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SCO Still Distributing Linux From Its Web Site
Thursday, August 21 2003 @ 09:38 PM EDT

SCO Still Distributing Linux From Its Web Site

You know? I'm getting weary teaching SCO how the GPL works. They just don't pay attention. My grandmother quit teaching and became a librarian years ago for that exact reason. It's not fun teaching if the class isn't trying. But here goes, one more time. Class?

Two readers have informed me that you can download OpenLinux from SCO's site, that it includes the complete kernel source code, it's licensed under the GPL, and it's the 2.4 kernel. What's up, SCO?

Oh, and they have a "legal notice" that you can only download it if you are a customer. Here is the first message:

"For the record, SCO is still distributing the Linux kernel. URL:

ftp://ftp.sco.com/pub/updates/OpenLinux/3.1.1/Server/current/SRPMS/linux-2.4.13-21S.src.rpm

I . . . verified that it contains a tar ball (linux-2.4.13.tar.bz2), identical to the one available from ftp.kernel.org. Instructions for those wanting to verify this themselves: http://www.iki.fi/kaip/misc/linux-sco.txt

"ftp.sco.com also contains a legal notice ftp://ftp.sco.com/pub/OpenLinux3.1.1/Legal_Notice saying that the files are available for download for existing SCO/Caldera customers only."

The legal notice reads like this:

NOTICE: SCO has suspended new sales and distribution of SCO Linux until the intellectual property issues surrounding Linux are resolved. SCO will, however, continue to support existing SCO Linux and Caldera OpenLinux customers consistent with existing contractual obligations. SCO offers at no extra charge to its existing Linux customers a SCO UNIX IP license for their use of prior SCO or Caldera distributions of Linux in binary format. The license also covers binary use of support updates distributed to them by SCO. This SCO license balances SCO's need to enforce its intellectual property rights against the practical needs of existing customers in the marketplace.

The Linux rpms available on SCO's ftp site are offered for download to existing customers of SCO Linux, Caldera OpenLinux or SCO UnixWare with LKP, in order to honor SCO's support obligations to such customers.

I'd say the legality of this "legal notice" has yet to be determined, but I have no doubt in my mind that the distribution itself is a copyright violation, if they are not distributing under the GPL, and a GPL violation if they are. In fact, I'd say it's thumbing its nose at the GPL. I'm not suggesting you download it unless you are a prior customer, just making a public record that they are allowing their customers, at a minimum, to do so.

If the GPL is invalid, what license are they using for this download? If you answer none, then SCO must be releasing it under copyright, in which case we need to ask them: Did you ask before taking someone else's work?

Call the IP police! Those Napster pirates have shown up in Utah!

There is no contract in the world that will justify violating someone else's legal rights, and because the authors with the copyright rights get to decide how they release their work, and they already chose the GPL or nothing, anyone offering their work without their permission is a pirate, using SCO's own terminology. And in this case, it fits.

Think it's not copyright infringement if you keep it inside the company or just your own customers? Here is a decision on just such a situation, Lowry's Reports, Inc. v. Legg Mason, Inc. It's a pdf. It's an interesting case, because Lowry's brought a RICO claim as well, as their web site explains:

Legg Mason is also charged in the suit with violation of the Racketeer Influenced and Corrupt Organizations Act ("RICO"), 18 U.S.C. ß 1961-68 for their alleged use of U.S. mails and wire transmissions in its scheme to defraud Lowry's and Legg Mason's own clients who were led to believe that they were entitled to obtain copies of Lowry's reports, thus exposing those customers to copyright liability. Under the Racketeer Influenced and Corrupt Organizations Act ("RICO"), Legg Mason is liable for actual and treble damages.

My second message informs me that the kernel size is identical to the kernel.org 2.4.23 kernel and a collection of patches for that kernel. Here is the rest of the information:

Name: linux
Relocations: (not relocateable)
Version: 2.4.13
Vendor: Caldera International, Inc.
Release: 21S
Build Date: Sat 03 May 2003 15:17:07 BST
Install date: (not installed)
Build Host: build311.ps.asia.caldera.com
Group: System/Kernel
Source RPM: (none)
Size: 27986389
License: GPL
Packager: Ashish Kalra
URL: http://www.kernel.org/
Summary: Linux kernel sources and compiled kernel image.
Description: Linux kernel sources and compiled kernel images. B-
Distribution: OpenLinux3.1.1

Excusez-moi, but if the GPL is preempted by copyright, how can SCO allow multiple copies to be made? And did you notice the build date? Naughty SCO. You're going to have to stay after class and write a hundred times on the blackboard, "I will not violate the GPL or infringe anyone's copyright ever again."


  


SCO Still Distributing Linux From Its Web Site | 90 comments | Create New Account
Comments belong to whoever posts them. Please notify us of inappropriate comments.
radiocomment
Authored by: Anonymous on Thursday, August 21 2003 @ 07:14 PM EDT
1. Just for the record, I think it is worth noting the message about it only being for existing SCO customers was added some considerable time after this all started. First there was no message. Then there was the claims about IBM distributing to Axis of Evil countries. Then a pause. Then they added a message about not being entitled to download if you were in one of those countries. Then another pause. Then they added this message about being only able to download if you were an existing customer.

2. I'm also fairly sure (not 100%), that at least at one stage there were links on their web pages that led directly to the downloads without going via the messages at all.

#1 is definitely discussed in the comments here, but it might be a job to find. I remember (may be even made a remark) after it was discovered they added a message about existing customers.

#2 was discussed in the comments on one of the SCO stories at osnews.com when some pro-SCO guy was saying ftp.sco.com doesn't count because their official site is www.sco.com - and the pro-SCO guy was then presented with the series of links to follow from their main page to the download. Some details are a bit hazy, so you'd need to find these comments if you wanted to know for sure.


quatermass

[ Reply to This | # ]

radiocomment
Authored by: Anonymous on Thursday, August 21 2003 @ 07:15 PM EDT
I wonder if a Kernel contributor will issue a DMCA takedown notice.
Ruidh

[ Reply to This | # ]

radiocomment
Authored by: Anonymous on Thursday, August 21 2003 @ 07:22 PM EDT
This latest article regarding SCO continuing to distribute Linux for existing customers inspires further thought.

How about the existing class of SCO Linux customers. They have been misled. They purchased SCO Linux under the GPL and its benefits. They are now being told that the GPL does not apply. Shouldn't they demand a refund? How much did they pay per unit? How many of them are there? Their GPL warranty is being withdrawn by their vendor. They might have a good class action for a refund.

Webster


webster

[ Reply to This | # ]

radiocomment
Authored by: Anonymous on Thursday, August 21 2003 @ 07:52 PM EDT
You indicate that the kernel size matches the kernel.org 2.4.23 kernel. It
should be the 2.4.13 kernel, the last revision offered by SCO.
Gerry Tool

[ Reply to This | # ]

radiocomment
Authored by: Anonymous on Thursday, August 21 2003 @ 07:54 PM EDT
I can think of several security problems with kernels 2.4.20 and lower. It would be interesting to see what they have managed to back port to 2.4.13.

I notice that "SCO UnixWare with LKP" is also mentioned. That was supposed to contain a full OpenLinux install, minus the actual Linux kernel. Those rpms are going to be getting a bit "stale" too by 2005, unless someone is planning to keep those customers up to date somehow.

I notice that one major GPL project that HP sponsors through it's employees has already rolled over, and is allowing SCO to distribute their code commercially. Some have claimed that they are remaining true to "their core ethos" and I think that may be at least partially true:) But why did they pull out of SCO Forum? SCO has already breached the rights of IBM, the kernel copyright owners, and end users by demanding and getting money for a run time binary only license for Linux. They have announced their intention of having the GPL declared invalid (everywhere and at all times) because it gives people some rights that aren't enumerated in US Title 17 (not a compendium or exhaustive treatise on human rights).


Harlan

[ Reply to This | # ]

radiocomment
Authored by: Anonymous on Thursday, August 21 2003 @ 07:55 PM EDT
are they masking numbers now?
that would be fraud wouldnt it?
cant a kernel submitter now get a supoena cause of copyright law now?
sorry for all the questions.i never know which way to turn with this case.it is
a constant google adventure
hehe
br3n
brenda banks

[ Reply to This | # ]

radiocomment
Authored by: Anonymous on Thursday, August 21 2003 @ 08:09 PM EDT
brenda banks: I wouldn't know. As a general rule everyone distributes a pristine
set of the kernel sources together with the patches that have been compiled in
to the binary version. It's not unusal for distributors
to selectively back port new features to older kernels. I don't know if anything
like that is happening here, but I wouldn't be surprised (at this point) by
anything SCO does.
Harlan

[ Reply to This | # ]

radiocomment
Authored by: Anonymous on Thursday, August 21 2003 @ 08:19 PM EDT
Another thing that hasn't been discussed, is the stuff outside the Kernel.

Are SCO in compliance with GPL license for FSF's GNU tools, and other GPL stuff outside the Kernel, which they haven't even claimed part of?


quatermass

[ Reply to This | # ]

radiocomment
Authored by: Anonymous on Thursday, August 21 2003 @ 08:20 PM EDT
Although the version of the kernel SCO is distributing is listed as 2.4.13, it would be interesting to look at whether it (or the patches that come with it) contain the code depicted in their slide show.

Eric Raymond noted that SCO is distributing 2.4.13, so the code in question would supposedly not be subject to the GPL. As Harlan notes above, it is likely wise not to give SCO the benefit of the doubt on this...


Jonathan Williams

[ Reply to This | # ]

radiocomment
Authored by: Anonymous on Thursday, August 21 2003 @ 08:26 PM EDT
BTW, very nice article, PJ. One in a series; you're on a roll. style="height: 2px; width: 20%; margin-left: 0px; margin-right: auto;">Jonathan
Williams

[ Reply to This | # ]

radiocomment
Authored by: Anonymous on Thursday, August 21 2003 @ 08:26 PM EDT
2.4.13 very definately contains the BPF code in the 'obfuscated code' slide --
it's the basis for iptables. It apparently does not contain the rmalloc code
(which was added in 2.4.19 and removed again during the 2.5 series in June). style="height: 2px; width: 20%; margin-left: 0px; margin-right: auto;">Jeff
Randall

[ Reply to This | # ]

radiocomment
Authored by: Anonymous on Thursday, August 21 2003 @ 08:27 PM EDT
Not that SCO can claim BPF -- it's called BERKELEY Packet Filters for a
reason...
Jeff Randall

[ Reply to This | # ]

radiocomment
Authored by: Anonymous on Thursday, August 21 2003 @ 09:02 PM EDT
Thanks, Gerry. You were correct. I had a typo in the kernel number, which I just fixed. I only proofed it 5 times. heh heh. Thanks for catching that. No point in making a public record if it isn't accurate.

I'm thinking class action myself, actually, Web.


pj

[ Reply to This | # ]

radiocomment
Authored by: Anonymous on Thursday, August 21 2003 @ 09:08 PM EDT
http://www.s mh.com.au/articles/2003/08/21/1061434974481.html
Frank Brickle

[ Reply to This | # ]

radiocomment
Authored by: Anonymous on Thursday, August 21 2003 @ 09:17 PM EDT
I await a class action suit.

I'm surprised the FSF or any of the numerous other Linux organizations haven't filed suit yet. How much more must SCO be allowed to get away with?

There need to be several more lawsuits against them and a preliminary shut-the-hell-up-you-lying-sacks injunction.


Z

[ Reply to This | # ]

radiocomment
Authored by: Anonymous on Thursday, August 21 2003 @ 09:18 PM EDT
PJ,
What about a class action suit on the part of the developers? Or would that be
largely redundant with the Red Hat suit?
Jonathan Williams

[ Reply to This | # ]

radiocomment
Authored by: Anonymous on Thursday, August 21 2003 @ 09:19 PM EDT
Sorry about the redundant post...
Jonathan Williams

[ Reply to This | # ]

radiocomment
Authored by: Anonymous on Thursday, August 21 2003 @ 09:39 PM EDT
quatermass: "Are SCO in compliance with GPL license for FSF's GNU tools, and other GPL stuff outside the Kernel, which they haven't even claimed part of?"

If I understand the purpose of the license that Microsoft purchased from SCO correctly, they don't need to claim the GNU tools. They already have a revenue stream from licensing them. If that is the case, then no they are not in compliance with FSF's license.

As for the Linux kernel, one of the kernel copyright holders advised SCO in mid-June that they were infringing his copyrights. The Inquirer and Groklaw both took note of that at the time.


Harlan

[ Reply to This | # ]

radiocomment
Authored by: Anonymous on Thursday, August 21 2003 @ 10:39 PM EDT
SCO is beginning to get paranoid. I fully expect McBride to fashion himself a tin foil hat pretty soon. See what I mean:

http://www.info world.com/article/03/08/21/HNscoibm_1.html


Lins Zechesny

[ Reply to This | # ]

radiocomment
Authored by: Anonymous on Thursday, August 21 2003 @ 10:56 PM EDT
McBride has completely lost it now. He's falling apart at the seams. His case is full of holes and he knows he's not going to have a job when this is all said and done. With any luck he'll see prison time unless this is him laying the groundwork for an insanity plea.

The guy is whacked out of his gourd.


Z

[ Reply to This | # ]

radiocomment
Authored by: Anonymous on Thursday, August 21 2003 @ 11:09 PM EDT
I just keep waiting for the press release titled "Sorry Cuz, My Bad."

PS -- PJ, thank you so much for all the great work. :)


Paul

[ Reply to This | # ]

radiocomment
Authored by: Anonymous on Friday, August 22 2003 @ 12:04 AM EDT
McBride (http://www.info world.com/article/03/08/21/HNscoibm_1.html): "You've got all of these guys and it looks like the whole world is coming against SCO."

Geee, what a surprise.


iwaku

[ Reply to This | # ]

radiocomment
Authored by: Anonymous on Friday, August 22 2003 @ 12:48 AM EDT
Last stage of denial: The whole world is against us. This must be a conspiracy.
McBride will need his grief counsellor soon!


MathFox

[ Reply to This | # ]

radiocomment
Authored by: Anonymous on Friday, August 22 2003 @ 01:22 AM EDT
Hang on a sec, could someone just explain exactly why SCO's act of distributing the Kernel is a copyright violation again? I read the article twice but I don't understand why the following argument doesn't apply:

The GPL gives you the right to modify and redistribute, provided you grant the same rights to those to whom you distribute. It doesn't seem to say that you *have* to redistribute, and nor does it say that if you choose to redistribute you have to do so without regard to whom you offer it to. That is, it seems perfectly okay for SCO to redistribute the kernel to a select group which only includes their customers, provided they do so under GPL terms again.

Now I know there are two points:

a) since SCO have to offer the kernel under the GPL, its own customers can happily download from SCO and then offer it up to the rest of the public (and SCO has no right to restrict this, else the incompability-with-GPL clause kicks in - but I don't believe that they are trying to do so?)

b) SCO is being extremely hypocritcal in denying the validity of the GPL in public - or even in court if they do that later - and then using it as they distribute under it.

But a) is not actually SCO doing anything illegal, just stupid because it means that anyone can obtain a free license for the 2.4.13 kernel, albeit by roundabout means (unless SCO are trying to restrict their own customers' redistribution of the downloaded kernel, which afaics they aren't) and b) is not illegal, just hypocritical, although one would hope that it gets their court case thrown out because they act against their own arguments.

Did I miss something?

PS: The 2.4.13 kernel is not very advanced. I don't think it has much of the JFS, NUMA, RCU etc code under dispute, and I wouldn't use it myself.


Dr Drake

[ Reply to This | # ]

radiocomment
Authored by: Anonymous on Friday, August 22 2003 @ 01:45 AM EDT
SCO violated the GPL when it sold its first dupe the ScamSource License. It continues to violate the GPL even now by offering up the software in question.

The GPL does not allow for the ScamSource License. It is a breach of the GPL's terms. When they sold their first license they effectively revoked their right to distribute, modify or copy Linux etc.

They are thus violating the copyrights of every Linux Kernel contributor.

That's how I understand ir anyway.


Z

[ Reply to This | # ]

radiocomment
Authored by: Anonymous on Friday, August 22 2003 @ 02:25 AM EDT
Dr. Drake, From section 2.b of the GPL: b) You must cause any work that you distribute or publish, that in whole or in part contains or is derived from the Program or any part thereof, to be licensed as a whole at no charge to all third parties under the terms of this License.

And from Section 4 of the GPL: 4. You may not copy, modify, sublicense, or distribute the Program except as expressly provided under this License. Any attempt otherwise to copy, modify, sublicense or distribute the Program is void, and will automatically terminate your rights under this License.

So, the license give them the right to distribute the kernel provided they do not try and charge a license fee (which SCO is doig) and the license says that if they do charge a license fee (or anything else contrary to the license) they automatically loose the right to distribute it.

We need to start being more direct about this to the press. SCO is *illegally* sharing the Linux kernel and it's exactly the same as the people illegally sharing copyrighted music.

Somebody mentioned a DMCA takedown notice. Does that have to come from the actual copyright holder or just someone who knows it's a copyright violation?


Mark Levitt

[ Reply to This | # ]

radiocomment
Authored by: Anonymous on Friday, August 22 2003 @ 02:39 AM EDT
IANAL; IIRC a DMCA takedown notice has to come from the copyright owner, or someone who has the permission to act as the agent of the copyright owner. Ask Linus, Marcelo, ... for permission and you could write the notice. I recommend that you seek a Lawyer and make him part of the fun!


MathFox

[ Reply to This | # ]

radiocomment
Authored by: Anonymous on Friday, August 22 2003 @ 02:50 AM EDT
Z and Mark Levitt -

No, I still think you are misunderstanding me, and possibly the GPL (although I'm no expert and very willing to be corrected).

to Z - "SCO violated the GPL when it sold its first dupe the ScamSource License."

I cannot agree with this. There is absolutely nothing in the GPL to stop someone licensing the same code under a different license, perhaps a more restrictive one. SCO's scam license is not related to the GPL at all - indeed it seems only tangentially related to the Linux Kernel. What the scam license offers is (very limited) immunity from prosecution. It's protection money, but it is *not* part of the terms under which they distribute the kernel, afaics.

to Mark - "b) You must cause any work that you distribute or publish, that in whole or in part contains or is derived from the Program or any part thereof, to be licensed as a whole at no charge to all third parties under the terms of this License."

My understand is that this applies to *third parties* - i.e. what I said above (that customers who download the linux kernel from SCO are licensed to send it on to everyone else under GPL terms. The clause you quote emphatically does not prevent you from charging from GPL'd code. Indeed there is nothing to prevent it, as RedHat and other people who sell distributions will attest.

Once again, I'm very worried that the community is getting the wrong end of the legal stick. For sure, I'm no lawyer, but unless I completely misunderstand the GPL there is NO PROHIBITION against charging for GPL'd software, and so as long as SCO only try to extort money (as opposed to limit redistribution) they are not in breach. (Well, they might well be in breach of other laws but not the GPL contract).

Finally, you will notice that Moglen (the primary legal Free Software spokesman) is NOT claiming that SCO are breaching copyright. He states that their position is hypocritical and undermines their own legal arguments, but he does state that they have broken the GPL. At least, I didn't notice that he stated that anywhere. He would surely have said so if it were the case.


Dr Drake

[ Reply to This | # ]

radiocomment
Authored by: Anonymous on Friday, August 22 2003 @ 02:51 AM EDT
PS: I would be very cautious about trying to file a DMCA notice until this
question is cleared up. It would look awful in the press, and possibly result in
some sort of penalty, if you filed an incorrect takedown notice. style="height: 2px; width: 20%; margin-left: 0px; margin-right: auto;">Dr Drake

[ Reply to This | # ]

radiocomment
Authored by: Anonymous on Friday, August 22 2003 @ 03:02 AM EDT
Dr Drake - have you EVER read GPL?
iwaku

[ Reply to This | # ]

radiocomment
Authored by: Anonymous on Friday, August 22 2003 @ 03:12 AM EDT
iawku - yes I have read the GPL. I believe I understand it. Please explain clearly and exactly what I have said incorrectly. I'm very willing to admit that I might be wrong, but I think you should explain why.

Are you questioning my assertion that it is not wrong to charge for GPL software?


Dr Drake

[ Reply to This | # ]

radiocomment
Authored by: Anonymous on Friday, August 22 2003 @ 03:24 AM EDT
Dr Drake,

I am 100% sure whether it is legal to charge for GPL code or not (I have always been under the impression that it was illegal even though recently someone pointed out the Lindows situation to me which I am still not sure if that is legal or not) but one thing I can comment on is I am pretty darn sure that Red Hat and other Linux distribution companies make no money on the GPL code itself. They make money selling Support and Documentation or by providing a distribution which contains the GPL software free of charge plus proprietary software (usually on seperate cds). I know Red Hat allows users to download Red Hat distributions from their site at any time with no support or documentation free of charge. I personally have used multiple versions of Red Hat but have never bought a "boxed set."

I am sure people will correct me if I'm wrong and/or provide more detailed information but just wanted to put my thoughts in.

Will

IANAL etc...


w_ready99

[ Reply to This | # ]

radiocomment
Authored by: Anonymous on Friday, August 22 2003 @ 03:25 AM EDT
not 100% sure that should say :)
w_ready99

[ Reply to This | # ]

radiocomment
Authored by: Anonymous on Friday, August 22 2003 @ 03:29 AM EDT
fact and fiction:

1st fact: Read this st then comment about it here... as below spells out everything that you want to know about the GNU GPL (PS - buy the book and display it proudly on your bookshelf - I got a copy right here in front of me now)!

From: appendix B of "Open Sources: Voices from the Open Source Revolution"

"With the Linux kernel, Linus Torvalds includes the following preamble to the GPL:

NOTE! This copyright does *not* cover user programs that use kernel services by normal system calls--this is merely considered normal use of the kernel, and does *not* fall under the heading of "derived work." Also note that the GPL below is copyrighted by the Free Software Foundation, but the instance of code that it refers to (the Linux kernel) is copyrighted by me and others who actually wrote it.

Linus Torvalds "

For more on the GNU GPL questions see appendix B of "Open Sources: Voices from the Open Source Revolution" here: http://www.orei lly.com/catalog/opensources/book/appb.html as, in plain english it tells you what THE RULES ARE!

Lastly now the Fiction: And some some entertainingly bad fiction at that! Just imagine if Canopy group still had a huge holding/bet in a company called "NOVELL" (as for example where did they get all their money to start off with)...? Since we know that they love to play the shell company games, and we know that McBride knows that he gets his paycheck by the good graces of Canopy, then, what if, what if, what if, Canopy has us all as the lock-up stooge in a classic "good cop - bad cop" screenplay where, Canopy lets their bad cop "SCO" loose on the GNU GPL world, and then they have their good cop/NOVELL do things like help IBM with their ammendment X situation, while good cop/Novell proclaims total dedication to the GNU GPL, while good cop/Novell buys up Ximain (good press there and a major LINUX move), while Novell's stock moves (can anyone guess in what direction), as Novell does a NDS feature for LINUX (but as an application so they can charge for it outside of the GNU GPL), where the bad cop/SCO does damage the GNU GPL and the good cop/Novell stands to benefit as then they can do more proprietary stuff with LINUX or UNIX or Ximain Red Carpet or Evolution, and where Novell retained "all rights" to UNIX for themselves BEFORE they sold off the balance of the rights (or collection rights) for cash, etc... ? Hmmm, how many Ski Condos do the players in Canopy have, and how many condos do the Novell folks have, AND how close to each other are these condos, and do they play golf together, and belong to the same social clubs, and do they send their kids to the same camps, etc? Was not Canopy born from Novell (all alumnus of the Novell frat-house)? Does old Novell blood run thicker than water? Just imagine if this were all true, and if so, what nightmares that this whole screenplay would give Microsoft to think that they actually may have paid for a license for UNIX in order to aid NOVELL? - dream a little dream with me...

Ok you can wake up now, this is just all bad fiction (and not a dream). To some degree by our own fiction, we live! (by annon) Good-nite :) , and by the way, sweet dreams...


annon

[ Reply to This | # ]

radiocomment
Authored by: Anonymous on Friday, August 22 2003 @ 03:42 AM EDT
annon,

Referring to your link to the GPL in the O'Reilly book.

Very interesting. I note that the "definition" of "free software" includes the heading "No Discrimination Against Persons or Groups". But this is actually not specifically mentioned in the GPL. Therefore it does not appear to be a breach of the GPL for SCO to restrict downloads to their customers.

In the GPL itself, the clause "You may charge a fee for the physical act of transferring a copy, and you may at your option offer warranty protection in exchange for a fee." is not one I noticed before. I think that makes it quite clear that SCO's licensing program is LEGAL in terms of the GPL. It doesn't mean that anyone actually has to buy a license (it seems likely that they don't). Nor does it mean that SCO aren't breaching other civil or even criminal laws (it is quite possible that they are). But the open source community - some of it - is very quick to pounce on arguments that favour their case, even when the arguments are false.

I am yet to be convinced that SCO is violating the GPL by publishing the 2.4.13 kernel on their website. I would be delighted to be convinced.

Perhaps there is some legal doctrine to the effect that if you claim in public that a contract is invalid, you can't try to agree to that contract yourself? It seems a bit unlikely. It seems to me that being two-faced is not incompatible with lawful behaviour.

Will - there are lots of examples of people charging for GPL code (MySQL springs to mind). For sure it's very hard to make a living doing it, because you cannot restrict your customers from sending the code to everyone else, for free. That's why the free is usually mostly for a service or support contract too. But there's no prohibition in the GPL about charging - unless I am mistaken here, it's another of the GPL myths.


Dr Drake

[ Reply to This | # ]

radiocomment
Authored by: Anonymous on Friday, August 22 2003 @ 03:43 AM EDT
I am just trying to get some order into chaos and structure into the arguments, correct me if I am wrong.

There are as I see it somme possible scenarios in the SCO vs. Linux user case

A) GPL valid and the contested code is GPL'd since SCO knowingly distributed it.

- SCO may charge for this code when they distribute it, perfectly legal under GPL. - You may redistribute it freely once you bought a copy from SCO. - I who got it free from you have a legally distributed copy.

So the only way for SCO to maintain that I must pay for a license is to state in essence that my copy is legally obtained under GPL but I may not run it without a license. Note that GPL states that it is about copying, modifications and distribution only except for one phrase in sect 0: "Activities other than copying, distribution and modification are not covered by this License; they are outside its scope. The act of running the Program is not restricted, ... "

Case closed

B) GPL valid and the contested code is SCO property, wrongfully included and not GPL'd .

- This voids the GPL on the Linux kernel making it impossible to distribute, according to GPL - We are back to individual copyright - GPL says nothing about my rights to keep running the code, but I cannot use GPL to redistribute - SCO may charge me to remove their property or pay for the use, but they must identify what their property is. The same holds for any owner of any code in the kernel.

Here it comes down to the SCO must strive to mitigate damage by making it possible to reomve the offending code. Since SCO has distributed the code, even if they didnt know, my good faith in obtaining the code is obvious.

Fixup of Linux kernel, keep fighting with IBM on contract details, users unharmed.

C) GPL is not a binding license

- Now we are back at B above plus all use of GPL stuff like GNU tools, samba, apache .. breaks down leaving their product line very thin.

Exiting times ahead, but will SCO profit from this ?

Conclusion is that the only viable option for SCO is to go for B) and actively help to remove their code from the Linux kernel by disclosing precisely what code they claim to be infringing. No licenses for Linux users. This bring us back to the SCO vs. IBM case and the fine points in AT&T lincenes and definitions of derivative works. Now that new findings form the UCB vs. USDL case is uncovered this is getting more and more difficult for SCO.


Magnus Lundin

[ Reply to This | # ]

radiocomment
Authored by: Anonymous on Friday, August 22 2003 @ 03:51 AM EDT
Magnus,

I like your summary. I think I agree with it all, although option B) still requires some court argument to show why users have no liability (which ought to hold up but SCO won't let it go without a fight). I'm not sure to what extent "good faith" is a good defense here (there must be oodles of case law and I knopw much has been discussed here already).

The point of my earlier posts has been that, in your option A, SCO is not violating copyright. Those people who have been advocating a DMCA takedown should pause and consider this.

By the way, there's also the very unlikely but awful option

D) The GPL is invalid and furthermore all GPL'd code is held by a court to become public domain.

It seems that the SCO lawyer was making some claim to this, albeit backed up with truly weak argument. In this situation SCO still can't charge for Linux licenses, but they can take the Linux code and do whatever the hell they want with it.


Dr Drake

[ Reply to This | # ]

radiocomment
Authored by: Anonymous on Friday, August 22 2003 @ 03:58 AM EDT
I think I understand what Dr. Drake is getting at, but I'll try a different approach to explain it.

Divide the linux world into two groups, one who uses SCO/Caldera Linux and one who uses any other type of Linux. Now the GPL applies to the distribution of software, which SCO/Caldera follows for the first group mentioned by not asking for a 'ScamSource' licence as they are SCO/Caldera customers. SCO/Caldera then demands the additional 'ScamSource' licence for the second group.

Notice that the 'ScamSource' licence only applies to Linux versions NOT distributed by SCO/Caldera. Thus, they are not violating the GPL in THEIR distribution of Linux, but only requesting OTHER companies' distribution of Linux pay an additional fee. Note that SCO/Caldera is NOT bound by the terms of the GPL used by other companies.

It seems to hit somewhere between the cracks of the GPL, but falls down when using common sense.


7thAmigo

[ Reply to This | # ]

radiocomment
Authored by: Anonymous on Friday, August 22 2003 @ 04:05 AM EDT
Here's the point.

SCO is offering a license to use a binary-only version of the linux kernel. Despite their continued distribution of the source (which I imagine is an amazing display of ineptitude), their license terms repeatedly point out that they are for binary-only usage. They offer this binary-only license for about $700. The GPL does not forbid charging ridiculous amounts for the binaries, so there's nothing wrong with that. What the GPL states is that to anyone to whom you do distribute binaries, you must provide the ability to receive the sources as well, at minimal cost. And that the receiver of the sources then has the ability to likewise distribute the binaries and sources so received. So, if I buy SCO's custom Linux for $700, they have to provide me with the source upon demand (they can ask me to pay duplication and shipping fees of reasonable amounts), and then I can make copies for all my friends at no charge. That's the GPL. That's why you don't see anyone selling custom linux distributions for $700.

Because SCO is denying the user's right to receive the source code, their license is in breach of the GPL, and they therefore have no redistribution rights on the linux kernel (breaking the GPL, as I read it, only removes the redistribution rights for the particular package which had the license violated -- not on all GPLed packages, so SCO still has the rights to distribute Samba and other GPLed packages, so far as I'm aware)

The question is -- this is all based on what they've stated repeatedly in the press. Is that enough to constitute a violation of the license? Or does it take more than words; does it require infringing deeds? Have they actually refused access to sources to anyone? Is this perhaps why they haven't removed the source code from their FTP site, so they can't actually be hit with a lawsuit for violating the GPL while they continue to loudly protest how invalid it is?

M


M

[ Reply to This | # ]

radiocomment
Authored by: Anonymous on Friday, August 22 2003 @ 04:07 AM EDT
Dr Drake: "There is absolutely nothing in the GPL to stop someone licensing the
same code under a different license, perhaps a more restrictive one."
No, there IS. You don't understand even the basics of GPL.
iwaku

[ Reply to This | # ]

radiocomment
Authored by: Anonymous on Friday, August 22 2003 @ 04:07 AM EDT
Dr Drake:

The good faith is that the exact same code was distributed by SCO under GPL. They claim that they were beliving the code was clean from problematic code when distributing it, so I as a user should be able to claim exactly the same thus removing retroactive liabilities.

If all GPL code becomes public domain then it is free, and floating in the wind to be used by anybody as they like. This is against they spirit of GPL by allowing use in proprietary products without giving anything back to the community, but it doesnt kill Linx. The BSD liscense is basically like this and only requres you the give due credit.

Possibly GPL has to be rewritten and all new code place under "GPLnoveau", whiler the old code is for everyone to use as they please.


Magnus Lundin

[ Reply to This | # ]

radiocomment
Authored by: Anonymous on Friday, August 22 2003 @ 04:15 AM EDT
Dr Drake: The GNU GPL does not give users permission to attach other licenses to the program. (http://www.gnu.org/licenses/gpl- faq.html)
iwaku

[ Reply to This | # ]

radiocomment
Authored by: Anonymous on Friday, August 22 2003 @ 04:15 AM EDT
Dr Drake,

SCO has publicly claimed that the GPL is invalid and is illegal, allegedly preempted by Federal copyright law. This is an implicit (or perhaps an explicit) rejection of the license terms for redistribution. From the GPL, section 5:

"You are not required to accept this License, since you have not signed it. However, nothing else grants you permission to modify or distribute the Program or its derivative works. These actions are prohibited by law if you do not accept this License."

This is explicit. SCO has rejected the terms of the GPL; therefore, they have no license to allow them to redistribute any GPL'd software (including the Linux kernel as well as the GNU tools they continue to distribute with their UNIX packages). By definition, they are in copyright violation.


Steve Martin

[ Reply to This | # ]

radiocomment
Authored by: Anonymous on Friday, August 22 2003 @ 04:17 AM EDT
Dr. Drake,

First, they are not offering a "warrenty", they are charging for the "right to use". They are infringing the copyright by charging a fee to USE the code. Charging a fee to use the code is not allowed under the terms of the GPL.

From http://www.caldera.com/ scosource/description.html: "This new SCO license is a binary, right to use SCO Intellectual Property in a distribution of Linux."

Second, you're absolutly right to say that SCO is within its rights to restrict downloads or the kernel to only its customers. If fact, the GPL does not require anyone to make downloads freely available, only to provide the source upon request and for a "reasonable fee for physically transfering" the code.

In another post, you said: "I cannot agree with this. There is absolutely nothing in the GPL to stop someone licensing the same code under a different license, perhaps a more restrictive one."

The thing that stops this is copyright law. SCO does not own the copyright to the bulk of the Linux kernel. The copyright owner can authorize how the code can be copied. As SCO is not the copyright owner for the bulk of the code, it does not have the right to license the code under different terms from the GPL.

Now, I think what you're getting at is that they are saying "you don't have the right to use 'our portion' of the code that is included in the kernel and we are charging for 'our portion'.

Well, the GPL covers that too. It says that if you combine your code with ours, you have to release your code under the GPL. If you don't want to, fine, but then you can't ship out code.

SCO is perfectly withing its rights to take their code and write a replacement kernel around it. When they finish in 2008, I'm sure they'll be plenty of buyers.


Mark Levitt

[ Reply to This | # ]

radiocomment
Authored by: Anonymous on Friday, August 22 2003 @ 04:31 AM EDT
SCO are distributing the GPL'd kernel only to their customers. That's fine - it's their ftp server, they can say who is allowed to access it.

The kernel they distribute contains a file that says that the recipient has permission to redistribute freely to anyone. That's OK, SCO are only allowed to distribute it themselves if they provide that permission.

Meanwhile, SCO issue press releases saying that their customers do not have permission to redistribute the kernel freely to anyone, and that only SCO licensees can legally have a copy of it.

That is a little odd ;-)

SCO's argument is presumably that their leaving a file written by someone else in a tarball they distribute does not actually constitute them giving anyone permission to do anything. This is, in itself, a fairly reasonable argument.

However, if they are not actually giving their customers permission to redistribute, but are only distributing a random text file called "COPYING", then they are in breach of copyright for distributing other peoples' work without those peoples' permission. That is the argument that has been advanced here.

Part of the confusion is on SCO's part, as they are putting the emphasis on whether end users have SCO's permission to use the allegedly SCO-owned works. Eben Moglen has pointed out that no-one needs the copyright holders' permission to use a work, only to make copies of it.

SCO might like, as an alternative, to claim that their customers have their permission to redistribute the kernel to all and sundry, but the recipients of this redistribution cannot actually use the kernel without a license from SCO. This also seems reasonable of itself, but unless Professor Moglen is very wrong about something fairly basic, there is no basis in law for them to make this claim. Professor Moglen says, by my interpretation, that if random SCO customer X has legally given me a copy of the kernel, I need no permission from anyone to go ahead and use it.


amcguinn

[ Reply to This | # ]

radiocomment
Authored by: Anonymous on Friday, August 22 2003 @ 04:31 AM EDT
SCO are distributing the GPL'd kernel only to their customers. That's fine - it's their ftp server, they can say who is allowed to access it.

The kernel they distribute contains a file that says that the recipient has permission to redistribute freely to anyone. That's OK, SCO are only allowed to distribute it themselves if they provide that permission.

Meanwhile, SCO issue press releases saying that their customers do not have permission to redistribute the kernel freely to anyone, and that only SCO licensees can legally have a copy of it.

That is a little odd ;-)

SCO's argument is presumably that their leaving a file written by someone else in a tarball they distribute does not actually constitute them giving anyone permission to do anything. This is, in itself, a fairly reasonable argument.

However, if they are not actually giving their customers permission to redistribute, but are only distributing a random text file called "COPYING", then they are in breach of copyright for distributing other peoples' work without those peoples' permission. That is the argument that has been advanced here.

Part of the confusion is on SCO's part, as they are putting the emphasis on whether end users have SCO's permission to use the allegedly SCO-owned works. Eben Moglen has pointed out that no-one needs the copyright holders' permission to use a work, only to make copies of it.

SCO might like, as an alternative, to claim that their customers have their permission to redistribute the kernel to all and sundry, but the recipients of this redistribution cannot actually use the kernel without a license from SCO. This also seems reasonable of itself, but unless Professor Moglen is very wrong about something fairly basic, there is no basis in law for them to make this claim. Professor Moglen says, by my interpretation, that if random SCO customer X has legally given me a copy of the kernel, I need no permission from anyone to go ahead and use it.


amcguinn

[ Reply to This | # ]

radiocomment
Authored by: Anonymous on Friday, August 22 2003 @ 04:33 AM EDT
Dr Drake:

"There is absolutely nothing in the GPL to stop someone licensing the same code under a different license, perhaps a more restrictive one."

Yes, there is. Section 2(b):

"You must cause any work that you distribute or publish, that in whole or in part contains or is derived from the Program or any part thereof, to be licensed as a whole at no charge to all third parties under the terms of this License."

This is also explicit. If you distribute a GPL'd work or a work that is a derivative of the GPL'd work, it must be licensed under the GPL. Note that this does *not* mean you can re-license it under BSD, Apache, or some other open-source (or closed-source, for that matter) license; it must be the GPL.

Of course, if the original author and holder of the copyright wishes to release the same code under a different license, then that is acceptable and has in fact happened in the past. The GPL, however, prevents a third party from grabbing the code and relicensing it more restrictively (which is what's been giving Microsoft fits).

As for charging for the software, yes, that is allowed. Section 1:

"You may charge a fee for the physical act of transferring a copy, and you may at your option offer warranty protection in exchange for a fee."

This does *not* say you can claim the code as your own and charge a license fee. Nowhere in the GPL is a license fee mentioned. By charging a license fee, SCO has changed the terms of the license, in effect they have attempted to re-license the GPL'd code.

You state "I think that makes it quite clear that SCO's licensing program is LEGAL in terms of the GPL. It doesn't mean that anyone actually has to buy a license (it seems likely that they don't)." According to SCO, they do. They have explicitly stated their intention to sue anyone who doesn't.

"Perhaps there is some legal doctrine to the effect that if you claim in public that a contract is invalid, you can't try to agree to that contract yourself?"

You can certainly be a good Samaritan and Try To Do The Right Thing, if you wish, but that doesn't mean you have a contract. A contract is an agreement between two or more parties. If there is no agreement, there is no contract.

(standard IANAL disclaimer should be applied to the above, of course)


Steve Martin

[ Reply to This | # ]

radiocomment
Authored by: Anonymous on Friday, August 22 2003 @ 04:36 AM EDT
As I re-read my last post, it occurred to me that yes, the GPL *does* mention licence fees:

"You must cause any work that you distribute or publish, that in whole or in part contains or is derived from the Program or any part thereof, to be licensed as a whole at no charge to all third parties under the terms of this License."

The phrase "licensed as a whole at no charge" jumps out. You explicitly may *not* charge a license fee for any GPL'd program you distribute.

This seems crystal clear to me.


Steve Martin

[ Reply to This | # ]

radiocomment
Authored by: Anonymous on Friday, August 22 2003 @ 04:36 AM EDT
Okay, thanks for the reasoned arguments. Let me respond -

M - I agree with everything you say. The key point is whether they have actually refused the source to anyone to whom they have distributed the binary (this is different from whether they have refused the source to anyone to whom they have *licensed* the binary). Since the only binaries they distribute seem to be on their website, along with the source, it looks like they haven't violated the GPL. I notice that they have been quite explicit about the fact that if you go for their scam license they will not send you any binaries.

ecprod - This is a very interesting argument which I had not thought of. Do their public statements constitute a rejection of the license? What happens if one states that one accepts a license (e.g. implicitly by distributing source) and later that one rejects it (e.g. by making a press statement)? I don't know. I don't know any way to force someone to answer the question "did you accept this license or didn't you?", except by bringing a court proceeding which hinges on it.

Magnus - I take your point. There is a slight problem with the good faith argument since it's only the 2.4.13 kernel (quite old) which SCO has been distributing, and that doesn't contain much of the allegedly infringing code. I think it would be difficult to claim legitimate usage of more modern kernels with this argument. I agree that even if all GPL'd code were put into the public domain it would not kill Linux, although it would be galling for previous contributors.

iwaku - Quit flaming. You misunderstand me. It is perfectly okay to re-license GPL code under another license. You can't *combine* the GPL with another (incompatible) license but you can distribute code which you own separately under GPL and another license. As indeed some companies have done (Trolltech?). And SCO trying to charge for licenses is not related to the GPL in itself because their license doesn't involve distributing any code at all.

ecprod's argument seems the strongest one that SCO might be violating copyright by distributing the kernel. But it's not all that strong, I feel. Does anyone have any case law on this issue?


Dr Drake

[ Reply to This | # ]

radiocomment
Authored by: Anonymous on Friday, August 22 2003 @ 04:47 AM EDT
Dr Drake: "It is perfectly okay to re-license GPL code under another license."
No, it's NOT. Copyright holder may distribute code/software under different
licenses (Trolltech). But you can't apply another license to code that is
already licensed under GPL. See GPL FAQ - it has answers to such questions. style="height: 2px; width: 20%; margin-left: 0px; margin-right: auto;">iwaku

[ Reply to This | # ]

radiocomment
Authored by: Anonymous on Friday, August 22 2003 @ 04:56 AM EDT
y doesn't somebody just post a link to IBM's counter claim. Their lawyers think SCO is violating the GPL License, and I thought explain quite well, why they think SCO is violating it.

News links

http://www.vnunet.com/News/1143155

http://www.onlamp.com/pub/wlg/3694


quatermass

[ Reply to This | # ]

radiocomment
Authored by: Anonymous on Friday, August 22 2003 @ 05:01 AM EDT
I have to go out just now but I wanted to respond to one thing -

"You must cause any work that you distribute or publish, that in whole or in part contains or is derived from the Program or any part thereof, to be licensed as a whole at no charge to all third parties under the terms of this License."

This looks like it applies to third parties only, as I said earlier.

If it was not legal to charge a license fee for GPL code, Moglen would surely have said so. I haven't seen him say any such thing, in situations when he was talking about SCO and the GPL.

Don't get me wrong, I would be *absolutely delighted* if SCO is violating the GPL by trying to charge for their license. But I cannot reconcile the views expressed here with the words of the GPL expert himself. And nor does it make any sense for RedHat, Mandrake, etc etc to be able to charge if SCO can't.

As a final point (I'll be back later but not for some hours) I want to draw attention to the distinction between distributing code and licensing it. Apart from the 2.4.13 kernel on their website, SCO is not distributing Linux. That limits the extent of their acceptance of and obligations under the GPL. Their scam license is clever precisely because it involves no distribution of code at all - it's just a sort of insurance fee against litigation by them (albeit neither necessary nor probably very effective).

Here's a devil's advocate argument - suppose that SCO were to change their tune a bit to say that only people using kernel >=2.4.14 need to buy a license. Is there any case at all for the GPL breach now?


Dr Drake

[ Reply to This | # ]

radiocomment
Authored by: Anonymous on Friday, August 22 2003 @ 05:02 AM EDT
It does sound like they're treading a very fine line. If they're not distributing the kernel, then they're not technically in violation of the GPL, because the GPL doesn't apply unless you distribute. If all you get is a slip of paper that says you have the right to run the binaries, then nobody can challenge that in terms of the GPL.

Of course, that's not to say that they can't be sued for fraud, extortion, insider trading, patent infringement, or any of dozens of other issues. But GPL violation isn't an option, unless they distribute that binary copy of the kernel to people who buy their license.

(One does wonder, though, that if they don't distribute the binary to their licensees, where do they expect those binaries to come from? _Someone_ will have to distribute them in order for SCO to be able to sell their purported licenses, and whoever that is will be obligated by the GPL to provide sources, which SCO claims cannot be legally distributed. If SCO approaches it this way, then the only way for someone to acquire a binary is via an illegal distribution. And if the only people SCO's selling to are people they claim have illegally acquired their products, a court might take a dim view of that).


M

[ Reply to This | # ]

radiocomment
Authored by: Anonymous on Friday, August 22 2003 @ 05:04 AM EDT
Dr Drake, The GPL has only been in court in the NuSphere - MySQL case. NuSphere settled that case quickly when the judge indicated that she would uphold the GPL. The GPL is a very strong, well designed license.

SCO's case would have been clearer if they didn't distribute the offending code and hadn't placed some older, related code under an open source license. Standard remedy would have been: remove the offending code; copyist and distributors pay damages.

SCO is creating a lot of cloud; don't get distracted by that. Don't let them provoke you to do stupid actions (like signing licence contracts or sending DMCA notices). The most sensible thing to do is wait until IBM is done with SCO.


MathFox

[ Reply to This | # ]

radiocomment
Authored by: Anonymous on Friday, August 22 2003 @ 05:08 AM EDT
> There is no contract in the world that will justify violating someone else's legal rights, and because > the authors with the copyright rights get to decide how they release their work, and they already chose > the GPL or nothing, anyone offering their work without their permission is a pirate, using SCO's own > terminology. And in this case, it fits. ----

Pirates, eh? Well, have no fear. SCO knows how to deal with pirates! We can just report them here:

http://www.sco.com/licensing/pir acy.html

Be sure to leave a nice message thanking SCO for providing this page and doing their part to help in the prevention of software piracy.


Chris

[ Reply to This | # ]

radiocomment
Authored by: Anonymous on Friday, August 22 2003 @ 05:17 AM EDT
"But GPL violation isn't an option, unless they distribute that binary copy of the kernel to people who buy their license." (M)

The GPL requires more than just to distribute the source code only.

IBM's counterclaims argue how SCO has violated GPL. Article 2b of GPL is of especial relevance here. Clipped from IBM's counterclaims:

http://lwn.net/Articles/43592/ [Quotations follow.]

B. SCO, Linux and the GPL

- -

15. SCO has distributed its Linux products under the GNU General Public License (the "GPL"), a copy of which is attached hereto as Exhibit H. The GPL is intended to guarantee "freedom to share and change free software -- to make sure the software is free for all its users". Linux is subject to the GPL because it is comprised of programs and other works that contain notices placed by contributing copyright holders saying that they may be distributed under the terms of the GPL. The Linux developers' public agreement to apply GPL terms expresses in a binding legal form the conscious public covenant that defines the open-source community -- a covenant that SCO itself supported as a Linux company for eight years.

16. SCO accepted the terms of the GPL by modifying and distributing Linux products. By distributing Linux products under the GPL, SCO agreed, among other things, not to assert -- indeed, it is prohibited from asserting -- certain proprietary rights (such as the right to collect license fees) over any source code distributed under the terms of the GPL. SCO also agreed not to restrict further distribution of any source code distributed by SCO under the terms of the GPL.

- -

SIXTH COUNTERCLAIM

Breach of the GNU General Public License

- -

75. IBM has made contributions of source code to Linux under the GPL on the condition that users and distributors of such code, including SCO, abide by the terms of the GPL in modifying and distributing Linux products, including, for example, the requirement that they distribute all versions of GPL'd software (original or derivative) under the GPL and only the GPL pursuant to § 2(b) of the GPL.

76. SCO has taken source code made available by IBM under the GPL, included that code in SCO's Linux products, and distributed significant portions of those products under the GPL. By so doing, SCO accepted the terms of the GPL (pursuant to GPL § 5), both with respect to source code made available by IBM under the GPL and with respect to SCO's own Linux distributions.

77. The GPL prohibits SCO from asserting certain proprietary rights (such as the right to collect license fees) over, or attempting to restrict further distribution of any source code distributed by SCO under the terms of the GPL. Based on the misconduct described herein, SCO's rights to distribute the copyrighted works of others included in Linux under the GPL have been terminated pursuant to § 4 of the GPL.

78. SCO has breached the GPL by, among other things, (1) claiming ownership rights over Linux code, including IBM contributions; (2) seeking to collect and collecting license fees with respect to Linux code, including IBM contributions; (3) copying, modifying, sublicensing or distributing Linux, including IBM contributions, on terms other than those set out in the GPL and after its rights under the GPL terminated; and (4) seeking to impose additional restrictions on the recipients of Linux code, including IBM contributions, distributed by SCO.

- -


Kai Puolamaki

[ Reply to This | # ]

radiocomment
Authored by: Anonymous on Friday, August 22 2003 @ 05:23 AM EDT
Dr. Drake, I'm not sure I understand what you mean be "that applies to third parties only"?

The first party is the Linux kernel copyright holders. The second party is SCO. The third party is me (and all other end-users). Therefore, by SCO demanding a license fee for third-parties, it violates their agreemnt with the kernel copyright holders.


Mark Levitt

[ Reply to This | # ]

radiocomment
Authored by: Anonymous on Friday, August 22 2003 @ 05:28 AM EDT
Dr Drake:

SCO is not violating the copyright of 2.4.13 they distribute if they are not trying to get license fees from someone who has downloaded that version or transitively obtained it from someone who has downloaded that from their server.

And if that version does not contain their property than they cannot request license fee for that.

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


However SCO is carrying out copyright infringement on the collective copyright of any kernel version distributed by the respective distributor for which it is trying to get a binary-only license fee.

Reasons:

The collective copyright of the kernel modified by the distributor is the distributor's and it is GPL. This is because of the GPL of the original kernel, and because it is intentionally redistributed that way.

SCO is trying to sublicense that product (the (possibly modified) kernel version distributed by someone else). This is explicitly forbidden by GPL Section 4. of Terms and Conditions for Copying, Distribution and Modification. "You may not copy, modify, sublicense, or distribute the Program except as expressly provided under this License."

Reason: - they are trying to sublicense it. This is without question. - However they don't provide you with the source. Actually they don't even provide you with the binary. They only provide you with a piece of paper and an invoice to pay. - They don't allow you all the rights granted by the GPL (redistribution, etc.).

This is contrary to the GPL.

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


The question of barring you the source or just not saying that you can get the source:

This is not only the question of enabling you to see the source. It is enabling you to see the source and redistribute it under GPL. And that is surely something which they don't allow, since they explicitly stated that they want to sue each and every Linux user who has not purchased a license from them directly. That is even if I obtained the kernel from someone who has purchased the licence, I would be sued because of this. Therefore it is restricting the rights of the license holder to lawfully redistribute the kernel, because the redistributor would not be able to grant me even full rights of usage, therefore he cannot effectively redistribute the kernel. Therefore the licence-purchaser's GPL-granted rights would be further restricted by SCO who is not the holder of the copyrights of the kernel version I obtained from sources other than SCO.

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


Redistributing something published under GPL with license different than GPL.

You are perfectly entitled to do this with things which you _fully_ own the copyright of, or got permission to sublicense it under your terms for all parts you don't fully own the copyright of.

SCO is not fully owning the copyright of the Linux kernel and it never will. Therefore it cannot relicense the kernel itself.


Robvarga

[ Reply to This | # ]

radiocomment
Authored by: Anonymous on Friday, August 22 2003 @ 05:31 AM EDT
Quick topic change: When did SCO start think about suing IBM (discussed before). This might be relevant:

http://www.inter netnews.com/dev-news/article.php/2106421

McBride stressed that SCO began negotiating with IBM some time last December, but chose to enter litigation because "negotiations had reached an impasse and a settlement could not be reached amicably."

http://www.eweek.com/a rticle2/0,3959,922913,00.asp

"IBM has been happily giving part of the AIX code away to the Linux community, but the problem is that they don't own the AIX code," McBride said. "It's a huge problem for us. We have been talking to IBM in this regard since early December and have reached an impasse. This was thus the only way forward for us."


quatermass

[ Reply to This | # ]

radiocomment
Authored by: Anonymous on Friday, August 22 2003 @ 05:38 AM EDT
Is was the increasing stokc price important to SCO?

ht tp://www.zdnet.com.au/newstech/os/story/0,2000048630,20274933,00.htm

SCO is in negotiations to buy two smaller companies that will bolster its SCOx plan, McBride said. Acquisitions have become easier because of the company's increasing stock price, he added. The company's stock climbed from US$4.75 on May 16 to a high on US$8.89 on May 22, shortly after SCO announced the Microsoft license deal."


quatermass

[ Reply to This | # ]

radiocomment
Authored by: Anonymous on Friday, August 22 2003 @ 05:41 AM EDT
Is this the same Cohen with 10% interest in SCO stock that is pumping it now on CNBC?

From http://www.calde ra.com/company/press/20000110invest.html

Novell Jonathan Cohen Jcohen@novell.com


Supa

[ Reply to This | # ]

radiocomment
Authored by: Anonymous on Friday, August 22 2003 @ 05:45 AM EDT
The Inquirer has an article on the copied code at: http://www.theinquirer.net/?art icle=11162

IF YOU'VE been having trouble keeping the latest developments in the SCO vs. Linux saga straight, here's a quick(ish) summary. [...]

So at the very least, SGI has some explaining to do. Perhaps it has the right to do what it wants with that code, perhaps it messed up. [...]

Perhaps someone needs to audit SCO's code for missing copyright messages...


MathFox

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radiocomment
Authored by: Anonymous on Friday, August 22 2003 @ 05:58 AM EDT
Dr Drake: "I would be *absolutely delighted* if SCO is violating the GPL by trying to charge for their license. But I cannot reconcile the views expressed here with the words of the GPL expert himself. And nor does it make any sense for RedHat, Mandrake, etc etc to be able to charge if SCO can't."

The difference is that Red Hat etc are not charging *license* fees, they are charging for things such as cost of materials, books, support contracts, all of which are explictly allowed in the GPL. SCO is charging *license* fees, which is explictly disallowed.

"Apart from the 2.4.13 kernel on their website, SCO is not distributing Linux. That limits the extent of their acceptance of and obligations under the GPL."

This is not accurate. If one were to take a look at the FTP site where SCO is distributing the kernel, one would see that they are also distributing all the other files that normally go into a GNU/Linux distribution (shells, binutils, etc), all of which are GPL and many (most?) of which are GNU Project files. If SCO rejects the GPL terms, they are not allowed to distribute *any* of this.

In addition, SCO's own PR releases indicate that they'll be bundling and distributing Samba with their servers for integration with Microsoft platforms. Samba is GPL'd code (http://us1.samba.org/samba/samba.ht ml for the Samba team's take on this mess), so if SCO rejects GPL, they are legally prohibited from this act.

"Here's a devil's advocate argument - suppose that SCO were to change their tune a bit to say that only people using kernel >=2.4.14 need to buy a license. Is there any case at all for the GPL breach now?"

I don't see how the argument has changed. Any Linux kernel version is GPL, so the version number is irrelevant. Until and unless SCO proves the existence of their IP in the Linux kernel, they have no claim at all to any version.


Steve Martin

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radiocomment
Authored by: Anonymous on Friday, August 22 2003 @ 06:16 AM EDT
Actually this may not be right at all.

They have the right to reject the GPL licence of certain programs, but they have to face full consequences for those programs.

Ergo they may reject the licence of the kernel but they may abide by it at Samba.

But if they don't abide by the licence of a specific product they cannot redistribute it and cannot distribute derivative works of it.

Each Linux version is a different product. Therefore they may say, that I agree with the GPL licence of 2.4.13. Then they can redistribute 2.4.13, or any modified version of 2.4.13, but ONLY UNDER THE GPL.

However that does not enable them to put their proprietary code and changes from later versions back to 2.4.13 and redistribute it as 2.4.13-fork21 under a different licence. They could still distribute it under GPL.

Of course if you lag behind with versions, you may lag behind in sales.


Robvarga

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radiocomment
Authored by: Anonymous on Friday, August 22 2003 @ 06:18 AM EDT
The this may not be right at all refers on

"Any Linux kernel version is GPL, so the version number is irrelevant. "


Robvarga

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radiocomment
Authored by: Anonymous on Friday, August 22 2003 @ 06:20 AM EDT
Mathfox:

"NuSphere settled that case quickly when the judge indicated that she would uphold the GPL."

I'm not sure that's exactly what happened there... I'm reading http://www.open-mag.c om/features/Vol_24/GPL/gpl.htm, and it seems to indicate that the judge's decision had more to do with trademark protection than the validity of the GPL: "The judge ruled that NuSphere canít market products under the MySQL trademark. Saris declined to get into the complexities of the GPL.".

Further description of that case's preliminary hearing from Declan McCullagh in a message to the Politech mailing list included the following: "Though she did not issue any orders on the spot, Judge Saris made it plain that she intended to issue a preliminary injunction against NuSphere's use of the marks in question (likely with 90 days to stop usage of the marks) and that she was not going to issue a preliminary injunction in the more complicated matter of the use of the MySQL code and terms the GPL."

As much as I would like to see the GPL upheld in court, I can't really interpret this as a solid in-court recognition of the GPL. Am I misinterpreting this? If so, please correct me.


Steve Martin

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radiocomment
Authored by: Anonymous on Friday, August 22 2003 @ 06:21 AM EDT
What really get's SCO's (and SUN's) craw... is that the LINUX GNU GPL (and LINUX in general) gives power to the application developers (example: Oracle could package a free or fee based LINUX distro themselves, AND then package in a different box their database application that will run on their distro, AND then collect support fees for support for the product line-up when run as a combination). The application developers all could fall in LOVE with this situation as they then would not have to have permission from the OS developers to innovate!

With Microsoft moving in on Intuit's territory (MS owns business accounting app company(s) and could target Quickbooks very easily from above or below the niche), I wonder why Intuit does not do a Intuit Linux distribution, AND then in a different box sell a accounting application to load onto their distro, - and then charge for tax table changes and support for both (small annual fee)! In fact, anyone else could do the same thing as well (such as groups of accoutants, accounting firms, etc)!

The LINUX GNU GPL is good for competition!


annon

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radiocomment
Authored by: Anonymous on Friday, August 22 2003 @ 06:23 AM EDT
Robvarga - I think they said their claims apply to all 2.4 and 2.5 Linux. 2.2 is what is "safe" according to them.

Supa, I do not *think* the Novell Cohen is the same one.

Here is a bio I found of the JHC Cohen. He serves or served on the advisory board of Verus Capital Corporation

http://www.verus international.com/People/body_people.htm

According to the bio he was formerly the "Director of Research at Wit Capital"

A "Wit Capital Group, Inc.", which *might* (or might not) be the same company referred to in the bio, was involved in Caldera's IPO

http://www.caldera.co m/company/press/000110ipo.html

None of this, in my opinion, proves anything. But it is interesting background.


quatermass

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radiocomment
Authored by: Anonymous on Friday, August 22 2003 @ 06:32 AM EDT
Robvarga:

They certainly have the right to reject accepting the GPL on any individual GPL program. However, accepting the GPL is the only way that they can get the rights to distribute that particular GPL code. This is explicitly stated in GPL section 5:

"You are not required to accept this License, since you have not signed it. However, nothing else grants you permission to modify or distribute the Program or its derivative works."

My statement about the irrelevancy of the version number was in regard to Dr Drake's hypothetical question regarding license fees for post-2.4.13 versions. Seems to me that, if it's wrong to try to license GPL'd code, it's wrong to try such licensing on *any* GPL'd Linux kernel, whether pre- or post-2.4.13. That was what I meant when I said that the version number is "irrelevant".

As for rejecting the GPL regarding the kernel but accepting it regarding Samba, isn't that just a bit of a conflict? If SCO claims that the GPL is invalid, then in their view it's invalid. It makes no sense to say "This license is invalid as applied to code A", and then say "Oh, wait... this license *is* valid regarding code B" when it's exactly the same license, same wording, same language, identical in all respects. SCO has publicly rejected the terms of the license. I think it'll now be a touch hypocritical of them to benefit from the license regarding Samba etc but condemn that very license regarding the Linux kernel. As has been mentioned here before, they can't have it both ways.

I agree with the rest of your statement, in that they cannot back-port patches from post-2.4.13 versions and relicense the patched 2.4.13 kernel under a different license.


Steve Martin

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radiocomment
Authored by: Anonymous on Friday, August 22 2003 @ 06:36 AM EDT
"if it's wrong to try to license GPL'd code,"

Sorry, that should read "if it's wrong to try to RE-license GPL'd code".

Shouldn't try to post before morning coffee... :)


Steve Martin

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radiocomment
Authored by: Anonymous on Friday, August 22 2003 @ 06:51 AM EDT
Boy, there have been a lot of comments on my off the hand comment that a DMCA takedown notice may be forthcoming. Surely we've all seen the story where someone distributing Open Office got a takedown notice from someone representing Microsoft claiming that the files were MS Office.

Regarding the liability for falsely claiming something is required to be taken down, there seems to be none. The person requesting the takedown affirms (under penalty of perjury) that they have authorization to represent the copyright holder named in the letter. The person writing the letter only needs to have a good faith belief that the materials being asked to be taken down violate copyright. At least one case suggested that they don't even have to check before sending a notice.

Regadring how or if SCO is in violation of the GPL: THe GPL requires that you do (at your option) one of two things: distribute the code with the binaries or accompany the binaries with a written offer, valid for three years, to distribute *to any third party* copies of the source. They distribute kernel binaries without accompanied source. To the extent that their "legal notice" disallows non-SCO customers from downloading the source, they are in violation of the GPL.


Ruidh

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radiocomment
Authored by: Anonymous on Friday, August 22 2003 @ 06:53 AM EDT
ecprod:

I said rejecting the license, not attacking the validity of the license.

Rejecting a license is just saying: I won't abide by the terms of this license, and therefore face the consequences of this licence.

This has nothing to do with saying there is nothing to accept because it is invalid, which is SCO doing right now.

If SCO just rejected the license of 2.4.14+ saying that I cannot abide these terms (for example because it contains code that is mine and I don't want to redistribute under GPL), then he can say that he does not redistribute anything above 2.4.14 (included), but that has nothing to do with accepting the license of 2.4.13. In this case it is forking from 2.4.13, still under GPL. This is perfectly acceptable under GPL. Therefore version number DOES MATTER.

However this is NOT what SCO is doing currently, since SCO currently

1. Claims that the GPL is invalid. This still has no enforcement value, until it is judged by the court to be so. Once it is found that the GPL is invalid, he will be committing copyright infringement by distributing any GPL software since then he would have no license to redistribute them. But until a court decides on this, this has no relevance at all for current matters.

2. Violates the GPL by selling binary-only licence on kernel versions distributed by someone else (restricting rights) if SCO himself does not distribute any code/source along the licence.

3. Would violate the GPL as soon as it sells a binary-only version of any derived work of GPL-ed software where the deriving step was made by them (they probably would grant you access of GPL-ed software source distributed by someone else, too, eg. SAMBA).

4. Other things not strictly related to Linux and GPL.


Robvarga

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radiocomment
Authored by: Anonymous on Friday, August 22 2003 @ 06:57 AM EDT
Just a complete different question that popups in me:Does anyone know anybody that works for SCO? I am so curious if their developers are searching new jobs, of what they think of their management etc.??

Basically I'd love the know how the current atmosphere is like in Lindon's SCO building


Pete Dawson

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radiocomment
Authored by: Anonymous on Friday, August 22 2003 @ 07:09 AM EDT
What developers? :))) I think there are almost no developers at SCO
currently.
Robvarga

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radiocomment
Authored by: Anonymous on Friday, August 22 2003 @ 07:25 AM EDT
I thought they had 300+ workers there?
Pete Dawson

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radiocomment
Authored by: Anonymous on Friday, August 22 2003 @ 07:40 AM EDT
I think they are developers of marketing strategy and accountants and other stuff.

I seem to remember SCO reducing its development staff a couple of months maybe a year ago.


Robvarga

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radiocomment
Authored by: Anonymous on Friday, August 22 2003 @ 07:46 AM EDT
Dr. Drake: It is distribution in violation of US TITLE 17. It's quite simple. SCO is distributing software to people who are not SCO employees. SCO has claimed that the Linux kernel (a single monolithic supervisory control program) contains some code that is licensed under the GPL, and some misappropriated code that is not licensed under the terms of the GPL. SCO has not segregated their code into files that can be distributed seperately from the rest of the kernel sources. Many copyright owners ONLY license their code to be distributed as part of a GPL'd program. Some have asked SCO to stop violating their rights under US TITLE 17. The Linux kernel SCO distributes either is or isn't entirely licensed under the GPL. Each download from ftp.sco.com is a statutory violation.

http://the-inquirer.ne t/default.aspx?article=10018


Harlan

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radiocomment
Authored by: Anonymous on Friday, August 22 2003 @ 08:45 AM EDT
Re: version numbers and GPL...

IANAL of course, but it appears to me that kernel 2.4.14 is clearly a derivative work of kernel 2.4.13. And 2.4.15 is a derivative work of .14. And so on.

Doesn't the GPL say that the license is inherited by derivative works? Since SCO is distributing 2.4.13 shouldn't that then mean that .14+ is OK also?

Or is my understanding backwards (since someone else created the derivative work)?


Ken Ryan

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radiocomment
Authored by: Anonymous on Friday, August 22 2003 @ 09:11 AM EDT
A good reminder that the Judge for this case has already been chosen (and discussed here on Groklaw) is over on slashdot in the comments for the story posted this morning about SCO: http://slashdot.org /comments.pl?sid=75706&cid=6765474
Jeff Randall

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radiocomment
Authored by: Anonymous on Friday, August 22 2003 @ 09:16 AM EDT
Ken:

That sounds to restricted, ken nobody could change the license of any new Linux kernel.

Let me try it as follows:

A writes some code and publish it under license X ( GPL ).

B adds new features to A's program, this is a derived work and must keep license X (if so stipulated).

A and B get together to improve the program creating version 2. This is not a derived work, it is a new, combined work with different parts copyrighted by A and B. They can now together decidede to publish this work under license Y if they like, and just forget about license X. But they probably cannot remove license X from the old version 1 code that A originally wrote now circulating on the net.

I think dervive work implies that it is built upon somebody else's work. In the kernel revision sequence .. well maybee


Magnus Lundin

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radiocomment
Authored by: Anonymous on Friday, August 22 2003 @ 10:19 AM EDT
With regard to what SCO are distributing, 2.4.13 does include NUMA but not JFS or RCU. According to http://www.distrowa tch.com/table.php?distribution=SCO they were distributing 2.4.19 which does include all of the contested technologies up until 15 May - long after the claims against IBM were made.

There is still a file on their FTP site that contains patches for 2.4.19 but it doesn't contain the complete source, despite what some casual observers are quoting, e.g. http://www.ale.o rg/archive/ale/ale-2003-07/msg00724.html

I don't know if SCO made any binary only distributions of OpenLinux 4.0 but if they did they are required to offer the source code to anybody who requests it for 3 years after they stopped distributing the binary. If they don't then that would be a clear violation of section 3 of the GPL.Personally I've always considered that term sufficiently onerous that I've insisted that any distribution of GPL code that I've performed has included source.

Everyone has asked why SCO didn't try googling for their favourite stolen code to check it's history - surely they couldn't as Google uses Linux and probably a new enough version to contain the disputed code - they wouldn't want to be seen to be promoting its use. Maybe Google and a few other high profile Linux web sites could help them ensure they don't accidentally use such a copy of Linux by blocking their IP address range.


Adam Baker

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radiocomment
Authored by: Anonymous on Friday, August 22 2003 @ 10:33 AM EDT
Eric Raymond does a thoughtful analysis of the "smoking gun SCO Code. It is well worth the read.
PhilTR

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radiocomment
Authored by: Anonymous on Friday, August 22 2003 @ 10:46 AM EDT
I had to do some paid work, so this is my first opportunity to see these comments. For what it's worth, here are my opinions:

Dr. Drake: your valiant efforts to try to find an escape hatch to the GPL reminds me of someone. You will fail, just as they are. If you or SCO want to learn how the GPL works, write to the FSF, and they will explain it. Or just go to the GNU.org website and read all about it. As for GPL being invalidated and thus all the code becomes public domain: no, it doesn't. If that is the dream, it's in the pipe category. If the GPL were invalidated, and it won't be, then the code remains copyrighted code, as so many able commenters have pointed out to you already. It is SCO itself that has asserted that the only way to lose your copyright is to waive it in a writing. So, dream on.

Jonathan: don't worry about redundant. Sometimes the software doesn't help. Trying to post when someone else is doing the same will result in redundant posts. Actually all thoughts are welcome, to me anyway. Soon Groklaw will be moving to better quarters and better softtware. Developers could send a cease and desist as individuals and Linus could with respect to his collective copyright rights. That is my understanding.

Roy Murphy: regarding your thought that there is no penalty for a false DMCA takedown request. That is not accurate. "Under penalty of perjuy" means there are penalties for perjury. Once again, everyone, do nothing without a lawyer.

Harlan: do you have a url on the HP rolling over thing? I'd like to write about it. Pls. provide either here or by email. thanks.

quatermass: your research skills are wonderfully admirable. I want to acknowledge your major contribution. You too, Harlan. Really, the comments on this site are, with minor exceptions, of tremendous value. On the message not being there before, you are right. I myself can testify to that. I think, whenever we find things like this, it'd be good to take screenshots and save them for a legal rainy day. I did take screenshots of the page without any warning, as it happens, but I never saw the rest. So, there's my suggestion.

To all who ably answered "Dr Drake", thank you.


pj

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radiocomment
Authored by: Anonymous on Friday, August 22 2003 @ 10:50 AM EDT
Adam -- your last point is very important. Clearly, SCO's been attempting to hide their tracks regarding distributing their own alleged code under the GPL. Since it's a matter of record that they've done so, it won't work.

So the only issue, then, is using the DMCA on what they're currently distributing. It seems to me that several people here have got it right: they've publicly claimed the GPL is invalid, so how could they possibly "accept" the license? Every EULA out there demands that you not install software if you don't accept the terms. Granted, the GPL isn't a EULA, but I would imagine the same principle holds, as it explicitly says without license acceptance you have no rights to distribute. You don't have to violate the terms of a license in order to fail to accept those terms. And if you don't accept the terms, then you don't get the benefits...

Since it's also been noted here that SCO is actively violating the terms, anyway, it seems to me like a DMCA violation is an open-and-shut issue. A copyright holder should file a complaint.


Jonathan Williams

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radiocomment
Authored by: Anonymous on Friday, August 22 2003 @ 10:53 AM EDT
In my non-legal-type opinion, of course.
Jonathan Williams

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radiocomment
Authored by: Anonymous on Friday, August 22 2003 @ 11:20 AM EDT
Jonathan, They've done more than simply "publicly claimed the GPL invalid". They have sold a "license to use" to at least one company (although they won't say who). Under the terms of the GPL, they have automatically terminated their right to distribute that code. The GPL emplicitly prohibits charging a license fee.

And how is the GPL not a EULA? Only in name, but in function they are identical. A License to do x,y, and z is a license regardless of what x,y and z actually are.


Mark Levitt

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radiocomment
Authored by: Anonymous on Friday, August 22 2003 @ 11:21 AM EDT
Ugh. That should have read "explicitly" prohibits...

Too much coffee...


Mark Levitt

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radiocomment
Authored by: Anonymous on Friday, August 22 2003 @ 11:51 AM EDT
Mark,
As I understand it, the GPL is not a license to the end user. It's a license
for redistribution and modification.
Jonathan Williams

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radiocomment
Authored by: Anonymous on Friday, August 22 2003 @ 01:08 PM EDT
Harlan: do you have a url on the HP rolling over thing? Sorry!

That cryptic remark was made tongue-in-cheek about the Samba Project Team composition and the SGI kernel commit made through an HP ia64 maintainer.

Two of the main contributors for Samba are Andrew Tridgell and Jeremy Allison. They both worked together at VA Linux Systems. Andrew later went to work at IBM's Almaden Research Center, and Jeremy went to work at HP (hence my wisecrack about "partly" in reference to their core ethos). There is an article about Samba and SCO here: http://www.theinquirer.net/?art icle=11134

HP claims to make more billions from Linux than IBM. The contrasts between (1) SCO v IBM, and HP sponsoring SCO Forum (up until the last minute), and (2) the role HP played in sponsoring the misappropriation of the slide show ate_utils.c malloc code, versus IBM's role in it all (none) was simply too ironic for me to let pass without comment:)


Harlan

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radiocomment
Authored by: Anonymous on Saturday, August 23 2003 @ 01:21 PM EDT
Jonathan:

GPL is a licence both to the end-user (a user's licence) and to any to-be-redistributor (licence to modify and redistribute under the same licence).

The text of the GPL must be received accompanying the compiled code as well. Therefore end-users also get it.


Robvarga

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