decoration decoration
Stories

GROKLAW
When you want to know more...
decoration
For layout only
Home
Archives
Site Map
Search
About Groklaw
Awards
Legal Research
Timelines
ApplevSamsung
ApplevSamsung p.2
ArchiveExplorer
Autozone
Bilski
Cases
Cast: Lawyers
Comes v. MS
Contracts/Documents
Courts
DRM
Gordon v MS
GPL
Grokdoc
HTML How To
IPI v RH
IV v. Google
Legal Docs
Lodsys
MS Litigations
MSvB&N
News Picks
Novell v. MS
Novell-MS Deal
ODF/OOXML
OOXML Appeals
OraclevGoogle
Patents
ProjectMonterey
Psystar
Quote Database
Red Hat v SCO
Salus Book
SCEA v Hotz
SCO Appeals
SCO Bankruptcy
SCO Financials
SCO Overview
SCO v IBM
SCO v Novell
SCO:Soup2Nuts
SCOsource
Sean Daly
Software Patents
Switch to Linux
Transcripts
Unix Books

Gear

Groklaw Gear

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


You won't find me on Facebook


Donate

Donate Paypal


No Legal Advice

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

Here's Groklaw's comments policy.


What's New

STORIES
No new stories

COMMENTS last 48 hrs
No new comments


Sponsors

Hosting:
hosted by ibiblio

On servers donated to ibiblio by AMD.

Webmaster
SCO Scuttles Sense, Claiming GPL Invalidity
Monday, August 18 2003 @ 08:53 PM EDT

--Eben Moglen, Monday 18 August 2003

Now that the tide has turned, and SCO is facing the dissolution of its legal position, claiming to "enforce its intellectual property rights" while actually massively infringing the rights of others, the company and its lawyers have jettisoned even the appearance of legal responsibility. Last week's Wall Street Journal carried statements by Mark Heise, outside counsel for SCO, challenging the "legality" of the Free Software Foundation's GNU General Public License (GPL). The GPL both protects against the baseless claims made by SCO for license fees to be paid by users of free software, and also prohibits SCO from its ongoing distribution of the Linux kernel, a distribution which infringes the copyrights of thousands of contributors to the kernel throughout the world. As IBM's recently-filed counterclaim for copyright infringement and violation of the GPL shows, the GPL is the bulwark of the community's legal defense against SCO's misbehavior. So naturally, one would expect SCO to bring forward the best possible arguments against the GPL and its application to the current situation. But there aren't any best arguments; there aren't even any good arguments, and what SCO's lawyer actually said was arrant, unprofessional nonsense.

According to the Journal, Mr Heise announced that SCO would challenge the GPL's "legality" on the ground that the GPL permits licensees to make unlimited copies of programs it covers, while copyright law only allows a single copy to be made. The GPL, the Journal quoted Mr Heise as saying, "is preempted by federal copyright law."

This argument is frivolous, by which I mean that it would be a violation of professional obligation for Mr Heise or any other lawyer to submit it to a court. If it were true, no copyright license could permit the licensee to make multiple copies of the licensed program. That would make not just the GPL "illegal." Mr Heise's supposed theory would also invalidate the BSD, Apache, AFL, OSL, MIT/X11, and all other free software licenses. It would invalidate the Microsoft Shared Source license. It would also eliminate Microsoft's method for the distribution of the Windows operating system, which is pre-loaded by hard drive manufacturers onto disk drives they deliver by the hundreds of thousands to PC manufacturers. The licenses under which the disk drive and PC manufacturers make multiple copies of Microsoft's OS would also, according to Mr Heise, violate the law. Redmond will be surprised.

Of course, Mr Heise's statement is nothing but moonshine, based on an intentional misreading of the Copyright Act that would fail on any law school copyright examination. Mr Heise is referring to section 117 of the US Copyright Act, which is entitled "Limitation on exclusive rights: computer programs," and which provides that:

(a) Notwithstanding the provisions of section 106, it is not an infringement for the owner of a copy of a computer program to make or authorize the making of another copy or adaptation of that computer program provided:

(1) that such a new copy or adaptation is created as an essential step in the utilization of the computer program in conjunction with a machine and that it is used in no other manner, or

(2) that such new copy or adaptation is for archival purposes only and that all archival copies are destroyed in the event that continued possession of the computer program should cease to be rightful. As the language makes absolutely clear, section 117 says that although the Act generally prohibits making any copy of a copyrighted work without license, in the case of computer programs one can both make and even alter the work for certain purposes without any license at all. The claim that this provision sets a limit on what copyright owners may permit through licensing their exclusive right is utterly bogus. It has no support in statutory language, legislative history, case law, or the constitutional policy that lies behind the copyright system. Were this argument actually presented to a court it would certainly fail.

The release of this astounding statement is actually good news for developers and users of free software. It shows that SCO has no defense whatever against the GPL; already it has resorted to nonsense to give investors the impression that it can evade the inevitable day of reckoning. Far from marking the beginning of a significant threat to the vitality of the GPL, the day SCO scuttled sense altogether confirmed the strength of the GPL, and its importance in protecting freedom.

Copyright © Eben Moglen, 2003. Verbatim copying of this article is permitted in any medium, provided this notice is preserved.

Eben Moglen is professor of law at Columbia University Law School. He serves without fee as General Counsel of the Free Software Foundation.


  


SCO Scuttles Sense, Claiming GPL Invalidity | 13 comments | Create New Account
Comments belong to whoever posts them. Please notify us of inappropriate comments.
radiocomment
Authored by: Anonymous on Monday, August 18 2003 @ 06:08 PM EDT
McBride interview http://www.crn.com/sections/BreakingNews/dailyarchives.asp?ArticleID=43984

Choice comments:

McBride: We tried to move this along, but IBM kept asking for delays. Now with the counterclaim and patent infringement, it could go even longer. IBM can put this on a slow track [with additional legal moves]. But IBM might be throwing hard balls to [get ready] for the soft pitch [to settle].

McBride: They're putting this on a [slow, legal] path. But customers have been putting pressure on IBM to get this resolved. This is not a case IBM can get knocked out on -they'd be filing motions to dismiss the case [if they thought they could win]. Our case is up to $3 billion- they'd have to come up from a few hundred million dollars to settle. Every month, we keep finding more and more [Linux code that violates out Unix System contract]. We'd want a settlement and royalty [on Linux] going forward.


quatermass

[ Reply to This | # ]

radiocomment
Authored by: Anonymous on Monday, August 18 2003 @ 06:27 PM EDT
I'm glad the FSF has commented officially on this one. It was a pretty brazen (ridiculous?) statement Heise made, and I'm glad to see Moglen has given it the response it deserves.
Koz

[ Reply to This | # ]

radiocomment
Authored by: Anonymous on Monday, August 18 2003 @ 06:27 PM EDT
Fact or fiction? http://slashdot.org /comments.pl?sid=75144&cid=6728017
quatermass

[ Reply to This | # ]

radiocomment
Authored by: Anonymous on Monday, August 18 2003 @ 06:28 PM EDT
Koz, based on press reports (check comments in last story), they seem to be
reiterating today.
quatermass

[ Reply to This | # ]

radiocomment
Authored by: Anonymous on Monday, August 18 2003 @ 06:29 PM EDT
They want royalties on Linux? WTF? LoL that's yet another display of their complete stupidity. Good grief. I do wish more companies would counter sue SCO though. I'm sure in time there will be. :)
JustDave

[ Reply to This | # ]

radiocomment
Authored by: Anonymous on Monday, August 18 2003 @ 06:34 PM EDT
I'm an undergraduate at Columbia University and I emailed Professor Moglen at
his Columbia email account about sitting in on one of his classes when I read
the initial FSF legal statement regarding SCO. He still has not responded.
Does anyone know a better way to contact him?
Cody Hess

[ Reply to This | # ]

radiocomment
Authored by: Anonymous on Monday, August 18 2003 @ 06:58 PM EDT
quatermass,

Thanks for the choice comments! And good link to that article!

For IBM to put this on the slow and easy track, that they need to be on in order to do this IP case right, then they first need breathing room for both Linux and AIX users. SCO, once they go after users, should run right smack into some lawyer that knows something about the laws of agency. The laws of agency are important as they help to govern business deals. In such a case the court might look closely at who might appear to an innocent 3rd party customer and just who is to be seen as an actual, apparent, or ostensible agent for whoever is a principle.

If one LINUX customer's case results in the court ruling that they are truely innocent 3rd party customers and that they legally can continue to exercise all their perpetual rights to use LINUX as acquired without fearing harm from SCO (because their LINUX was acquired from an actual, apparent or ostensible IP agent of the self-described IP principle SCO)... then, bang! Pressure is off that user, they then can use and forever upgrade their LINUX forever! Life for this user would be just as if SCO and SCO's IP claims do not even exist...! Life for the innocent 3rd party user's lawyer (take a guess)?

Did I mention that I like old Jimmy Stewart movies?

Interesting to see what someone, who can research this "aspect" of the law, can come up with?


annon

[ Reply to This | # ]

radiocomment
Authored by: Anonymous on Monday, August 18 2003 @ 06:59 PM EDT
JustDave, assuming he is not being deliberately deceitful in his comments, it shows he is on a different planet from the rest of us.

For starters, by what legal right or power would IBM be able to grant a royalty on Linux? The majority of the code in Linux is not being anything to do with SCO or IBM - relicensing it would require these other copyright holder's consent, and without it, IAMAL, but even to me, such relicensing would seem illegal?

So far, I have not seen any evidence that IBM plan to settle. Is McBride just speculating, or does he want to encourage people to believe they might.


quatermass

[ Reply to This | # ]

radiocomment
Authored by: Anonymous on Monday, August 18 2003 @ 07:08 PM EDT
Cody,

I'm thinking Moglen is a tad busy right about now. Perhaps if you contact Columbia instead? Let's let the man think and fight, without bothering him with anything not related to Topic A, at least for the moment.


pj

[ Reply to This | # ]

radiocomment
Authored by: Anonymous on Monday, August 18 2003 @ 07:14 PM EDT
JustDave, assuming he is not being deliberately deceitful in his comments, it shows he is on a different planet from the rest of us.

For starters, by what legal right or power would IBM be able to grant a royalty on Linux? The majority of the code in Linux is not being anything to do with SCO or IBM - relicensing it would require these other copyright holder's consent, and without it, IAMAL, but even to me, such relicensing would seem illegal?

So far, I have not seen any evidence that IBM plan to settle. If there were going to, I imagine it would be delicate, and probably putting it all over the press, would make a settlement less rather than more likely. So, I wonder if McBride just speculating, or does he want to encourage people to believe they might.


quatermass

[ Reply to This | # ]

radiocomment
Authored by: Anonymous on Monday, August 18 2003 @ 07:54 PM EDT
I don't believe IBM would have any reason to settle. What proof has SCO presented that would sway anyone to have the slightest incling of supporting their case.

No one.. Only SCO's ficticious Fortune 500 company.

I just cannot see anyone who has any sort of case would have any reason to hide everything they do, and change their story daily.


SD

[ Reply to This | # ]

radiocomment
Authored by: Anonymous on Monday, August 18 2003 @ 11:00 PM EDT
pj,

Alrighty.


Cody Hess

[ Reply to This | # ]

radiocomment
Authored by: Anonymous on Tuesday, August 19 2003 @ 08:04 AM EDT
IANAL but ... from THE UNITED STATES SUPREME COURT:

"[w]here one person has committed a tort, breach of contract, or other legal wrong against another, it is incumbent upon the latter to use such means as are reasonable under the circumstances to avoid or minimize the damages. The person wronged cannot recover for any item of damage which could thus have been avoided." Ford Motor Co., 458 U.S. at 232 n.15 (quoting C.MCCORMICK, LAW OF DAMAGES 127 (1935)); see also Faragher, 524 U.S. at 807.

Chris Sontag: Who are those nine old goats to us what the the law is ?


gumout

[ Reply to This | # ]

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

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