Douglas Steele is a Tokyo-based IP attorney and a member of the New York bar. He is also a contributor to XPde, a free software project.

He has a warning about SCO's new legal tactic, and it is his view that SCO is trying to get the judge to declare all works released under the GPL for the last 3 years put into the public domain. Note his remarks about downloading from the Caldera FTP also. He isn't saying SCO will succeed. He is saying this is what he understands they are trying for.

Charity begins @ home: SCO, Linux and the Cy Pres doctrine

SCO's Reply to IBM's Amended Answer with Counterclaims makes a claim that, while not surprising considering the source, is shocking given its content. SCO maintains that, as a matter of law:

"The General Public License ('GPL') is unenforceable, void and/or voidable..."

While Groklaw readers may be howling with laughter, there is an implicit claim here that puts SCO, if not to the left of Richard Stallman, at least in the company of Lawrence Lessig.

The obvious retort to SCO's claim that the General Public License is void or voidable as a matter of policy is to note first their hypocrisy in having distributed, modified and then redistributed software under the GPL and then to assert that if the GPL is void, then SCO itself is an infringer. It does not, however, necessarily follow that SCO is an infringer if the General Public License is void.

The Copyright Act gives an author a limited monopoly on an original work once fixed in a medium of tangible expression. Distribution and modification are among the exclusive rights that define the monopoly. Absent a license, only the author can distribute or modify a work and it is the General Public License that is the legal authorization underpinning most free/open source software (FOSS). If the GPL were to be held void by US courts, it would seem to recast all the distributing and modifying done with FOSS in the last twenty years as copyright infringements. But there is a feature of the US Copyright regime that makes this outcome unlikely.

If the GPL were voided, an extraordinary and unexpected liability would be visited on most of the developers, distributors and companies that have been involved FOSS. Copyright infringement is a variant of strict liability and neither intent or knowledge of infringement is necessary to establish liability. Put simply, neither ignorance of the law nor that one's action constituted infringement are defenses. Absent the GPL, virtually all distribution and modification that occured within or continued into the statute of limitations (3 years) would be suddenly be actionable as infringement. Statutory damages of "not less than $750 or more than $30,000" are available per infringement.

If it were this simple though, one could visit SCO's website, where they continue to distribute GPL'd software under the Caldera brand (http://www.caldera.com/support/download.html) and drive up their liability to Linus Torvalds, Richard Stallman, et. al. by downloading their Linux offerings. Unfortunately, downloaders would be adding to their own liability at the rate of $750 per download.

SCO has an implicit claim along with their explicit attack on the GPL. The implicit claim is that the GPL is not simply void but also that the act of releasing software under the General Public License is tantamount to having donated it to the public domain. They are asking the court to apply a common-law doctrine from the law of wills and estates to the law of copyright and software licensing.

The cy pres doctrine (cy pres is from French for "so near" or "as near as possible") is a principle of law that courts use to save charitable bequests from failing of their objective if they become impossible to fulfill. Using the doctrine, a court substitutes another charitable purpose which it believes approaches that of the original as nearly as possible. In this case, rather than allowing the 'bequest' of GPL software creators to fail entirely, (and therefore making SCO liable for infringement), SCO appears to be asking court to dedicatate GPL'd works to the public domain. Should SCO be successful it its effort to kill the GPL it would, in rich and bitter irony, make Stanford Law professor Lawrence Lessig's campaign to reclaim the public domain the unexpected beneficiary. Just think of it as Darl McBride's attempt to have Linus Torvald's cake, and eat it too.

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Douglas Steele is a Tokyo-based IP attorney and a member of the New York bar. He is also a contributor to XPde, a free software project. The views expressed in this article are the author's and not necessarily those of Groklaw, XPde or his firm.