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SCO Says It Will Argue Copyright Preempts GPL
Thursday, August 14 2003 @ 10:15 AM EDT

Well, they have to try something.

Here's what the Wall Street Journal is saying today (a link would be useless unless you have a sub):

Now, SCO is preparing to wheel out the software-industry equivalent of a nuclear bomb: It will argue that the GPL itself is invalid, says SCO's lead attorney, Mark Heise of Boies Schiller & Flexner LLP. Mr. Heise says the GPL, by allowing unlimited copying and modification, conflicts with federal copyright law, which allows software buyers to make only a single backup copy. The GPL 'is pre-empted by copyright law,' he says. . . .

Wednesday, a spokesman said Microsoft thinks 'the industry would benefit' from a court ruling on the GPL. . . .

James Boyle, an intellectual-property professor at Duke University's law school, says, "I have a hard time seeing any court saying this license isn't enforceable," in part because it covers so much important software. "Courts pay attention to that pragmatically, and it's legally relevant because the consequences [of overturning it] would weigh heavily."

You know how they say hearing from your doctor you're going to die soon from a disease is followed by stages, denial, grief, anger, and finally acceptance? I think SCO is in the denial phase. If this is their best shot, somebody needs to arrange grief counselling for them, because it's on the horizon.


  


SCO Says It Will Argue Copyright Preempts GPL | 55 comments | Create New Account
Comments belong to whoever posts them. Please notify us of inappropriate comments.
radiocomment
Authored by: Anonymous on Thursday, August 14 2003 @ 07:30 AM EDT
"SCO is preparing to wheel out the software-industry equivalent of a nuclear bomb" "It will argue that the GPL itself is invalid,..." "...[since] by allowing unlimited copying and modification, conflicts with federal copyright law, which allows software buyers to make only a single backup copy"

if that is their basic argument then we have the equivalent of a Mody Pythons Film not of a nuclear bomb


Nick Demou

[ Reply to This | # ]

radiocomment
Authored by: Anonymous on Thursday, August 14 2003 @ 07:34 AM EDT
And here I thought copyright meant giving the creator of a work the right to make copies. If I, as an author say, wanted to write a story I get immediate copyright control over my story when I am done. If I decide to print copies of my story and hand them out on the street corner, I have that right. Unlimited copies, if I wish.

They are saying that the software angle short-circuits this argument. That federal copyright law on software is different, for it explicitly talks about how you are only allowed to make a backup copy of your software. But that cannot possibly trump the right of a software author who wishes to give his code away.


Nick

[ Reply to This | # ]

radiocomment
Authored by: Anonymous on Thursday, August 14 2003 @ 07:39 AM EDT
PJ, I'd think there's case law on someone giving stuff away that someone else didn't want them to give away. I'd imagine that there have been cases ranging from people willing money to charities rather than their children to crazy people handing their own money/cars/stuff out on the street corner.

As I recall correctly, most of these cases are resolved in ways that say the owner of the property can do as they please with their own stuff. How would this area of the law relate to the GPL and other "open source" licenses, and could the case law from these cases be used in court if SCO attacks the GPL?


Alex Roston

[ Reply to This | # ]

radiocomment
Authored by: Anonymous on Thursday, August 14 2003 @ 07:47 AM EDT
My opinion, Alex, is that this is just more PR. They certainly have a good PR
firm. Hence my metaphor.
pj

[ Reply to This | # ]

radiocomment
Authored by: Anonymous on Thursday, August 14 2003 @ 07:50 AM EDT
I couldn't help but thinking. Is our judicial system so corrupted that SCO
actually believes the court would allow such an argument?
Quan

[ Reply to This | # ]

radiocomment
Authored by: Anonymous on Thursday, August 14 2003 @ 07:52 AM EDT
The story from SCO has been so inconsistent up to this point you have to wonder whether this isn't just another trial balloon. On the other hand, it is coming from the attorneys and not the PR agency, right?

This would certainly suggest they're afraid every other piece of their strategy is doomed. To dangle all the proceedings from such a frayed thread must be pretty humiliating.


Frank Brickle

[ Reply to This | # ]

radiocomment
Authored by: Anonymous on Thursday, August 14 2003 @ 07:53 AM EDT
"GPL, by allowing unlimited copying and modification, conflicts with federal copyright law, which allows software buyers to make only a single backup copy."

(...a moment of stunned silence...)

PJ, you have been absolutely right all along. They've missed it. They have really missed it. They really don't grok GPL at all. GPL doesn't restrict copy rights, it extends them. Federal law doesn't mandate AT MOST a single backup copy, just allows AT LEAST one backup copy no matter what the copyright holder wants. The copyright holder is free to allow unlimited copying if desired.

And the copyright holder is free to allow unlimited copying as long as the copier plays by a certain set of rules.

And one of those rules can say, if you combine this work with some of your work and distribute it, you have to allow unlimited use of your work, too.


Rand

[ Reply to This | # ]

radiocomment
Authored by: Anonymous on Thursday, August 14 2003 @ 07:53 AM EDT
They are clearly attempting to win a PR campaign, rather than a legal campaign.

Either that, or they are insane.

Borland had (has?) a software license styled after "a book". It allows you to make as many and use as many copies of the software as you want as long as only one of those copies is used at the same time. For example, you can by one copy and install it at home, work, and on your laptop as long as it is used only in one place at a time.

Is SCO arguing that this license is illegal as well?

What about "site licenses" that allow you to install one copy of the software on every machine at a geographic location? Are those customers violating the "software can only be copied once" as well?

The GPL is no different. It is a license that allows you to make copies of the software and source code if you follow certain conditions.

Mad.


Mark Levitt

[ Reply to This | # ]

radiocomment
Authored by: Anonymous on Thursday, August 14 2003 @ 07:53 AM EDT
They are clearly attempting to win a PR campaign, rather than a legal campaign.

Either that, or they are insane.

Borland had (has?) a software license styled after "a book". It allows you to make as many and use as many copies of the software as you want as long as only one of those copies is used at the same time. For example, you can by one copy and install it at home, work, and on your laptop as long as it is used only in one place at a time.

Is SCO arguing that this license is illegal as well?

What about "site licenses" that allow you to install one copy of the software on every machine at a geographic location? Are those customers violating the "software can only be copied once" as well?

The GPL is no different. It is a license that allows you to make copies of the software and source code if you follow certain conditions.

Mad.


Mark Levitt

[ Reply to This | # ]

radiocomment
Authored by: Anonymous on Thursday, August 14 2003 @ 08:02 AM EDT
Before the lawsuit started in March and even afterwards SCO touted the contributions of IBM such as JFS when advertising they new releases such as OpenServer 3.1,4.0. It is clearly written in their press releases for these products that they posses interesting new journaled file systems such as JFS. Go here (http://www.sc o.com/products/scolinuxserveripf/features.html) and check half-way down the page under "Expanded Journaled Filesystem support". I would be surprised if the other improvements under "Next-generation enterprise features" do not involve RCU,NUMA-Q or Scheduler improvements that they are now claiming to violate their "IP".

So much for "We didn't know what was in it when we distributed the products under the GPL". Isn't this sufficient evidence to knock down their case with respect to the GPL?

/mink


minkwe

[ Reply to This | # ]

radiocomment
Authored by: Anonymous on Thursday, August 14 2003 @ 08:03 AM EDT
This is certainly not any crazier than any of the other wild things they have
been quoted as saying.I am not a computer geek nor a lawyer but reasonable
intelligence leads me to believe that this is a pump and dump scheme totally. It
has been carefully planned and played out to a script.The conference call should
be very interesting today.I wonder why more about the IBM lawsuit against sco
for patent infringement hasnt been covered more
br3n
brenda banks

[ Reply to This | # ]

radiocomment
Authored by: Anonymous on Thursday, August 14 2003 @ 08:05 AM EDT
In that case, how can SCO distribute copies of GPL software legally, or for that matter their own software? In fact, how can any software author distribute copies of their software (regardless of the specific license terms) if they're only going to make 1 copy ever.

Alternatively maybe they are saying maybe a copyright owner can not sublicense the right to make copies??? In this case, how can SCO distribute GPL software? How can Microsoft allow you, with a site license, to install Windows on lots of machines? How can many large software companies sublicense their VARs or resellers to make copies of their software?? How could AT&T sublicense IBM and others to make copies of their UNIX source code??

IANAL, but it makes no sense to me, unless you assume everyone in software, not just GPL software, including SCO, Microsoft, IBM, and pretty much everybody else, is acting illegally??

Are SCO going to shutdown their site license sales program for Unixware. By the same logic, I think it would be just as illegally, if a copyright holder can't sublicense the right to make copies of software.

> "On the other hand, it is coming from the attorneys and not the PR agency, right?"

Are you sure there's a big difference? SCO attorneys appear at conference calls, are quoted in press releases, and even do interviews with LinuxGram.


quatermass

[ Reply to This | # ]

radiocomment
Authored by: Anonymous on Thursday, August 14 2003 @ 08:19 AM EDT
I found another gem from their website:

http://www.s co.com/images/pdf/scolinux/SCO_Linux_DS3.qxd.pdf

Check the second page under features for business. I'm sure you can find the date of the document in the PDF properties. It clearly mentions NUMA, O(1) scheduler,SMP there!!!


minkwe

[ Reply to This | # ]

radiocomment
Authored by: Anonymous on Thursday, August 14 2003 @ 08:21 AM EDT
> It will argue that the GPL itself is > invalid, says SCO's lead attorney, Mark > Heise of Boies Schiller & Flexner LLP. Mr. > Heise says the GPL, by allowing unlimited > copying and modification, conflicts with > federal copyright law, which allows software > buyers to make only a single backup copy. > The GPL 'is pre-empted by copyright law,' he > says. . . .

Correct me if I'm wrong, but isn't that the POINT of the GPL, or any other software license?? To modify the user's rights from those that are explicitly granted by copyright? And if federal law only allows one copy per software buyer, doesn't that mean that SCO itself was illegally copying Linux for a while?

This is idiotic. Just idiotic.


Dan

[ Reply to This | # ]

radiocomment
Authored by: Anonymous on Thursday, August 14 2003 @ 08:24 AM EDT
Just a though, but Mr. Heise is a Florida lawyer and the Florida Bar's Rules of Professional Conduct state that a lawyer must be truthful in statements to others and must not misrepresent facts or laws.

" A lawyer is required to be truthful when dealing with others on a client's behalf, but generally has no affirmative duty to inform an opposing party of relevant facts. A misrepresentation can occur if the lawyer incorporates or affirms a statement of another person that the lawyer knows is false. Misrepresentations can also occur by failure to act.

Statements of fact

This rule refers to statements of fact. Whether a particular statement should be regarded as one of fact can depend on the circumstances. Under generally accepted conventions in negotiation, certain types of statements ordinarily are not taken as statements of material fact. Estimates of price or value placed on the subject of a transaction and a party's intentions as to an acceptable settlement of a claim are in this category, and so is the existence of an undisclosed principal except where nondisclosure of the principal would constitute fraud."

http://www.flabar.org/divexe/rrtfb. nsf/8bf68c7a6fda323085256bc800648cce/2070ae1eef63a33d85256bbb006b7720?OpenDocume nt


Mark Levitt

[ Reply to This | # ]

radiocomment
Authored by: Anonymous on Thursday, August 14 2003 @ 08:29 AM EDT
One thing I notice is that this quote in the Wall Street Journal is from someone
at Boies Schiller & Flexner. Up to now, SCO's legal team has been very quiet
and all the FUD has been generated by SCO management and PR people. This seems
like a significant change of tactic, and I wonder if it should be given more
credance because it comes from a part of the team not noted for their FUD. style="height: 2px; width: 20%; margin-left: 0px; margin-right: auto;">Calibax

[ Reply to This | # ]

radiocomment
Authored by: Anonymous on Thursday, August 14 2003 @ 08:34 AM EDT
Calibax,

Heise is quoted in at least one press release

Boies attended a conference call

One of the attorneys (not sure which), according to IBM, gave interview to LinuxGram (I haven't been able to find an archive of this interview)

Boies also gave a press interview


quatermass

[ Reply to This | # ]

radiocomment
Authored by: Anonymous on Thursday, August 14 2003 @ 08:41 AM EDT
Just a guess, but perhaps this press release is written rather badly. Trusting that they haven't entirely gone nuts, what they could mean is that the GPL is violating their rights to control distribution of their own software.

It still shouldn't matter: there is nothing in copyright law that forbids the owner from granting rights above and beyond the minimums copyright law grants (wasn't increased deference to the wishes of copyright owners one of the points of the DMCA?), and since SCO released Linux, including their alleged code under the GPL, it would seem they have no case. But the usual IANAL disclaimer applies to my opinion.

Perhaps their eagerness to have the GPL declared unenforceable is understandable, considering the reporting here that SCO may have co-opted GPL'ed code. But if they followed this line of reasoning, I wouldn't think it would leave SCO off the hook.


Jonathan Williams

[ Reply to This | # ]

radiocomment
Authored by: Anonymous on Thursday, August 14 2003 @ 08:47 AM EDT
SCO could end up being the company that proved that the GPL is bullet proof!
# PAUSE FOR IRONY! #
And MS could have helped(by buying SCO Licences etc.)
LOL!
Brian

[ Reply to This | # ]

radiocomment
Authored by: Anonymous on Thursday, August 14 2003 @ 08:51 AM EDT
IANAL, I agree there are two sides to it

1. Their attack on Linux - GPL unenforceable might help bolster their arguments, but it seems tenuous.

2. Their defense to GPL based counter claims (including IBM's). If GPL is unenforceable, then by what right are SCO distributing Linux? They are doing so contrary to the non-IBM copyright holders wishes. Further more, even if IBM wins on their claims on IBM AIX/Dynix code, if IBM contributed any code that didn't originate in AIX/Dynix. any code at all, winning their claim on AIX/Dynix issues wouldn't help them with the counter claim except to reduce the scale of the defeat??


quatermass

[ Reply to This | # ]

radiocomment
Authored by: Anonymous on Thursday, August 14 2003 @ 08:53 AM EDT
Wow, with arguments like that, I think I'd rather hire Lionel Hutz than this Boies guy. Tell me, he lost the Microsoft case, he lost the Gore case. Has he ever actually won a case?
Zachary Williams

[ Reply to This | # ]

radiocomment
Authored by: Anonymous on Thursday, August 14 2003 @ 09:03 AM EDT
Jonathon:"Just a guess, but perhaps this press release is written rather badly. Trusting that they haven't entirely gone nuts, what they could mean is that the GPL is violating their rights to control distribution of their own software."

Me:Trusting that they haven't gone entirely nuts may take a bit of a leap of faith right now, but I think this is the only way that SCO's argument makes any kind of sense: that the part of the GPL which requires any works derived from GPL'd software to be released under the GPL is invalid. It still sounds dodgy, but I don't think it would be laughed out of court the way that a claim of "the entire GPL is invalid" would. IANAL, etc.


Zed

[ Reply to This | # ]

radiocomment
Authored by: Anonymous on Thursday, August 14 2003 @ 09:23 AM EDT
That's not a nuclear bomb, it's a petard. If SCO's theory is upheld, then they
are guilty of massive infringement of the Linux kernel
and quite a few other pieces of software that they only had the right to make
one backup copy of, and NO right to sell or distribute.
If the kernel developers file a suit for copyright infringement, it should be
quite entertaining to watch SCO claim that the GPL gives
rights only to them but not to any other users.
Paul Hughett

[ Reply to This | # ]

radiocomment
Authored by: Anonymous on Thursday, August 14 2003 @ 09:53 AM EDT
SCO misses the point in another very significant manner. By publishing a work under the GPL, the copyright is assigned to the Free Software Foundation ( http://www.gnu.org/copyleft/w hy-assign.html ). The FSF as the copyright owner gets to set the terms of use and has done so under the GPL.
jim

[ Reply to This | # ]

radiocomment
Authored by: Anonymous on Thursday, August 14 2003 @ 09:54 AM EDT
Um, okay. Here's what I think they're going for (IANAL).

According to FSF's attorney, if the GPL is invalid, then it falls back to regular copyright law. In other words, Linus and everyone else would hold the right to say who can and who can't copy their code.

I think what SCO's going for is, the GPL is illegal due to some technicality, but it DOESN'T revert to ordinary copyright law. Because the sources are so widely available, SCO might argue, they should rightfully be considered part of the public domain -- meaning anyone, including SCO, has the right to sell them under any terms they wish.

That WOULD be a "nuclear bomb", but I have no idea what the "technicality" above might be. Also, from law.com I gather that something is "public domain" only if its copyright has expired, which is what, 75 years now?

Maybe I'm trying to hard to rationalize SCO's action.


Paul

[ Reply to This | # ]

radiocomment
Authored by: Anonymous on Thursday, August 14 2003 @ 10:11 AM EDT
If (according to SCO) source being widely available makes something public
domain, then why wouldn't the same rule apply to any SCO code in Linux style="height: 2px; width: 20%; margin-left: 0px; margin-right:
auto;">quatermass

[ Reply to This | # ]

radiocomment
Authored by: Anonymous on Thursday, August 14 2003 @ 10:12 AM EDT
If (according to SCO) source being widely available makes something public domain, then why wouldn't the same rule apply to any SCO code in Linux

Actually one other point from the USL/BSD case: I don't think the judge said BSD is not copyrighted, despite the copyright holders giving away even more rights than GPL


quatermass

[ Reply to This | # ]

radiocomment
Authored by: Anonymous on Thursday, August 14 2003 @ 10:14 AM EDT
Jonathan Williams and Zed,

SCO's arguments about the GPL mean butt-kiss. It's just the pot calling the kettle black.

Recall that SCO is suing IBM for supposedly taking a derivative work and sticking it in Linux. Well, the GPL says you can't take GPL code and combine it with non-GPL'ed code. So what's SCO getting at? You are legally bound to obey my rules but I'm not legally bound to obey your rules - even though we are saying essentially the same thing? You're giving them way more credit than they deserve.

Johnathan, regarding you comment,

> "Just a guess, but perhaps this press release is written rather badly. Trusting that they haven't entirely gone nuts, what they could mean is that the GPL is violating their rights to control distribution of their own software."

Their own software? Since when does anyone have ownership rights over other people's work, unless they were given such rights by contract - which requires consideration (i.e. some sort of a payment)? Did SCO send a check to every Linux coder? No. So when did they magically get rights to "their" software?

Seriously, people. Let's quit giving SCO credit they do not deserve. They thrive off ignorance, confusion and doubt.

p.s. this is not meant to be an insult to any of the posters. Please don't take it the wrong way. :-)


MajorLeePissed

[ Reply to This | # ]

radiocomment
Authored by: Anonymous on Thursday, August 14 2003 @ 10:18 AM EDT
Major, Please realize I'm not agreeing with SCO's position -- just trying hard (very, very hard) to understand it.

SCO claims ownership rights to some code in Linux. It stands to reason they may assert the GPL is taking away rights to that code. Or somesuch.

Not saying I agree with it, mind you...


Jonathan Williams

[ Reply to This | # ]

radiocomment
Authored by: Anonymous on Thursday, August 14 2003 @ 10:22 AM EDT
Jim:

The FSF does not get automatically assigned copyrights for work released under the GPL. They only insist that the copyrights are assigned for the own projects. Linux is not a FSF project. Linus and others hold the copyrights to Linux. Not all GPL projects are FSF projects.

-dp-


David Person

[ Reply to This | # ]

radiocomment
Authored by: Anonymous on Thursday, August 14 2003 @ 10:23 AM EDT
Boies should be disbared.
Aaron

[ Reply to This | # ]

radiocomment
Authored by: Anonymous on Thursday, August 14 2003 @ 10:24 AM EDT
"Because the sources are so widely available, SCO might argue, they should rightfully be considered part of the public domain"

The New York Times, Disney movies, Britney Spears, and Stephen King are also widely available, have they also become part of the public domain? Is Britney Spears public domain because there are millions of copies floating around on Kazaa or Napster or whatever - I don't think the courts ever rules anything like that!

IANAL, but I just can't see it:

1. It would mean for any successful product, the copyright holder could lose their rights. That doesn't seem the intent of the law.

2. I think it would put the US in violation of the Berne Convention. I doubt that is what congress intended when making US law.

3. SCO's rhetoric is all about protecting IP rights - now they want to assign vast quantities of other people's copyrighted works to the public domain, while protecting what they claim are their rights. I just can't see any fair-minded a judge liking this line of reasoning.

I am sure there are cases about items in source code. Probably sample programs, or programs in books.

There is also the BSD case - I don't recall the judge thinking their (BSD) copyrights were invalid, despite numerous copies and a very liberal license.


quatermass

[ Reply to This | # ]

radiocomment
Authored by: Anonymous on Thursday, August 14 2003 @ 10:24 AM EDT
No problem. Thought we were losing some of you to the dark side. =) style="height: 2px; width: 20%; margin-left: 0px; margin-right:
auto;">MajorLeePissed

[ Reply to This | # ]

radiocomment
Authored by: Anonymous on Thursday, August 14 2003 @ 10:27 AM EDT
Re: David

I think that I read somewhere the FSF does have a copyright on one version of Linux and/or some contributions. I'm pretty sure it includes some IBM work (may be S/390 stuff??). I don't have a link to confirm or disprove this.

I also read somewhere, possibly somewhere else, FSF sent SCO a letter asking what if any FSF software they think it infringed. Again I don't have a link to confirm or disprove this.


quatermass

[ Reply to This | # ]

radiocomment
Authored by: Anonymous on Thursday, August 14 2003 @ 12:38 PM EDT
http://www.fsf.org/philo sophy/sco-statement.html
"The Foundation notes that despite the alarmist statements SCO's employees have made, the Foundation has not been sued, nor has SCO, despite our requests, identified any work whose copyright the Foundation holds-including all of IBM's modifications to the kernel for use with IBM's S/390 mainframe computers, assigned to the Foundation by IBM--that SCO asserts infringes its rights in any way."
Adrian

[ Reply to This | # ]

radiocomment
Authored by: Anonymous on Thursday, August 14 2003 @ 02:40 PM EDT
Slashdot is full of the usual outrage

IANAL, but I think:

1. instead it shows the weakness of SCO's position.

2. probably, the legal theory of GPL invalid is forced on SCO's attorneys by SCO's actions.

3. even if SCO prevails on the GPL being invalid, it could be invalid in such a way as to kill SCO's case

Point 1: SCO now have to prove they have standing to sue IBM, etc., IBM did the bad things they're alleging, IBM broke the contracts, SCO had a right to revoke IBM's license if IBM broke the contracts, etc., etc., AND the GPL is invalid

Point 2: Consider the sequence of events

- SCO sues IBM

- Some weeks later, SCO suddenly realizes it shouldn't distribute Linux as this might undermine their case against IBM, so stops selling it.

- For whatever reason, they don't remove it from their web site. My guess is because they need support money from existing customers.

- Months later, they add a message to their site saying it's only for existing customers (but, hey, that's still distribution!)

Their Linux license scheme, and continued distribution of Linux, puts them in violation of the GPL and may be massively violating copyright. IBM asserts them the former. So SCO have to argue GPL is invalid

Point 3:

Consider 3 scenarios:

(i) GPL valid => result IBM's counter claim succeeds. This might also affect other areas like unclean hands.

(ii) GPL invalid, and copyrights revert to various contributors including IBM. Conclusion: SCO massively violating copyrights

(iii) GPL invalid, and GPL code is declared public domain... seems like the only situation were SCO could prevail.

Now I think (iii) is unlikely for many reasons, mostly already stated in the thread, but in particular because the court didn't rule BSD's copyrights invalid (and BSD public domain) even though they had an even more liberal license than the GPL.


quatermass

[ Reply to This | # ]

radiocomment
Authored by: Anonymous on Thursday, August 14 2003 @ 03:09 PM EDT
If you look carefully, the GPL is really a license for redistribution of software (whether modified or unmodified), not a license for its use. The GPL explicitly tells people who do nothing more than use the software that they are not bound by the license, since they have not signed it, but that any distribution of GPLed code by them constitutes acceptance of the GPL. If DISTRIBUTORS cannot be granted the right to redistribute to others in whatever quantity they want, SCO's licenses such as the one to IBM are illegal. And if such illegal licenses result in code's entering the public domain, it follows quite logically that all the code for which SCO sold illegal licenses to IBM and others must also belong in the public domain.

On the other hand, just having GPLed code revert to a proprietary state with each piece belonging to its author would solve SCO's biggest problem: the claim that by distributing Linux versions containing their proprietary code, SCO has placed that code under the GPL. But even then, SCO's strategy could backfire. If SCO is attempting to argue that its only legal basis for distributing GPLed code is invalid, yet they continue to distribute GPLed code (even just to their customers), are they not deliberately doing something they believe to be illegal?

I also suspect that the GPL's defenders will have one really tough question for SCO in court (and we can hope that the press will pick up on it even sooner): "If the GPL is illegal, how come you were using it for all those years when you thought you could make a profit under it?" SCO had better have a really good answer to that one. If I remember right, SCO (back when it was Caldera) used the perceived value of its Linux business to get the financial leverage needed to buy the rights to Unix. Using a GPL-based business to buy proprietary code and then turning around and trying to get the GPL declared invalid in an effort to increase the value of that proprietary code looks awfully fishy.


Nathan Barclay

[ Reply to This | # ]

radiocomment
Authored by: Anonymous on Thursday, August 14 2003 @ 04:04 PM EDT
It seems to me that SCO's entire legal strategy to date demonstrates a complete lack of understanding of not just the GPL, but of copyright law in general. Are we to believe that SCO's legal counsel are ignorant of copyright law? It sure seems that way, even though you'd think that a lawyer of David Bois' stature should know better.

It really makes you wonder what SCO is really up to. Beyond spreading as much FUD as they can about Linux, the GPL and FLOSS in general, there doesn't seem to be any rhyme or reason to their "legal" arguments. SCO's strategy strikes me as having been concoted by the mind of an imbicile: even if it turned out to be nothing more than a stock-pumping exercise, it's been handled with so little tact that the perpetrators would find it difficult to avoid prosecution by the SEC.

Are the executives of SCO really that stupid? Perhaps they are! All IMHO of course.


Philip Stephens

[ Reply to This | # ]

radiocomment
Authored by: Anonymous on Thursday, August 14 2003 @ 05:34 PM EDT
"SCO misses the point in another very significant manner. By publishing a work under the GPL, the copyright is assigned to the Free Software Foundation"

This is completely incorrect. Nowhere in the GPL does it require the licensor to assign his/her copyright rights to the FSF. The site quoted states that the FSF requires the author of any code >>>contributed to an FSF project<<< to assign copyright rights to the FSF, in order to streamline enforcement of the GPL as applied to that particular code. Code that is GPL'd but not contributed to an FSF project does not fall in this category. Many, many pieces of code are licensed under the GPL and are not part of official FSF projects, and the copyright of these pieces of code remains with the author.


Steve Martin

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radiocomment
Authored by: Anonymous on Thursday, August 14 2003 @ 05:45 PM EDT
(Sorry, just noted that this had already been commented on...)
Steve Martin

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radiocomment
Authored by: Anonymous on Thursday, August 14 2003 @ 06:39 PM EDT
Dan: "Correct me if I'm wrong, but isn't that the POINT of the GPL, or any other software license?? To modify the user's rights from those that are explicitly granted by copyright? And if federal law only allows one copy per software buyer, doesn't that mean that SCO itself was illegally copying Linux for a while?"

I can address part of that question, if you bear with me long enough. In order "To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries;" the states and the people granted Congress a limited power for a limited time in ratifying the Constitution, Article 1.

Those powers were never meant to keep information confidential or to impede societies progress. Trade Secrets and non-disclosure agreements don't promote progress in either science or the arts. They are handled like any other contract under the federal system. Historically trade secrets are considered to be non-patented or non-copyrighted material that enters the public domain instantly the minute you fail to keep them secret.

Software licenses date back to a time when there was a valid legal question if software could be copyrighted or patented. Congress has answered those questions many times over, and some of the courts have started to take a dim view of copyright owners who have started using software licenses to obtain patent-like or perpetual rights that they simply are not entitled to under our system.

Take the present case, IBM (Sequent) owns both the patents and copyrights to RCU and NUMA. These are not confidential, the patents can be read online at USPTO. IBM has no independent duty to keep the published contents of US patents somehow confidential. "McBride also criticized the GNU General Public License (GPL) that's the basis for much of the open-source software marketplace, calling it a "beast" that leaves corporate intellectual property unprotected. "We've felt from Day 1 in this case that building your [business] on the GPL is like building your headquarters on quicksand," McBride said. "Everyone is terrified that their intellectual property is going to get sucked into this GPL machine and get destroyed." While SCO disparages the GPL, it is a SCO "software license" for the rather ancient Unix System VR3.2 that is sealing up IBM's copyrights and patent rights for state-of-the-art NUMA and RCU technologies. It's doing that under claims of trade secrets, best efforts clauses, and anti competitive tie-outs of other competing operating systems. Here's a nice article that discusses those types of copyright misuses and what some courts have tried to do about them: http://www.ipspecialcoun sel.com/IMPACT/V3N4.HTML

Here is a synopsis of Alcatel v DGI from an online critique: "In the face of increasing pressures to more clearly define the scope and extent of a copyright in software, Congress created the Digital Millenium Copyright Act, ostensibly aimed at promoting competition and interoperability among computer software programs. However, the Act effectively conferred new power upon software copyright owners to restrict access to the ideas, concepts, procedures and processes embedded in copyrighted material. Against this tide, the Fifth Circuit has taken a strict approach, finding that an attempt by an owner of copyrighted software to restrict access to ideas through use-restriction licensing agreements effectively forfeits its copyright, creating a right to compete."

That "strict approach" part means that copyrights are meant to be an aid to progress, not a barrier. http://www.utexas.edu/law/journals/tiplj/volumes/vol9iss2/dorenkamp.html

SOFTMAN PRODUCTS COMPANY v ADOBE SYSTEMS INC.; et al. The court ruled that the software was sold, not licensed despite Adobe's claims. The "license" had all of the characteristics of a sale, and none of the characteristics of a lease or rental. The Court applied the first sale doctrine, i.e. the copyright owner's terms and conditions apply only to the first sale of a copy. Softman had never installed the software it was reselling, so the EULA didn't apply. http://www.linuxjournal. com/article.php?sid=5628

I think that a lot of courts are getting fed up with property rights as we've come to know them in software license agreements. SCO could be a "poster child" for the copyright misuse issue.


Harlan

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radiocomment
Authored by: Anonymous on Thursday, August 14 2003 @ 10:33 PM EDT
This is not from a legal site, but interesting nonetheless:

http://www.siia.net/piracy /policy/edu_copy.asp

The main points (and hopefully scrutinized by the school's lawyers):

1) "The law says that it is illegal to make or distribute copies of copyrighted material, including software, without authorization"

So- this would imply that it is LEGAL to make or distribute WITH authorization.

2) "If the publisher has authorized any exceptions to the copyright law, they will be stated in the license agreements that accompany all software products"

The GPL.

Thanks for listening.


Michael Klatsky

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radiocomment
Authored by: Anonymous on Thursday, August 14 2003 @ 11:25 PM EDT
I think I see what this Heise guy (SCO's laywer) might be saying, and it's possible that he actually has a semi-valid point, well semi-valid enough that perhaps it can stand a comment.

1. I have read in several places today that every valid software license must allow you to make one copy for backup purposes. If the license does not allow this, it is not valid. Assume this is true for a moment.

2. The GPL says that if you do not adhere to the license, you have no license to copy.

Could his argument be that because in some circumstances you have no right to copy, then the license does not conform to point 1 above and therefore is not valid?

I think this argument fails if the GPL is a distribution license. However, it might (in the hands of a clever trial lawyer) be a problem if the GPL is a license to use. Which I don't think it is.

A second reason that the argument might fail is because the authorization to copy applies unless you break the license. It would be difficult to argue that a person breaking the license causes the license to become invalid.


Calibax

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radiocomment
Authored by: Anonymous on Friday, August 15 2003 @ 01:14 AM EDT
How 'bout this:
Person 1: "Hubbahubbahubbaboobooboo!"
Person 2: "Excuse me?"
Person 1: "I just said: 'Hubbahubbahubbaboobooboo!'"
Person 2: "Could you repeat that, please?"
Person 1: "Nope - then I'ld be violating federal copyright law, since I've
already repeated it once!"
Yes, Nick, Monty Python springs to mind...
-r ;-)
rasmus

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radiocomment
Authored by: Anonymous on Friday, August 15 2003 @ 03:02 AM EDT
I was knocked off by the power failure, and I am just catching up, so I haven't had the chance to read everything, but to Calibax, the GPL is a distribution, not a use, license.

These folks didn't fail GPL Summer School. Evidently they dropped out before they covered certain subjects.


pj

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radiocomment
Authored by: Anonymous on Friday, August 15 2003 @ 03:16 AM EDT
Look on the bright side.

This attack on copyright law itself puts America back into the pre-Berne, pre-copyright stage, where Charles Dickens, for example, could get very irate at the way American publishers were pirating his books.

SCO mentioned in one of their interminable technicolour yawns disguised as an interview - with BYTE Magazine of all people - that they were thinking of roping in the US Feds as "amicae curiae".

I suspect Uncle Sam may have a few words to say to SCO if SCO succeeds in trashing the software development industry even more than it has already done - who would want to trade in software in a market that violated copyright attribution as badly as SCO alleges the US market in law, must?


Wesley Parish

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radiocomment
Authored by: Anonymous on Friday, August 15 2003 @ 04:01 AM EDT
The intentions of SCO is clearly obvious and they can be related to previos AT&T
vs. BSD suits: in fact SysV contains a lot of stuff copyrighted to UCB, but
suits allowed USL to use that stuff as their own. It seems that SCO wants to
make the same game with RCU and NUMA implementations from linux kernel code.
They are just seeking for "reasons".
avg

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radiocomment
Authored by: Anonymous on Friday, August 15 2003 @ 04:21 AM EDT
avg, The BSD license allowed AT&T to incorporate UCB-copyrighted code in the
AT&T UNIX distributions. This had little to do with the lawsuits. SCO is trying
to leverage the AT&T license conditions to claim copyright on code written by
others. It will be hard for them to get that sanctioned by a judge; but that's a
totally different story.
MathFox

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radiocomment
Authored by: Anonymous on Friday, August 15 2003 @ 06:39 AM EDT
Here's an inquirer link I found rather amusing: http://www.theinquirer.net/?art icle=11057
JustDave

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radiocomment
Authored by: Anonymous on Friday, August 15 2003 @ 07:06 AM EDT
MathFox: avg said: "...in fact SysV contains a lot of stuff copyrighted to UCB, but suits allowed USL to use that stuff as their own."

This in fact was exactly the claim made in paragraph 10 of the Regents counter suit against USL. i.e. a USL source code license cost $200,000, but as much as 50% of USL Unix System V release 4 was plagiarized BSD code with no attribution.

That would mean that as much of half of the USL code had been developed at taxpayer expense too. That has consequences even if proper attribution has been made in the source code. It has some bearing on SCO's $699.00 dollar Government Linux license demand. They are claiming certain exemption because all of their software was developed entirely at private expense, i.e. FAR 12.212 That's hardly true for Unix or Linux at this point.

"SCO is trying to leverage the AT&T license conditions to claim copyright on code written by others"

AT&T held the trademark, patents, and copyrights. There are some things in their license and side letters that are standard "technology transfer" boiler plate (grant of license to use patents). The Novell/SCO/IBM Amendement X is an agreement between IBM and Novell (a patent holder). SCO's copyrights weren't registered in time to be of much use in the IBM case, and can't be used like patents in any event. They just happen to be mentioned in the same technology transfer contracts.


Harlan

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radiocomment
Authored by: Anonymous on Friday, August 15 2003 @ 09:01 AM EDT
Ok, I did not read all of the comments here but I have to say, this idea that copyright law says that "You can only make one copy" no matter what license you have is completely silly.

Almost every major software vendor (and other copyright information vendor, for that matter) has license deals that specifically enable numerous or even unlimited copying. For example, a corporate site license for a software product would be such a thing.

The GPL has some interesting clauses in it, but the right to make copies is not unique at all. Even the BSD license, which SCO and Microsoft actually need to be valid due to their use) allows for copies.

To my eyes (IANAL) this whole claim is completely silly. I don't think that it even matters if there is important software or not, the copyright law does not prevent the copyright holders from allowing the copying of their work. The copyright law is actually the reverse - it lets the copyright holders define the parameters of the copying of their work.


Michael Sinz

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radiocomment
Authored by: Anonymous on Friday, August 15 2003 @ 10:05 AM EDT
Michael,

As I recall when the copyright code was made to comform with the Geneva Convention, a paragraph was added giving users of copyrighted computer programs the right to make backup copies, and the right to make one archival copy.

This, again, as I recall due to the many licenses in the '70's and 80's the forbade users of a program from copies of a program for any purpose.

(ususal disclaimer; not a lawyer, not a paralegal, just a coder).


D.

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radiocomment
Authored by: Anonymous on Friday, August 15 2003 @ 12:13 PM EDT
Michael Sinz: Here's a funny angle that you might not have thought about:)

http://www.pclinuxonline.com/modules.php?name=News& file=article&sid=7484&mode=thread&order=0&thold=-1


Harlan

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radiocomment
Authored by: Anonymous on Saturday, August 16 2003 @ 01:43 PM EDT
Assuming Heise was reported accurately and assuming Heise is being sincere that he thinks this assertion (copyright invalidates GPL) is correct,

Can we take this as a GREAT sign as to the competence of the attorneys Boies has working on this case?

Can Canopy take this as a clue to get their negligence / malpractice / incompetent attorney suits in order?


Sanjeev

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radiocomment
Authored by: Anonymous on Saturday, August 16 2003 @ 11:26 PM EDT
Well, I finally had time to read the comments. They are so, so helpful. Links,
thoughts, history, cases. You folks are amazing. Speaking for myself, and I
haven't finished researching it yet, I think Jonathan Williams has it right.
Nathan too. I think what is worrying them is the idea that their allegedly
infringed code is now GPLd. They seem to think that if it's GPL code, they've
lost their copyright on it. I also agree with Sanjeev that if this is their
best, it's just wonderful. It's always hard to predict the outcome of any
case, and it's always better to stay out of court if you can, but one thing is
for sure: if the foundation of your position is that the judge has to write new
law for you to prevail, well, you saw how well that worked for Boies in the
Napster case. I think they just got their degree from GPL summer school after
all. They got only a C-, however, which means they have a foggy grasp on the
subject, just enough to be terrified, but not enough to be skillful. Well, it
couldn't happen to a nicer bunch of fellas. heh heh
pj

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