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"Now They Own It, Now They Don't" -New OSDL Position Paper on SCO by Eben Moglen |
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Tuesday, February 10 2004 @ 08:04 AM EST
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Eben Moglen has written a third OSDL position paper on the SCO case, focusing on the Novell lawsuit. The paper is entitled: "Now They Own It, Now They Don't: SCO Sues Novell to Stay Afloat". It begins like this: "The SCO licensing campaign—which has been all bark and no bite since its introduction by way of threatening letters to the Fortune 1500 last summer—lost a wheel last month, and is now headed for the wall." You have to grant Eben this: 1) He's funny, and 2) You never wonder what he means. Here is the press release OSDL has just put out about it, followed by the paper itself in full. Groklaw is allowed to reproduce his paper in full, because first, he copyrighted it and then he granted everyone permission to reproduce it verbatim, provided his permission notice, his license you could say, is preserved. It's legal, because he, the author, has the right to forbid copies under copyright law or to relax the copyright restrictions. It's his property, so he gets to do what he likes with his own property. Now, I can reproduce it verbatim, but only if I follow his instructions, because it's not my property, even though I tacked on this paragraph ahead of it. His part is still his, and I can't argue that because I tacked on a paragraph of my own, I can release the combination under some terms of my own choosing or that I can revoke his permission to reproduce, because I want my paragraph under total copyright control with no relaxed terms. What he wrote is still his property, not mine. I can release my own paragraph any way I like separately, but if I release his paper with it, it stays under his chosen restrictions. You can reproduce it too, but only if you also follow his instructions, because it is still his property, even if you got it from me instead of directly from him. Anything hard about that concept? Unfair? Viral? Unconstitutional?
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Columbia University Law Professor Says Linux Users Will Ignore SCO Legal
Threats Until Novell Lawsuit is Resolved
BEAVERTON, Ore., Feb. 10 /PRNewswire/ -- The Open Source Development Labs
(OSDL), a global consortium dedicated to accelerating the adoption of Linux,
today published a position paper that indicates Linux customers will likely
ignore SCO Group's legal threats until a court decision is rendered in the
litigation brought by SCO Group against Novell on copyright ownership.
The paper's author, Professor Eben Moglen of Columbia University, is
regarded as one of the world's leading experts on copyright law as applied to
software. OSDL is disseminating the position paper to address issues of
concern to its members and Linux industry customers as a result of SCO Group's
ongoing litigation threat to sue end-users.
OSDL believes Professor Moglen's paper will help its members, the Linux
development community and Linux end-users better understand legal issues and
business risks associated with using Linux. In his paper, available on the OSDL Web site, Professor Moglen makes two
main points:
1. SCO Group admits, by suing Novell, that its claim to exclusive
ownership of the Unix copyright is in doubt. Moglen argues that no judge
would hold an end-user liable for intentionally infringing SCO Group's
rights when SCO Group itself has cast doubt on what it owns. As a
result, Linux customers have little incentive to purchase a license from
SCO Group and instead will wait for a final decision on who owns the
copyrights as between SCO Group and Novell.
2. Even once the litigation is resolved, and regardless of who prevails,
customers will still have the right to use the Linux code in question
without purchasing a license from either SCO Group or Novell. Moglen
points out that both SCO Group and Novell (who recently purchased SuSE
Linux, a distributor of Linux) have distributed the Linux code under the
GPL. Since the GPL allows licensees to use, modify, copy and distribute
the Linux code freely, the results of the litigation will have no affect
on those rights, and customers will have no obligation to purchase
another license from either SCO Group or Novell to ensure those rights.
"We see Linux deployments continuing around the world and many prudent
customers are choosing to ignore SCO's legal threats until the courts rule,
particularly given SCO's admitted uncertainty about its own rights," said
Stuart Cohen, OSDL CEO. "We believe Professor Moglen's paper gives Linux
customers, developers and others added peace of mind about the choices they
make about Linux."
To read the entire paper, please visit the OSDL Website at:
http://www.osdl.org/docs/osdl_eben_moglen_third_statement.pdf .
Professor Moglen, a legal historian and antitrust expert who has written
extensively on the Microsoft antitrust case, is recognized internationally as
a leading authority on computers and free expression. He is a 2003 recipient
of the Electronic Frontier Foundation's Pioneer Award for Pioneering Freedom
on the Electronic Frontier, and has served as the general counsel for the Free
Software Foundation since 1993.
As part of its mission to provide peace of mind to Linux users, OSDL in
January 2004 announced a defense fund that will defray legal expenses of Linux
users involved in litigation with The SCO Group on issues that affect the
Linux community and industry. OSDL aims to raise $10 million for this defense
fund and is accepting donations from individuals, organizations and companies.
About Open Source Development Labs (OSDL)
OSDL -- home to Linus Torvalds, the creator of Linux -- is dedicated to
accelerating the growth and adoption of Linux. Founded in 2000 and supported
by a global consortium of Linux customers and IT industry leaders, OSDL is a
non-profit organization that provides Linux expertise and computing and test
facilities in the United States and Japan available to developers around the
world. OSDL members include Alcatel, Cisco, Co-Create, Computer Associates,
Dell, Ericsson, Force Computers, Fujitsu, HP, Hitachi, IBM, Intel, Linuxcare,
Miracle Linux Corporation, Mitsubishi Electric, MontaVista Software, NEC
Corporation, NEC Soft, Network Appliance, Nokia, Novell, NTT COMWARE, NTT DATA
INTELLILINK, Red Hat, Sun Microsystems, SUSE LINUX, TimeSys, Toshiba
Solutions, Transmeta Corporation, Trolltech, Turbolinux, Ulticom, Unilever ,
VA Software and Wind River Systems. Visit OSDL on the Web at http://www.osdl.org.
NOTE: OSDL is a trademark of Open Source Development Labs, Inc. Linux is
a trademark of Linus Torvalds. Third party marks and brands are the property
of their respective holders.
SOURCE Open Source Development Labs
Web Site: http://www.osdl.org
***********************************************************
Now They Own It, Now They Don’t: SCO Sues Novell to Stay Afloat
~ Eben Moglen February 5, 2004
The SCO licensing campaign—which has been all bark and no bite since its introduction by way of threatening letters to the Fortune 1500 last summer—lost a wheel last month, and is now headed for the wall. From the beginning of this irresponsible attack on the freedom of free software, SCO has promulgated public positions about the nature of its supposed rights that conflicted with facts known to the free software community, and relied upon legal positions that were untenable given the real state of facts. SCO supposedly responded to demands to see some evidence of code copied from Sys V Unix into the Linux program, first in a public presentation in August and then in a court filing in January. But both “demonstrations” actually showed that SCO was claiming copyright infringement in material whose copyright it didn’t own. Now, a new party has begun casting serious legal doubt on SCO’s ownership of the rights on which it bases its demands for license fees, to the complete destruction of SCO’s licensing campaign. The new party raising fundamental legal doubt about SCO’s copyrights is SCO itself.
1 You Can’t Sue Over What You Don’t Own
The SCO Group claims to hold copyrights in AT&T’s implementations of Unix as a consequence of a conveyance by Novell to SCO’s predecessor in interest, Caldera. Novell and SCO have disagreed throughout about the meaning and effect of the asset purchase transaction. The most relevant document, the purchase agreement, is a matter of public record, having been attached to IBM’s answer to SCO’s complaint in the lawsuit brought by SCO against IBM. At a minimum, Novell claims—and the document seems on its face to show—that Novell retains an independent right to license the copyright and other legal interests conveyed by the agreement.
Novell’s claim to an independent right to license the Unix technology at issue has been invoked twice since the start of the controversy. Novell renewed licenses to IBM and Silicon Graphics originally granted by AT&T that permitted the production and distribution of the two vendors’ “flavors” of Unix, thus cancelling “revocations” of those licenses supposedly issued by SCO. Those two licenses were side issues: SCO is trying to destroy free software as a competitor, not AIX and Irix. But Novell’s acquisition last quarter of SuSE AG—Europe’s leading commercial distributor of free software, including the Linux kernel—threatens the complete overturning of SCO’s licensing program. If Novell indeed holds residual rights for itself in what SCO claims are its exclusive rights, Novell can distribute Linux through SuSE without any theoretical liability to claims from SCO. And because the Linux program is distributed under GPL, anyone who got code from Novell/SuSE has the right to distribute it to anyone else, under GPL, without limitation.
So on January 20th, SCO sued Novell in Utah state court, on a claim of “slander of title,” seeking a judicial declaration that SCO owns exclusive rights in the copyrights it has threatened to enforce against Linux users. That lawsuit, in which SCO has demanded jury trial, will ultimately require a Utah jury to decide the meaning of the asset purchase agreement and associated documents, in a dispute between SCO and Utah’s largest hightech employer, Novell. If SCO can’t carry its burden of proof in that action, and convince the jury it has asked for that Novell has no rights in Unix, its whole campaign is over, and SCO’s destiny is dissolution.
2 You Can’t Threaten B, C, and D While Litigating With A Even if one is unsympathetic to SCO, one can’t help but feel sorry for the quandary its lawyers faced in deciding whether to sue Novell. Had they not done so, their client’s ultimate fate would have been sealed. But suing Novell destroys SCO’s licensing campaign for the present just as fully.
Put yourself in the position of a General Counsel whose client has received threatening letters from SCO demanding that the client take a license for the use of the Linux program. As I have argued in past essays on this controversy, there are strong legal reasons for rejecting the demand for a license anyway. But now SCO’s pitch to the GC has become well-nigh impossible: “Pay us money,” SCO is saying, “because sooner or later, after we win a lawsuit against Novell in the Utah courts, we will turn out to own some copyrights on which you might be infringing.” For the GC whose task it is to protect the shareholders’ assets, the answer is simple: “Come back when you’ve won that lawsuit, and we’ll talk.” After all, there’s no downside for the GC’s client in waiting to see what happens in SCO v. Novell. Usually, when the target of a license demand shows a determination to wait out the claimant, the claimant says “If you ignore my demand, you’re engaged in intentional copyright infringement, and that’s a no-no. When I sue you the judge won’t like you, and the Copyright Act says I get double damages.” But SCO itself has put the ownership of the relevant copyrights in doubt by suing over them, and no judge would hold that it is intentional infringement to refrain from taking a license while the plaintiff itself scrambles to show it owns what it is trying to sell.
Many of the large, sophisticated enterprises who are the targets of SCO’s efforts responded to their claims last summer by taking copies of the Linux program, under GPL, from SCO’s own FTP server, where the code remained publicly available. They therefore have an auditable license from SCO to use, copy, modify and redistribute the code about which SCO continues to threaten legal action. For such enterprises, which now can also get a copy of the same program, under the same license, from Novell, any action by SCO to bring a copyright infringement claim would be particularly foolish.
“Judge,” such an enterprise would tell the court in the event of a lawsuit, “SCO and Novell disagree about who wound up with the power to license these copyrights, even if they are somehow infringed. They’re suing one another in the Utah courts over that. But I have here copies of the supposedly infringing work I got from SCO with a license that says I can use, copy, modify and redistribute, as well as copies I got under the same terms from Novell. So no matter who wins that action I have a license that lets me freely use, copy, modify, and redistribute. Judge, can I go home now?” That’s a pretty strong defense. Given that the first party sued would also have the benefit of the $10 million legal defense fund administered by the Open Source Development Lab, the prospects that SCO can convince neutral parties to take licenses under existing circumstances are slim at best. 3 Where the Buck Stops By bringing the action against Novell, SCO has ’fessed up to yet another fundamental weakness in the tissue of non-truths, half-truths, and exaggerations that constitute its attack on the freedom of free software. It has given the targets of its licensing campaign the clearest possible reason for remaining on the sidelines, and by doing so it has triggered the forces that are going to bring this nuisance to an end.
If SCO’s licensing campaign fails to generate the revenues SCO has been predicting for potential investors—because it turns out that SCO never owned what it claimed to be legally entitled to force others to license— SCO and its principals will have plenty to answer for, and not just to its shareholders, but to the SEC as well. It is not good practice to attempt to force people to buy from you what you may not own. It is even worse practice to mislead investors into thinking that they will benefit from such sales without disclosing that you may not own what you are trying to sell. Now that SCO itself has begun unraveling this aspect of the situation, the end is in sight. The winter of SCO’s discontent is likely to give way to a glorious summer for open source software.
Eben Moglen is professor of law at Columbia University Law School. He has served without fee as General Counsel of the Free Software Foundation since 1993. This paper is based on a presentation given to the Open Source Development Lab’s User Advisory Council in New York City January 22, 2004.
Copyright Eben Moglen, 2004. Verbatim copying of this article is permitted in any medium, provided this notice is preserved.
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Authored by: Anonymous on Tuesday, February 10 2004 @ 08:57 AM EST |
But what if Moglen integrated his paper with the AT&T codebase. Surely
*then* it would belong to SCO?[ Reply to This | # ]
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Authored by: Anonymous on Tuesday, February 10 2004 @ 09:00 AM EST |
On the home page, you are showing only part of the copyrighted paper. You may
want to adjust the amount shown on the front page to follow the copyright terms.
IANAL[ Reply to This | # ]
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Authored by: Anonymous on Tuesday, February 10 2004 @ 09:08 AM EST |
"Anything hard about that concept? Unfair? Viral? Unconstitutional? "
Some copyright and licensing issues are confusing, but this is not one of them.
Now, suppose I were to copy your post and publish it on my web site, changing
your introductory material slightly and identifying it as my work, while keeping
Moglen's work and his copyright notice intact.
You would be injured, and rightfully annoyed. But -- what injury could Moglen
claim? It's still an extremely simple situation. You would be the injured
party; Moglen would have no interest whatsoever.
-AIB.
[ Reply to This | # ]
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Authored by: brenda banks on Tuesday, February 10 2004 @ 09:09 AM EST |
and then the stocks just sit till a court decides ?
because they cant deliver on the promised wealth from licenses?
---
br3n
irc.fdfnet.net #groklaw
"sco's proof of one million lines of code are just as believable as the
raelians proof of the cloned baby"[ Reply to This | # ]
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Authored by: Anonymous on Tuesday, February 10 2004 @ 09:19 AM EST |
Eben Moglen: "The SCO Group claims to hold copyrights in AT&T’s
implementations of Unix as a consequence of a conveyance by Novell to SCO’s
predecessor in interest, Caldera."
Novell sold to The Santa Cruz Operation, Inc., later renamed Tarantella, Inc.
("old SCO").
One or more of the Caldera companies were intermediaries in the
transfer/transition to The SCO Group, Inc. ("new SCO").
I think old SCO sold it to Caldera Systems, Inc., which transferred it to
Caldera International, Inc., though I've also seen Caldera Holdings, Inc.
mentioned. Caldera International, Inc. renamed itself as new SCO.
Thus I think "Caldera" should be replaced by "old SCO" (ie
The Santa Cruz Operation, Inc., later Tarantella, Inc. - abbreviated as
appropriate to suit the style of the article).[ Reply to This | # ]
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Authored by: Anonymous on Tuesday, February 10 2004 @ 09:21 AM EST |
"What he wrote is still his property, not mine. I can release my own
paragraph any way I like separately, but if I release his paper with it, it
stays under his chosen restrictions"
Surely this page is now a derivitive work and your original introduction
paragraph belongs to him now ?
Of course, that's just plain stupid. Nobody in their right mind would think that
way.....er....
:-)
[ Reply to This | # ]
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Authored by: prayforwind on Tuesday, February 10 2004 @ 09:22 AM EST |
Way to go PJ; your intro to this paper pretty much sums up this whole fiaSCO! [ Reply to This | # ]
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Authored by: Anonymous on Tuesday, February 10 2004 @ 09:36 AM EST |
The SCO Comody just gets better all the time! Thank you Prof. Moglen for this
wonderful paper. I was laughing out loud reading part 3 "Where the Buck
Stops".
Maybe I should write a note to SCO as well thanking them for the entertainment
they're providing us. ;-)[ Reply to This | # ]
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Authored by: jmc on Tuesday, February 10 2004 @ 09:39 AM EST |
IAAHPNAL.....
I tremble to argue with the learned professor but I'd understood that the reason
SCO launched the "Slander of Title" suit rather than an
"interpretation of contract" suit against Novell was to suggest that
there was absolutely no doubt that SCO owns the copyright and only malice
prevented Novell from agreeing.
In which case doesn't that slightly weaken Prof Moglen's point about the Novell
case putting the copyright in question? SCO would say that there isn't any
doubt, as expressed in our case, that we own it and we are underlining this by
our suit against Novell.
[ Reply to This | # ]
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- "Now They Own It, Now They Don't" -New OSDL Position Paper on SCO by Eben Moglen - Authored by: Anonymous on Tuesday, February 10 2004 @ 09:48 AM EST
- "Now They Own It, Now They Don't" -New OSDL Position Paper on SCO by Eben Moglen - Authored by: Anonymous on Tuesday, February 10 2004 @ 09:57 AM EST
- Novell's deadline? - Authored by: Anonymous on Tuesday, February 10 2004 @ 10:10 AM EST
- "Now They Own It, Now They Don't" -New OSDL Position Paper on SCO by Eben Mogl - Authored by: crs17 on Tuesday, February 10 2004 @ 11:07 AM EST
- "Now They Own It, Now They Don't" -New OSDL Position Paper on SCO by Eben Moglen - Authored by: blacklight on Tuesday, February 10 2004 @ 02:43 PM EST
- "Now They Own It, Now They Don't" -New OSDL Position Paper on SCO by Eben Mogl - Authored by: kberrien on Tuesday, February 10 2004 @ 04:25 PM EST
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Authored by: Anonymous on Tuesday, February 10 2004 @ 09:39 AM EST |
Many of the large, sophisticated enterprises who are the targets of SCO’s
efforts responded to their claims last summer by taking copies of the Linux
program, under GPL, from SCO’s own FTP server, where the code remained publicly
available. They therefore have an auditable license from SCO to use, copy,
modify and redistribute the code about which SCO continues to threaten legal
action. For such enterprises, which now can also get a copy of the same program,
under the same license, from Novell, any action by SCO to bring a copyright
infringement claim would be particularly foolish.
As pointed out numerous
times here. Put that way, it does seem rather cut and dried. [ Reply to This | # ]
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Authored by: ijramirez on Tuesday, February 10 2004 @ 09:39 AM EST |
Since most of Groklaws work has being produced based on SCOs issues and
information, Groklaw is a derivative waork of SCO. So PJ, pay up SCO for a
license or we will sue you for appropriating our work. ... I couldn't resist
that line of reasoning!!!![ Reply to This | # ]
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Authored by: Anonymous on Tuesday, February 10 2004 @ 09:52 AM EST |
and I am using Knoppix, do I have to change its name to SCOnoppix? [ Reply to This | # ]
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- Knoppix - Authored by: maco on Tuesday, February 10 2004 @ 10:30 AM EST
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Authored by: SkArcher on Tuesday, February 10 2004 @ 09:56 AM EST |
I like to use this example to demonstrate some things
about SCOs case - feel
free to use this example to
illustrate your points, as long as you acknowledge
work
that is mine :)
Disclaimer: I am not a lawyer, but I did go
to
University
One of the major causes of scandal in academia is
plagiarism - the passing off of someone elses work as your
own. Copying
results, experimental data, theoretical work
or any other original thought is
plagiarism, pure and
simple.
However, academia relies (in a very
similar way to Open
Source development) on building on the work of others.
Over the years an accepted structure has built up to
acknowledge work and
effort done by earlier researchers -
the system of referencing. It realy isn't
surprising that
Linux development and academia resemble one another -
Linus
was at university when he began the Linux
project.
For instance, if
I wished to quote from Professor Moglens
paper without quoting the whole thing,
i could do so by
noting that my quote in the following manner;
Moglen, E. (2004) `Now They Own It, Now They
Don't: SCO Sues
Novell to Stay Afloat', Open Source
Development Labs,
http://www.osdl.org/docs/
osdl_eben_moglen_third_statement.pdf (accessed 10th
February 2004)
The idea of all this is for a number of
reasons, for
example;
Academic work is part of a social
project -
its products should be accessible to other members of the
relevant
community, and those members should be able to
evaluate the merits of the work.
To make this possible the
work should make its own claims, arguments, and
evidence,
and its relationship to existing work. (Spurritt,
2003)
This - not the proprietry business model that closed
software is built upon - is the basis for the Open Source
development
model.
The Linux development model makes citations in the
changelog
which look different, but perform the same
function - they identify the author,
the origin and the
date of the work.
So, you may now be asking
yourselves how this relates to
SCO. In plain terms it doesn't; but it does
relate to SCOs
allegations. SCO alledge that end users are liable for
damages
caused by IBM copying SCO-owned code into the
Linux kernel. This is patent
nonsense. it is the
equivalent of saying that someone who reads a book is
responsible if the author has commited plagiarism.
Likewise, even
other Open Source developers are unaffected
- the clear parallel in this case
is that of an author who
cites a particular work without being aware that the
work
plagirises an earlier work. The plagiarist is the one
clearly at fault,
not the author who was misled by the
plagiarist.
So clearly, by this
rationale, it is neither the concern
of the end user or the other kernel
developers what may
have been improperly added. It is simply a matter between
SCO and IBM - and IBM have stated quite clearly that the
case has no
merit.
Now this will change if SCO manage to prove these claims -
at
that point, if and when their claims are beyond
reasonable doubt, you would
have to correctly cite them as
the author and pay for the continued use of the
work - but
only if their claims are so shown, and only from that
point - while
the original infringer (IBM) would be the
only one liable for damages. IBM, in
stating that they
consider SCOs claims to be without merit have sent a clear
signal - that they will stand by the work as their and
that they are accepting
responsibility for their own
actions.
In the best tradition of
academic practice, IBM are
denying that they have plagiarised SCOs work for
their
contributions into Linux, and those of us who use it can
work with that
assurance to continue to use and build upon
their work.
Reference
Spurritt, D. (2003), How to cite web
documents, University
of Natal,
http://www.nu.ac.za/undphil/spurrett/notes/
webcite1.htm (accessed 10th February
2004) --- irc.fdfnet.net #groklaw [ Reply to This | # ]
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Authored by: phrostie on Tuesday, February 10 2004 @ 09:59 AM EST |
i was checking news.google.com and came across this.
"Date: 09/02/2004
IPR - Intellectual Property Rights
In short:
In service/knowledge-based economies such as those of the EU, protecting
intellectual property rights (IPR) is considered essential by businesses in
their pursuit of innovation and competitiveness. The Commission implicitly
favoured this approach when it tabled a proposal on IPR in January 2003. The
proposal aims primarily at preventing the counterfeiting and piracy that cause
increasing amounts of damage to businesses while at the same time harmonising
legislation throughout the EU Member States. However, the proposal is raising
concern among consumer organisations and civil liberties groups who claim
universities, Internet providers and ordinary people could end up being
prosecuted. The draft directive is currently being discussed between the
Parliament and the EU Council of Ministers."
ok, a sign of the times. right? then down at the bottom i see:
"Major software companies such as Microsoft (Windows) and SCO (Unix) who
suffer from pirating have been backing the directive. But small and sometimes
even bigger ones such as Sun Microsystems and the free software community have
opposed it for fear that they might be driven out of the market. "
is anyone aware of SCO lobbying EU leaders?
http://www.euractiv.com/cgi-bin/cgint.exe?204&OIDN=2000609&-home=home
---
=====
phrostie
Oh I have slipped the surly bonds of DOS
and danced the skies on Linux silvered wings.
http://www.freelists.org/webpage/cad-linux[ Reply to This | # ]
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Authored by: the_flatlander on Tuesday, February 10 2004 @ 10:02 AM EST |
> Anything hard about that concept? Unfair? Viral?
> Unconstitutional?
lol
PJ, you sound bitter. Funny, but bitter.
The Flatlander
;^)[ Reply to This | # ]
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Authored by: Anonymous on Tuesday, February 10 2004 @ 10:12 AM EST |
Presumably, under SCO's theory, this article is a derivative work, and thus
PJ's comments no longer belong to her but to Mr. Moglen? :)
... I'll get
me coat. [ Reply to This | # ]
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Authored by: Anonymous on Tuesday, February 10 2004 @ 10:14 AM EST |
Well, they do seem to be trying to hush-up other problems,
here's an intresting post found in
comp.os.linux.advocacy:
------
<PdadnZXrD9zK37XdRVn-tw@comcast.com>
Here's the later headline, with an excerpt about the
settlement:
http://bankrupt.com/CAR_Public/030918.mbx
SCO GROUP: Reaches Settlement For Securities Fraud Lawsuit in NY
The plaintiffs, issuers and the insurance companies have
negotiated a Memorandum of Understanding (MOU) with the intent
of settling the dispute between the plaintiffs and the issuers.
The Company has executed the MOU and has been advised that
almost all (if not all) of the issuers have elected to proceed
under the MOU. The MOU is still subject to court approval and
the preparation of appropriate settlement agreements.
If the settlement is approved and appropriate settlement
agreements can be entered into by the parties, and if no cross-
claims, counter claims or third party claims are later asserted,
this action will be dismissed with respect to the Company and
the individual defendants.
Here's what happen 3 months earlier (excerpted):
http://bankrupt.com/CAR_Public/030618.mbx
SCO GROUP: NY Court Refuses To Dismiss Securities Fraud Lawsuit
The United States District Court for the Southern District of
New York refused to dismiss the consolidated securities class
action filed against the SCO Group, Inc., certain of its
officers and directors, and the underwriters of the Company's
initial public offering, alleging violations of the securities
laws.
The consolidated complaint alleges certain improprieties
regarding the circumstances surrounding the underwriters'
conduct during the Company's initial public offering and the
failure to disclose such conduct in the registration statement
in violation of the Securities Act of 1933, as amended.
The consolidated complaint also alleges that, whether or not the
Company's officers or directors were aware of the underwriters'
conduct, the Company and those officers and directors have
statutory liability under the securities laws for issuing a
registration statement in connection with the Company's initial
public offering that failed to disclose that conduct. The
consolidated complaint also alleges claims solely against the
underwriters under the Securities Act of 1933 and the Securities
Exchange Act of 1934, as amended.
Looks like the fake-SCO has been a fraudster from the
beginning.
-------
[ Reply to This | # ]
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Authored by: Anonymous on Tuesday, February 10 2004 @ 10:22 AM EST |
It may be more important than at first glance that this went out over the PR
Newswire.
This is where SCO has been sending its stuff, too, and PR Newswire stuff has a
habit of showing up in Web searches and on financial news sites. It's sort of a
"news of record" type service for companies' public statements.
PJ, I don't know how much it costs, but I wonder if it might have been helpful
for you to send some of your stuff out over the PR Newswire.
There also used to be something called the Business Wire (BW), but I don't know
if it's still around.
Stuart Thayer
former journalist
[ Reply to This | # ]
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Authored by: msquared on Tuesday, February 10 2004 @ 10:34 AM EST |
One major flaw IMHO is that Eben does not even mention
that Linux in fact
contains no Unix code. Instead,
his explanation seems to accept that indeed
there IS
questionable code inside Linux, but that Novell owns
it and not SCO.
Worse yet, GPL novices now read that
since Novell has GPL'ed it, all that
questionable code is now "free".
I really really dont like this line of
reasoning,
since it:
a) appears to novices that "viral GPL" has sucked
something in
by gravity
b) ignores the more basic truth that Linux is indeed
Unix-free.[ Reply to This | # ]
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Authored by: MalFal on Tuesday, February 10 2004 @ 10:48 AM EST |
PJ, you forgot one last, very important, piece to the ownership puzzle between
you and Eben: By you prepending your copyrighted text to his work does not
automatically imply that Eben can now claim ownership to your work based on
being a derivation of his.
MalFal[ Reply to This | # ]
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Authored by: Anonymous on Tuesday, February 10 2004 @ 11:47 AM EST |
Even if he says "You may not copy this at all, ever, or you owe me your first
child!", the doctrine of fair use still applies.
A barrister I'm not,
but here's my take from reading the Copyright Act, especially 17 USC § 107
(US Code Chapter 17, Section 107):
- You may publish a
parody
-
You may publish a commentary that includes his work, within
limits (this is a grey area)
-
You may use his work for research and
teaching (whether for its content or its style)
-
You may use his work
for analysis of its copyright status.
Your fair use must
not be for direct profit from his work. A parody can make a profit, but it must
not be a substitute, or it's not parody. Weird Al Yankovic can make a parody of
a popular song, but he has to wait for the original to fall off the charts so as
not to compete with it. You may compete directly with his work, but you must
take care not to make obtaining your work a substitute for obtaining
his.
This applies very neatly to computer programs. If you publish a
commentary on a proprietary software program's source code, and a person could
remove your comments and compile the program, you infringe. There is a grey
area, where common sense and motive come into play. Factors to consider are the
portion of his code you publish and the amount of obfuscation you use (in the
sense of making it hard for someone to compile it, not altering his
work).
Compiled programs are another matter entirely. It's a lot more
difficult to see fair use of a binary. Reverse engineering for research,
analysis, and copyright validation are probably ok, but you'd better not make a
competing product as a result.
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Authored by: Anonymous on Tuesday, February 10 2004 @ 12:33 PM EST |
Did I just hear the general counsel for the Free Software Foundation say
"Open Source"?[ Reply to This | # ]
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Authored by: Anonymous on Tuesday, February 10 2004 @ 01:11 PM EST |
This is another story with broken quotes. The entire Moglen statement uses
Microsoft-style characters which do not work properly in Netscape on non-Windows
platforms. Does he use Microsoft Office?[ Reply to This | # ]
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Authored by: Anonymous on Tuesday, February 10 2004 @ 01:43 PM EST |
I always thought that a Slander of title-suit is initiated because your rights
are put in doubt.
Not the other way around.
It is embarassing to see a person with Eben's much touted credentials build a
whole argumentation on such ridiculous hypothesis.
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Authored by: Anonymous on Tuesday, February 10 2004 @ 04:49 PM EST |
If Novell indeed holds residual rights for itself in what SCO claims are its
exclusive rights, Novell can distribute Linux through SuSE without any
theoretical liability to claims from SCO. And because the Linux program is
distributed under GPL, anyone who got code from Novell/SuSE has the right to
distribute it to anyone else, under GPL, without limitation.
"IF"
is pretty big here. In order for Novell to be able to legally publish software
under the GPL, Novel would need to have "unrestricted rights" to the software,
unrestricted enough, that is, to enable them to publish it with the
GPL.
It is conceivable that Novel's overly complicated "asset transfer"
agreement with SCO might not permit "enough" of the "rights" necessary for
Novell to publish with the GPL license!
The asset transfer agreement
is a convoluted set of documents at best, the purpose of which seems to have
been to give the illusion of "selling" SCO something while actually retaining,
if you can follow the language, ownership.
It is the very
"muddleness", and possible "deceptive intent", of the language in the agreement
that is cause for alarm. If it takes legal geniuses to figure it out and
unscamble it and a judge to clear the confusion up with a ruling then who knows
how it might unravel and impact Novel's rights to "free" publication rights. It
is possible that a judge could impose "limitations" on Novell's "publication
rights" and thus "impact" a "proper GPL" publication. Then the house of cards
that the GPL rests upon crumbles. The GPL requires "integrity" of "rights" from
the source to be legally binding.
I ask the professor if he could
expand upon this aspect rather than make the, here to now, unsupported circular
statement "And because the Linux program is distributed under GPL, anyone who
got code from Novell/SuSE has the right to distribute it to anyone else, under
GPL, without limitation." This statement can ONLY be true IF Novell has
"enough rights" to publish with the GPL.
I also ask the professor for
an opinion on the situation where someone publishes software under the GPL that
they don't have the "necessary" rights to publish. What happens? Obviously all
those using the software, they are under the false assumption that the software
was properly published with the GPL license, and they are unaware of it's
"tainted" status until notified of their infringement (or through publication of
a general announcement). However, at what point does the software become
"unGPLed" (or whatever the term would be)? Even though the software is in the
"wild" with GPL copyright license notices does it mean that it's free and clear?
Not if it's "entagled" at the "source"! What if a "judge" says it was
tainted?
It also seems that any victory for SCO on this matter could
seriouly impact Novell's and the wider communities rights to the system in
question.
Of course there is also the issue of prior publication of the
code in quesiton by SCO (and it's earlier corporate entities) that would surely
come to play. However, I wish the professor to address the above questions
without mixing in the "SCO GPL publication" issue.
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Authored by: vonbrand on Tuesday, February 10 2004 @ 06:12 PM EST |
Sorry to disagree with Eben, but maybe the fact that SCO is not sueing
Novell over the copyrights, but over the alleged misrepresentation of Novell's
rights (the famous "slander of title" that has so many puzzled here)
somehow means they are not admitting there is a controversy over who
owns them?
(setq IAAL nil) [ Reply to This | # ]
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Authored by: PM on Tuesday, February 10 2004 @ 08:46 PM EST |
Eben quoted:
"Usually, when the target of a license demand shows a determination to wait
out the claimant, the claimant says “If you ignore my demand,
you’re engaged in intentional copyright infringement, and
that’s a no-no. When I sue you the judge won’t like you, and
the Copyright Act says I get double damages.” "
This would seem to indicate that, ignoring the SCO v Novell suit, related
letters etc, that any company who resisted payment to SCO could be up for double
damages in the event that SCO successfully showed that the GPL was not valid for
whatever reason. Would the courts however consider other factors such as SCO's
general conduct eg refusing to describe how and where the alleged infringement
is occurring in determining whether double damages are applicable.
Alternatively assuming that the SCO content was pretty minimal could the damages
be sufficiently small, that doubling it would not matter too much.
Any ideas here please?
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Authored by: Anonymous on Tuesday, February 10 2004 @ 09:44 PM EST |
Eban's argument is brilliant. Put it this way: if I am using code and it is
clear that ti belongs to someone else, then I have to pay they for it. But if
there is a court trial to determine who owns the code, then I don't know who to
pay and am legally in the clear to just wait until the court determines the
owner. Only then do I have to pay someone. Better yet, Novell respects the gpl,
so if they win (and I am sure they will), then I don't have to pay anything.[ Reply to This | # ]
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Authored by: Anonymous on Thursday, February 12 2004 @ 04:12 AM EST |
There's an article about this on DevX. It's here.
- Roger[ Reply to This | # ]
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