particular state's laws, rather than
federal copyright laws, then preemption could apply; however, if they're suing
based on federal laws, there's nothing to preempt. Is the law so poorly worded
that it can apply to private licenses, or does it indeed only apply to state

[ Reply to This | # ]

Copyright Preemption -- Explaining the "GPL is Unconstitutional" Claim
Authored by: rand on Thursday, October 30 2003 @ 01:21 AM EST
I'm not sure how any of this could help SCO with GPL.

First, GPL is not based on state or common law AFAIK. There's nothing there to

Second, GPL is a license, not a contract. The closest thing I can think of at
this hour is somethibng like the signs at a pool, "Swim at your own risk.
No running or pushing. Etc." That's a license, permission to use the
pool, IF you abide by certain rules.

Third, surely they don't misunderstand "preempt" to mean
"invalidate"? If any provisions of GPL WERE preempted, it would
only mean that federal law would hold in those cases, not that the entire GPL
would be voided.

Am i seeing this wrong?

(PJ, don't you ever sleep? I've got a kid to pick up from work on the late
shift so I've got an excuse. Oops, there's the phone (*yawn*); I hope he gets
a car soon.)

#include IANAL.h

[ Reply to This | # ]

What everybody is forgetting
Authored by: Anonymous on Thursday, October 30 2003 @ 01:49 AM EST
What everybody is forgetting in these discussions is SCO have no choice but to say this.

Imagine, if they didn't claim the GPL is invalid/unenforceable AND IBM's copyrights are invalid/unenforceable

Then they are in a boatload of trouble, and quite possibly a boatload of trouble in a comparatively short time frame.

With this defense as it is, at minimum they have put of IBM's attack on these point into the future, until the issues can be explored, discovery conducted as necessary, etc.

[ Reply to This | # ]

Copyright Preemption -- Explaining the "GPL is Unconstitutional" Claim
Authored by: fmckee on Thursday, October 30 2003 @ 01:51 AM EST
So really SCO's argument is a two-parter. First, point out one or more areas
the GPL infringes on copyright provisions in an effort to get the GPL (contract
law) power preempted. Then the code falls back to plain old copyright but SCO
will argue these programs have been stored on, and copied to millions of
machines for no fee, so therefore the works (GPL'd code) should be considered
public domain?

If so, it seems like their only option to avoid some nasty legal problems. But
it is a two-parter and they'd have to win on both points to escape from
breaking one or more laws. It also serves to drag this out to the benefit of
SCO's enablers.

BTW, I've been following Groklaw since the start and the entire team here
continues to do a great job. Looking forward to more thoughtful analysis.

[ Reply to This | # ]

Cheers case
Authored by: Anonymous on Thursday, October 30 2003 @ 01:54 AM EST
Interesting reference to the Ratzenberger/Wendt lawsuit against Host International. The former "Cheers" actors sued Host for creating "Cheers" bars in airports nationwide that depicted 2 stuffed likenesses of "Norm" and "Cliff" of Cheers fame. The actors won, with the court noting that the plaintiffs did not issue permission or receive compensation for the likeness of their characters, even though Paramount owned the Cheers show.

Gathering from the gist of this reference, works that are derived from the original (AIX from SYS5) still remain under the control of the copyright holder, or as in this case, the actors themselves.

Breaking this down, IBM still owns copyright to AIX. SCO has no "super" ownership powers. This is the heart of their derivative works argument, and based on this precedent, SCO will lose.

[ Reply to This | # ]

SCO infringed IBM's copyright
Authored by: Thomas Frayne on Thursday, October 30 2003 @ 02:03 AM EST
As far as I can see, premption just means that when state and federal laws
conflict on an issue of copyright infringement, the federal law applies and the
federal court has jurisdiction.

The SCO case is already being tried in federal court. When IBM's claim that
SCO violated a copyright is being argued, SCO, having admitted that it
distributed a program containing the copyrighted code, will have to argue that
the copyright is not validly owned by IBM, or that IBM gave SCO permission to
distribute the program.

SCO cannot argue that IBM gave it permission via the GPL, because SCO
distributed the program after forfeiting its rights under the GPL. SCO might
still argue that IBM gave permission in some other way, but I don't think that
would be successful.

SCO might also argue that its actions did not cause it to forfeit its rights
under the GPL, or that that provision of the GPL is unenforceable.

SCO does not seem to have much wiggle room here: if IBM's copyright is valid,
SCO forfeited its GPL rights, and the forfeit clause of the GPL is enforceable,
then SCO infringed IBM's copyright.

It seems to me that all the legal questions in this argument can be answered on
the basis of federal law, so no preemption is involved.

[ Reply to This | # ]

Can Preemption backfire on SCO?
Authored by: Anonymous on Thursday, October 30 2003 @ 03:12 AM EST
Trying to find the GPL invalid by going down the preemption path seems unlikely
to succeed, as the GPL only grants additional rights, it doesn't restrict them
in excess of the federal copyright law.

However, what about the license that SCO (well, ATT) made with IBM? Isn't that
a contract that restricts the rights of IBM in excess of federal copyright law?
If you overturn the GPL, don't you have to throw out the IBM/SCO contract as

IANAL, of course, but it seems that both the GPL and the IBM/SCO contract are
extremely ordinary, and have the same basis, validity, and scope as millions of
contracts between companies sharing some kind of IP. Throwing out the GPL
without dissolving all of these other contracts would seem to be impossible.

Thad Beier

[ Reply to This | # ]

Copyright can't pre-empt unless the infringement takes place entirely in the US?
Authored by: Wol on Thursday, October 30 2003 @ 03:22 AM EST
My take on this is just that it's standard "extra territoriality".
If the person "making" the illegal copy is abroad, then the
Copyright Act can't chase them, the plaintiff must use the Berne Convention in
the destination country.

IBM and SCO are both US corporations. The various alleged acts have all occurred
in the US. US laws apply.

If I downloaded SCO Linux, then as I am in the UK, the US Copyright Act defers
to the Berne Convention, and SCO would have to sue under UK copyright law, not


[ Reply to This | # ]

Copyright Preemption
Authored by: gumout on Thursday, October 30 2003 @ 07:27 AM EST
Within the four corners of the law the "Pre-emption Doctrine" is
reserved for state statutory actions, that is the supremecy of Federal law over
State law. When we speak of copyright preemption I can find no defense involving
the Pre-emption Doctrine other than possibly State Anti-Trust Law. Perhaps
general contract law of each State could be violated but it wouldn't involve

In their Sixth Affirmative Defense, they say:

"The General Public License ('GPL') is unenforceable, void and/or
voidable, and IBM's claims based thereon, or related thereto, are

This is not an affirmative "defense" ... it states no legal grounds
upon which the defense might be predicated. No State action claimed.
"It's void", "It's unenforcable" are not affirmative
defenses they are claims or pleas. The Court will strike this from SCO's Answer
as an affirmative defense. There can be no preemption grounded defense here.

The Eighth Affirmative Defense adds:

"The GPL violates the U.S. Constitution, together with copyright,
antitrust and export control laws, and IBM's claims based thereon, or related
thereto, are barred."

Violation of the Constitution is not a State predicated action. Export control
laws are Federal laws, so no State action here. This leaves State anti-trust
laws as the only possibility involving the "Pre-emption Doctrine".

A wasted youth is better by far than a wise and productive old age. --- Meatloaf

[ Reply to This | # ]

Copyright Preemption -- Explaining the "GPL is Unconstitutional" Claim
Authored by: Anonymous on Thursday, October 30 2003 @ 09:03 AM EST
What they suggest, and what is discussed here, would certainly be true if the GNU GPL were just another EULA powered by common commercial contract law. EULA's are not only commercial contracts under STATE law, they also clearly state so, as well as under which state's law they are derived from. Read your Microsoft EULA, for example, and you will see this.

By contrast, the GNU GPL is both implicitly and explicitly NOT a commercial contract, and this very real legal risk was the principle reason why it is not. Rather, the GNU GPL is a copyright license (or, if you will, a "copyright contract") derived directly from (Federal) copyright law itself, hence there is no issue of federal pre-emption involved; it already is consistent with/written under federal law rather than some state's commercial contract law. My only guess is that the feeble minded "dream team" of SCO lawyers do not understand the difference between EULA's and the GPL. I do see many users who make this mistake, but one would think they have lawyers with at least half a brain?!

[ Reply to This | # ]

Copyright Preemption -- Explaining the "GPL is Unconstitutional" Claim
Authored by: Anonymous on Thursday, October 30 2003 @ 09:06 AM EST
If I release something under the GPL, do I lose my rights to additionally
release it under a different license? For example, suppose I have this piece of
code that does great and wonderful things and release it to the world under the
GPL. Another company would like to use my code but doesn't want to release
their code under the GPL, so they pay me big bucks to license and distribute my
code as they normally would. So my code exists under the GPL, plus is being
distributed not under the GPL but under a normal software license without the
"viral" nature of the GPL. Is this allowed under the GPL? I have
not removed my code from distribution under the GPL, I have just made some money
off of it the old fashioned way - licensing. If I can do this then SCO doesn't
have to deal with the GPL, just license the code from people the way it's
always been done - by paying for it.

Thanks, and AWESOME job here pj!

[ Reply to This | # ]

SCO's position
Authored by: Anonymous on Thursday, October 30 2003 @ 09:24 AM EST
In trying to boil down all of this I come to a simple conclusion. SCO's
position is very simply that they own the UNIX program and that anything that
looks at all like UNIX regardless of parentage or history is in fact their UNIX.
That all grants to rights of this material regardless of when or under what
terms granted are now theirs. As a result SCO wants all the licenses to be found
unlawful because that allows the copyrights to devolve back to basic copyright
law and they own the copyright.
They are also depending on an enormously broad claim (literally world sized) as
to the meaning of the word "derivative" as in "all derivative
works" to basically steal every other thing that anyone has done to either
They are also, so far as I can tell, attempting to take back any grants to the
public domain made by any previous copyright holder or any rights granted in a
manner that they feel now jeopardizes their current profit making model.

One of the two keys for them would be for a court to grant that, because of
it's look and feel, LINUX substantially interferes with or copies the UNIX
operating system, (especially the version of it they own) and is thus theirs.
This is the most important thing to stop by far. If the courts should find this,
the GPL won't matter because SCO becomes the copyright holder on all this
derivative material (or else drags the whole matter through the courts for
forever) or can get the distribution and sale of the kernel suppressed
regardless of the status of auxiliary material and hence kill the operating
system at its heart.
The attack on the GPL directly is, to my thinking a smoke screen intended to
distract from their response to the replies regarding Linus's authorship of

[ Reply to This | # ]

Two questions and an observation...
Authored by: Anonymous on Thursday, October 30 2003 @ 09:58 AM EST
I’ve been reading about the SCO-IBM-Linux mess practically since the beginning
(and a GREAT job, PJ and all the legal and non-legal eagles on Groklaw). I have
an observation and a question, both of which are slightly off-topic, but PJ’s
recent discussions have brought them to the front of my mind. I also have one
question directly related to the current discussion. Note that IANAL and
IANASDOP (I Am Not A Software Developer Or Programmer).

The observation: it seems that TSG has a problem with simple math. Their
website claims they have a network of 8000 developers, but, if I remember right,
one of their recent SEC filings listed only 330 employees, and in an interview
one of TSG’s officers said that 20% of TSG’s employees were developers – in
other words, 66. Even using imaginary numbers <grin>, I can’t get that to
work out unless TSG is considering a large segment of *NIX developers and/or
their licensees who develop the dreaded “derivative works” to be part of their
own product network – i.e. since TSG “owns” *NIX, anyone who develops within it
is de facto connected to their company.

On to the 1st question: where is the RICO Act in all this? It strikes me that
MANY of TSG’s actions since the very start of this mess closely resemble
old-fashioned mob tactics, particularly “protection,” “sharking” and
“shakedown.” Perhaps a more accurate question is whether anything TSG is doing
can be considered criminal (lawyers, please speak up!). Aside from mob tactics,
the stock games seem very, very iffy. I realize that TSG and Canopy have
lawyers out the wazoo, but that hasn’t stopped the companies’ officers and
spokespeople from shooting their mouths off, nor has it stopped the lawyers
themselves from looking foolish.

Second question: Wouldn’t, if not all EULA’s – especially “shrink-wrap”
agreements – fall under the “blind bid” concept PJ refers to in the Warner Bros.
case, since the user must agree to a panoply of conditions before ever using the
product? Plus, EULAs seem to expand the copyright holder’s rights to a very
large degree, e.g. indemnifying the software producer from any and all damages
caused by the software (there are many more examples).

Any thoughts?

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Copyright Preemption -- Explaining the "GPL is Unconstitutional" Claim
Authored by: Anonymous on Thursday, October 30 2003 @ 10:04 AM EST
Does the idea of preemption apply to other areas of law, such as free-speech
rights, or is it exclusive to copyright law?

Anyway, It seems like if any contract deserves to be preempted at this point,
it's the old AT&T contracts. The SVr4 code is so polluted at this point,
attempting to enforce the Unix contracts is definitely not in the public

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Indemnification IBM and Redhat might be interested in
Authored by: Thomas Frayne on Thursday, October 30 2003 @ 10:48 AM EST
IBM and Redhat have refused the broad indemnification suggested by SCO and
Microsoft advocates. How about the following PR release:

We hereby agree that if SCO sues any group of our customers, with one or more
members, and claims in any court document that their use of a product or service
purchased from us, or a modification thereof which no one in the group has
distributed, violates SCO's copyrights, then we will aid the group in defending
their right to use all lines of code that have been adequately and specifically
identified as infringing in a court document filed by SCO before October 29,

A modification is distributed when it is transmitted or offered to any person
other than the person or corporation that made the modification.

We also agree that, if any of the lines above are finally adjudged to infringe
SCOs copyrights, we will indemnify the group for a monetary penalty up to $XXX.
This monetary indemnification is a total for the suit, to be divided equitably
among those in the group who have not purchased SCO's purported license, and is
available for the first applicable YYY suits filed by SCO.

We realize that there are currently no lines of code that SCO has adequately and
specifically identified as infringing in a court document filed by SCO before
October 29, 2003. However, as SCO files adequate and specific identification,
we intend to review SCO's claims, and explicitly include or exclude specific
sets of lines from the above agreements.

The above agreements are intended to help our customers evaluate their risks in
continuing to purchase our products and services. Hopefully, as SCO specifies
its claims, those risks will drop rapidly to zero.

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Is there something us developers should file?
Authored by: Anonymous on Thursday, October 30 2003 @ 12:18 PM EST
IANAL. But I do develop code and documentation, some of which is in typical GNU/Linux distributions, and I know many others do too. This whole "GPL is invalid" notion threatens to steal some of my copyrighted work away from me.

Is there anything that ordinary developers can do? Can ordinary developers file a "friend of the court" brief or some such, saying that our copyrights are at risk if the GPL were ruled invalid, and that this case is causing us harm (by creating unnecessary fear, uncertainty, and doubt in our customers)? Perhaps developers could band together and sign a friend of the court briefing or some such petition, asking that this matter be quickly resolved to clearly state that the GPL is a legally acceptable license. Such a brief could even give evidence that the GPL is widely used and that a lot of valuable code has been developed with it; see Make Your Open Source Software GPL-Compatible. Or Else., More than a Gigabuck: Estimating GNU/Linux's Size, and Counting Potatoes: The size of Debian 2.2.

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Copyright Preemption -- Explaining the "GPL is Unconstitutional" Claim
Authored by: Anonymous on Thursday, October 30 2003 @ 01:23 PM EST
To understand where SCO is coming from (so as to counterpunch, not so as to have
empathy), ..."

What I had in mind was a caring punch to the face, followed by an empathetic
kick to the groin and a compassionate knee strike to the face ...

P.S: I had meant earlier to place this post in the main thread, but I lost my
sense of direction ... Sorry!

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Preemption Requires Conflict
Authored by: Rodrin on Thursday, October 30 2003 @ 05:05 PM EST
For the GPL to be preempted by the U.S. Constitution or U.S. Federal law it
first needs to conflict with these laws in some way. I have yet to see a
reasonable argument for a way in which it does this. The closest thing to a good
argument I believe I have seen is that it conflicts with U.S. Export laws, but
even this argument quickly falls flat. When will they offer an argument for an
area of conflict that we can try to apply this research to?

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Eben Moglen's comment
Authored by: PM on Thursday, October 30 2003 @ 07:11 PM EST

Eben has said in Newsforge:

"Now, as to what SCO says that the GPL violates the United States constitution, it is simply nonsense. I have studied the United States legal system for my entire adult life. In addition to this work that I do on behalf on the Free Software Foundation, I earned a PhD in American Legal History, and have taught legal history throughout my academic career at front-rank law schools here and elsewhere in the world. I clerked at the United States Supreme Court. I have done a fair amount of studying of constitutional law. I don't see any basis of any kind anywhere for this absurd claim that giving somebody permission, using a certain form of words, to copy, modify, and redistribute copyrighted work in some way violates the United States constitution. That's ludicrous."

Whether he has considered the 'international' aspect of pre-emption is not clear.

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Do you suppose...
Authored by: rand on Thursday, October 30 2003 @ 07:40 PM EST
...ATT's Amendment X and side letters may have been in order to head-off
preemption challenges from Unix license holders? The all-your-code-is-ours
stuff can be expensive to litigate.

#include IANAL.h

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Chris Sontag again
Authored by: PM on Thursday, October 30 2003 @ 10:17 PM EST

See this Computerworld Australia item.

Chris again trots out his usual spiel and FUD an the evils of the GPL. He says that GPL will cause software development to stagnate, but he works for an outfit where things stagnate anyway - GPL or not. Funny how Eben Moglen remains extremely comfortable with the GPL saying it is a concise and robust legal instrument - Chris needs to stop worrying and learn to love the GPL (Dr Stangelove style).

Bradley Kuhn gives a FSF perspective, but unfortunately he was obviously not asked to rebut Chris's statements - that would have made good reading.

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Vault vs. Quaid *SUPPORTS* the GPL
Authored by: DaveAtFraud on Saturday, November 01 2003 @ 02:17 AM EST
IANAL but I've been a software developer for over 20 years so here's a quick hair splitting analysis of why Vault vs. Quaid supports the GPL. Sorry about the delay but sometimes I just need some time to think about things like this and exceptions like Vault vs. Quaid intrigue me.

Vault vs. Quaid provides a case law example of preemption when a contract (in this case an EULA) prohibts mere copying. Had Quaid copied the Vault product, reverse engineered it and then used that knowledge/technology to create a competing product, my guess is the ruling would have gone the other direction. As it was, Quaid's product did not infringe on Vault's copyright. The copying itself that Quaid did did not in and of itself diminish the value of the Vault product (i.e., they did not sell pirated copies of the locking program or use it in a way that violated the copyright) nor did the final Quaid product actually include infringing copyrighted material from the Vault product. In fact, the two products are as complementary as a tank and an anti-tang gun are. The gun maker analyzes the tank to determine how to kill it and the tank maker analyzes the gun to figure out how much armor is needed to defeat it. Neither infringes on his "competitions's" IP in making his own product.

At a minimum, Vault vs. Quaid supports the GPL because it shows that a license that does not allow mere copying is not valid and is subject to preemption. That the GPL goes beyond this and allows copying and use would hardly be an argument that the GPL is somehow invalid becuase it allows more than required by copyright law.

SCO would need to find a different example than Vault vs. Quaid to argue that the GPL is invalid due to preemption. Hopefully, my little analysis shows that at least the textbook example of when preemption applies actually supports the GPL.

Quietly implementing RFC 1925 wherever I go.

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Copyright Preemption -- Explaining the "GPL is Unconstitutional" Claim
Authored by: Anonymous on Thursday, November 20 2003 @ 12:38 PM EST
Unconstitutional ?! Why should I consider that relevant to the importance of
GPL. GPL is by definition general and public and with reference to published
works through an international (i.e. global) medium. A world-wide network of
networks, the internet. Who does this belong to, this medium? The U.S. of A, I
don't think so ! So, obviously, by definition, any constitution is irrelevant.
The "public" in GPL is with reference to the world (and I don't
mean the "world" in reference to "the world series"
world, I mean the whole world, it's called the planet earth) Calling GPL
"unconstitutional" may be an attempt to whip up support amongst a
subset of the 6 billion on this planet (about 4% of them), but then as this
ignores the other 96% (something of majority wouldn't you say) it's rather
insulting. Most insulting of all, Linus Torvalds and Linux, the bee in the
bonnet, have nought to do with this constitution.

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