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Why the GPL Sinks SCO's Copyright Infringement Claims, Even if it Owned the Copyrights
Monday, November 16 2009 @ 02:56 PM EST

I've started to wonder if Novell or IBM has explained to SCO's Chapter 11 Trustee Edward Cahn how the GPL works. It cuts through all the other ways SCO is bound to lose, in my view. Then, I thought: why not just explain it myself? You never know. It might prove useful to put it all in one place. So, here goes, SCO and the GPL.

As you may recall, if you've been around since 2003, SCO's position on the GPL has been that while it may have distributed its code under the GPL, it didn't mean to do it, that it never knowingly distributed Unix or Unixware code under the GPL. I'd like to briefly explain why that excuse doesn't matter to either Novell or IBM. IBM of course has always taken the position that it hasn't infringed any copyrights, no matter who owns them. But let's take SCO's words at face value, and pretend that they are true. Then how does the GPL moot their claims?

So you can try to prove me wrong, if you are so inclined, before I begin, I'll point you to Groklaw's permanent page on the GPL, where you can find resources to a great deal more information on all versions of the GPL. I'll be focusing here on GPLv2, the license that Linux code is distributed under.

What SCO Said:

Here's how then-SCO executive Chris Sontag explained SCO's position to CNET in June of 2003:

And LinuxTag said in a statement, "Until a few weeks ago, SCO itself distributed the Linux kernel...as a member of the UnitedLinux alliance. Thus, even if SCO owns parts of the Linux kernel, it has made them into Free Software by distributing them under the GPL."

Not so, counters SCO's Sontag.

"The GPL requires the intentional act of the legal copyright holder to affirmatively and knowingly donate the source code to the GPL," Sontag said. "You can't inadvertently GPL your code."

Leave donation out of it. Think distribution. There is no "I didn't mean to do it" with distribution under the GPL, or at least no way to go back to Go as if it never happened. Let me show you what I mean in a minute, but first, here's an answer SCO gave in a Supplemental Response to an IBM interrogatory, back in 2003:
Insofar as this interrogatory seeks information as to whether plaintiff has ever distributed the code in question or otherwise made it available to the public, SCO has never authorized, approved or knowingly released any part of the subject code that contains or may contain its confidential and proprietary information and/or trade secrets for inclusion in any Linux kernel or as part of any Linux distribution.
The link will provide you with evidence Groklaw collected on each item of the big four SCO listed as allegedly infringing in the IBM case, evidence that it was indeed knowingly released. As for the ABI files, here's why that won't work for SCO. And as for missing copyright notices on header files, here is why I don't think that will work.

SCO also claimed that the GPL was unConstitutional, to peals of laughter, but they dropped that later, sort of dropped it. Even if that were so, it's the license SCO, as Caldera and then later as SCO in the UnitedLinux distribution, chose. SCO, as Caldera, also donated code under the GPL to the Free Software Foundation, we learned in 2003, when Bradley Kuhn, then at FSF, was interviewed by the Sydney Morning Herald and said this:

"SCO was not merely a distributor of the kernel named Linux; they were the distributor off the entire GNU/Linux system, which includes Linux as well as the core components of the GNU operating system, such as glibc, GCC, GDB, etc.

"Most of the core GNU components are all copyrighted by the Free Software Foundation and distributed under our auspices under GPL. SCO's right to redistribute them, and Linux too, is the GNU GPL and only the GNU GPL."

The GPL is the General Public License under which the Linux kernel and large numbers of software programs are released; it allows people to see and modify the source code, and requires that they give similar rights to others if they distribute the software.

Kuhn said: "SCO now claims that their 'trade secrets' were added by IBM to not just Linux - but to many parts of the GNU/Linux operating system. While SCO's documents say only 'Linux' in most places, they are propagating the same confusion that we have often brought to people's attention: Linux is one part of the whole system.

Kuhn said SCO would not have been permitted to distribute the GNU/Linux system under GPL and related licences if they knew that there were other legal claims (such as trade secrets) that were not licensed to the world under GPL-compatible terms. "Section 7 of the GNU GPL talks about this matter. Thus, we wonder why SCO ever distributed GNU/Linux if they believed that it contained SCO-proprietary trade secrets."

He said: "Ever since the day that SCO made their claims public through their court filing against IBM, we have been asking SCO to tell us precisely what FSF copyrighted code they believe contains their trade secrets (or for that matter, infringes on their copyrights or patents). SCO has refused to answer us or give us any details. As far as we know, there are no such claims.

"Indeed, FSF holds documents from SCO regarding some of this code. SCO has disclaimed copyright on changes that were submitted and assigned by their employees to key GNU operating system components. Why would SCO itself allow their employees to assign copyright to FSF, and perhaps release SCO's supposed 'valuable proprietary trade secrets' in this way?

Good question. And here's another: exactly when did the GPL become unConstitutional in SCO's eyes?

Later, faced with the knowledge of how the GPL works, SCO claimed compliance. In its memorandum in support [PDF] of a still pending motion for summary judgment, SCO wrote:

I. SCO DID NOT BREACH THE GPL

IBM’s Sixth and Seventh Counterclaims fail as a matter of law because SCO did not breach the GPL. First, where SCO has copied and re-distributed Linux, it has done so in compliance with the requirements of the GPL. Second, nothing in the GPL – which by its very terms is limited to “copying, distribution and modification” of Linux – precludes SCO from issuing licenses to its UNIX software.

Well, as I'll show you later, it could do that, but not with Linux, not the way it did it, not with the code integrated into Linux. IBM answers SCO's assertions very clearly. The license has to be respected, and SCO didn't do so, no matter what it says.

Finally, SCO claimed that the GPL represents an antitrust violation, but that issue was shot down in flames in the Daniel Wallace attempt to prove the same thing. SCO never did pay attention to all my attempts to help it understand the GPL, and it's too bad, really, because they are truly in a GPL pickle now.

So, how does the GPL work?

How the GPL Actually Works:

In May of 2003, when Groklaw first got started, I pointed readers to an interview with Eben Moglen in InternetNews. Moglen is the lawyer who has enforced the GPL for many years, and he explained how the GPL works:

But even if SCO can prove that its intellectual property was added to the Linux kernel, its case is moot, according to Columbia Law School Professor Eben Moglen, pro bono publico general counsel for the Free Software Foundation. The Free Software Foundation maintains the GNU General Public License, under which Linux is distributed.

"There is absolute difficulty with this line of argument which ought to make everybody in the world aware that the letters that SCO has put out can be safely put in the wastebasket," Moglen told internetnews.com, noting that SCO distributed its own version of Linux with a kernel that allegedly contains Unix-derived code.

"From the moment that SCO distributed that code under the GNU General Public License, they would have given everybody in the world the right to copy, modify and distribute that code freely," he said. "From the moment SCO distributed the Linux kernel under GPL, they licensed the use. Always. That's what our license says."

Note the word 'always'. He means that once it is GPL'd, it's GPL'd forever. Here's a snip from the GPL Frequently Asked Questions, so you can understand what he is referring to:
GPLv2 says that modified versions, if released, must be “licensed … to all third parties.” Who are these third parties?

Section 2 says that modified versions you distribute must be licensed to all third parties under the GPL. “All third parties” means absolutely everyone—but this does not require you to *do* anything physically for them. It only means they have a license from you, under the GPL, for your version.

'Absolutely everyone' means what it says. That means once SCO made its own distribution of Linux and distributed it, everyone -- including IBM and Novell and you and me -- was entitled to accept the code under the license that SCO said they distributed under, the GPL. The license was included with the software. And SCO can't take that back. That code can't be taken back from those that received it, and the license can't be changed later either, because that's one of the terms of the GPL license:
Can the developer of a program who distributed it under the GPL later license it to another party for exclusive use?

No, because the public already has the right to use the program under the GPL, and this right cannot be withdrawn.

'This right cannot be withdrawn." Get it? That right cannot be withdrawn.

As for SCO's claims that because it was not intended, that they never agreed to put their allegedly copyrighted code under the GPL, note this FAQ question and answer:

Am I required to claim a copyright on my modifications to a GPL-covered program?

You are not required to claim a copyright on your changes. In most countries, however, that happens automatically by default, so you need to place your changes explicitly in the public domain if you do not want them to be copyrighted.

Whether you claim a copyright on your changes or not, either way you must release the modified version, as a whole, under the GPL. (if you release your modified version at all)

That last phrase has a link to this further detail:
Does the GPL require that source code of modified versions be posted to the public?

The GPL does not require you to release your modified version, or any part of it. You are free to make modifications and use them privately, without ever releasing them. This applies to organizations (including companies), too; an organization can make a modified version and use it internally without ever releasing it outside the organization.

But if you release the modified version to the public in some way, the GPL requires you to make the modified source code available to the program's users, under the GPL.

Thus, the GPL gives permission to release the modified program in certain ways, and not in other ways; but the decision of whether to release it is up to you.

As you see, SCO was not compelled to release a Linux distribution. It did it because back then it was called Caldera and it was a Linux company, and it was making its money from Linux distribution. But the point I'm stressing is this: once it's out there, it's out there. You can't add another license on top either, as SCO tried to do with SCOsource, and that wasn't the only violation of the GPL involved with SCOsource. Here's another:
Does the GPL allow me to require that anyone who receives the software must pay me a fee and/or notify me?

No. In fact, a requirement like that would make the program non-free. If people have to pay when they get a copy of a program, or if they have to notify anyone in particular, then the program is not free. See the definition of free software.

The GPL is a free software license, and therefore it permits people to use and even redistribute the software without being required to pay anyone a fee for doing so.

SCO demanded payment or it would sue you, IIRC, but in any case it certainly offered the SCOsource license for a fee, and for code it had already distributed as GPL'd code. Now, that doesn't mean that you can't charge money for the code if it is GPL'd, only that you must also make it available for free.

That still isn't the only violation of the GPL by SCO with SCOsource. Here's another:

Does the GPL allow me to distribute copies under a nondisclosure agreement?

No. The GPL says that anyone who receives a copy from you has the right to redistribute copies, modified or not. You are not allowed to distribute the work on any more restrictive basis.

If someone asks you to sign an NDA for receiving GPL-covered software copyrighted by the FSF, please inform us immediately by writing to license-violation@fsf.org.

If the violation involves GPL-covered code that has some other copyright holder, please inform that copyright holder, just as you would for any other kind of violation of the GPL.

Does the GPL allow me to distribute a modified or beta version under a nondisclosure agreement?

No. The GPL says that your modified versions must carry all the freedoms stated in the GPL. Thus, anyone who receives a copy of your version from you has the right to redistribute copies (modified or not) of that version. You may not distribute any version of the work on a more restrictive basis.

So, when SCO said that you could only run its code allegedly in Linux as binary, was that a GPL violation? Of course:
Can I release a modified version of a GPL-covered program in binary form only?

No. The whole point of the GPL is that all modified versions must be free software—which means, in particular, that the source code of the modified version is available to the users.

Once code is out there as GPL'd code, it's out there, and you can't later swing back by and change the terms of the earlier deal.

If I buy a dress in a store, and the store later realizes that it sold those dresses for $100 too little by mistake, can it come to my house and demand I pay them $100 more or they will sue me? Extrapolate.

Now, SCO could offer the code going *forward* under two separate licenses, using the GPL on one distribution and one under SCOsource, if it can ever prove it owns the copyrights, which I doubt, or it could stop further GPL distribution and distribute under a proprietary license its own code, but there is no way to go back in time and change its mind with the GPL about code it already released that way:

I heard that someone got a copy of a GPL'ed program under another license. Is this possible?

The GNU GPL does not give users permission to attach other licenses to the program. But the copyright holder for a program can release it under several different licenses in parallel. One of them may be the GNU GPL.

The license that comes in your copy, assuming it was put in by the copyright holder and that you got the copy legitimately, is the license that applies to your copy.

So if SCO wanted to do SCOsource again, it would have to do it that way, not go after prior users who legitimately got a license, the GPL, for the code they are using. They don't need another license, because they already have one, but if they wanted to buy the same code for money and under more restrictive terms, they are free to do that but only for code SCO actually can prove it owns. It couldn't do a binary-only distribution of Linux with some SCO code in that distribution under proprietary terms:
I downloaded just the binary from the net. If I distribute copies, do I have to get the source and distribute that too?

Yes. The general rule is, if you distribute binaries, you must distribute the complete corresponding source code too. The exception for the case where you received a written offer for source code is quite limited.

So binary-only isn't possible with GPL'd code. So I guess if SCO wanted to distribute its code, should it ever prove to be its code, under a SCOsource license separately from Linux, it could do so, but not with a Linux distribution. You see how many ways SCOsource violated the GPL? And consider that when someone violates the GPL, it's then a copyright violation to distribute at all. By the way, here's the original SCOsource license, so you can compare it to the wording in GPLv2.

Why SCO's Chance to Take it All Back Came and Went in 2003:

But, but, but, SCO said it didn't mean to do that. And notice the language, "assuming that it was put in by the copyright holder"? Doesn't that mean SCO is right about that? There is such a thing as inadvertent distribution, isn't there? If you distribute by mistake, are you just stuck? Moglen again:

Moglen noted that SCO cannot readily make the claim that it inadvertently released the code, because the GPL requires that when code is released under its auspices, the developers must release the binary, the source code and the license, and the source code must be able to build the binary. Presumably, then, the binary functions the way the creators want it to function and has the capabilities they want it to have.

"This isn't an inadvertent distribution case," he said. However, he noted that the Free Software Foundation works with companies to ensure that they do not release anything under the GPL that they do not intend to release. In fact, he said, when SCO first filed its suit against IBM, he approached SCO's lawyers because it is the Free Software Foundation and not IBM which holds the copyright to the Linux distribution IBM created, Linux for S/360. IBM created the Linux distribution but released it under the GPL and signed the copyright over to the Free Software Foundation.

Moglen said that when he approached SCO's lawyers he asked them to show him any problems with the particular Linux distribution and if there were any he would stop its distribution. "They have never responded to that invitation," he said.

He added, "We help people to solve problems with free software. If they would show us something, we would be happy to help them with it."

See the problem? They could have taken the code out back in 2003, when this joke of a litigation began. They didn't. That means they blew it. Of course, even if they had taken advantage of the offer Moglen made, prior releases under the GPL couldn't be taken back, just going forward.

Others, including Linus, also offered to remove any code that was improperly in Linux, but SCO refused to tell with specificity where to find any. Remember the excuse? That then Linux programmers would remove the code and SCO didn't want that to happen before the trial. Stoopid.

By the way, Microsoft recently distributed GPL'd code inadvertently, it says. What happened? How did it fix the problem? It can help us to understand what SCO's options were. First, it pulled the application, while it reviewed whether there was a GPL violation involved or not. Then it acknowledged what happened, and it released the app under the GPL:

As you've likely read and as was originally reported here, we've been investigating a report that the Windows 7 USB/DVD Download Tool, might contain GPLv2 code. The WUDT is a free tool that was offered by the Microsoft Store and which enabled customers to create bootable USB drives or DVD backup media from the electronic software (ESD) edition of Windows 7 that comes in an ISO format.

After looking at the code in question, we are now able to confirm this was indeed the case, although it was not intentional on our part. While we had contracted with a third party to create the tool, we share responsibility as we did not catch it as part of our code review process. We have furthermore conducted a review of other code provided through the Microsoft Store and this was the only incident of this sort we could find.

When it comes to our attention that a Microsoft component contains third party code, our aim is to be respectful of the terms under which that code is being shared. As a result, we will be making the source code as well as binaries for this tool available next week under the terms of the General Public License v2 as described here, and are also taking measures to apply what we have learned from this experience for future code reviews we perform.

We apologize to our customers for any inconvenience this has caused.

Microsoft had the option to pull the app forever, or until it could write its own code, after all, but looking at the options, it decided to just do the right thing. I imagine if it happened with Office, money-making software, the analysis would have been different, but this was a free download, so why not release it as GPLv2? It had those two options. It chose not to pretend, like SCO, that it could just take it all back and act like it never happened or that the GPL wasn't applicable or was unconstitutional or some laughable defense. The company was responsible enough to acknowledge that it made the distribution, and that as a software vendor, it has a duty to vet its code before distributing. It failed. So it took its lumps honorably.

But I can't resist pointing out that while critics of Linux's development model, including SCO and Microsoft, have claimed that the Open Source model doesn't adequately protect against copyright infringement, it is actually Microsoft itself that had that problem in this instance while no one to date has proven any such problem in Linux.

Of course, the GPL compels compliance one way or another. Lots of folks would steal other people's code if they thought they could, even folks who go on and on about piracy. But here, Microsoft behaved respectfully, and I believe they are very, very careful to avoid problems like this with the GPL. So I believe this really was inadvertent, unlike SCO, where I believe they just changed their mind under new management. Here are some reasons I believe SCO knew. And some more, the Ralf Flaxa declaration in the IBM case. Here are some more and more, having to do with its UnitedLinux distribution and JFS.

That same InternetNews interview with Moglen includes the information that SCO announced that same week that it was stopping distribution of Linux. But did they? If they really had, that would have helped them, but they didn't. In fact, they released UnitedLinux after that, and they kept Linux on their servers for public download for many months. I personally wrote about it at the time, and I have all that evidence all these years later. Here's proof of distribution in August of 2003. More distributions, by year:

2006, OpenLinux
2006, Linux, the kernel, the whole enchilada, indicating knowing distribution as of 2004 onward
2006, ELF header files SCO is suing IBM about
2006, gnutools package in OpenServer
2006, Skunkware, including ELF, Streams, etc., allegedly infringed in the IBM case
April 15, 2003, UnitedLinux - SCO released SCO Linux Server 4.0, which is what it called its UnitedLinux offering, for the Itanium processor family a month after it sued IBM, and it distributed it under the GPL after claiming it didn't mean to, advertising that it included "Powerful new enterprise features based on the Linux 2.4.19 kernel", the very kernel it is suing IBM over and the features it is claiming were infringed.
There are actually other instances that I wrote about as we found them over the years, but surely these are sufficient to demonstrate my point, namely that SCO is toast. And it doesn't even go into the fact that Sun was distributing the Linux 2.4 kernel in 2004, claiming Sun's Linux was "clean", and we later learned that it was "blessed" so to speak to be able to do so by the terms of the license SCO gave them in 2003.

Why, then, is SCO toast? It is because the GPL fixed their wagon and fixed it good from day one, and then they were foolish enough to dig the hole deeper still. The GPL was born for players like SCO. And it will finish them.

I just wish the lawyers would point it out to the Chapter 11 Trustee so he can sit down with a calculator and figure out all the damages SCO will owe for each distribution it made in violation of the GPL, should SCO now try to say it didn't distribute under the GPL. But of course, it already told the court in the IBM case that it never violated the GPL.

Oops. If it never violated the GPL, then all those Caldera Linux and UnitedLinux distributions are under the GPL. That means no one violated SCO's copyrights, even if it had any.

Alternatively, SCO owes a fortune to the copyright owners, like IBM, for distributing IBM code in Linux without a license. And yes, IBM has a counterclaim for copyright infringement of its GPL'd code in Linux. Here's a transcript of a speech Eben Moglen gave at Harvard in 2004, where he explained the problem facing SCO for not thinking things through about the GPL thoroughly enough:

The grave difficulty that SCO has with free software isn't their attack; it's the inadequacy of their defense. In order to defend yourself in a case in which you are infringing the freedom of free software, you have to be prepared to meet a call that I make reasonably often with my colleagues at the Foundation who are here tonight. That telephone call goes like this. "Mr. Potential Defendant, you are distributing my client's copyrighted work without permission. Please stop. And if you want to continue to distribute it, we'll help you to get back your distribution rights, which have terminated by your infringement, but you are going to have to do it the right way."

At the moment that I make that call, the potential defendant's lawyer now has a choice. He can cooperate with us, or he can fight with us. And if he goes to court and fights with us, he will have a second choice before him. We will say to the judge, "Judge, Mr. Defendant has used our copyrighted work, copied it, modified it and distributed it without permission. Please make him stop."

One thing that the defendant can say is, "You're right. I have no license." Defendants do not want to say that, because if they say that they lose. So defendants, when they envision to themselves what they will say in court, realize that what they will say is, "But Judge, I do have a license. It's this here document, the GNU GPL. General Public License," at which point, because I know the license reasonably well, and I'm aware in what respect he is breaking it, I will say, "Well, Judge, he had that license but he violated its terms and under Section 4 of it, when he violated its terms, it stopped working for him."

But notice that in order to survive moment one in a lawsuit over free software, it is the defendant who must wave the GPL. It is his permission, his master key to a lawsuit that lasts longer than a nanosecond. This, quite simply, is the reason that lies behind the statement you have heard -- Mr. McBride made it here some weeks ago -- that there has never been a court test of the GPL.

To those who like to say there has never been a court test of the GPL, I have one simple thing to say: Don't blame me. I was perfectly happy to roll any time. It was the defendants who didn't want to do it. And when for ten solid years, people have turned down an opportunity to make a legal argument, guess what? It isn't any good....

They have distributed the operating system kernel program called Linux. That is, SCO has. They continue to do so to their existing customers because they have a contractual responsibility to provide maintenance.

When they distribute that program called Linux, they are distributing the work of thousands of people, and they are doing so without a license, because they burned their license down when they tried to add terms to it, by charging additional license fees in violation of Sections 2 and 6 of the GPL.

Under Section 4 of the GPL, when they violated it, they lost their right to distribute, and IBM has said as a counterclaim in its lawsuit, "Judge, they're distributing our copyrighted work, and they don't have any permission. Make them stop."

Since then, the GPL has been effectively used in litigation by the Free Software Law Center, and it hasn't failed to work, has it? And since SCO has claimed compliance with the GPL, it is stuck with that assertion, which means the code was released under the GPL, whether SCO likes it or not.

In 2004, IBM filed a Redacted Memorandum in Support of IBM's Motion for Partial Summary Judgment on its Counterclaim for Copyright Infringement (8th Counterclaim) [PDF], which is still pending, meaning hanging over SCO's head, and which nicely explains SCO's problem. Here's a bit of what I wrote at that time:

See, if only SCO had paid attention to my summer school "course" in the GPL last summer, they could have spared themselves this moment. I even sent them an email last July raising questions about the license violating the GPL, an email that I was told would receive a reply, although I never did actually get one. But they now instead face the music, based on the list of exhibits IBM offers in paragraph 66 of all the times they said the license was for running Linux. Just stupid. There is no other word.

On the other hand, one of my favorite aspects of the GPL is so many business types fail to take it seriously enough to really study it, and they get caught with their pants down every time. That is the real reason there has never before been a serious court challenge involving the GPL. When Eben Moglen is in negotiations with offenders, and they wake up to what the GPL really means for them, they quickly pull up their pants and get in compliance. SCO at the moment is precisely in that position, caught with their pants down and for them it's now too late to pull up their pants and get in compliance. No matter what they do now, they are in GPL trouble. The beauty of the GPL is there is no escape. Once you violate the terms, your rights terminate, as IBM's memorandum points out:

As detailed above (¶ 66), SCO is attempting to collect, and has collected, licensing fees from Linux users, in violation of any permission or license it may have had under the GPL and LGPL. Because SCO has attempted to license Linux in violation of the GPL and LGPL, any permission or license it may have had under the GPL and LGPL (to copy the IBM Copyrighted Works) terminated. The GPL and LGPL expressly provide that any attempt othewise than in accord with the GPL's or LGPL's restrictions to sublicense works subject to the GPL or LGPL 'is void, and will automatically terminate your rights under this License'. (¶ 63.)10 SCO's efforts (under whatever guise) to collect licensing fees for GPL- or LGPL-licensed activities run afoul of the GPL and LGPL.

By its breaches of the GPL and LGPL, SCO has forfeited any protection against claims of copyright infringement that it may have enjoyed by virtue of the GPL or LGPL. SCO cannot violate the covenants that led to and underlie Linux without forfeiting the beneflts those covenants confer. Because SCO has continued to distribute and copy Linux products containing verbatim copies of IBM's Copyrighted Works after it disclaimed, renounced and breached the GPL and LGPL, SCO has infringed IBM's copyrights in those works, 17 U.S.C. § 501(a), and the GPL and LGPL afford SCO no protection against IBM's claim of infringement.

And terminate means terminate, so SCO can't now hide under the GPL. The only way a GPL-violator can get back a GPL license after a termination is by express permission of the copyright holder, in this case, IBM. Hmm. Snowballs come to mind.
Notice that SCO took in money from GPL violation. So it can't hide under the GPL now or attempt to evade it. Here's how Eben put it in the article about SCO in 2004, "SCO: Without Fear and Without Research" :
But if the GPL is not a valid and effective copyright permission, by what right is SCO distributing the copyrighted works of Linux's contributors, and the authors of all the other copyrighted software it currently purports to distribute under GPL? IBM's counterclaim against SCO raises that question with respect to IBM's contributions to the Linux kernel. Under GPL section 6, no redistributor of GPL'd code can add any terms to the license; SCO has demanded that parties using the Linux kernel buy an additional license from it, and conform to additional terms. Under GPL section 4, anyone who violates GPL automatically loses the right to distribute the work as to which it is violating. IBM therefore rightly claims that SCO has no permission to distribute the kernel, and is infringing not only its copyrights, but those of all kernel contributors. Unless SCO can show that the GPL is a valid form of permission, and that it has never violated that permission's terms, it loses the counterclaim, and should be answerable in damages not only to IBM but to all kernel contributors.

IBM's counterclaim painted SCO into a corner on the subject of the GPL. Not only the facts but also the law are now fundamentally against SCO's increasingly desperate position. SCO and its predecessor, Caldera, have benefited enormously from the protections of the GPL. Thanks to the GPL, SCO has been able, for example, to use the invaluable work of compiler designers and implementers around the world who have made GCC the premier cross-platform C compiler. Customer applications run on SCO's Sys V Unix because of GCC, to which SCO contributed modifications particular to its system, and for which it assigned copyright to the Free Software Foundation. Caldera and SCO could not have marketed a usable operating system product without the contributions of the free software community. SCO was happy to take the benefits, but it has unethically sought to avoid its responsibilities. The law does not permit SCO to have it both ways.

Consider statutory damages for copyright infringement, and you get some idea of the damages SCO is facing just in the IBM case. But every Linux kernel developer who owns a copyright has such a claim against SCO. It's astronomical math, if you actually think about it, and I hope Mr. Cahn does just that. The GPL is involved in SCO's copyright infringement claims against Novell, and vice versa, in the SUSE arbitration, as well as in the IBM case.

By the way, if you are interested in releasing code under any FSF license such as the GPL, here's how to get it right. And here are some instructions on what to do if you notice a GPL violation.


  


Why the GPL Sinks SCO's Copyright Infringement Claims, Even if it Owned the Copyrights | 585 comments | Create New Account
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Why the GPL Sinks SCO's Copyright Infringement Claims, Even if it Owned the Copyrights
Authored by: IMANAL_TOO on Monday, November 16 2009 @ 03:54 PM EST
* They let the cat out of the bag.
* They opened Pandora's box (as far as they are concerned).

There must be many more fitting old sayings.



---
______
IMANAL


.

[ Reply to This | # ]

Corrections here please
Authored by: Tufty on Monday, November 16 2009 @ 03:54 PM EST
Hint in the title

---
Linux powered squirrel.

[ Reply to This | # ]

Off topic thread
Authored by: Tufty on Monday, November 16 2009 @ 03:55 PM EST
Off tropic as well


---
Linux powered squirrel.

[ Reply to This | # ]

Newspicks here
Authored by: Tufty on Monday, November 16 2009 @ 03:56 PM EST
Latest pedition!


---
Linux powered squirrel.

[ Reply to This | # ]

Laws of Agency Strikes Again...
Authored by: Anonymous on Monday, November 16 2009 @ 04:18 PM EST
SCO's AGENTS distributed and donated code under the GPL.

Actual Agents, and because of Caldera/The SCO Group's actions, or lack of
action, then their agents might be ostensible agents with apparent or ostensible
authority as well, of course the later with apparent or ostensible authority
might need to be proven case by case by a judge or a jury depending?

http://legal-dictionary.thefreedictionary.com/ostensible+agent

[ Reply to This | # ]

  • SCOG's Web Site - Authored by: Anonymous on Monday, November 16 2009 @ 06:42 PM EST
    • Yabut... - Authored by: JamesK on Wednesday, November 18 2009 @ 03:28 PM EST
"... in compliance with the GPL"
Authored by: Steve Martin on Monday, November 16 2009 @ 04:48 PM EST

As PJ notes, TSG claimed in one of their filings:

First, where SCO has copied and re-distributed Linux, it has done so in compliance with the requirements of the GPL.

Let's look at section 6 of GPL v2 (the license under which Linux is distributed):

Each time you redistribute the Program (or any work based on the Program), the recipient automatically receives a license from the original licensor to copy, distribute or modify the Program subject to these terms and conditions. You may not impose any further restrictions on the recipients' exercise of the rights granted herein.

So since TSG has told the Court that they have complied with the GPL, this means that they must have complied with this section.

Now, let's look at section 7:

If, as a consequence of a court judgment or allegation of patent infringement or for any other reason (not limited to patent issues), conditions are imposed on you (whether by court order, agreement or otherwise) that contradict the conditions of this License, they do not excuse you from the conditions of this License. If you cannot distribute so as to satisfy simultaneously your obligations under this License and any other pertinent obligations, then as a consequence you may not distribute the Program at all. For example, if a patent license would not permit royalty-free redistribution of the Program by all those who receive copies directly or indirectly through you, then the only way you could satisfy both it and this License would be to refrain entirely from distribution of the Program.
So in effect, if The SCO Group is sincere in claiming that their distribution of Linux was "in compliance with the requirements of the GPL", not only do they acknowledge that they are not adding any further restrictions on top of the GPL, but they are also acknowledging that there is no further legal impediment to such distribution (including any of their own devising).

Game, set, match.

---
"When I say something, I put my name next to it." -- Isaac Jaffe, "Sports Night"

[ Reply to This | # ]

Why the GPL Sinks SCO's Copyright Infringement Claims, Even if it Owned the Copyrights
Authored by: JamesK on Monday, November 16 2009 @ 04:53 PM EST
You're forgetting, all this nonsense started when Darl moved SCO into a parallel universe. ;-)

---
IANALAIDPOOTV

(I am not a lawyer and I don't play one on TV)

[ Reply to This | # ]

"...they were the distributor off the entire GNU/Linux system...."
Authored by: tiger99 on Monday, November 16 2009 @ 05:13 PM EST
Well, a Skunkware disc came with my copy of Open Linux 8, which is full of GNU and other FOSS stuff, mostly GPL. So it got distributed with UNIX, not just Linux.

Not that it matters legally, distributed is distributed whatever it came with, but I find it quite amusing that a part of Darl's infamous UNIX tree was so lacking that they had to enhance it with a full set of GNU and other utilities.

[ Reply to This | # ]

"...they licensed the use. Always. That's what our license says."
Authored by: tiger99 on Monday, November 16 2009 @ 05:30 PM EST
A minor nit perhaps, and Eben definitely knows far more about law than I ever will. But copyright expires eventually (not in his lifetime or mine, as far as Linux is concerned) so the code would seem to eventually go into the public domain, independent of whatever the GPL may say, and can then be relicensed any way the recipient chooses. (Someone could acquire a copy and re-release it under GPLv10 or whatever is current then!)

So, not technically "always", but certainly for much more than the useful life of the software, and as it has no practical effect (will anyone have a still-working x86 when the copyrights expire?) it is only a very minor nit.

[ Reply to This | # ]

Discovery
Authored by: Anonymous on Monday, November 16 2009 @ 05:38 PM EST
Might this argument have shortened discovery ?

[ Reply to This | # ]

  • Discovery - Authored by: PJ on Monday, November 16 2009 @ 06:59 PM EST
    • Wildly optimistic. - Authored by: Anonymous on Tuesday, November 17 2009 @ 10:03 AM EST
    • Discovery - Authored by: Anonymous on Tuesday, November 17 2009 @ 10:41 AM EST
      • Discovery - Authored by: Alan(UK) on Tuesday, November 17 2009 @ 03:06 PM EST
      • Discovery - Authored by: Anonymous on Wednesday, November 18 2009 @ 06:45 AM EST
Why the GPL Sinks SCO's Copyright Infringement Claims, Even if it Owned the Copyrights
Authored by: Anonymous on Monday, November 16 2009 @ 05:56 PM EST
This would only affect any claims SCO made post-GPL distribution, ie after 2003.
It will have no effect on any claims they make about violations that occurred
prior to this date.

[ Reply to This | # ]

Shoplifting.
Authored by: GuyllFyre on Monday, November 16 2009 @ 06:53 PM EST
"If I buy a dress in a store, and the store later realizes that it sold
those dresses for $100 too little by mistake, can it come to my house and demand
I pay them $100 more or they will sue me? Extrapolate. "

When you walk out of a store and fail to pay for an item properly, this is
called shoplifting.

Bad analogy as you're actually physically walking out with an item.

I'd suggest you replace that with something else before someone smarter than
myself gets ahold of it and has a ball with it.

[ Reply to This | # ]

Fun With System Calls
Authored by: sk43 on Monday, November 16 2009 @ 07:22 PM EST
On its website, SCO has posted a link to the slides that it presented in Court
on March 7, 2007 in opposition to IBM's Motion for SJ on its 10th counterclaim
(Declaration of Non-Infringement):

http://www.sco.com/company/legal/update/website2.3.pdf

In these slides, SCO presents it evidence that Linux infringes its alleged
copyrights. Slide 11, in particular, presents Thomas Cargill's chart comparing
System Calls in both Linux and SVR4.

On slide 12, SCO quotes from the deposition of Andy Nagle:

“SCO never placed any language on the UnitedLinux 1.0 material or the SCO Linux
Server 4.0 material indicating that SCO granted any license or rights to such
material under the GPL or any other ‘open source’ license.”

Now that's interesting. You can fetch the "UnitedLinux 1.0 material",
in particular, patches to the 2.4.19 Linux kernel, from this ftp site:

ftp://ftp.suse.com/pub/unitedlinux/1.0/src/kernel-source-2.4.19.SuSE-82.nosrc.rp
m

Digging down, we come to this patch:
50_linux-abi-2.4.18.0-2.4.19-pre10

You can also fetch this patch from the linux-abi site over at Sourceforge:
http://linux-abi.sourceforge.net/

This patch contains code that allows one to run SCO OpenServer, UnixWare, and
related binaries on Linux. In particular, it contains code that maps SVR4
system calls into Linux system calls. Here are exerpts from one of those
files:

--------------------

abi/svr4/stat.c b/abi/svr4/stat.c

* Copyright (c) 2001 Caldera Deutschland GmbH.
* Copyright (c) 2001 Christoph Hellwig.
* All rights reserved.
*
* This program is free software; you can redistribute it and/or modify
* it under the terms of the GNU General Public License as published by
* the Free Software Foundation; either version 2 of the License, or
* (at your option) any later version.

...

/*
* SVR4 stat & friends support.
*/

-----------------------

That's right, this file contains several of Thomas Cargill's SVR4 system calls
such as "stat", "lstat", and "fstat", all with a
friendly Caldera Deutschland copyright notice. [Oh yes, the copyright notice
was added AFTER Caldera had closed on the acquisition of the Server Software and
Professional Services divisions of Santa Cruz.]

Now for the fun part. Christoph Hellwig and most of the other Caldera Linux
developers worked at the Caldera Deutschland subsidiary of Caldera
International, located in Erlangen Germany. Guess who was the "Managing
Director" of this facility?

It was Hans Bayer. Vice President of International Sales, and currently part of
SCO's top-level management team.

http://www.sco.com/company/execs/hbayer.html

"After the acquisition by Caldera Inc. in June 2001 he was the Managing
Director of the Caldera Development Center in Erlangen, Germany, until
2002."

[ Reply to This | # ]

Why the GPL Sinks SCO's Copyright Infringement Claims, Even if it Owned the Copyrights
Authored by: SRL on Monday, November 16 2009 @ 09:48 PM EST
I think SCO is skewered for all the other reasons mentioned, but it isn't clear
to me that the argument about unknowing distribution couldn't in principle work,
for some other defendant. If one distributes Linux really without knowledge that
someone else had added one's own copyrighted material to it, it might be
possible to make that argument in court. At the least, one would surely still
have standing to sue the party that put the material in Linux without
permission.

What screws SCO is that they kept distributing Linux after they knew their code
was in there. Not to mention that they would have a hard time establishing that
anything was in there that they didn't know about, since they were a Linux
vendor.

[ Reply to This | # ]

Just one thing you're glossing over
Authored by: Anonymous on Monday, November 16 2009 @ 10:01 PM EST
I don't mean to nitpick, but it was noted in something Eben Moglen said and
you've kind of glossed it over. If the GPL distribution by employees was truly
not authorized, then the release wasn't legal and not done by the copyright
owner. So they wouldn't be bound to the GPL. It hasto be done with the copyright
owner's permission. Now of course, we know that isn't the case here.

I mean if my secretary or accountant were to copy my sourceocde onto a disk and
post it on Freshmeat under the GPL and I don't discover it for a year, I can
certainly take back all those licenses and every copy of the sourcecode and
binaries, because it was never legally released under GPL. If this weren't the
case anyone could steal anyone's software and release it under the GPL. Just
being released by an employee doesn't make it a legal and binding irrevocable
distribution.

Of course, that isn't the case with SCO. They released it and knew it was
released and make no effort to undo it. So by doing nothing, even if you buy
their story, they gave up that argument.

[ Reply to This | # ]

Not quite ready for a courtroom
Authored by: crs17 on Monday, November 16 2009 @ 10:07 PM EST

I agree with this article and why it says SCO is toast. But this argument is not sufficient for presentation in a courtroom.

As I read this article, most of the arguments come from the GPL Frequently Asked Questions. While I have no doubt that the FAQ is written by a combination of the GPL authors and other people who have done an incredible amount of legal analysis on the GPL, that's not what a court would need to hear. I think a winning legal argument has to be much more tied directly to the text of the GPL, not to the common understanding. Of course, this article is a road map to just how to make such an argument - but the argument still has to be written out with more reference to the license text itself.

[ Reply to This | # ]

Copyright Infringement and GPL Code
Authored by: rsteinmetz70112 on Monday, November 16 2009 @ 11:30 PM EST
I really don't follow this line or reasoning. Let me propose the following
hypothetical.

1) I write some code for a project and retain all rights as author.

2) Later someone not necessarily involved in the original project decides to
cobble together some code they happen to have laying around. They include my
code without my knowledge or permission. (That is certainly a copyright
violation.)

3) The cobbled code is released under the GLP. (Clearly that is improper.)

4) I later decide that the GPL project is useful to me and I develop something
incorporating the GPL code and distribute the result under the GPL (in
compliance with the terms of the GPL) ignorant that my old code had been
improperly incorporated into the project.

Has my old code now been GPL'd?

Should I have scoured the all of the GPL code to determine if any of my code was
improperly included in it?

I'm not saying that this is what happened to SCO. They are clearly full of it.
I'm asking if this inadvertently invalidated my rights under copyright.

---
Rsteinmetz - IANAL therefore my opinions are illegal.

"I could be wrong now, but I don't think so."
Randy Newman - The Title Theme from Monk

[ Reply to This | # ]

But who cares about compliance?
Authored by: tz on Tuesday, November 17 2009 @ 12:35 AM EST
I personally tried to report a very glaring violation of the GPL - an no one
cared. I tried to tell the SFLC and they said I couldn't tell them. No, I
don't understand why. The device is an embedded system you could buy today, and
it says part of the software is under the GPL, and to my knowledge NONE of it is
available (it is possible something happened in the last few months).

I guess they only go after high-profile cases. If you are careful enough or not
glamorous enough, feel free to violate the GPL - no one will ever come after
you.

[ Reply to This | # ]

But I didn't mean to -Why the GPL Sinks SCO's Copyright Infringement Claims, Even if it Owned...
Authored by: Anonymous on Tuesday, November 17 2009 @ 07:55 AM EST
"I didn't mean to do it"

Hardly! With the name change to SCO they were attempting to obfuscate the
issue. But make no bones about it. They deliberately and with intent meant to
distribute Linux under the GPL. Caldera was a Linux company before they bought
SCO's Unix business. They very diligently with full intent distributed Linux
under the GPL. That was their business.

But since they decided to sue people for copyright infringement, I still believe
we need to go through the steps. First, establish they don't have the
copyrights. Then it doesn't matter if they distributed Linux under the GPL
because they don't have the copyrights in Unix to base the suit on.

Are you afraid that the jury might find that the vague amendment is a clear
writing? Remember jurors are not experts in the law. But if the law says that
there must be a clear writing specifying which copyrights are transfered anyone
with common sense can see that the amendment is not a clear writing. In this
one small detail, I have confidence the jurors will do the right thing.

[ Reply to This | # ]

Let me get this straight...
Authored by: Anonymous on Tuesday, November 17 2009 @ 08:40 AM EST
So, say, I write some code that I distribute to my customers
for a fee.

Now developer A goes and takes my copyrighted code and
includes it somewhere in the Linux kernel.

At some later point in time, I choose to sell a Linux
distribution in my online store, not knowing that A has
added my copyrighted code in it.

Now the GPL says "good luck finding developer A and suing
him for that, but you can't stop anyone from using the
version that contains your code because you distributed it
under this license"?

I understand both sides of the medal:

1. The GPL wants to stop people from distributing something
to someone and then, at some later time, going after that
someone because "there was something in there which didn't
belong".

2. OTOH, it means that every time I distribute GPL'd code, I
risk retroactively authorizing a copyright violation because
I didn't look at all the source code if there was some of my
copyrighted material being illegally put there?
(And remember we're not actually talking about a simple
automated search here.)

Don't get me wrong, I'm all OSS myself, but that's a catch
that I didn't realize earlier.
Isn't this something that might make people want to not use
the GPL?
Isn't this something that might make people not want to
distribute GPL'd software (unless they're not in the
software business themselves)?

___
magicmulder

[ Reply to This | # ]

PJ seems to obfuscate issues
Authored by: Anonymous on Tuesday, November 17 2009 @ 10:55 AM EST
Let me help you with these facts:

1. OldSCO did not contribute Unix code to Linux

2. OldSCO did not distribute the Linux kernel

3. NewSCO (Caldera) bought two key divisions from oldSCO: UnixWare and
OpenServer technologies.

Is newSCO incapable to protect oldSCO's IP due to the GPL?

[ Reply to This | # ]

Santa Cruz --> Santa Claus?
Authored by: Anonymous on Tuesday, November 17 2009 @ 11:45 AM EST
Assuming Santa Cruz owned the Unix Copyrights and IBM and others did improperly
contribute its code to the Linux Kernel, does Santa Cruz suddenly become Santa
Claus simply because Caldera (a Linux distributor) buys Santa Cruz?

Can SCO wear both hats?

[ Reply to This | # ]

What is the figure against SCO for copyright infringement?
Authored by: SilverWave on Tuesday, November 17 2009 @ 02:49 PM EST
Heh the silly numbers from NewSCO allaws annoyed me with the "Billions and
billions"...

but

What is a reasonable estimate of the figure against SCO for copyright
infringement?

I have had a look but cant see anything quoted...



---
RMS: The 4 Freedoms
0 run the program for any purpose
1 study the source code and change it
2 make copies and distribute them
3 publish modified versions

[ Reply to This | # ]

Relicense?
Authored by: peope on Tuesday, November 17 2009 @ 03:42 PM EST
I have been pondering if there is a hole in the GPLv2.

As far as I can tell you are allowed to relicense a derivative work as long as
it does not restrict any of the freedoms in GPLv2.

Wouldn't that give a third party an option to make some changes to create such a
work and relicense it.

If the third party then offers this license to an offender of a GPL license for
a copy - does this not make it possible for the offender to get off the hook as
he now has a valid license for the work?

How are relicensing handled in GPLv2?

It gives a lot of freedoms both technically (or in lawspeak) and in the spirit
of the license.

Can you really stop a bloke that broke the a GPL license on a work to get a new
license by the rights of a third party?

(GPLv3 is more into sanctions when you do not follow the conditions than GPLv2
is AFAIK)

A good thing considering what it is meant to do.

Push peeps to really share their programs if they are to share them at all for
the benefit of the society. (Sort of a war against closed software)

[ Reply to This | # ]

Confused...
Authored by: Anonymous on Tuesday, November 17 2009 @ 03:48 PM EST
A couple of things -
First, this article makes the GPL sound as scary as some in the IT world try to
make it out to be.. You are painting SCO as a company trapped by the GPL rather
than their own lies.

Now, if a company can change its EULA at will, why not its copyright terms? They
seem to be the same thing to me - A license that spells out what you can or
cannot do. I assume I am missing some vital point, but I cannot for the life of
me see it.

[ Reply to This | # ]

Why the GPL Sinks SCO's Copyright Infringement Claims, Even if it Owned the Copyrights
Authored by: Anonymous on Tuesday, November 17 2009 @ 04:15 PM EST
So, either, SCO's Chapter 11 Trustee Edward Cahn, is foolish enough to believe
what Boies, Schiller & Flexner are telling him, or he is acting no different
than Darl McBride. After all, blustering to try and get a settlement on terms
preferable to SCO, is what Darl did, right? He thought enough threats and IBM
would buckle under and give SCO a ton of money. How is this new Trustee's
behavior any different.

He is talking about vigorously pursing the litigation. He also doesn't come off
as anybodies fool. So, maybe he is just still trying to get his feet under
himself. I will give a a little time to get there. But, if in a couple months
he continues down this same path; I think it shows he is no better than Darl.
Trying to make a buck on other peoples work.

[ Reply to This | # ]

Wow haven't seem this many trolls in a while :) -nt
Authored by: SilverWave on Tuesday, November 17 2009 @ 04:18 PM EST
.

---
RMS: The 4 Freedoms
0 run the program for any purpose
1 study the source code and change it
2 make copies and distribute them
3 publish modified versions

[ Reply to This | # ]

Forgive me if I'm wrong
Authored by: Leg on Tuesday, November 17 2009 @ 04:37 PM EST
It seems to me that, at least with regard to the IBM case, which is the only one
where SCO ever had any serious hope of recovering damages, the discovery phase
of the trial completed long ago without the necessary copyright infringements
being revealed to allow the case to be found in SCO's favor even if everything
written here by the assembled masses were wrong...

[ Reply to This | # ]

A general observation about Trolls and trolling
Authored by: tiger99 on Tuesday, November 17 2009 @ 06:25 PM EST
Those who have followed the fiaSCO for the last 6 years, or even the last 2 years, will know that trolling escalates just before something bad happens to SCO in court.

These last few days there has been an obscene amount of trolling, plus whatever PJ has cleaned up without us seeing it.

Does this extreme rise in trolling mean that as far as SCO is concerned, The End is Nigh?

The share price will be rising next......

[ Reply to This | # ]

A GPL Question?
Authored by: Kanth on Wednesday, November 18 2009 @ 09:31 AM EST
I have a question.

Suppose I am the president of some company. I have my employees make a tool,
this specifically ends up going to one coder. That coder writes the code and
produces the tool.

I will call that coder, John Smith. At this point John Smith has written my
company code. John Smith like most employees wrote that code on company time for
pay. The code is not owned by him, but by the company, as per his employment
agreement.

This tool is sold in binary form, it effectively makes my company a profit. It
is a useful tool.

John Smith leaves the company. He has a copy of his source code because he
seldom throws anything he can reuse away. Later on he decides to donate the
source and such to the FSF. He claims of course to own this code, otherwise he
could not supply them a license. It becomes distributed in some sort of GPL'd
software.

A few months later, my company begins to investigate why profits are dropping on
our tool. We find out about a competing GNU tool. Eventually because it is free,
we download a copy and look at it, and analyze it, and find.. it is our code.

At this point it has been released into the wild. Multiple distributions of the
GNU software has this code.

What is my action of recourse at that time? I would assume that I could inform
the FSF, and state my case. I would also assume that the FSF would work with me
to either release my code, or they will remove the infringing tool/code. I am
not really after the FSF, and so far as I see it, they were lied to, I'm not
after this.

Whom do I go after? I would assume John Smith. But what about all those previous
versions of the GNU tool that are in the wild. Is their _license_ no longer
valid? Can someone build off of that code (mine), on the GPL license that states
it was free software, even though the FSF never had a valid license for the
source?

At this point in the marketplace, I am competing against, my own tool. I did not
release my code. A former employee who had no rights to that code released it. I
could sue him, I'm sure I would win.

But this doesn't help me in the market. While the FSF might stop distributing my
code. Does the GPL license for the versions already distributed, give those
recipients the right to make their own distributions as they please? Do I have
to continue to fight with, what is effectively, my own product in the
marketplace?

-Kanth

[ Reply to This | # ]

Why we missed the point on SCO's "Copyrightgement Claims, Even if it Owned the Copyrights
Authored by: Sunny Penguin on Wednesday, November 18 2009 @ 02:02 PM EST
If The SCO Group does not accept the GPL, what license do they have to modify(or
to even download)the GPL'd code before they modified it?

The SCO Group, by their own admission, is guilty of copyright theft.

---
EOD is a science of vague assumptions based on debatable data taken from
inconclusive experiments with instruments of problematic accuracy by persons of
questio

[ Reply to This | # ]

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