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| Attacking With The DMCA's Section 1202 |
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Tuesday, February 17 2004 @ 08:46 PM EST
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What if SCO actually does sue end users on the 18th or thereabouts, and suppose it tries to take the DMCA to its logical, literal and absurd extreme, then what? To understand -- to the degree we can without knowing the terms of the supersecret sealed USL/BSDi agreement SCO seems to think Linux end users are supposed to obey without being able to read it and despite not being a party to it-- we need to understand just how wonderfully the DMCA may seem suited to SCO's needs. Maybe a quick tour of the DMCA and how it works would be timely, keeping in mind that SCO has been nothing if not creative, and they are therefore possibly planning something we've never quite seen before. They have hinted, particularly in the Harvard appearance, that their action will be based on Section 1202 of the DMCA, which forbids stripping off copyright notices, which they claim are missing from some header files they allege they have copyrights on. Do you say, But I never stripped off anything? Let's see how the DMCA is written, and then we'll have an idea of the level of mischief that may be cynically twinkling in somebody's eyes.
First, here is the part of the DMCA that talks about stripping off copyright notices, including penalties and damages: Sec. 1202. Integrity of copyright management information
. . . (b) REMOVAL OR ALTERATION OF COPYRIGHT MANAGEMENT INFORMATION- No person shall, without the authority of the copyright owner or the law--
(1) intentionally remove or alter any copyright management information,
(2) distribute or import for distribution copyright management information knowing that the copyright management information has been removed or altered without authority of the copyright owner or the law, or
(3) distribute, import for distribution, or publicly perform works, copies of works, or phonorecords, knowing that copyright management information has been removed or altered without authority of the copyright owner or the law,
knowing, or, with respect to civil remedies under section 1203, having reasonable grounds to know, that it will induce, enable, facilitate, or conceal an infringement of any right under this title.
(c) DEFINITION- As used in this section, the term `copyright management information' means any of the following information conveyed in connection with copies or phonorecords of a work or performances or displays of a work, including in digital form, except that such term does not include any personally identifying information about a user of a work or of a copy, phonorecord, performance, or display of a work:
(1) The title and other information identifying the work, including the information set forth on a notice of copyright.
(2) The name of, and other identifying information about, the author of a work.
(3) The name of, and other identifying information about, the copyright owner of the work, including the information set forth in a notice of copyright. . . .
(6) Terms and conditions for use of the work.
(7) Identifying numbers or symbols referring to such information or links to such information. . . .
Sec. 1203. Civil remedies
(a) CIVIL ACTIONS- Any person injured by a violation of section 1201 or 1202 may bring a civil action in an appropriate United States district court for such violation.
(b) POWERS OF THE COURT- In an action brought under subsection (a), the court--
(1) may grant temporary and permanent injunctions on such terms as it deems reasonable to prevent or restrain a violation, but in no event shall impose a prior restraint on free speech or the press protected under the 1st amendment to the Constitution;
(2) at any time while an action is pending, may order the impounding, on such terms as it deems reasonable, of any device or product that is in the custody or control of the alleged violator and that the court has reasonable cause to believe was involved in a violation;
(3) may award damages under subsection (c);
(4) in its discretion may allow the recovery of costs by or against any party other than the United States or an officer thereof;
(5) in its discretion may award reasonable attorney's fees to the prevailing party; and
(6) may, as part of a final judgment or decree finding a violation, order the remedial modification or the destruction of any device or product involved in the violation that is in the custody or control of the violator or has been impounded under paragraph (2).
(c) AWARD OF DAMAGES-
(1) IN GENERAL- Except as otherwise provided in this title, a person committing a violation of section 1201 or 1202 is liable for either--
(A) the actual damages and any additional profits of the violator, as provided in paragraph (2), or
(B) statutory damages, as provided in paragraph (3).
(2) ACTUAL DAMAGES- The court shall award to the complaining party the actual damages suffered by the party as a result of the violation, and any profits of the violator that are attributable to the violation and are not taken into account in computing the actual damages, if the complaining party elects such damages at any time before final judgment is entered.
(3) STATUTORY DAMAGES
(A) At any time before final judgment is entered, a complaining party may elect to recover an award of statutory damages for each violation of section 1201 in the sum of not less than $200 or more than $2,500 per act of circumvention, device, product, component, offer, or performance of service, as the court considers just.
(B) At any time before final judgment is entered, a complaining party may elect to recover an award of statutory damages for each violation of section 1202 in the sum of not less than $2,500 or more than $25,000.
(4) REPEATED VIOLATIONS- In any case in which the injured party sustains the burden of proving, and the court finds, that a person has violated section 1201 or 1202 within 3 years after a final judgment was entered against the person for another such violation, the court may increase the award of damages up to triple the amount that would otherwise be awarded, as the court considers just.
(5) Innocent violations-
(A) IN GENERAL- The court in its discretion may reduce or remit the total award of damages in any case in which the violator sustains the burden of proving, and the court finds, that the violator was not aware and had no reason to believe that its acts constituted a violation. . .
Sec. 1204. Criminal offenses and penalties
(a) IN GENERAL- Any person who violates section 1201 or 1202 willfully and for purposes of commercial advantage or private financial gain--
(1) shall be fined not more than $500,000 or imprisoned for not more than 5 years, or both, for the first offense; and
(2) shall be fined not more than $1,000,000 or imprisoned for not more than 10 years, or both, for any subsequent offense. . . .
(c) STATUTE OF LIMITATIONS - No criminal proceeding shall be brought under this section unless such proceeding is commenced within 5 years after the cause of action arose.
See any room for mischief there? Any money-making opportunities? Perhaps you discern why the terrified mommies of 12-year-old music downloaders pay the RIAA off without going to trial. It seems on first reading a bit like the no-win balance in the trials in the Middle Ages. If you survived a dunking underwater for 5 minutes, you were declared innocent.
Of course, as the law plays out, it isn't quite that bleak, according to the attorneys I've asked. You have to actually have a copyright to go after someone in a civil action. That is a bit problematic for SCO. Novell stands like an elephant in the courtroom. They claim they hold the copyrights. How can anybody be held guilty of copyright infringement, when nobody knows to date who actually owns the copyright on these files? That is one of the two things SCO will have to prove to sue anyone for copyright infringement: 1) that they have ownership of the copyright and 2) that the defendant copied without authorization. That is in a "normal" RIAA-style DMCA action. Under Section 1202, there is a separate issue: stripping off copyright notices and distribution of files that have been stripped of their copyright management information.
There would seem to be a number of of other hurdles facing SCO. There is Linus claiming authorship of header files. Then there is the fact that SCO, as Caldera, distributed Linux under the GPL itself. How can it be infringement for end users to do the same? And Caldera also distributed Ancient Unix under a BSD-like license. You will have noticed that the judge in its discretion can reduce or totally nix any damages if "the violator" "was not aware and had no reason to believe that its acts constituted a violation". Here is a case, Kelly v. Arriba Soft Corp., where the defendant was charged under Section 1202, and the judge found exactly that, that the "defendant did not have 'reasonable grounds to know'", so it was dismissed. The judge explained fair use thoroughly too. If you wish to see the entire history of the case, including appeals, EFF has it all. The top one on the list on that page is also worth reading, the Ninth Circuit's revised opinion, issued July 6, 2003, which said the earlier ruling had gone too far in one area, but upheld the fair use reasoning, which it also discusses is some helpful detail. Fair use is a defense. Then there is the question of whether header files are copyrightable in the first place, with or without a sealed agreement. And how can SCO prove the files had copyright information intentionally removed? By whom? End users? Hardly. It would be hard to find defendants more in the Kafka-esque dark than these poor critters. How do you prove wilfulness when there is such a confusing picture as this? And then I think one might reasonably ask: how has SCO been damaged by missing copyright notices, even if every other factor were handed to them on a platter? Do they argue to the judge that they suffered no market harm but they want the statutory damages, just because the law provides it as relief? Relief for what? Maybe the judge will even notice that the DMCA, at its worst, was intended for "crimes" quite different from the current set of facts. Obviously, it was intended for those causing significant financial damage to a copyright holder. We are, after all, talking significant financial remedies here and even jail time in a criminal action, which happily SCO can't bring on its own. How and by what extremist logic can it be argued that this statute should be applied to folks who bought their GNU/Linux software in good faith under the GPL, some of them even from Caldera, never touched or stripped off any copyright notices, have no clue who the actual copyright owner is, were not a party to the sealed agreement allegedly requiring copyright notices, are not allowed to even read the agreement so as to know what it is alleged somebody is supposed to do to what files, and would probably be happy to tack on any validly required copyright notices if asked? What kind of Medieval court would punish such a defendant? Punish? For what? Even if they did, the statute covers only distribution, not use. Maybe none of the above is what SCO will end up doing, and this is just my worst-case imaginings. But if they do, I think their most recent SEC filing is correctly predicting that they can expect a negative reaction.
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| Authored by: Anonymous on Tuesday, February 17 2004 @ 09:03 PM EST |
Let's see... even if they win, how on earth are the U.S. Courts ever doing to
stop worldwide distribution? Can you say "no jurisdiction"?[ Reply to This | # ]
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| Authored by: ram on Tuesday, February 17 2004 @ 09:06 PM EST |
SCO itself is vulnerable under Section 1202 of the DMCA, since it filed for
copyrights it didn't (and still doesn't) possess.
[ Reply to This | # ]
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| Authored by: Tomas on Tuesday, February 17 2004 @ 09:07 PM EST |
"If you survived a dunking underwater for 5 minutes, you were
declared innocent."
No, no!
If you survived the five
minute dunking you were obviously a witch and must be burned. Only if you did
not survive being underwater for five minutes were you proved innocent
...
[ Reply to This | # ]
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| Authored by: Anonymous on Tuesday, February 17 2004 @ 09:09 PM EST |
Out of curiosity, why doesn't someone just add the required copyrights and
ditribute the patch? [ Reply to This | # ]
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| Authored by: RealProgrammer on Tuesday, February 17 2004 @ 09:13 PM EST |
I really think they are barking up the wrong money tree. Here's
why.
The Ancient Unix code, in particular the header files, was
distributed without copyright notices. Never had them, still doesn't have them.
I've put together a table
of header files
from several versions of Unix. The header files from Version 7, distributed
from 1978 to now without copyright notices, are very similar (but not the same)
as those from Linux.
The header files from various versions of BSD Unix
that do not contain any System V code or copyright attribution (never had it,
never needed it) are very similar (but not the same) as those from System V.
The BSD files are more like the System V files than the Linux files are like
either one. It's sort of an acute isosceles triangle, with Linux at the pointy
end.
Here is my point: since the header files have been around basically
unchanged since the 1970's, and since those old files never had (and still don't
have) copyright notices, how can they have been removed?
Besides,
they weren't copied anyway!
---
(I'm not a lawyer, but I know
right from wrong) [ Reply to This | # ]
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| Authored by: FriedBob on Tuesday, February 17 2004 @ 09:13 PM EST |
This is quite interesting. I haven't had a chance to read it very deeply yet,
however. I must admit, at first blush the wording of the law seems very much
stacked in SCOs favor. Except for the fact that they did (and still do?)
distribute Linux in source and binary. Even after filing their suit. Seems
like that would throw a major wrench in their plans to sue end-users, and open
themselves up to all sorts of problems. And how come 2.6.x is used? I thought
all these violations were in 2.2.x and/or 2.4.x. How come no examples from
either of those? The other thing that really puzzled me, and this may be better
suited to a different thread, if, as that S-3 filing indicated, SCO expects to
be hosed even if they win all their lawsuits, and even the mere act of filing
suits against end users is going to "irreparably harm" their revenues,
WHY go through with it? What logical, legal or moral reasons would there be to
go through with this thing?
There are some other things I'd like to say or point out, but that will have to
wait for another time.
---
Hence to fight and conquer in all your battles is not supreme excellence;
supreme excellence consists in breaking the enemy's resistance without fighting.
-- Su[ Reply to This | # ]
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| Authored by: DoctorW on Tuesday, February 17 2004 @ 09:13 PM EST |
Perhaps IBM could argue that the header files claimed by SCO actually came from
the 32V UNIX distribution, where there were NO copyright notices on the files.[ Reply to This | # ]
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- Ha ha - Authored by: Anonymous on Tuesday, February 17 2004 @ 09:22 PM EST
- Ha ha - Authored by: Anonymous on Wednesday, February 18 2004 @ 03:53 AM EST
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| Authored by: garbage on Tuesday, February 17 2004 @ 09:14 PM EST |
First prove ownership which requires showing evidence.
Neither has happened.
In australia we refer baseless claims to the relevant authorites for prosecution
as fraud / abuse of trade practices..
Why is this so hard is USA?
[ Reply to This | # ]
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| Authored by: Nivuahc on Tuesday, February 17 2004 @ 09:14 PM EST |
| I think the key word that you use quite a bit PJ is reasonable.
SCO
have shown themsleves to be anything but.
Nothing, at this point,
would surprise me in the least. ---
SCO-Logic: If you lie about something
long enough, people will eventually believe it. And if they don't believe it,
you aren't yelling loud enough. [ Reply to This | # ]
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| Authored by: Anonymous on Tuesday, February 17 2004 @ 09:21 PM EST |
that the only person they could sue would be the person who knowingly removed
the copyrights.
And wouldn't they have to prove when the copyrights were removed, because it
could have happened before the DMCA came into force ?
[ Reply to This | # ]
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| Authored by: Anonymous on Tuesday, February 17 2004 @ 09:25 PM EST |
"there is the fact that SCO, as Caldera, distributed Linux under the GPL
itself. How can it be infringement for end users to do the same?"
I would like this point to be expounded upon. Whether or not SCO owns any code
in Linux, (SCO fantasy), SCO distributed that specific code under the GPL.
Please help me understand how SCO can ignore their previous licensing with the
GPL.
Also, why has SCO not been ordered to stop their use of GPL software? Just
because they publicly disagree with the GPL terms does not give them immunity
from its application in their products, does it?
Zeke[ Reply to This | # ]
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| Authored by: Ruidh on Tuesday, February 17 2004 @ 09:30 PM EST |
(b) REMOVAL OR ALTERATION OF COPYRIGHT MANAGEMENT
INFORMATION- No person shall, without the authority of the copyright owner or
the law--
(1) intentionally remove or alter any copyright management
information,
(2) distribute or import for distribution copyright
management information knowing that the copyright management information has
been removed or altered without authority of the copyright owner or the
law
That's distributing or importing copyright management
information? Not copyrighted materials from which the copyright management
information has been altered or removed? Is it logically possible to violate
this if the copyright management information has been removed? If it's been
removed, you aren't distributing "copyright management information". I even
checked the text of the statute with the copy of Title 17 on the Cornell Law
website and the same language is there.
[ Reply to This | # ]
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| Authored by: whoever57 on Tuesday, February 17 2004 @ 09:49 PM EST |
| now that Darl has hinted at what is in the BSD/USL settlement, people who
re-distribute code without the copyright statements are doing so knowingly (or
so SCO may claim).
The fact that:
1. Darl may not actually know what is
in the settlement
2. Hints don't provide knowledge
won't stop SCO from
continuing to pursue absurd lawsuits based on absud theories.
---
-----
For a few laughs, see "Simon's Comic Online Source" at
http://scosource.com/index.html [ Reply to This | # ]
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| Authored by: Anonymous on Tuesday, February 17 2004 @ 09:49 PM EST |
SCO now contends that ALL Linux versions require their IP license. See
question 24 from their revised FAQ below. Also note their revised response on
BSD, question 45 - i.e. they seem to rephrased this question
significantly
If you go to the scosource pages at www.scogroup.com they
have made a number of updates, including a "Buy Now" button. The Buy Now buttons
leads to a page with a link to the EULA for the SCO IP license for
Linux.
Full text
here:
http://www.thescogroup.com/scosource/eula.html
Interesting
quotation, they seem to be issuing licenses for IBM's own code, emphasis
added
"UNIX-based Code" shall mean any Code or Method
that: (i) in its literal or non-literal expression, structure, format, use,
functionality or adaptation (ii) is based on, developed in, derived from or is
similar to (iii) any Code contained in or Method devised or developed in (iv)
UNIX System V or UnixWare®, or (v) any modification or derivative work based
on or licensed under UNIX System V or UnixWare.
"SCO IP" shall mean
the SCO intellectual property included in its UNIX-based Code,/B> in
Object Code format licensed by SCO under SCO’s standard commercial
license.
The FAQ has also significantly changed,
http://www.thescogroup.com/scosource/linuxlicensefaq.html
Highlights,
emphasis added
14. Why is SCO willing to use litigation with Linux
end-users?
To this point, SCO has not yet instigated any litigation to
any Linux end user. But SCO has announced it will bring legal action against
some Linux end users in the near future for unauthorized use of our IP in
Linux. SCO created the SCO IP license to cure the infringement for the Linux
end user. SCO prefers that end users purchase this license rather than resorting
to litigation. If we are forced to litigate to protect our rights, we will.
Regardless of the actions of IBM, the Linux distributors or the end customers,
SCO has an obligation to SCO customers, employees and shareholders to preserve
the value of all of its assets, including its intellectual property assets.
16. Will SCO sue me as an end user customer if I don't buy a license?
SCO must protect its UNIX intellectual property and copyrights. The
company would prefer to do this by offering a license to Linux for commercial
purposes. If a customer refuses to compensate SCO for its UNIX intellectual
property found in Linux by purchasing a license, then SCO may consider
litigation.
24. Does everyone who uses Linux need a SCO IP
License?
All commercial users of any version of Linux need an SCO
IP License.
33. How are sales of the license going? Any buyers you
could name?
In August, we announced that our first Fortune 500 Company
had purchased a license. Since then, we have had several others sign on.
For confidentiality reasons, we aren't divulging any names at this point.
(my comment - SCO told IBM several others, were two).
45. I
am running BSD. Am I required to purchase a license?
No, you do not
need to purchase a SCO IP license if you are only running a fully licensed
version of BSD.
48. Does Novell have a UNIX license from SCO?
Novell received a limited license back from SCO for its internal use
and for non-competitive products.
(my other comment - most of the
comments about Red Hat have disappeared)
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| Authored by: rand on Tuesday, February 17 2004 @ 09:58 PM EST |
I mentioned before, in reply to a different article, but I don't think anyone
understood the point: the license notice required by the USL/BSDi settlement
contains its own remedy: add the notice. It does not say "you may be
liable for monetary damages", it says: if this notice is in place then
you're free to use and distribute the code. The intent of the original
licensor(s) is clear: they wanted the code freely distributed at no cost. Is a
judge likely to award cash when the wishes of the licensor(s) are so clearly
stated?
---
carpe ductum -- "Grab the tape" (IANAL and so forth and so on)[ Reply to This | # ]
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| Authored by: PM on Tuesday, February 17 2004 @ 09:59 PM EST |
SCO's threatened action if carried out may not be too bad a thing in the long
term. There is already political unease at the DCMA and abusive actions taken
under DCMA will merely add to this impetus.
Moreover other countries will resist being forced to adopt DCMA type laws as
part of trade deals.
The SCO case all round is providing more and more ammunition to those opposing
more extensive IP legislation in other countries.
[ Reply to This | # ]
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| Authored by: Glenn on Tuesday, February 17 2004 @ 10:01 PM EST |
Sort of off topic, but sort of not. I just read an article over on
MozillaQuest by Mike Angelo concerning the SCOG vs Novell lawsuit. I have no
comments on his analysis, but I do have some concern over his claim of
derivative works copyright in transcribing the court documents pertinent to the
case. I was wondering if Mike is on sound legal ground there.
Glenn[ Reply to This | # ]
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| Authored by: jgb on Tuesday, February 17 2004 @ 10:02 PM EST |
(5) Innocent violations-
(A) IN GENERAL- The court
in its discretion may reduce or remit the total award of damages in any case in
which the violator sustains the burden of proving, and the court finds, that the
violator was not aware and had no reason to believe that its acts constituted a
violation. . .
I have never understood the legal rationale
for suing an end user. I got RH8 bundled with a book (newbie). I purchased this
book and distribution in good faith, not being aware of an copyright infraction,
should it be proved that there actually is one. Under the language of the DMCA,
this is referred to as an innocent violation.
Further, the license that
accompanies the distribution specifically states that Linux is freely
distributable, yadda yadda yadda. This goes well past innocent violation. I am
assured by the distributor (in this case by the fine folks at Redhat) that my
purchase is under the terms of a license that admits no such encumberance as
SCOG claims. So how the heck did I become a target? ---
-jgb-
SCO exists as a negative example to others. [ Reply to This | # ]
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| Authored by: webster on Tuesday, February 17 2004 @ 10:04 PM EST |
Using this law is too risky for SCO. It allows the judge to be reasonable with
them. They could lose for winning. Note this clause:
(A) IN GENERAL- The court in its discretion may reduce or remit the total
award of damages in any case in which the violator sustains the burden of
proving, and the court finds, that the violator was not aware and had no reason
to believe that its acts constituted a violation. . .
Since SCO has deliberately withheld the specific code to terrorize users and
hide their weak claim, they could prove copyright removal and then be denied
damages for suffering no actual damages and not allowing a cure. They would
also be made to pay attorney fees despite winning for not allowing defendants an
opportunity to stop their conduct because SCO wouldn't tell them what they were
doing wrong. Defendant's could say SCO forced them into court when this could
have been worked out like two reasonable businessmen.
They are damned by their confidentiality. It betrays the weakness of their
claims and undermines any claim for damages.
---
webster[ Reply to This | # ]
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| Authored by: Anonymous on Tuesday, February 17 2004 @ 10:27 PM EST |
"(2) distribute or import for distribution copyright management information
knowing that the copyright management information has been removed or altered
..."
I don't see how anyone can "know" that the approval hasn't been
granted. Novell claims to own the copyrights and is pretty vocal about saying
so.[ Reply to This | # ]
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| Authored by: brt on Tuesday, February 17 2004 @ 10:46 PM EST |
#include "IANAL.h"
(c) STATUTE OF LIMITATIONS - No criminal
proceeding shall be brought under this section unless such proceeding is
commenced within 5 years after the cause of action arose.
Does this not
invalidate any and all of SCO claims under DMCA? Any and all alleged stripping
of "copyright management information", if it did actually take place, would have
to have happen before 1999, no? [ Reply to This | # ]
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| Authored by: Anonymous on Tuesday, February 17 2004 @ 10:51 PM EST |
Maybe SCOX is sowing confusion on purpose. Maybe Novell
played into
their hands erringly. Maybe thats the whole
point....
(2) at any time while an action is pending, may order
the
impounding, on such terms as it deems reasonable, of
any device or
product that is in the custody or control of
the alleged violator and
that the court has reasonable
cause to believe was involved in a
violation;
<tin foil hat>If
the Linux kernel has questions
about it's copyright status, which Novell
muddied the
waters with the purchase of SuSE along with the timely
copyright registration, then SCOX can ask the
judge to "impound" SuSE, and
by extention, all of the
Linux kernel until the matter is resolved.
SCOX doesn't have to sue an end user or get the
GPL declared invalid
in order to force ppl to stop using
GNU/Linux. Just throw up enough
fodder and make the issue
so
clouded that it would take *years* of
legal manuvering to
figure it out. Or, alternatively, IBM's
contributions of
JFS and the Dynix code could be encumbered for the
duration of the trial and the judge could "impound" those
works and cause
a lot of work for the kernel team. Sure,
SCOX would be insolvent by the end,
but M$ could have
gained some of the market share that they see going to
GNU/Linux at the moment and their FUD-machine would be
blasting full steam
ahead..</tin
foil hat> [ Reply to This | # ]
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| Authored by: Anonymous on Wednesday, February 18 2004 @ 05:49 AM EST |
At first I thought this guy was being sarcastic, but after reading it a couple
of times I think he genuinly believes that OCRing somebody elses work grants him
a copyright ?
So, if I take a book, copy it down word for word making a few typos here and
there I can now claim copyright over this new copy as it is a "derivitive
work" ?
Ridiculous !
[ Reply to This | # ]
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| Authored by: Anonymous on Wednesday, February 18 2004 @ 06:17 AM EST |
| IANAL and even IANAA (American), but one thing which stood to
me:
(c) DEFINITION- As used in this section, the term
`copyright management information' means any of the following information
conveyed in connection with copies or phonorecords of a work or performances
or displays of a work, including in digital form, except that such term does
not include any personally identifying information about a user of a work or of
a copy, phonorecord, performance, or display of a
work:
Could it be claimed that the DMCA doesn't apply as
software is not a phonorecord, or performance or display of a work?
[ Reply to This | # ]
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| Authored by: Wol on Wednesday, February 18 2004 @ 07:53 AM EST |
Surely, if we investigate, won't we find that it was AT&T that
stripped most, if not all, the copyright notices? INCLUDING a load of
Berkeley copyrights that they did not own?
PJ tells me the Berkeley were
also responsible for stripping some copyrights, but I find that unlikely -
although they may well have distributed AT&T code where copyrights were
wrongfully stripped.
Cheers,
Wol [ Reply to This | # ]
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| Authored by: knutsondc on Wednesday, February 18 2004 @ 04:20 PM EST |
| For several reasons, SCO's threats under DMCA Section 1202 appear rather
thin:
1. Any suit against people alleged actually to have removed the
copyright notices from the files in question would have a real problem with
retroactivity. As I understand it, the copyright notices, if any, were stripped
many years ago, long before passage of the DMCA. Criminal liability under the
DMCA for those actions would violate the ex post facto clause of the U.S.
Constitution and civil liability would almost certainly violate the due process
clause of the Fifth Amendment.
2. Suits against end-users under Section 1202
are foreclosed because it prohibits only distribution or importation for
distribution of illicit copyright management information or works from which
such information has been stripped. Simply using Linux on one's own computers
is not distribution or importation for distribution.
3. Suits against Linux
distributors are problematic at best because SCO will have to prove
both
a) that the distributor knew that the copyright
notices had been stripped without the authority of the copyright holder;
and
b) that the distributor had reasonable grounds to know
that the stipping of the notices will induce, enable, facilitate, or conceal
copyright infringement.
I think SCO will have a hard time
proving that any Linux distributor knew that the copyright notices were
stripped without authority, if they in fact were. That is a very high standard,
one which requires proof that the distributor had actual, conscious awareness
that the notices had been stripped without authority. Offhand, I can think of
no plausible way SCO could prove that of any Linux distributor, given the
uncertainty over whether such notices were ever there in the first place, the
doubt over ownership of the UNIX copyrights, the unknown contents of the
BSD/AT&T settlement agreement, and the unknown circumstances under which any
notices that were in the original files may have been stripped.
Beyond that,
SCO would have to prove that the Linux distributor had reasonable grounds to
know that the removal of the notices would promote actual copyright
infringement. In addition to the factors mentioned above, SCO would have to get
over all the other hurdles to its proof that its alleged copyrights are
infringed by anyone using Linux -- for example, SCO's own distribution of Linux
under the GPL -- and that the absence of the copyright notices
induced, facilitated or concealed that infringement. I'd guess that most
Linux users do not even look at the kernel source code files so they would never
have seen the copyright notices anyway. For those Linux users who do look at
the source files, their receipt of the Linux kernel under the GPL led them to
believe that use of Linux would infringe no copyright even if the copyright
notices had been left in the source files, so the absence of the notices
made no difference in the amount of activity SCO claims to be infringement.
Finally, since SCO apparently now claims that all versions of Linux infringe its
copyrights, the absence of copyright notices in some kernel header files hardly
"conceals" anything. SCO doesn't need to look at the header files to determine
whether it thinks a particular Linux user's distribution infringes -- it claims
they all do! {8^)
The DMCA is a very powerful weapon for some, but in SCO's
hands, I think it's an unloaded gun.
Darron
Darron C.
Knutson
Attorney at Law
dckATdknutsonlaw.com
I'm not your lawyer and
this isn't legal advice, but if I'm wrong I'll gladly refund you everything you
paid me for making this post. {8^) [ Reply to This | # ]
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| Authored by: greybeard on Wednesday, February 18 2004 @ 08:47 PM EST |
Interesting. Even if PJ's wildest nightmares come true, we might find ourselves
the beneficiaries of some "unintended consquences". Just think what
will be the longer term reaction of companies like Lehman Bros, Boeing, and the
rest of the Fortune 500 to being treated like those 12 year-old kids, courtesy
of the nuances of the glorious DMCA. Do you just suppose that these industries
might say to Fritz Hollings or other of the lapdogs and lick-spittles of the
RIAA and MPAA that they will be contributing handsomely to ANYONE who runs
against them for office? We might actually get some action over the more absurd
parts of the DCMA.
The "mills of God" and all that...[ Reply to This | # ]
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