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Attorney: SCO's Case Dubious; Proprietary Software the Villain Here
Thursday, June 26 2003 @ 11:29 AM EDT



Anupam Chander, Professor of Law at the University of California, Davis, School of Law, a graduate of Yale Law School and Harvard College, who specializes in cyberlaw and international law, has a strong defense of open source software on FindLaw, cited on Slashdot, in which he confirms what I've been saying here. But because he is an attorney, he can speak with greater force. He says while SCO and Microsoft allege that it's dangerous to use open source software because you never know where the code comes from, it's actually closed, proprietary software that is dangerous, because you never know who will decide to sue you:
Proprietary interests, especially in intellectual property, tend to breed confidentiality - as anyone who ever signed a nondisclosure agreement with a fledgling dotcom with a "brilliant business idea" well knows. And confidentiality, in turn, breeds conspiracy theories, and allegations of theft - or unfair competition, or breach of contract, or the like. In contrast, if there is something amiss in open code, it will be more difficult to hide.
He also addresses the issue of SCO claiming derivative code rights:
The final policy argument in favor of open source software is, of course, societal. At some point, information that is widely studied in universities, reprinted in college textbooks, and advanced through academic scholarship must be considered public domain.

For this reason, SCO's claims that its intellectual property rights extend to basic computing features of large operating systems cannot be allowed to stand. Otherwise, there will be no such thing as truly open, free software - and as a consequence, there will effectively be an economy-dragging tax on information technology.

In short, society has an interest in seeing SCO lose. As Jon "Maddog" Hall said in a speech in England, open source software is an international treasure that mustn't be allowed to be destroyed by greedy individuals, and he compared SCO to looters stealing Iraq's cultural treasures for a quick buck.


  


Attorney: SCO's Case Dubious; Proprietary Software the Villain Here | 9 comments | Create New Account
Comments belong to whoever posts them. Please notify us of inappropriate comments.
radiocomment
Authored by: Anonymous on Thursday, June 26 2003 @ 09:10 AM EDT
I found the 1st part of his article more interesting. Do courts consider
societal arguments in a case such as this?
S Tanna

[ Reply to This | # ]

radiocomment
Authored by: Anonymous on Thursday, June 26 2003 @ 09:15 AM EDT
Yes. The impact on the public is considered.
pj

[ Reply to This | # ]

radiocomment
Authored by: Anonymous on Thursday, June 26 2003 @ 02:54 PM EDT
As to the allegation that you never know where open source code comes from, the
reverse is true. With an open source project it is usually possible to trace
each contribution. With closed source you have no idea where the code
originated. I doubt that SCO's (as successor in interest, don't they inherit
AT&T's misdeeds as well?) misappropriation of BSD code was a unique
occurrence.
Greg T Hill

[ Reply to This | # ]

radiocomment
Authored by: Anonymous on Thursday, June 26 2003 @ 05:24 PM EDT
Greg,

Are you by any chance a kernel contributor? If so, would you like to write out, with links/proofs, how the process works? I'll post. It doesn't have to be long, just true.


pj

[ Reply to This | # ]

radiocomment
Authored by: Anonymous on Friday, June 27 2003 @ 10:08 AM EDT
I'm not Greg, but as I understand it the process has evolved like this: Firstly, patches to the kernel are submitted to the kernel developers' mailing list, either directly or via maintainers. Since the mailing list is publicly archived, there is a record of who submitted each patch and the subsequent discussion. This record extends back before the kernel was put under formal source code revision control with BitKeeper software.

As an example of the value of this archive, when NUMA support was first posted to the list, a developer pointed out NUMA was patented. Then some IBM chaps pointed out that Sequent held the patent, that IBM had bought Sequent, and that it was ok with IBM. This exchange demonstrates that the kernel developers do take IP issues seriously and do not set out to infringe other's rights.

Secondly, contributed code has a copyright notice attached from the original author(s). Thus for any source file in the kernel, one can see the individuals who claim copyright (and who should therefore be sued if they're lying ;)

It is true that those who submit code to the kernel do not sign an affidavit saying "I solemnly swear this is my own IP" each time, but that doesn't happen in any sort of development. The developer, in open and closed source, implicitly attests that he/she is not infringing on anything (to the best of his/her knowledge.)

Thirdly, because the kernel source code is available for public viewing, the developers are making it as easy as possible for others to verify that the kernel is not infringing their IP. Remember that in general it is the IP holder's responsibility to defend his/her IP. This is significant in Chandler's analysis: since SCO can see the kernel code, but refuse to point out the infringing sections so that any infringement can be dealt with, it can be argued that the doctrine of laches applies (I think ;)


Dr Stupid

[ Reply to This | # ]

radiocomment
Authored by: Anonymous on Friday, June 27 2003 @ 10:09 AM EDT
P.S. What happens with the email addresses one is asked to submit? I'd give my
real one if I knew what was to become of it ;)
Dr Stupid

[ Reply to This | # ]

radiocomment
Authored by: Anonymous on Friday, June 27 2003 @ 02:00 PM EDT
Dr Stupid

I don't know what happens with the email address. I'll find out. I certainly don't see them in my normal course of work. I'll do some digging. But anyone who wishes to email me without ending up on someone else's list can email me by clicking on the envelope graphic. I'll delete you from the Inbox on request.

On laches, that is one of IBM's Affirmative Defenses. I'll be explaining more about that when I can. Likely their defense is based not only on what you point out but on their knowing about this for some time before doing anything.


pj

[ Reply to This | # ]

radiocomment
Authored by: Anonymous on Friday, June 27 2003 @ 05:03 PM EDT
It dawns on me after posting that it is conceivable that emailing me by clicking
on the graphic could be retained too. Now I'll really investigate. style="height: 2px; width: 20%; margin-left: 0px; margin-right: auto;">pj

[ Reply to This | # ]

radiocomment
Authored by: Anonymous on Saturday, June 28 2003 @ 04:56 PM EDT
I did check on both and have an answer on one. If you click on the envelope to send an email to me, your email address is not retained on the server, but of course, i will see it, as with any email.

I have sent in the second question, and I will post what I find out, but I'm guessing they don't retain it either, because when i sent in the question on their web form, it said they don't keep a copy of the email address on their radio server.

PJ


pj

[ Reply to This | # ]

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