decoration decoration

When you want to know more...
For layout only
Site Map
About Groklaw
Legal Research
ApplevSamsung p.2
Cast: Lawyers
Comes v. MS
Gordon v MS
IV v. Google
Legal Docs
MS Litigations
News Picks
Novell v. MS
Novell-MS Deal
OOXML Appeals
Quote Database
Red Hat v SCO
Salus Book
SCEA v Hotz
SCO Appeals
SCO Bankruptcy
SCO Financials
SCO Overview
SCO v Novell
Sean Daly
Software Patents
Switch to Linux
Unix Books
Your contributions keep Groklaw going.
To donate to Groklaw 2.0:

Groklaw Gear

Click here to send an email to the editor of this weblog.

Contact PJ

Click here to email PJ. You won't find me on Facebook Donate Paypal

User Functions



Don't have an account yet? Sign up as a New User

No Legal Advice

The information on Groklaw is not intended to constitute legal advice. While Mark is a lawyer and he has asked other lawyers and law students to contribute articles, all of these articles are offered to help educate, not to provide specific legal advice. They are not your lawyers.

Here's Groklaw's comments policy.

What's New

No new stories

COMMENTS last 48 hrs
No new comments


hosted by ibiblio

On servers donated to ibiblio by AMD.

Fyodor Terminates SCO's Right to Distribute Nmap
Friday, February 27 2004 @ 01:57 PM EST

The community is buzzing over the story that Fyodor won't let SCO distribute his application, Nmap, any longer. Yes, Nmap is yet one more GPL product that SCO continues to distribute with its offerings.

Plenty of questions and some controversy about this move by Fyodor, so what exactly did he announce and can he do it? I held off writing about it in order to try to reach Fyodor, so he could answer some questions, but my Inbox is overflowing from everyone but Fyodor, so I'll tell you what I know so far, subject to Fyodor possibly providing further clarifying information. I'll explain how the GPL works and what triggers a termination of the license. It's at moments like this that I am so glad I attended the GPL seminar. Here's what I learned and how I think it applies.

First, this isn't a case of "discrimination", of refusing to allow a certain entity or group to use a GPLd product because you don't like them, although clearly he doesn't like SCO. I've seen criticism that what he is doing might violate the standards for Open Source on that grounds, but what he announced isn't exactly that, though the effect is almost the same. What he is saying is that SCO has violated the GPL Section 4 and therefore have no license to distribute his work any longer.

Nmap, for any who don't know, is a very famous security application. If you saw the Matrix movie, "The Matrix Unloaded", you saw it on the screen, and there is a picture of that on the Nmap website. It has been in other movies too and it is highly regarded throughout the tech world. Fyodor's website tells us this:

"Nmap has been named 'Security Product of the Year' by Linux Journal, Info World, LinuxQuestions.Org, and Codetalker Digest. It has also been praised by Wired, Information Security, BBC, Network World, Slashdot, 2600, SANS, Info World, Microsoft, Computer World, Sun World, Phrack, and more. At least three movies have featured Nmap, including Battle Royale, HaXXXor Vol. 1, and some Sci-Fi flick."

The Sci-Fi flick he mentions is the Matrix movie:

"Nmap was featured in The Matrix Reloaded! We have all seen many movies like Hackers which pass off ridiculous 3D animated eye-candy scenes as hacking. So I was shocked to find that Trinity does it properly in The Matrix Reloaded. She whips out Nmap version 2.54BETA25, uses it to find a vulnerable SSH server, and then proceeds to exploit it using the SSH1 CRC32 exploit from 2001. Shame on them for being vulnerable (timing notes). Congratulations to everyone who has helped make Nmap successful!"

So, what exactly happened? If you go to you find a simple announcement:

"Insecure.Org is pleased to announce the immediate, free availability of the Nmap Security Scanner version 3.50 from .

"Nmap ('Network Mapper') is an open source utility for network exploration or security auditing. Nmap uses raw IP packets in novel ways to determine what hosts are available on the network, what services (application name and version) they are offering, what operating system (and OS version) they are running, what type of packet filters/firewalls are in use, and dozens of other characteristics. Nmap runs on most types of computers, including Linux/BSD/Mac OS X, and Windows. Both console and graphical versions are available.

"Changes from version 3.00 to 3.50 are extensive: Service/Version detection, IPv6, much better remote OS detection, Mac OS X and improved Windows support, NmapFE overhaul, substantial code restructuring and improvements, cleaner output, an OS classification system, ping scans using UDP, multiple ports, and multiple techniques in parallel, port zero scans, TTL control, packet tracing, and much more! We recommend that all current users upgrade."

When you go to see the list of the changes, nestled in the list of bug fixes and new features, you find this:

"SCO Corporation of Lindon, Utah (formerly Caldera) has lately taken to an extortion campaign of demanding license fees from Linux users for code that they themselves knowingly distributed under the terms of the GNU GPL. They have also refused to accept the GPL, claiming that some preposterous theory of theirs makes it invalid (and even unconstitutional)! Meanwhile they have distributed GPL-licensed Nmap in (at least) their 'Supplemental Open Source CD'. In response to these blatant violations, and in accordance with section 4 of the GPL, we hereby terminate SCO's rights to redistribute any versions of Nmap in any of their products, including (without limitation) OpenLinux, Skunkware, OpenServer, and UNIXWare. We have also stopped supporting the OpenServer and UNIXWare platforms."

So, that is what he has done. He is opting to no longer support SCO products, which he is absolutely free to do. If you aren't a programmer and you wonder what difference that would make, take a look at the list of changes and fixes on the detailed changes page, the changelog:

  • Fixed (I hope) some Solaris Sune ONE compiler compilation problems reported (w/patches) by Mikael Mannstrom (candyman(a)
  • Fixed the --with-openssl configure option for people who have OpenSSL installed in a path not automatically found by their compilers. Thanks to Marius Strobl (marius(a) for the patch.
  • Made some portability changes for HP-UX and possibly other types of machines, thanks to a patch from Petter Reinholdtsen (pere(a)
  • Applied a patch from Matt Selsky (selsky(a) which fixes compilation on some Solaris boxes, and maybe others. The error said "cannot compute sizeof (char)"
  • Applied some patches from the NetBSD ports tree that Hubert Feyrer (hubert.feyrer(a) sent me. The NetBSD Nmap ports page is at .

That is just a brief snip from the list, but it is enough to show you that without his cooperation, a number of companies would have difficulties. Making software work well for various companies is one of the services the community provides. Fyodor is saying now that if he were to get a request to fix something or do something for SCO, his answer will be no. He has no legal duty to provide such a service to SCO or any other company, something any company desiring to attack the community and the GPL would be well-advised to consider.

The other thing he is doing is notifying SCO that he feels that their public repudiation of the GPL indicates that they do not accept the terms of his chosen license. Unless they accept the terms of the GPL, they have no right to distribute his GPLd work, which is only available to them or to anyone under those terms. That's his message to SCO.

What happens if there is a violation of the GPL? Section 4 of the GPL is its termination clause and what gives it teeth, and in the handout from the seminar, here's a description:

"The GPL is a Free Software license with legal teeth. Unlike licenses like the X11-style or various BSD licenses, GPL (and by extension, the LGPL) is designed to defend as well as grant freedom. . . .

"Termination Begins Enforcement

"As a copyright license, GPL governs only the activities governed by copyright law -- copying, modifying and redistributing computer software. Unlike most copyright licenses, GPL gives wide grants of permission for engaging with these activities. Such permissions continue and all parties may exercise them until such time as one party violates the terms of GPL. At the moment of such a violation (i.e., the engaging of copying, modifying or redistributing in ways not permitted by GPL) Section 4 is invoked. While other parties may continue to operate under GPL, the violating party loses their rights.

"Specifically, Section 4 terminates the violators' rights to continue engaging in the permissions that otherwise granted by GPL. Effectively, their permissions go back to the copyright defaults -- no permission is granted to copy, modify, nor redistribute the work. Meanwhile, Section 5 points out that if the violator has no rights under GPL -- as they will not once they have violated it -- then they otherwise have no rights and are prohibited by copyright law from engaging in the activitiees of copying, modifying and distributing."

Now we don't know if Fyodor has been engaged in discussions with SCO and this is the culmination of failed negotiations or if this is the opening round, but it could be that he is setting himself up to take some enforcement steps.

I know you want me to tell you if his grounds for invoking Section 4 are sufficient. But I can't. I don't have enough facts before me. Nmap is not part of the kernel, so charging a license fee for use of the kernel wouldn't be a GPL violation that would involve Nmap. However, it is conceivable that he is of the belief that SCO's assertion of copyright or "derivative works" rights over Linux constitutes a claim that they might make against him, so he is taking prophylactic action by cutting their distribution rights.

Or, he may be of the belief that their public repudiation of the GPL constitutes a refusal to accept the license, and he would like them to assert their acceptance of the GPL or stop distributing his product, which is only available under that license. In other words, he may be calling their bluff, forcing them to say if they do or do not accept the terms of the GPL. We don't know what violations of the GPL he precisely sees in their Open Source CD. If there are such, enforcement actions are inevitable, and not just from Fyodor.

One thing I do like about what Fyodor is doing. He is highlighting their hypocrisy. They are bundling GPL products into their offerings and presumably making money from doing so. If they don't accept the GPL as being valid, it is surely inappropriate for them to distribute GPLd products. And there is, if not legal weight, at least moral weight to that argument. Deeper, Section 5 does say that if you don't accept the GPL, you can't copy, modify, or distribute the code, because it is your only license to do those things that copyright law forbids you otherwise to do without permission, which Fyodor just indicated he doesn't grant. If SCO persists in distributing, presumably the next step could be an action for copyright infringement. Note the language of the GPL's Section 4 and 5:

"4. You may not copy, modify, sublicense, or distribute the Program except as expressly provided under this License. Any attempt otherwise to copy, modify, sublicense or distribute the Program is void, and will automatically terminate your rights under this License. However, parties who have received copies, or rights, from you under this License will not have their licenses terminated so long as such parties remain in full compliance.

"5. You are not required to accept this License, since you have not signed it. However, nothing else grants you permission to modify or distribute the Program or its derivative works. These actions are prohibited by law if you do not accept this License. Therefore, by modifying or distributing the Program (or any work based on the Program), you indicate your acceptance of this License to do so, and all its terms and conditions for copying, distributing or modifying the Program or works based on it."

It's also possible he just got fed up and in all honesty, who can blame him? It must be galling to watch the company make money from your work, pay you nothing, and at the same time attack the copyright license you have chosen and that they are benefitting from. His legal theory might be innovative and might not stand, but frankly, in this crazy SCOland, has that ever stopped SCO?


Fyodor Terminates SCO's Right to Distribute Nmap | 546 comments | Create New Account
Comments belong to whoever posts them. Please notify us of inappropriate comments.
Fyodor Terminates SCO's Right to Distribute Nmap
Authored by: brenda banks on Friday, February 27 2004 @ 04:13 PM EST
Good Luck Fyodor
is there a fund to be set up if decides to go further?

br3n #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 | # ]

I prefer IBM to test the GPL in court instead of them
Authored by: Anonymous on Friday, February 27 2004 @ 04:16 PM EST
Suppose this gets to court finally, than it would be a (another) test case for
the GPL. If they cant afford proper lawyers, it just might becoma a setback for
the GPL

[ Reply to This | # ]

Catch 22 for SCO...
Authored by: Anonymous on Friday, February 27 2004 @ 04:17 PM EST
They have to either:

a) Say they think the GPL is valid, in which case there is no case to stop them
distributing the program. This of course opens up a whole can of worms with
regard to the other actions against them


b) Say that the GPL is invalid, in which case the way is pretty clear for them
to be sued for copyright infringement. And not just by one person, but for every
single person who was written a "non derivitive" Linux app (whatever
that may be)

Then again they may just refuse to say anything. Let's hope this is backed up by
a lawyers letter to SCO demanding comment.

Oh the irony of seeing SCO in court being *accused* of copyright violation :-)

[ Reply to This | # ]

Fyodor Terminates SCO's Right to Distribute Nmap
Authored by: Turing_Machine on Friday, February 27 2004 @ 04:20 PM EST
Excellent choice by Fyodor to start this particular front for SCO. By simply
not providing his FREE service in making HIS software, copyrighted to him, and
released under the GPL, to this particular group of people, he draws the first
line inthe sand that TSG must address. Simply, if they will publicily state
that they accept the terms and restrictions of the GPL as it is written, he will
resume working on it. Also, he has the right, as the copyright owner, to
enforce the licensing of that product. If TSG does not accept the current
license that they have, being the GPL, then they must STOP using that product.
There is no other option available. Fyodor has the right to do whatever he
wants with his software in the future, and older versions are released ONLY
under the GPL, so acceptance of that license is REQUIRED for older versions, and
using them as a basis for new software required the new software ALSO be
released under the GPL. So it is fish or cut bait time for TSG, at least as far
as NMAP goes.

No, I'm not interested in developing a powerful brain. All I'm after is just a
mediocre brain, something like the President of the AT&T --Alan Turing

[ Reply to This | # ]

Fyodor Terminates SCO's Right to Distribute Nmap
Authored by: Anonymous on Friday, February 27 2004 @ 04:20 PM EST

So logic prevails.

If SCO rejects the GPL for LINUX, then they are rejecting the GPL. So - how can
they use any software with the GPL license? They can't! Ouch.

It would be interesting if all the GPL'd software that SCO is using all ganged
up with this arguement vs SCO.

Does anyone know the list of GPL'd software that SCO uses?

[ Reply to This | # ]

Key words
Authored by: Anonymous on Friday, February 27 2004 @ 04:20 PM EST
I think this tidbit of Section 5 "nothing else grants you permission to
modify or distribute the Program or its derivative works. These actions are
prohibited by law if you do not accept this License" when mixed with SCO's
claims that the GPL is invalid provide a cause to claim copyright infringement.

If i recall correctly, SCO didn't say that the GPL was only unconstitutional
with regard to Linux, AIX, etc...

[ Reply to This | # ]

Fyodor Terminates SCO's Right to Distribute Nmap
Authored by: Anonymous on Friday, February 27 2004 @ 04:21 PM EST
Inasmuch as public statements seem to be admissable in civil cases, I'd say
TSG's repeated verbal attacks on the GPL that are in print, albeit in the media,
but heard directly by many from their own mouths, would be subtantive grounds to
claim non-acceptance of the GPL.

Go Fyodor! This had to come to a head sooner-or-later.


[ Reply to This | # ]

Fyodor Terminates SCO's Right to Distribute Nmap
Authored by: MathFox on Friday, February 27 2004 @ 04:22 PM EST
The legal theory that makes sense to me is:
  1. SCO has publicly stated that they think that the GPL is invalid
  2. SCO has broken GPL conditions on other software
  3. (I am not sure here, but IMO it is something that would strengthen Fyodor's position)
    SCO refused to affirm their adherance to the GPL for nmap
  4. Conclusion: SCO refuses to distribute nmap under the GPL
From comments on other websites I understood that Fyodor is the main (only) copyright holder for nmap.

When people start to comment on the form of the message, it is a sign that they have problems to accept the truth of the message.

[ Reply to This | # ]

Sadly, they'll probably just ignore it
Authored by: Anonymous on Friday, February 27 2004 @ 04:22 PM EST
Unless Fyodor takes action against them, it's hard to see why SCO will bother to
do anything.

Nice stand though.

[ Reply to This | # ]

Fyodor Terminates SCO's Right to Distribute Nmap
Authored by: TZak on Friday, February 27 2004 @ 04:23 PM EST
Based on his comments I guess that his motivation is SCO's public announcement
that the GPL is invalid and unconstitutional.

The facts so far:
1. SCO publicly says the GPL is invalid and does not accept its terms.
2. SCO continues to distribute products using the GPL license. From the wording
of the GPL, distribution means acceptance of its terms.

This seems like a clear cut hypocrisy and therefore a violation, but one which
could be easily be solved by SCO agreeing to the license terms. Unfortunately
there is that other matter with IBM...

I do not know the motivation behind Fyodor's decision, and whether it is an
attempt to day "gotcha" after SCO painted itself in a corner. However,
it seems clear that SCO must accept the terms of the GPL if it wishes to
distribute or use GPL'd products (including ones other tha nthe Linux kernel).

[ Reply to This | # ]

Fyodor Terminates SCO's Right to Distribute Nmap
Authored by: AdamBaker on Friday, February 27 2004 @ 04:24 PM EST
I think he has another option to justify this action:

He may believe that SCOs IP license for Linux, in the way it is worded to
attempt to claim methods is attempting to claim rights to his code when used by
someone who has bought their license. I haven't tried re-reading it specifically
with that point in mind but I suspect that if it can be read that way he would
have a reasonably strong case.

Of course right now isn't a gret time for him to try to sue SCO for infringment
as they are unlikely to stay around long enough to even cough up his legal costs
let alone pay any damages.

[ Reply to This | # ]

Fyodor Terminates SCO's Right to Distribute Nmap
Authored by: Anonymous on Friday, February 27 2004 @ 04:25 PM EST
Here would be the trick to hose SCO:

Rather than argue about whether Fyodor has the right to terminate their
license, he should just get a lawyer to send a cease-and-desist letter to SCO to
tell them to either stop infringing his copyright or prove they have a license
to do so. After all, they've been saying GPL isn't a valid license publicly,
so he has grounds to believe that they aren't under any license.

SCO gets to either stop distributing Nmap, claim shelter under the GPL, or
open themselves up for a copyright lawsuit where they'll have to do one of the
two in court.

Rinse-and-repeat for everyone else who has ever contributed to Linux.


[ Reply to This | # ]

Caution and patience
Authored by: BubbaZeBarbarian on Friday, February 27 2004 @ 04:26 PM EST
This issue was addressed in detail on /. Earlier today. I think this is a good
move on the part of OSS, but only as long as we have a semblance or order and

This needs to be done by well used and well respected projects like Samba, Squid
and Apache. These projects have pull, are well respected, and are not prone to
“knee jerk” reactions. Problem is, if everyone tries to jump on this bandwagon
in an effort to give SCO the finger, it will look like we are just rabble, the
“angry mob.” That is what SCO has been saying about OSS from day one.

Please give this thought and consideration before everyone starts yanking
licenses from SCO. We do NOT want to look like the angry mob, taking away core
pieces of OSS at our very whim. Be very deliberate, be very professional, and
most of all, please choose carefully what is and is not pulled and how it is

“My mind is bored with such simple problems…I will move on to the more complex
mysteries of the universe, like why girls are so obnoxious.” -Calvin

[ Reply to This | # ]

Fyodor Terminates SCO's Right to Distribute Nmap
Authored by: savage on Friday, February 27 2004 @ 04:26 PM EST
1.) He distributes his product under the GPL.
2.) SCO refuses to acknowledge the GPL licence.
3.) He refuses to let SCO use his product because they won't accept his

Thats my take on this. I believe it's pretty cut and dried. Do I have any
holes in my logic? Why would the courts NOT accept this?
This is what I think, if I'm wrong, go ahead and point it out.

Thank You P.J. for your hard work!!!


[ Reply to This | # ]

The Atlas Shrugged Option
Authored by: Anonymous on Friday, February 27 2004 @ 04:27 PM EST
This is wonderful!

What better way to show the world and the filthy McBrides exactly what their war
means than by simply *withdrawing support* for them?

You see, Unix would not exist any longer were it not for the efforts of the OSS
community. Anyone who hasn't lived under a rock for the last 10 years knows
this. McBride thinks he can use the results of our efforts to enrich himself
while at the same time doing the following:

1) Attempting to appropriate our works in ways we did not intend
2) Arguing that our license is unconstitutional
3) ... and perhaps worst of all... VERBALLY ABUSING THE PEOPLE WHO HELPED UNIX
SURVIVE by calling them "communists," "unamerican,"
"terrorists," etc.

Go fyodor!

[ Reply to This | # ]

Does the DMCA apply?
Authored by: Ken Wilson on Friday, February 27 2004 @ 04:28 PM EST
So is Nmap included in any of the files that SCO is still distributing via their
web/ftp sites? If so, would a DMCA takedown order to them or their ISP be an
entertaining way to yank their chain a bit?

Ken Wilson

[ Reply to This | # ]

One-two punch.
Authored by: rand on Friday, February 27 2004 @ 04:29 PM EST
SCOG's been flanked by IBM and Fyodor, and the timing couldn't be better. Now
they have to either repudiate the GPL and stop distributing everything they sell
based on it, or they have to accept it and face up to distributing Linux kernel
all these many moons.

carpe ductum -- "Grab the tape" (IANAL and so forth and so on)

[ Reply to This | # ]

Fyodor Terminates SCO's Right to Distribute Nmap
Authored by: Anonymous on Friday, February 27 2004 @ 04:30 PM EST
I love him, his program and his stance. Go Fyodor, I think he has a good case,
and I'd like to conribute to his legal fund when/if it becomes necessary. How
dare SCOG violate someones intellectual property rights and claim a battering to

[ Reply to This | # ]

Can you repudiate a license and still distribute under it?
Authored by: Anonymous on Friday, February 27 2004 @ 04:30 PM EST
SCO's disavowal of the GPL isn't just in public statement, its in testimony
submitted in federal court:

From "SCO"'s answer to IBM's ammended counterclaims.

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

"Void and/or voidable" might be a problem for "SCO". We saw
that they looked to have some difficulties with other defenses (affirmations of
fraud on the part of IBM in patent and copyright applications), they may have
problems with these defenses too. Consider:

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

PJ, are these taken by the court to be "affirmations" on the part of
SCO? In that I mean are these taken as the equivalent of sworn testimony? That
could ba a serious wrench in the gears of a person looking for the GPL to
protect them against copyright claims. They have stated that they have no
defense against copyright infringement in the case of GPL licensed materials.
After all, that is the purpose of license, to keep _the government_ from
enforcing _its_ law. The story "SCO" is telling is not the way the law
is written.


[ Reply to This | # ]

An interesting fit...
Authored by: resst on Friday, February 27 2004 @ 04:33 PM EST
This position Fyodor has taken dovetails quite nicely with the complaints filed
before the ACCC in Australia.

I believe we may be seeing the tip of the proverbial iceberg. I would not want
to be SCO right now. Their window on the world seems to be crumbling like
tempered safety glass under impact. Their stock isn't doing all that well
either... $12.18 at 16:00 EST.

[ Reply to This | # ]

Fyodor Terminates SCO's Right to Distribute Nmap
Authored by: Anonymous on Friday, February 27 2004 @ 04:35 PM EST
You know it's kinda ironic that when sco seeks to enforce their "supposed
rights" everyone use to sit up and listen. "You abide by our license
or else" Yet when Fyodor says " you must abide by our license"
everyone is up in arms! Uncanny!

1. It's his "proven" copyright
2. It's his choice of licensing.
3. It's his choice for licensing violations. (I see it also)

As stated the Term of the GPL state you must accept the terms of the license to
not be involation of the license.

SCO's publc assertation, both print and verbally, that the GPL is not a valid
binding license is not accepting it's terms.


The free software foundation generally enforces for the open source community.

Meaning, if I am not mistaken, Eben Moglen, with be face to face with SCO in
court over this. This could be really good.

[ Reply to This | # ]

Fyodor Terminates SCO's Right to Distribute Nmap
Authored by: Anonymous on Friday, February 27 2004 @ 04:36 PM EST
I think I remember SCO saying at some point in time that they were going to try
to have the GPL declared unconstitutional, and all software that has been
released to be thrown into the public domain. I have the feeling they arn't
going to stop distributing nMap or any GPL'ed software.

[ Reply to This | # ]

GPL legal tactics
Authored by: arch_dude on Friday, February 27 2004 @ 04:46 PM EST
Eben Moglen described the proper tactics in his speech at Harvard.

When you think someone has violated your GPL licence, you do not got to court to
claim a violation of the GPL. In fact you do not mention the GPL at all.

Instead, you go to court and claim that your copyright has been violated. To
quote Eben, you say "your honor, he violated my copyright. Make him

The Judge then turns to the defendant and says "Stop unless you can show me
a license."

Then the defendant must say: Your Honor, I do have a license. Here. The
plaintiff granted me this license. It's called the GPL."

This is beautiful, because it would force SCOG themselves to introduce the GPL
and defend it in court.

At this point, Fyodor will simply ask "Do you recognize the GPL as a valid

SCOG must now either say yes, and "win" the case against Fyodor, or
no, and quit distributing the GPL'ed software of anyone who chooses to go to

Can you do this in small claims court?

[ Reply to This | # ]

Fyodor Terminates SCO's Right to Distribute Nmap
Authored by: Anonymous on Friday, February 27 2004 @ 04:49 PM EST
This highlights an interesting thought I had recently.

While I don't believe that SCO has brought forward the
viral aspect of the GPL, I know that such arguments have
been advanced by Microsoft and possibly others. The
argument is, basically, that if your project benefits from
GPL'd software, it's considered a derivative work and must
be released under the GPL, tainting your original code.
Without going into the exact reasons why, the argument is
misleading at best.

Now let's look at SCO. SCO is claiming that IBM's code,
which IBM developed, and to which IBM holds copyright, is
subject to control by SCO because of their contract
rights. They are saying that because it was developed for
a System V-derived UNIX, IBM can't release it as they
want. This certainly seems viral to me, and in a much more
restrictive way than the GPL.

When you write GPL software, you as the copyright holder
are free to release it in other ways. If you want to sell
commercial copies, you can do that. If you want to release
it under the BSD license, you can do that too. Many
high-profile projects have a dual- or tri-license, where
they are licensed under the GPL and other terms. Examples
include Mozilla, QT,, and MySQL.

Choose freedom. Choose GPL.

[ Reply to This | # ]

Fyodor Terminates SCO's Right to Distribute Nmap
Authored by: Thomas An. on Friday, February 27 2004 @ 05:01 PM EST
Is the solution (for SCO) as simple as reverting to the "closed
source" model ?

They will still be using open source software, but it will be inside a
"black box" thus noone will be able to prove what they can no longer

(as long as all visible graphical elements are altered then the core could be
all open source)

[ Reply to This | # ]

The crux of the matter...
Authored by: Jude on Friday, February 27 2004 @ 05:02 PM EST I see it, is this:

If someone obeys the requirements of GPL WRT a particular piece of software, but
they have repudiated GPL in various public statements, which takes precedence in
the eyes of the law?

I could run around all day telling people that I don't think anyone should need
a license to drive, but I'm pretty sure I could still legally drive as long as
I've obeyed the terms of my own driver's license.

[ Reply to This | # ]

Bad move, I'm afraid
Authored by: Anonymous on Friday, February 27 2004 @ 05:05 PM EST
Although I'm in complete sympathy with Fyodor and anyone else who holds
copyrights to GPL'd software being distributed by SCO, I'm afraid this is a bad

I've read the GPL, and I don't find any provision for a copyright hold revoking
a license. All the GPL says is that if someone violates the GLP their license is
terminated, not that the copyright holder can revoke it. In order for SCO to
lose its right to distribute nmap or any other GPL'd application, they'd have to
violate that application's license. I'm certainly no fan of SCO, but I don't see
any evidence that they've violated the GPL with regard to nmap, specifically.

There's no doubt in my mind that SCO has violated the GPL with regard to the
Linux kernel, but how have they done so with regard to nmap. Does violating the
GPL on one program also automatically violate the GPL for all other programs
licensed under it? I don't think so. If that were true, it would have a lot of
implications, including some we'd all probably rather not think about.

[ Reply to This | # ]

Online article on
Authored by: Anonymous on Friday, February 27 2004 @ 05:06 PM EST
The German website heise online has an article about the latest developments on the SCO front. The topics are:
  • Usenix letter
  • nmap license termination
  • appeal of Andreas Kuckartz against a preliminary injunction obtained by SCO Germany
  • With regards to Univention, one of the companies which obtained a preliminary injunction against SCO Germany last year, barring SCO Germany from claiming that Linux contains SCO's code, the report says that in an out-of-court agreement, SCO Germany agreed to refrain from making those claims in the future. (My guess is that SCO wants to keep their legal efforts focused to their US cases.) Unfortunately, I can't find anything to support this item in the report on either SCO Germany's or Univention's website.
The last two items appear to have escaped Groklaw attention so far.

Jens Maurer

[ Reply to This | # ]

Valid vs. Enforceable
Authored by: Lev on Friday, February 27 2004 @ 05:07 PM EST
Has SCO ever actually claimed that the GPL was an invalid license? AFAIK, it's claimed (a) that the GPL violates the constitution and various laws -- I'm not sure how much that means by itself -- and (b) that the GPL is unenforceable. Now, they've never explained what they mean by "unenforceable," but on the face of it, they seem to be saying that the GPL conveys a permission to everyone, but that it can be violated with impunity. It may be a legally and morally bankrupt position, but I think it's the one they are taking.

[ Reply to This | # ]

My fear is...
Authored by: Anonymous on Friday, February 27 2004 @ 05:09 PM EST
That SCO will just stop distributing nmap.

They certainly don't appear, at least in my personal oppinion, to care very much
about anything but lawsuits at this point.

However, someone did mention that 'equitable estoppel' might be useful for
Fyodor--that is, since SCO asserts that the GPL is "unconstitutional"
to IBM (I forget exactly what SCO said, but I seem to remember them saying that
somewhere), then they have no license to distribute nmap (or any other GPL'd
software, for that matter, since all the maintainers of GPL'd works would be
able to, theoretically, assert that estoppel and force SCO to admit that it thus
has no license...)

Of course, I fear that that may not work. I fear that SCO will just stop
distributing it, disputing (no doubt) that he has any right to do that, but
doing it "just to be nice."

However, we could always use this as an opportunity for a bit of FUD of our own.
If they actually do stop distributing it, we can claim that we'll all start
doing this for as many other projects as we can think of (thus making SCOX look
even weaker in the marketplace, if possible). If they don't, we can talk about
the damages Fyodor may be entitled to (isn't one possible remedy under copyright
law the DESTRUCTION of the infringing works, for example?)

Of course, IANAL, so...

[ Reply to This | # ]

  • My fear is... - Authored by: Anonymous on Saturday, February 28 2004 @ 03:02 PM EST
Fyodor Terminates SCO's Right to Distribute Nmap
Authored by: Anonymous on Friday, February 27 2004 @ 05:17 PM EST
The Samba team should have done this last August. I'm wondering if this news will change their stance on the issue now.
The strength of Open Source/Free Software is that it is available to all without restrictions on fields of endeavor, as the Samba Team believes the ability to freely use, modify and learn from software code is one of the grounding principles of computer science, and a basic freedom for all.

Because of this, we believe that the Samba Team must remain true to our principles and our code must be freely available to use even in ways we personally disapprove of.

Even when used by rank hypocrites like SCO.
Can someone tell me which project is bigger or more influiential? Which one would have more of an impact in the community?

[ Reply to This | # ]

nmap uses errno.h
Authored by: DocTechnical on Friday, February 27 2004 @ 05:28 PM EST
Something to consider: nmap version 3.50 uses errno.h in files nmap.h, tcpip.h,
and utils.h. SCO claims copyright to these files within Linux. Therefore, if I
compile nmap under Linux, SCO believes I am incorporating their intellectual

SCO requires that I license this IP from them, yet this code already falls under
the GPL. SCO has therefore added further requirements to the terms of the GPL,
which violates and nullifies the terms of the GPL for SCO.

If this interpretation is correct, then any GPLed code compiled under Linux that
uses errno.h cannot be distributed by SCO without violating the author's

If I'm interpreting the GPL correctly.

[ Reply to This | # ]

"The Matrix UNloaded"
Authored by: jwoolley on Friday, February 27 2004 @ 05:29 PM EST
...while funny, isn't actually the name of the movie. :)


[ Reply to This | # ]

100% Clear - Fyodor quoted wrong section
Authored by: SaveDrury on Friday, February 27 2004 @ 05:29 PM EST
5. You are not required to accept this License, since you have not signed it. However, nothing else grants you permission to modify or distribute the Program or its derivative works. These actions are prohibited by law if you do not accept this License. Therefore, by modifying or distributing the Program (or any work based on the Program), you indicate your acceptance of this License to do so, and all its terms and conditions for copying, distributing or modifying the Program or works based on it.

(borrowed from earlier post - From "SCO"'s answer to IBM's ammended counterclaims)

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

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

IANAL, but, if in a court of law you state that something is
v iolates the Constitution

what in the name of Tovalds would it take to NOT accept a license?

I don't think (IANAL) there is any way to more concretely prove that you do not accept something in a court of law!

[ Reply to This | # ]

Fyodor Terminates SCO's Right to Distribute Nmap
Authored by: Nick_UK on Friday, February 27 2004 @ 05:33 PM EST
From all of what is going on, one can only presume the OSS/FSF/ Gnu/Linux is a

"Hell have fury on the woman scorned".

I think this is wonderful news, and can also be perceived to be delivered at the
right time -> the killer punch.

It is a double bluff on the GPL. They use ... or don't. Or do they?

Seeing as they did use it to deliver code, but then try to not 'use' it...


Nmap scans more than open ports and venerabilities...


[ Reply to This | # ]

OT: Today's Stowell sighting
Authored by: Anonymous on Friday, February 27 2004 @ 05:45 PM EST

[ Reply to This | # ]

Could everyone who contributed to Linux sue SCO?
Authored by: Anonymous on Friday, February 27 2004 @ 05:45 PM EST
After thinking about this move by Fyodor, I can’t help but wonder if others
could do the same. The Linux kernel was written by hundreds if not thousands of
people and companies, and all of them released their code into the kernel
through the use of the GPL (at least, I think that is how it happened – I am no

So how can SCO claim that just because some of their code was contributed to
Linux (allegedly) that all of Linux is now owned by them, including the 80% or
so that was not written by them. Can’t everyone who contributed anything to the
kernel make the same case and disallow SCO from distributing those sections of
their kernel (which is most of it)? Can’t the Free Software Foundation sue SCO
to force them stop selling Linux or any other GPL’d software? I think I read
that the FSF has sued companies before.

I think the FSF would have a good case. They could force SCO to either stop
using any of the GPL code, or they would have to formally release that code to
the public domain under the GPL. Of course this is what SCO has been doing all
along, but this could make it formal.

Or, we would know for sure that the GPL does not stand up in court. And if it
doesn’t stand up in court, then shouldn’t everyone who contributed to the kernel
have the legal right to take it back, leaving SCO with nothing left but 20% of
the code? More importantly, if there is no GPL, then couldn’t everyone who
contributed to the kernel “pull an SCO” and sue SCO for compensation for every
copy of Linux that they sold over the years?

That would make my day… But before I get my hopes up, can any of find a huge
hole in my logic that would stop this from happening?


again--I am no lawyer, so forgive me if I seem ignorant with these questions...

[ Reply to This | # ]

Fyodor Terminates SCO's Right to Distribute Nmap
Authored by: Anonymous on Friday, February 27 2004 @ 05:57 PM EST

I have used Linux since I was directed to it almost 10 years ago, after a near catastrophic encounter with a subtle bug in the DJGPP build of 'rcs'. It was a turning point in my personal history - bye bye MS DOS, hello GNU/Linux.

Since that time I have made use of literally hundreds of GPL'd programs - including nmap. My day job (for a UK telco) is built on GPL software. I am watching what happens next with a degree of concern ("what if SCO wins due to some absurd obscurity of the US legal system") and no small amount of mirth ("how can they distribute knowingly under GPL and try this").

FWIW all of SCOs adversaries in this have my support, and that of the Unix geeks I work with.

My interpretation of Fyodor's action is that he is calling their hand on the GPL. Even if he fails in any enforcement attempts, it is sure to be only the first of many uses of GPL section 4/5. IIRC there are over a thousand active contributors to the Linux kernel alone. Now throw in the authors of a selection of packages. Add one litigious company in trouble due to market forces. Mix with a copy of the GPL on which all our work is based.

Let SCO beware...


[ Reply to This | # ]

Fyodor Terminates SCO's Right to Distribute Nmap
Authored by: TomWiles on Friday, February 27 2004 @ 06:01 PM EST

A great many very astute comments has been posted here, but there is one area of
discussion that seems to have been over looked.

I see no clear indication that Mr. Fyodor even believes that SCO is in violation
of the GPL with regard to NMAP.

All mr Fyodor has actually done is accuse SCO of violating the GPL, and
requiring SCO to discontinue distributing NMAP. There is nothing that I have
read that makes me think that Mr. Fyodor actually believe he has the authority
to inforce that letter.

One of the reasons to go to court is to test the validity of a hypathetical

A second reason to force a court case is to generate a condition where a
particular party must argue a particular point and win the case based on that

If Mr. Fyodor could force his issue into the court, and if SCO were to argue
that they had a license (The GPL) and had not violated the license, then SCO
could win the case while setting a precident that could be very damaging in
their case with (say) IBM.

Mr. Fyodor's goal here may not be to force SCO to pull NMAP or in any way alter
NMAP's current distribution. His sole goal could be to force SCO to stand in
front of a judge and tell the court that SCO has a valid license and that valid
license is the GPL.

Think about it.


[ Reply to This | # ]

Class Action?
Authored by: mobrien_12 on Friday, February 27 2004 @ 06:03 PM EST

So can anyone tell me, could Fyodor start a class action lawsuit for every GPL
author that made code that SCO distributes?

[ Reply to This | # ]

This sounds premature to me.
Authored by: Alastair on Friday, February 27 2004 @ 06:03 PM EST

As I said in posts in the previous story, I'm a bit disappointed, because I get the impression that this has just been done without thinking it through carefully (apologies Fyodor if that isn't the case—although you should probably elaborate on your site).

The right way to go about barring SCO from using GPL'd software is for the copyright holders to send open letters to SCO, pointing-out that their public position has raised doubts in your mind(s) as to whether or not they have accepted the terms of the GPL for your product, and asking them to clearly and unequivocally state their acceptance of the licence, or stop using the software, within a specified time limit. In fact, just to avoid any possibility of weasel-words getting in the way, you could provide them with two boxes (“Yes, we accept the GPL for <product>”, or “No, we don't accept the GPL for <product>”), one of which they should cross, and stipulate that failure to reply within a reasonable period (say, one month) will constitute non-acceptance of the licence.

If SCO say "yes, we accept the GPL", then IBM have won because SCO cannot simultaneously accept the GPL as a valid licence and then contend in court that it is invalid. If SCO say "no, we don't accept the GPL", then there is a case for a copyright infringement claim against them if they continue to distribute the software. If they don't reply, then there's still a pretty good case against them… not, perhaps, as good as if they cross the "no" box, but still fairly compelling evidence that they care not a jot for your copyright.

What you absolutely can not do is just terminate their rights under the GPL on the basis of the flimsy statements they have made as part of the PR campaign, because those statements, if that is all you have, are IMO unlikely to stand-up in a court of law as proof that SCO do not accept the licence. Even the affirmative defences that they have raised in the IBM case are almost certainly insufficient to show that they have not accepted the licence; all they show is that SCO is trying to defend itself against a GPL-based claim from IBM… remember, they have to plead all possible defences up front, because they may be barred from using them later on if they do not.

AFAIK they have never said that they do not accept the GPL for nmap, unless they have done so to Fyodor and he hasn't publicised it; in fact, I'm not even sure whether they've explicitly said so for Linux, although they are plainly in violation of their licence to use Linux in any event. All that they have said is that they do not believe that the GPL is enforceable, and that they feel that it violates the U.S. copyright statutes and the constitution, which is different from saying that they don't accept it as a licence to use your code…

If you do terminate their licence like this, then you may be guilty of the same thing as SCO with their purported termination of IBM's SVRX licence. You'll very likely find that a copyright infringement claim on the back of an action such as this won't hold-up in court, unless there is proof that they do not accept the licence, and what's more, it may damage future infringement claims (it doesn't exactly look good if SCO reappear in a court room, and the first thing they say is "Judge, we've already been through this case, here, look at the judgement").

[ Reply to This | # ]

Fyodor Terminates SCO's Right to Distribute Nmap
Authored by: John Hasler on Friday, February 27 2004 @ 06:04 PM EST
> Deeper, Section 5 does say that if you don't accept the GPL,
> you can't copy, modify, or distribute the code, because it
> is your only license to do those things that copyright law
> forbids you otherwise to do without permission, which Fyodor
> just indicated he doesn't grant.

It does not say that. It says that by copying, modifying, or distributing the
code you indicate your acceptance of the license. Thus SCO has accepted the
license no matter what they say.

[ Reply to This | # ]

Fyodor Terminates SCO's Right to Distribute Nmap
Authored by: Anonymous on Friday, February 27 2004 @ 06:11 PM EST
I think that this is a great thing. It only makes sense that if anyone is
blatanty abusing the rights of a License, any owner of any product under the
same License should be able to revoke the rights granted by that License.
Clearly they don't respect the terms of that License, and who is to say that
they won't take similar actions in reference to your product.

Therefore, SCO should lose the rights granted by the GPL on ALL software under
that License.

[ Reply to This | # ]

Nice but not effective
Authored by: Anonymous on Friday, February 27 2004 @ 06:12 PM EST
Do not forget, SCO is distributing gcc, bash and other software COPYRIGHT FSF.
These guys do have lawyer power behind them to effectively defend their
copyright, if/when they deem appropriate to do so. I think this thing with nmap
is probably a bit of a stretch, maybe even done in the heat of the moment.

But, there isn't much validity to it legally, IMHO. You ACCEPT the licence by
obeying its terms. In other words, you copy, modify and distribute that
particular piece of software according to the licence or you do not. I don't
think that simply lamenting in other lawsuits and in public that the licence is
invalid, unenforceable, unconstitutional and what not, is good enough for the
court. The court will ask: "Which condition of the licence wasn't
obeyed?" They all were, to the best of our knowledge.

I reckon a better thing to do would be to simply send an open letter to SCO and
tell them they are a bunch of hypocrites that they are.

[ Reply to This | # ]

i may be crazy, but has anyone considered Section 8
Authored by: phrostie on Friday, February 27 2004 @ 06:30 PM EST
from what Darl says the GPL is unconstitional in Lindon Utah. Specificly along
520 West(the dead end). so why not make use of section 8.

8. If the distribution and/or use of the Program is restricted in certain
countries either by patents or by copyrighted interfaces, the original copyright
holder who places the Program under this License may add an explicit
geographical distribution limitation excluding those countries, so that
distribution is permitted only in or among countries not thus excluded. In such
case, this License incorporates the limitation as if written in the body of this

Oh I have slipped the surly bonds of DOS
and danced the skies on Linux silvered wings.

[ Reply to This | # ]

Fyodor Terminates SCO's Right to Distribute Nmap
Authored by: Anonymous on Friday, February 27 2004 @ 06:38 PM EST
What will happen:

Sco will just ignore Fyodor. That's how they play. You can use logic all you
want, rationalize it out, but they'll just take their ball and go home (stomping
and crying all the way). If Fyodor presses legal action (unlikely) then they'll
stall, stall, stall, then fill the courtroom with their rhetoric until it's
overflowing. A judge would make a decision, but SCO would *never* actually
admit to anything.

They're a petulant child. Treat 'em as such.

[ Reply to This | # ]

Fyodor Terminates SCO's Right to Distribute Nmap
Authored by: rakaz on Friday, February 27 2004 @ 06:48 PM EST
Before I start my rather long rant I wish to make something clear. I strongly
believe in open-source, free software and the GPL. I also dispise SCO. Despite
this I do have some questions about trying to prevent SCO from using GPLed

I believe this all comes down to a two questions. Does a violation of the GPL of
one program have any effect on the licenses of other unrelated programs? And,
can you accept a license that you believe is unconstitutional?

The answer to the first question may be a difficult one. I've read contradicting
opinions about it in the past. Some people say that a violation of the GPL, and
the subsequent termination of the GPL extends to every piece of software
licensed under the GPL. Others say that the termination of the GPL only extends
to the specific program for which the GPL was violated.

I tend to believe the last group. My reasoning for this is as follows. The GPL
in itself doesn't means much. However when I release my software under the GPL
it specifically grants other persons to use MY software. The conditions set
forth in the GPL are the conditions I set for MY software. If that other person
violates the license of another piece of software, it would violate the
conditions set by another author set on another piece of software. Whether or
not that other author used the GPL does not matter as long as the other person
did not violate the conditions I set on MY software.

In other words, when I release software under the GPL it only grants permission
to distribute MY software. When that license it violated it can only revoke the
permission I gave to distribute MY software.

Other may disagree with my interpretation of the GPL, but as I said before, this
question is difficult to answer if you are not a lawyer.

(Just to be clear on this, while this is a theoretical discussion, I am the
programmer of a GPL-ed open source application. That part is not theoretical.)

The answer to the second question may even be more difficult to answer. My own
opinion, which based on nothing more than speculation, is that it is possible to
accept a license that you believe is unconstitutional. As long as you follow all
the conditions set in the license you are granted the right to distribute.
Believe is not required.

A (flawed) analogy would be a license to wear firearms. If the use of firearms
would be illegal without a license, I would need that license, otherwise I would
be arrested.

I can have the opinion that such a license would be unconstitutional. I can even
tell everybody I know that I think the license is unconstitutional.

But I can also accept the conditions of that license, despite my conviction that
it is unconstitutional, simply because I do not want to be arrested and go to

As long as follow the conditions of that license to the letter, there is nothing
that stops me from wearing firearms. My believe is not required.

(Once again, just to be clear. I hate firearms and think that every one of them
should be melted down to scrap metal.)

So can Fyodor stop SCO from distributing Nmap. My personal opinion is No. The
GPL does let you terminate the license just because you don't like somebody.
Fyodor granted those rights and he can't just arbitrarily revoke them. That is
the whole point of the GPL. You can just say "well, we told you, you could
use it, but we changed our minds". That is the same thing we accuse SCO

One thing is clear. SCO are hypocrites for using GPLed software while at the
same time trying to destoy it.

[ Reply to This | # ]

OT: New SCO filing on Edgar
Authored by: DaveWalley on Friday, February 27 2004 @ 06:51 PM EST
Schedule 14A filed here today - the Notice of Annual Meeting of Stockholders for April 20, 2004,

A few interesting tidbits in there:
Payments to the independent accountants more than doubled, from $133,000 to $305,788 (see page 19). Of note is a new category of charge "Audit-Related Fees consist of fees billed for various SEC filings and accounting research." ($69,208).

Remuneration for Darl C McBride:
Annual compensation
$230,769 salary
$755,278 bonus
Long term compensation
78,517 Restricted stock awards
200,000 Securities underlying options (page 22).

Details in the accompanying note include : "With respect to 200,000 options issued to Mr. McBride during fiscal year 2002, vesting commences five years after the date of grant, subject to acceleration of vesting if certain performance objective are achieved. One such objective was the Company's becoming profitable before Q4 2003, which in fact occurred. Accordingly, Mr. McBride will vest as to 50,000 shares related to such grant on April 30, 2004. Additionally, should the Company be profitable for four consecutive quarters before Q4 2004, the vesting of the grant to purchase 150,000 shares will accelerate to one year following the close of the fourth consecutive profitable quarter. Of the $755,278 bonus earned by Mr. McBride, $480,134 was paid during fiscal year 2003. The remaining $275,144 was paid during fiscal year 2004."

There's more detail on page 26, under "CEO Compensation":
During fiscal year 2003, in accordance with a general cost reduction program, the base salary for Darl McBride, the Company's Chief Executive Officer, was reduced from approximately $250,000 to approximately $230,000. Mr. McBride also earned a bonus of $833,795 of which $480,134 was paid during fiscal year 2003 and the remaining $275,144 was paid during fiscal year 2004. Of the $833,795 bonus, $755,278 was paid in cash and the remaining amount of $78,517 was paid in the form of a restricted stock grant. Mr. McBride earned this bonus as a result of reaching financial targets for revenue and net income and generating positive contribution margin from the Company's SCOsource initiatives.

Election of Directors (page 5) Eight directors are up for re-election. Requirements as follows: (page 9)
Minimum Criteria for Board Members.
Each candidate to serve on the Board of Directors (a "Candidate") must possess at least the following specific minimum qualifications.

Each Candidate shall be prepared to represent the best interests of all of the Company's stockholders and not just one particular constituency.

Each Candidate shall be an individual who has demonstrated integrity and ethics in his/her personal and professional life and has established a record of professional accomplishment in his/her chosen field.

No Candidate, or family member (as defined in NASD rules), or affiliate or associate (each as defined in Rule 405 under the Securities Act of 1933, as amended) of a Candidate, shall have any material personal, financial or professional interest in any present or reasonably foreseeable potential competitor of the Company.

Each Candidate shall be prepared to participate fully in Board activities, including active membership on at least one Board committee and attendance at, and active participation in, meetings of the Board and the committee(s) of which he or she is a member, and not have other personal or professional commitments that would, in the Nominations Committee's sole judgment, interfere with or limit his or her ability to do so.

"We have adopted a code of ethics that applies to all employees of the Company, including employees of the Company's subsidiaries, as well as each member of the Company's Board of Directors. The code of ethics is available at the Company's website at: nd_Ethics_Policy-Final.pdf

[ Reply to This | # ]

Some Basic GPL Questions
Authored by: ATS on Friday, February 27 2004 @ 06:56 PM EST
This whole topic brought up a bunch of things I realize I don't know about the GPL. (I use and support F/OSS, but am not really a programmer and haven't contributed code). I realize some of this has been brought up in various forms here by different people (including me), but thought it might be helpful to put a couple of key (and interrelated) questions together.

IANAL, but know enough to know the law is highly technical and that what seems normal and natural in the "real" world may not apply at all to the legal system.

A) Is "acceptance" (or lack thereof) of the GPL -- whether based on public statements, descriptions of possible Affirmative Defenses in court filings, addition of further license terms contrary to the GPL, or whatever -- done separately for each and every individual Program that is distributed under the GPL? Or separately for each "distribution" as a Collective Work? Or is there a single overarching acceptance or rejection for any and all Programs in the universe licensed under the GPL?

B) More broadly aside from the specific issue of "acceptance", is there one license (one instance) under the GPL for all software under the GPL in the universe? Or one instance of the GPL for the entirety of a GNU/Linux distro, CD of software, etc. as a Collective Work under the GPL? Or does each individual program have its own separate license (which all happen to be identical since they're all the GPL)?

Overall, the question is whether, legally, there is one unified GPL that covers all software licensed under it (either all GPL software or all GPL software in a distribution) or whether there are lots of separate and independently operating instances of the GPL?

[ Reply to This | # ]

Fyodor Terminates SCO's Right to Distribute Nmap
Authored by: Anonymous on Friday, February 27 2004 @ 06:59 PM EST
The alleged violations of the GPL by SCO have to be things the GPL says you must
and may not do (eg, GPL 2.0 2b). Section 4 of GPL 2.0 states that you may not
copy, modify, sublicense, or distribute GPL programs except under the terms of
the GPL, so if SCO is offering said program under terms other than the GPL, that
would be a violation.

So, if you are to play straight, it's not really a violation of the GPL for SCO
to publicly denounce GPL, so I don't think people should say this. Instead,
they should say something like, SCO is violating the GPL because they are
licensing/sublicensing this program under different terms than the GPL thus
violating section 4 (I have no idea what section of the GPL is violated solely
by "publicly denouncing" it).

[ Reply to This | # ]

Fyodor Terminates SCO's Right to Distribute Nmap
Authored by: Anonymous on Friday, February 27 2004 @ 07:10 PM EST
I whole heartedly agree!

[ Reply to This | # ]

Is the GPL a license for pieces, or...?
Authored by: Sparkchaser on Friday, February 27 2004 @ 07:26 PM EST
Is it possible to accept the terms of the GPL for certain bits of code while
simulteniously rejecting it for other bits?
If you use NMAP under the GPL, but refuse to acknowledge the GPL for the kernel
and determine that as you do not accept it, you may freely violate it, are you
still licensed by he GPL for the free use/modification/distribution of the parts
you want?
I would think that a license is in respect to the whole. I cannot install
Windows XP on a PC and accept the EULA for the OS while rejecting the EULA for
other applications packaged with XP. If that were an acceptable out, I could
modify IE to be an actual browser and sell the result simply because I agreed to
the parts of the license I liked, rather than the entire text.

If at first you don't succeed, read the directions.
If that doesn't work, blame somebody

[ Reply to This | # ]

Fyodor Terminates SCO's Right to Distribute Nmap
Authored by: Anonymous on Friday, February 27 2004 @ 07:42 PM EST
I think Fyodor _may_ be right, and the SAMBA team _may_ be
wrong in their respective decisions to attempt enforcement
of the GPL regarding their software.

One key point regarding IP (copyright, patent, etc) is
that you must enforce it, or lose the exclusive right to
it. Both Fyodor and the SAMBA team have a legal right to
their creations as defined under copyright law, but they
also therefore have an obligation to defend that right.

SCO has made many public comments to the effect that the
GPL is unenforceable, void, and unconstitutional. However
these comments are not true indications of SCOs actions,
and most likely will not be upheld in court. Howeever,
they have filed a document with a court of law stating
their position, and this will stand, and can be referred
to. The documents SCO filed in the IBM case are enough to
provide evidence that they do not honor the GPL, and
therefore become subject to the penalty(s) for same.

At the time SCO was making public comments, neither SAMBA
nor Fyodor could make a sound case for violation. Once SCO
filed their documents, both had a sound case but only
Fyodor has stated the intention to defend his IP. SAMBA
may find that by accepting SCOs actions, they may have
trouble later should they decide to seek a remedy.

(IANAL and so forth, and anonymous to boot :)

[ Reply to This | # ]

Authored by: Jude on Friday, February 27 2004 @ 08:00 PM EST
I think that estoppel will eventually come into play here.

I don't think SCO can continue indefinitely telling one court that GPL is
invalid, while also claiming it as their license in the Fyodor case. I'm not
sure if the legal requirements for estoppel to come into play have yet been met,
but I feel that sooner or later it'll come back to bite SCO.

[ Reply to This | # ]

  • Estoppel - Authored by: Anonymous on Friday, February 27 2004 @ 11:27 PM EST
OT: And SCO Germany declares defeat
Authored by: Anonymous on Friday, February 27 2004 @ 08:07 PM EST
German Heise News has reported that
"something has happend in the case UNIVENTION against SCO Germany. UNIVENTION had triggered a temporary injunction against SCO Germany. That injunction prevented SCO Germany from claiming that Linux source code would contain illegal SCO IP. Now SCO Germany has signed an out of court agreement that SCO Germany won't make such assertions anymore".
Heise News article (german language).


[ Reply to This | # ]

He's been thinking about this for quite a while...
Authored by: Anonymous on Friday, February 27 2004 @ 08:08 PM EST
See this post on the nmap devel list, dated Aug 22 2003.

[ Reply to This | # ]

Fyodor Terminates SCO's Right to Distribute Nmap
Authored by: the_thunderbird on Friday, February 27 2004 @ 08:14 PM EST
I think he is on the right track, I think an example needs to be made of the SCO
Group. They are violating the GPL, in more ways than one. The fact that they are
distributing the Linux kernel and other free (GPL) software, means that they are
not only violating the rights of the nmap authors, they are violating hundreds
of copyrights within the Linux kernel, even if their code is in there (I doubt
it!!!!!!) it would mean that every single kernel hacker, samba hackers, etc can
start a lawsuit against SCO, make an example, show the rest of the world what
happens when you f**k with our freedom! We pour our own time into these
projects, why should we sit back and watch them try take it from us!

[ Reply to This | # ]

GNU Midnight Commander has removed SCO support
Authored by: Anonymous on Friday, February 27 2004 @ 08:21 PM EST
Read the entry dated 2003-06-18 in the Changelog - here's a link to the file in CVS : ChangeLog?rev=1.697&content-type=text/vnd.viewcvs-markup
Here's the text of the entry:
2003-06-18 Pavel Roskin * Remove test for SCO UNIX. Remove all references to SCO_FLAVOR everywhere. SCO flavor is rather unsavory now.

[ Reply to This | # ]

Remember the little letter to congress
Authored by: Anonymous on Friday, February 27 2004 @ 08:44 PM EST
Remember just a short time ago that little letter to congress signed by the man
himself (Big D). Well in that letter it clearly shows that SCO does not honor
the GPL and or the spirit of it. Not for the kernel which it does not name
specifically, but all GPL software. I would argue that SCO does not have a
license to distribute anything either GPL or LGPL any longer and doing so is
illegal. Slap that little signed letter down in front of a judge and ask him if
it proves they are not honoring the GPL license. I really do not think it would
be hard to prove to a judge and certainly not to a jury. Unfortunately they are
not shipping any of my stuff at least to my knowledge. If they where shipping my
code I would not hesitate for one second to bring a suit against them.

[ Reply to This | # ]

  • OK, but ... - Authored by: crythias on Friday, February 27 2004 @ 10:29 PM EST
    • OK, but ... - Authored by: Anonymous on Saturday, February 28 2004 @ 12:12 AM EST
ATTENTION PJ: Correction
Authored by: johan on Friday, February 27 2004 @ 08:54 PM EST
If you saw the Matrix movie, "The Matrix Unloaded", you saw it on the screen, [...]
The name of the movie is "The Matrix Refurbished"... no wait, it's "The Matrix Recycled" ... no that's not it either...

Reproved? Reprobated? Republicanized? Restringed? Resupinated? Revetted? Reviled? none of those either.

Anyway, it wasn't Unloaded, I'm pretty sure of that.

[ Reply to This | # ]

Fyodor Terminates SCO's Right to Distribute Nmap
Authored by: Anonymous on Friday, February 27 2004 @ 08:56 PM EST
This is bad on several levels.

On the first level, it's bad because as much as we'd like to stick to to SCO,
there is no evidence that SCO has violated the GPL with respect to the SCO use
of nmap. Copyright claims are generally ruled fairly narrowly. Did this
defendent violate the terms of this license as it applied to this plantiff's
copyright? There's nothing in the GPL that says "If the holder of the
copyright doesn't like you they can revoke it." Unless there is some clear
violation of the GPL by SCO as it relates to it's use of nmap then Fyodor is
simply making a frivolous legal claim. Yes, he's got lots of publicity, but
ultimately, he just looks dumb because he's going to be shown in court that he
doesn't know what the license he distribute under means.

Second, and really more importantly, it is precisely this kind of action that
makes companies reconsider their position on open source and free software.
Right now, my VP of networking is debating this question and believe me they
will hear about and look at this case. What they're going to see is a petulant
jerk making an effort to frivilously rescind the GPL and creating legal
headaches for another firm. Now, it doesn't matter how badly that particular
firm deserved it, what the VP is going to think is "hmmmm, that's what
you'd expect from unprofessional idealogues playing at being makers of software,
and I can't risk having someone decide they don't like my company as much as
they don't like SCO."

Now, you may all think that second point is a foolish way for the VP to think.
And maybe you are right. But that is the way this is going to play to the suits,
and ultimately it is the suits we want to win over to our side of this political

This is stupidity in action.

[ Reply to This | # ]

Fyodor and GPL derivative works
Authored by: Anonymous on Friday, February 27 2004 @ 09:06 PM EST
Firstly, IANAL

However, it seems interesting to me that a provision of the GPL covers
derivative works. By extention and using SCOlogic couldn't Fyodor terminate SCO
from distributing ANY software that touched Nmap?

Section 5. You are not required to accept this License, since you have not
signed it. However, nothing else grants you permission to modify or distribute
the Program or its derivative works. These actions are prohibited by law if you
do not accept this License. Therefore, by modifying or distributing the Program
(or any work based on the Program), you indicate your acceptance of this License
to do so, and all its terms and conditions for copying, distributing or
modifying the Program or works based on it."

(Wish I knew how to emphasise the second sentance). In SCO's lawyer's hands
this could be a reasonable (and profitable) suit.

[ Reply to This | # ]

Fyodor Terminates SCO's Right to Distribute Nmap
Authored by: Anonymous on Friday, February 27 2004 @ 09:17 PM EST
It is about time that software writers who have released
their code under the GPL & LGPL begin cutting SCO out of
the equation!

It is surely an insult & gross hypocrisy for the company
who is directly attacking the whole Free Software
Movement, at its roots, to continue to profit from this

I predict a wave of withdrawels from the SCO
distributions. Good!

[ Reply to This | # ]

LXer, who gives a flying flip?! Who are these Monkies ?
Authored by: Anonymous on Friday, February 27 2004 @ 09:42 PM EST
First off I refused their cookie, so I can't login to say
the editor is shy of a full deck.

The help page that only gives me instructions for
Microsoft browsers, as regards my cookie problem.

Who are these people, and why should I care what their
Primary Primate says ?

Duped are we ?


[ Reply to This | # ]

Legal Question
Authored by: Naive on Friday, February 27 2004 @ 09:48 PM EST
Just wondering, if since TSG is so vague with their license on what they
consider their IP, that this ambiguity opens them up to such claims as Fyodor's
of GPL violations.

It seems to me that with all the files that they consider theirs that if anyone
of them is inclulded during compile, that they're claiming ownership of that
program under their definition of derivitive works. And, since they themselves
had opened those files under the GPL, that one can claim they they are in
violation of their own assertions of the GPL, and thus the program containing
said code that follows their previous license should be held by the original

What I'm trying to say is, isn't it possible that their violation of the GPL,
for their own supposed IP, allows all those programers that included files
distributed by TSG to claim that TSG has no right to distribute their work which
included those files?

[ Reply to This | # ]

Is this legal?
Authored by: Anonymous on Friday, February 27 2004 @ 09:57 PM EST
From what I understand SCO have not violated GPL in the case of nmap. SCO have
stated that they do not believe in GPL , but that was in a Linux context. Does
that really give the nmap copyright owner the right to revoke the GPL for their
After all Linux and nmap are separate products that are licenced separately from
different copyright holders.

Or is the whole purpose of this to take SCO to court and have them say "But
your honor. we have a licence.Its called the GPL". That would certainly be
a big PR win but I doubt it would be worth the cost.

[ Reply to This | # ]

  • Is this legal? - Authored by: PM on Saturday, February 28 2004 @ 12:27 AM EST
  • I think it is - Authored by: Anonymous on Saturday, February 28 2004 @ 02:29 AM EST
Um, guys - IBM got there long ago
Authored by: jeleinweber on Friday, February 27 2004 @ 10:05 PM EST
While Fyoder terminating SCO's right to distrubute nmap makes for interesting
press, it doesn't change SCO's situation with regard to the GPL one iota. IBM's
countersuit already included copyright infringement claims for GPL violations by
SCO on much stronger grounds.

And nmap, much though I love it as a network diagnostic tool, is not going to
make or break SCO's commercial sales. For one thing, even if SCO can't
distribute nmap, their customers can still independently download it and use

Different free/open source projects will decide differently with regard to
whether they merely abhor SCO's behavior or want to punish it. Don't get too
excited, OK?

-- Jim Leinweber (Madison, WI)

[ Reply to This | # ]

OT: latest Stowell on Linuxinsider
Authored by: belzecue on Friday, February 27 2004 @ 10:18 PM EST
Linuxinsider has a presumably recent interview with Blake Stowell. I say 'presumably' because something he says appears to confirm that SCO was indeed gagged by Judge Wells from talking about the IBM-SCO case in the media:

LinuxInsider: Rather than asking you to disclose evidence or talk about some of the legal implications of the initial filing, can you tell us what was the catalyst for filing the lawsuit? Had SCO been planning the move for a long time?

Stowell: Our lawsuit against IBM is ongoing litigation that I unfortunately can't comment on.

In considering his role as SCO's mouthpiece, Blake makes this startling observation:

I see it as one of the biggest challenges I've ever had in my career, and I'm of course very supportive of the company's efforts in this area. As long as I can go home at night and know that I was honest with the media, I was respectful of another's point of view and tried to not burn any bridges, I think that I can feel very at peace.

Ah... yeah.

[ Reply to This | # ]

Some you win, some you lose.
Authored by: jiri on Friday, February 27 2004 @ 10:38 PM EST
This one, I think, we definitely want to lose.

In particular, we want to lose this by SCO standing up in court and saying,
"we have a valid license, the GPL". (Ideally without getting as far as
the court.)

At which point someone will take the transcript, put the words "equitable
estoppel" in a cover letter and use it to strike affirmative defense six in
the IBM vs SCO countersuit.


Please e-mail me if you reply, I usually read with "No comments".

[ Reply to This | # ]

Too many replies questioning nmap GPL violation.
Authored by: veatnik on Saturday, February 28 2004 @ 01:19 AM EST
I am seeing far too many replies questioning Fyodor's right to terminate the
gpl agreement with sco for nmap. This is NOT the issue at all.

The issue is that Fyodor has a copyright for nmap. Fyodor has evidence that SCO
does not accept GPL based on their own statements. Fyodor has a legitamate
concern that sco is distributing nmap without a license. (Because of their
statements.) If this is true his copyright is being violated. He has a right to
find out if SCO has (accepts) a license in the face of evidence to the

If there is no violation (SCO accepts his license) Fyodor and SCO have no
conflict. (But there might be other ramifications outside the scope of this
nmap situation to SCO.)

or - There is a violation because SCO will not accept the license. then Fyodor
has grounds to have them stop distribution of his software.

I would be very surprized if the legal system would not support his right to
determine license acceptance for himself given the situation. If fact I do not
believe that SCO can ignore him with impunity because without a statement of
acceptance the (valid) assumption should be based on the SCO statements which
indicates no acceptance.

It seems simple enough to me!

Way to go Fyodor! I highly recommend getting a counsel and taking next steps to
insure that "there is no violation". Perhaps someone would be willing
to do this pro-bono?

[ Reply to This | # ]

OT: Stowell spotting #2
Authored by: Anonymous on Saturday, February 28 2004 @ 01:26 AM EST
About the Usenix letter

SCO Spokesman Blake Stowell had no comment on the matter other than to say that
SCO stands by the claims it made in its letter to Congress.

[ Reply to This | # ]

Fyodor Terminates SCO's Right to Distribute Nmap
Authored by: grouch on Saturday, February 28 2004 @ 01:48 AM EST
Much as I admire his, um, brass for this, I don't think Fyodor can do this. The
GPL does not include a clause that requires honesty or precludes hypocrisy.
Fyodor did not add extra conditions and in fact cannot add extra conditions and
still release nmap under the GPL.

Fyodor has given permission to anyone to copy, modify and distribute nmap under
the terms of the GPL. SCO has made inflammatory remarks about the GPL, but
unless and until they violate the terms of the GPL with respect to nmap, they
have the copyright owner's permission to continue distribution.

There is no doubt that SCO has violated the terms of the GPL with respect to the
kernel. Attempting to impose additional restrictions via their letters and
license selling website are violations. Have they violated Fyodor's terms of his
grant of permission (the GPL with respect to nmap)?

Affirming the GPL's validity in public speeches is not a condition imposed by
the GPL.

[ Reply to This | # ]

Caldera/SCOG says the GPL is invalid
Authored by: DeadWatch on Saturday, February 28 2004 @ 01:49 AM EST
I've read lots of arguments on this, but I think everyone has missed an angle on

Could the comments that are on record be interpreted to mean that the GPL
License "For The Linux Kernel" is invalid? When Darl said something
about "no copyright problems" with SAMBA, could he have ment: his
company's code isn't in SAMBA so they don't have a problem with the GPL in that
case, but seeing as their (Caldera/SCOG) 'intelectual property' is in the Linux
kernel, that would negate the GPL license covering the kernel?

Mind you, this still doesn't save them from the fact that they are
re-distributing other people's copyrights without license, but when viewed
through this angle, the claim actually makes some sence, since it would also be,
in a sense, unconstitutional.

Just wondering what you guys would think of this... :)

[ Reply to This | # ]

SCO's likely response
Authored by: k12linux on Saturday, February 28 2004 @ 02:24 AM EST
I think SCO (if they respond at all) is likely to say somethin like, "We
accept the GPL license as a valid license, however, it doesn't give others the
right to steal our copyright. We never released our code under the GPL, it was

"Our SCOsource license to Linux users is not a license to use Linux (and
therefore an extension of the GPL,) it is a license to use our bits of code
which were improperly added to Linux. And we have every right to license our
own code, which we never released under the GPL, as we see fit."

- k12linux

[ Reply to This | # ]

Don't focus on affirmative defenses
Authored by: Anonymous on Saturday, February 28 2004 @ 02:35 AM EST
Lots of people are pointing to SCO's affirmative defenses relating to the GPL,
as evidence that SCO doesn't accept the GPL.

The problem is, I think (IANAL), that affirmative defenses are merely things
they MAY use at trial.

I think if we want to show SCO never accepts the GPL, better evidence is likely
to be found in:

1. The body of the response to IBM's counterclaims. Where they state they
believe the GPL is void/voidable/unenforceable. (You have to look up the exact

2. The Darl and Kevin open letter

3. Darl's letter to congress.

I think 2 + 3 are usefully because in these they contend the GPL is an illegal
license (violates US copyright law, etc). If their company believes it is an
illegal license, then I can not see how they can accept it in any case.

[ Reply to This | # ]

Questions - is Fyodor suing? etc
Authored by: Anonymous on Saturday, February 28 2004 @ 02:38 AM EST
Has Fyodor written to SCO formally?

Is Fyodor suing?

Or is it currently just public statement(s)?

I'm not clear on these points.

[ Reply to This | # ]

Fyodor Terminates SCO's Right to Distribute Nmap
Authored by: blacklight on Saturday, February 28 2004 @ 02:38 AM EST
Eben Moglen needs to explicitly weigh in on Fyodor's action. One of the last
things I need or want is a headline titled "GPL affirmed: the SCO Group
wins in court". Hating the enemy is by itself never sufficient rationale
for starting and fighting losing battles: yes, Fyodor does not like the SCO
Group but my rejoinder is "Who does?"

I don't think there is anything wrong with Fyodor's dropping all technical
support for the SCO Group's products, because Fyodor is free to design nmap
however he wants. If all members of the Open Source community including Samba
drop all technical support for the SCO Group, then it is only a matter of time
before the SCO Group's customers realize that they need to jump off this runaway
freight train. Until Eben Moglen weighs in, I believe that dropping all
technical support for the SCO Group is the safest option legally.

I am totally unsympathetic to the argument that dropping all technical support
hurts the SCO Group's customers: the customers in question are big boys and big
girls, and they need to make some big decisions like the adults they are. If
they choose to remain on the runaway freight train, then the consequence of
their decision is their problem and they have to live with it. Those who love
freedom implicitly understand that freedom costs, and that Open Source is about
freedom, not entitlement. To stay with the SCO Group and demand to be supported
is entitlement. Switching away from the SCO Group is the price that the SCO
Group's customers will have to pay if they want support from the Open Source

[ Reply to This | # ]

Fyodor Terminates SCO's Right to Distribute Nmap
Authored by: Anonymous on Saturday, February 28 2004 @ 03:14 AM EST
Ugh - many circles of thought here. Let's see if I can't make it clearer... (IANAL, but I analyze...)

SCOG does not claim in the IBM case that IBM's license is invalid - it claims that "the GPL" is void, voidable, unenforceable, and/or unconstitutional. "The GPL" is, IIRC, defined by SCOG as a generic license created and maintained by the FSF.

I agree with others that nmap and the Linux kernel are available under separate issuances of the GPL. But...

  1. With SCOG declaring its disagreement with "the GPL" as a generic license in court, I think a reasonable judge might conclude that SCOG's intentions on nmap's issue of a GPL license might be suspect.
  2. Even if it's just an affirmative defense, stating it could be construed as intent to suborn the license. I can't (okay, maybe I could) imagine SCOG saying to a judge "we said we were going to argue against the GPL, but we didn't mean it...".
  3. One additional point of reference for the GPL being a generic license - standard GPL text offers distributors the option of going to the FSF website for the latest version of the license, to use in place of the one included with the software.
  4. So, each piece of software issued under GPL might have a separate license, but by challenging the legitimacy - hence your acceptance - of the license wording itself, you are implicitly challenging all licenses using that wording.
So, SCOG's statements indicate lack of license acceptance (just assume with me for a moment...). But SCOG continues distribution otherwise within the terms of "the GPL". Is it a willful copyright violation if you state for the record that you do not accept the GPL and continue to distribute a GPL program? It's a novel argument; I don't think Section 5 was designed with the idea that someone might publicly disavow the concept of the GPL license... (Who in their right mind would make statements on the record disputing their only valid license?)

Could be interesting to see the results of this. I think the analysis of Fyodor's expected results are correct - either SCOG admits accepting the GPL, or gets beaten up (more) for copyright violations. And since Fyodor's case is so much simpler, it might make headway faster than the other suits (of course, I would have said that about the Red Hat suit too, but the judge in that case seems to be taking his navel under advisement for a while...)

-- Les Barstow

[ Reply to This | # ]

IMPORTANT - Update the GPL to exclude SCO
Authored by: Anonymous on Saturday, February 28 2004 @ 04:36 AM EST
The way I read it Fyodor has simply issued the newest version of nmap under a
different license - "GPL plus an antisco clause". He is perfectly free
to do this so long as he has permission of ALL writers of the code. Correct me
if I'm wrong, but nmap is pretty much all Fyodors own work, and regardless of
the fact that earlier versions were released under the GPL, he STILL RETAINS
full copyright ownership of all of his own code.

People forget that it is possible to publish GPL code under a non-GPL license so
long as the explicit permission of ALL authors of the code is obtained. Authors
who issue code under the GPL cannot retract the GPL from code issued under it,
but they still retain the ability to also issue that code under a different
license. What they can't do is issue somebody ELSES code under that license,
although they could if they had permission. However if ALL contributers to a GPL
project agree to issue the next version under a different license, they are free
to do so.

I see nothing legally dubious about what Fyodor has done. It has nothing to do
with SCO violating the GPL or asserting that it is unconstitutional. Fyodor is
100% within his rights so long as all authors of code within nmap have agreed to
issue this version under the new license. SCO retains in my opinion the right to
distribute old versions of nmap under the GPL. But it CANNOT distribute the new
version because it does not have a license to do so.


The GPL contains a clause that permits people to issue code under an updated
version of the GPL. If the free software foundation were to issue an updated
version of the GPL including Fyodors antisco clause, then all GPL software could
be updated to this version of the GPL with the next updated version. At the rate
free software updates, SCO would effectively lose the capacity to distribute
up-to-date GPL code within 6 months, and they'd be finished as a GPL software

We have a nuclear weapon here folks and we didn't realise it. It is possible to
update the GPL to effectively blacklist a company. We could kill SCO this way.

[ Reply to This | # ]

Fyodor Terminates SCO's Right to Distribute Nmap
Authored by: legal insanity on Saturday, February 28 2004 @ 04:54 AM EST
I have just one question in my mind that I have yet seen covered here,
"What Jurisdiction" ?? Fyodor seems to be a down-under company. So if
this did turn into a court battle.
where would the battle take place? To my mind, this is very important before any
theory is going to hold water.

Insanity Pleadings is the only Sensible Defense

[ Reply to This | # ]

Fyodor Terminates SCO's Right to Distribute Nmap
Authored by: Anonymous on Saturday, February 28 2004 @ 05:31 AM EST
Sorry for the late post .
This was probably mentioned earlier ( but it's so much !!).

Because Mr. Moglen delighted us with his fine speech that really put some very
fine details on the whole GPL issue ( at least for me ) I think i can see where
such a case as this can go.

Telling somebody that his GPL licence has expired isn't really the big point .
everybody can say that about anybody.
But the point that Mr. Moglen made was that in case of 2 parties going to court
over a GPL dispute the defendent should proof that he/she is in possesion of a
valid licence.

So the scenario could go like this if Fyodor notices that SCO is still bundeling
nmap with there "products".

SCO Vs Fyodor :

Fyodor : SCO has violated his rights to distribute my work.
SCO : No we havn't, we got a license.
Judge : Show it to me.
SCO : this is it , IT's the GPL.

end of story.
Or in Mr Moglen's other scenario

SCO Vs Fyodor :

Fyodor : SCO has violated his rights to distribute my work.
SCO : No we havn't, we got a license.
Judge : Show it to me.
SCO : ehhh. Well ... LOOK THERE.. A METEORITE ..

( WOoooooooooooooooooooooooooosshhhhhhhhhhhhhhhh )

end of story.

Most disputes we read about are settled in a rather friendly and quite manner
like 'Lets come to some agreement'.
But in SCO's case this can't be settled for them eitherway.
Or they loose there Linux case or they loose ALL GPL'ed software they use AT

( does anybody thing that the percentage of code in linux that makes it
enterprise worthy ( according to SCO ) comes even near to the percentage of
GPL'ed software that make SCO's "products" enterprise worthy ??,
Didn't think so !).

Retep Vosnul.

[ Reply to This | # ]

Lack of support is an important long-term issue for SCO's customers
Authored by: SlideRule on Saturday, February 28 2004 @ 05:47 AM EST
SCO's ability to support its products is critical to SCO customers and SCO.
Hence, Fyodor's statement that "We have also stopped supporting the
OpenServer and UNIXWare platforms" should be unsettling, if not alarming,
to SCO's customers. This should be especially true if support for several other
key GPL programs follows suit. If SCO is not able to effectively fill these
voids, it could be difficult to maintain their existing customer base as
customers opt for solutions that are more well supported and less encumbered.

Dropping support for OpenServer and UNIXWare seems to be an elegant way to bring
influence to bear upon SCO--if not directly, then through its customers. If
SCO's customers feel threatened, then SCO may be forced to rethink its

While I admire Fyodor's stand, we need to be careful that in dealing with a
petty company like SCO that we also keep in mind the larger audience that has
yet to embrace Linux.

[ Reply to This | # ]

Fyodor Terminates SCO's Right to Distribute Nmap
Authored by: legal insanity on Saturday, February 28 2004 @ 05:58 AM EST
It has been said that the GPL has never been tested in court.
with that in mind, let for the sake of arguement say the SCO wins in this
matter, the only way I see that happening, is with the SCO validating the GPL,
and of course that means fyodor would lose, But there are some upsides to this.
Such as that means the GPL does pass muster in a Court of Law, which can only be
good for linux's future.Also if the SCO validates
the GPL, then hurts their standing in court with ibm and Red Hat. Now if Fyodor
wins, the GPL is still standing, so maybe there is a larger side to this, than

Insanity Pleadings is the only Sensible Defense

[ Reply to This | # ]

Unfortunately, I see no problem for SCO
Authored by: hardcode57 on Saturday, February 28 2004 @ 06:04 AM EST
Someone better qualified may have said this, but I haven't read all 412
IANAL, but it seems to me that all SCO have to to cover themselves is to
continue to do what they are currently doing. While rejecting the legality of
the GPL, they comply with its terms and claim that their plans and the terms of
the GPL happen to coincide. They then don't need to publicly accept the GPL,
but are not in breach, since the breach occurrs when they deviate from the

[ Reply to This | # ]

Fyodor Terminates SCO's Right to Distribute Nmap
Authored by: Anonymous on Saturday, February 28 2004 @ 06:15 AM EST
It all comes down to this :
Yes. There is a flaw in Fyodor's legal theory. SCO can win against him in the
court by showing up their license (GPL). But doing so will shut down their legal
campaign against free software. IBM will win in a moment.

[ Reply to This | # ]

Unfortunate story title
Authored by: Thomas Frayne on Saturday, February 28 2004 @ 07:35 AM EST
Fyodor's legal theory appears to be that SCOG breached the Nmap GPL and
automatically lost all permissions granted by the GPL. However an ambiguous
quote from Fyodor has led many to think that Fyodor's case depends on some vague
non-acceptance of the GPL, and that SCOG might win such a case just by waving
the GPL in front of the judge.

A GPL license that has been breached will do SCOG no good.

I think that the Groklaw story should be updated to clarify this, and it might
be worth while to clarify the story title as well.

[ Reply to This | # ]

A real legal issue with SCO's behavior?
Authored by: Jude on Saturday, February 28 2004 @ 10:06 AM EST
I said this in another post, but it might be important so I'll say it again.

What are the legal implications of SCO giving out GPL software while they are
publicly proclaiming that GPL is not binding?

If I get a CD full of GPL software from SCO, and they say "By the way, you
can ignore the license on the CD, it's not binding", am I legally released
from my obligation to obey the terms of GPL WRT the software on that CD?

If CompUSA put up a big sign over their Microsoft softare display reading
"You can do anything you want with this software, the license isn't legally
binding", would Microsoft have a right to take CompUSA to court? If the
answer is "yes", then I think Fyodor is doing the right thing.

[ Reply to This | # ]

lets apply SCOthink to this
Authored by: Anonymous on Saturday, February 28 2004 @ 10:33 AM EST
Filter it through typical SCO thinking - what would this mean if SCO did it?

It would have nothing todo with the copyright claim, GPL or licence violation.
The intention would be to spread FUD amongst the victims customers with no
intention of actually asserting any claim in a court.

I think Fyodor has outSCOed them, he's generated huge publicity for the cost of
1 paragraph in a licence. Publicity that will hurt SCO from customer
apprehension and he's done it in a way that makes it legally dangerous for SCO
to fight back. Best of all the exact customers affected by this are best placed
to influence purchasing choices despite nmap being a tool 99.9% of users neither
use or need.

[ Reply to This | # ]

Potential problem?
Authored by: Anonymous on Saturday, February 28 2004 @ 10:56 AM EST
If all programmers in the same situation (like e.g. Samba?) would do the same
on the same grounds, would SCO be in real trouble?

Maybe it would force them to admit they're no longer a software company?

[ Reply to This | # ]

SCO's other NMAP GPL violation
Authored by: Anonymous on Saturday, February 28 2004 @ 10:58 AM EST
Most of the commentary on the NMAP issue is about SCO's public and court
statements. This one line of argument is, that SCO has not "accepted"
the GPL, by contending it is illegal, and therefore is distributing all GPL
programs without a license (copyright infringement).


In SCO's December letter about the ABI files, they contend that the headers,
errno.h, signal.h, etc., as contained in Linux - may not be used under the GPL.
They also say the use of these files is restricted to non-GPL usages on UNIX
too. Read their letter case carefully - they say **ANY USE** of these files -
under the GPL is prohibited (not just use internally by Linux kernel, or
copying by Linux distributors).

Any GPL program which uses these headers on Linux or UNIX, would according to
SCO's theory [incidentally one they have essentially restated in sworn court
statements], include material that SCO owns, but is not licensing under the

- If you disagree with SCO's claims about these files (e.g. typical Linux
distributor), then you would not be violating the GPL

- However, if you were to agree with SCO's claims about these files (i.e. you
are SCO), then you ARE violating the GPL with respect to ***ALL*** Linux and
UNIX programs which use these headers.

Now eventually, which theory is right, will be determined by the courts... but
in the meantime, I can not see how SCO can simultaneously assert different
positions on these files in separate cases. If SCO says these files infringe in
one court case, they must say that in all court cases.

And hence, SCO is violating the GPL with respect to ***ALL*** UNIX and Linux,
GPLed programs which use errno.h, signal.h, etc.

[ Reply to This | # ]

GPL Revision?
Authored by: Anonymous on Saturday, February 28 2004 @ 05:33 PM EST
I think a "Three Musketeers" clause should be considered for the GPL (as in "one for all, all for one"). A possible wording follows, with the addition emphasized:

4. You may not copy, modify, sublicense, or distribute the Program except as expressly provided under this License. Any attempt otherwise to copy, modify, sublicense or distribute the Program is void, and will automatically terminate your rights under this License for this program and all other programs released under this License. However, parties who have received copies, or rights, from you under this License will not have their licenses terminated so long as such parties remain in full compliance.

This addition makes it clear that violating the GPL with respect to any one program automaticly terminates your rights to all programs released under the GPL. Is this possible, or would such language be invalided by a court?

[ Reply to This | # ]

Contagous denial
Authored by: darkonc on Saturday, February 28 2004 @ 09:07 PM EST
If Fyodor has any code in both the kernel and nmap, then the violation of the GPL WRT the kernel might allow him to also declare revokation of the license of that same code in NMAP.

Furthermore, in making a claim on the API, SCO appears to be laying claim to more than just the Kernel... If NMAP has #included some of the SCO Impugned code, then he can nail SCO for that violation, as well...

Powerful, committed communication. Touching the jewel within each person and bringing it to life..

[ Reply to This | # ]

SCO apologist to fork nmap?
Authored by: Anonymous on Sunday, February 29 2004 @ 01:30 AM EST
It seems an open-source developer has announced that he will fork nmap so that SCO will be able to continue it. I doubt that would work, as Fyodor would remain copyright holder for his code and could therefore still accuse them of being in breach of the GPL.

Even though he claims to be an open-source proponent, Roberto Donhert constantly complains about "Linux zealots" and has a definite pro-SCO discourse. He develops open source applications for Windows.

Here is the post on OSNews in which he claims that he will fork nmap.

[ Reply to This | # ]

I think, there is more to this
Authored by: abelits on Sunday, February 29 2004 @ 06:15 AM EST
I am neither a lawyer nor Fyodor, howewer I think, there is more to this than
just a response to SCO dissing GPL in public.

SCO demanded "license fees" from users. There is no possible legal
reason for this except SCO's own "explanation" that GPL somehow
requires every user to be a distributor, and therefore SCO can do to users what
copyright law allows only toward distributors. What is obviously a figment of
Darl's (or someone else from SCO) imagination. So either:

1. SCO is knowingly commiting fraud and extortion.
2. SCO does not understand the terms of GPL, and therefore is incapable of
complying with them.

However SCO is distributing nmap and samba (not to mention Linux kernel). If the
second is true, on what terms do they distribute those products? How can SCO
distribute something under the terms of GPL if they do not understand those
terms to begin with? If they do not understand the terms of GPL, it means that
they believe that they are distributing under some different terms -- ones that,
for example, expose end-users to some legal liability that GPL does not cause.

Again, I am not a lawyer, but I am pretty sure that if someone believes that
they are distributing something under some conditions, he is indeed distributing
it under those conditions, and if the recipient (who can understand GPL)
believes otherwise, it may protect the recipient (who acts in good faith and
bases his decisions on the text of the license) but not the distributor (who
believes that by distributing nmap and samba he gets the right to extort
licensing fees from the recipient in some possible situations). So Fyodor, from
whom SCO received nmap (under the conditions of GPL), has a reason to believe
that SCO is distributing nmap under condition of SCO-version of GPL. And this is
something that violates the conditions of GPL, and triggers the termination of
the license, reverting to copyright. SCO still keeps the right to use nmap (that
copyright law grants them) however it can't distribute nmap because GPL no
longer applies, and copyright doesn't grant redistribution rights to them.

SCO may claim that it acted in good faith, however even though one can be stupid
enough to believe that GPL says what SCO claims it says, such a blatant
contradiction between the text of the license and SCO's interpretation certainly
does not place any obligation of Fyodor to honor SCO's fantasies about GPL. The
alternative is for SCO to claim that they really distributed nmap under GPL, and
they indeed understand GPL, however this means, SCO defrauded Linux users by
demanding licensing fees from them while knowing that GPL does not entitle SCO
to anything from end-users. Oops.

[ Reply to This | # ]

Fyodor Terminates SCO's Right to Distribute Nmap
Authored by: Charles Pouliot on Sunday, February 29 2004 @ 10:22 PM EST
Great discussion here! A bit much to read all, so forgive if I repeat.
We should simply remember the golden rule with respect to any legal action or
threat of, with respect to SCO.
Let's not _ever_ try the strategies and tactics for which we despise them so

[ Reply to This | # ]

Groklaw © Copyright 2003-2013 Pamela Jones.
All trademarks and copyrights on this page are owned by their respective owners.
Comments are owned by the individual posters.

PJ's articles are licensed under a Creative Commons License. ( Details )