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Plugging the Knowledge Gaps on FOSS Licenses - OSDL Conference
Wednesday, December 29 2004 @ 05:38 AM EST

A lot of you wrote to me about an article on companies needing to check to make sure they are not violating the GPL and other FOSS licenses by grabbing code they shouldn't. The International Herald Tribune republished the article, putting a headline on it, "Business users worry that open-source could mean open season for lawyers." Next, we'll probably find it on Microsoft's "Get the Facts" page, I expect. FUD on display.

Companies do need to honor the GPL and other FOSS licenses, but the article put a spin on it, attributing the need to do this to fear SCO might sue over FOSS code, particularly over GPL code. That is so far from plausible, I got a lot of outraged email about it, and properly so.

SCO does not own GNU/Linux. If companies wish to look for code SCO claims to control, they need to look for Unix, not GPL, code. And you can narrow it down still further, by looking for Unix code that IBM allegedly took as a first rung on a ladder of methods and concepts and derivative code. . . well, you need to ask SCO to explain their ladder-to-riches theory. I surely can't. Nobody gets it but SCO. While you are at it, ask them what code they are talking about, will you, so you can hunt for it?

I personally don't know if I'd bother, the way their lawsuits have been going (clue to journalists: SCO lost the DaimlerChrysler case miserably but say they may appeal), but if I wished to be a stickler and were terrified of SCO instead of laughing at them, I'd hunt for the code they are alleging they control.

Didn't you get the memo? SCO told the court that their SCOsource license isn't about Linux code after all. It's only, they say, about Unix code SCO claims not to own but to have contractual rights to control, according to some theory of theirs that the courts will have to parse its way through to determine if they have any such rights in the first place, code which they say IBM had no right to donate to Linux, despite IBM developing and owning and copyrighting the code themselves and having a 1985 Side Letter Agreement with AT&T telling them they, IBM, owned all such modifications and derivative code.

For you skeptics who are just positive you heard SCO tell you it was all about Linux for a year and a half, here are SCO's exact words nowadays, in their recently filed Memorandum In Opposition to IBM's Motion for Partial Summary Judgment on its Counterclaim for Copyright Infringement (8th Counterclaim), the one about the GPL and whether SCO violated it and is now therefore violating IBM's copyrights [PDF] on IBM's code in Linux.

Call it the flip side of SCO's allegations. Personally, I'd be more afraid of IBM than SCO any day of the week.

SCO seems to share my assessment, because in this document it pledges allegiance to the GPL and swears, hand on heart, that we have it all wrong -- SCOsource isn't about Linux at all, at all, at all:

"First, SCO has not 'repudiated' (or 'renounced') the GPL. . . .

"Second, SCO has not 'forfeited' . . . its GPL copying rights by charging for its Intellectual Property License for Linux (the 'UNIX License'), beginning in August 2003. IBM asserts that SCO has thereby 'collected, and attempted to collect, royalties and licensing fees from Linux users in excess of the fees permitted by the GPL.' . . But what IBM attacks are SCO's licenses for its UNIX rights and releases of potential claims for the infringement of those rights -- not licenses of Linux. . . .

"1. SCO copied and distributed the Linux kernel and other related Linux software for years prior to 2003, when SCO discovered that IBM and others had misappropriated SCO's copyrighted UNIX code by contributing it to Linux without SCO's approval. Promptly after this discovery, SCO suspended all sales and marketing of its entire Linux product line. Declaration of Erik W. Hughes (11/30/04) ("Hughes Decl.") ¶3.

"2. In light of the legal issues arising from the misappropriation, SCO began offering its Intellectual Property License for Linux (the 'UNIX License') for sale beginning on August 5, 2003. . . The UNIX License is a license of SCO's UNIX software, not a license or sublicense of Linux or of any IBM-copyrighted work. . . SCO has never attempted to license or sublicense Linux or any IBM copyrighted work, or any other GPL-licensed code. . . . None of the documents listed in paragraph 66 of IBM's 'Statement of Undisputed Facts' represents an attempt to collect royalties or licensing fees for Linux or any IBM product:

a. SCO's May 2003 letters to Fortune 1000 companies. . . stated that SCO intended to protect and enforce its 'UNIX intellectual property' and did not attempt to license Linux or any IBM work;

b. SCO's May 14, 2003 press release . . .warned that 'SCO's own UNIX software code is being illegally copied into Linux' and did not attempt to license Linux or any IBM work;

c. SCO's July 21, 2003 press release . . .announced that SCO would soon be offering 'UnixWare® licenses' for the specific purpose of resolving intellectual property issues arising from the unauthorized contributions of SCO's proprietary code into Linux, and nowhere in this release did SCO make any attempt to license Linux or any IBM work;

d. SCO's August 5, 2003 press release . . . announced the availability of the UNIX License, which permits 'the use of SCO's intellectual property' in Linux distributions, and this release does not reflect any attempt by SCO to license Linux or any IBM work;

e. SCO's August 10, 2003 agreement with Computer Associates . . . granted a 'license to use SCO UNIX rights' on a Linux operating system, and did not license Linux or any IBM work;

f. SCO's October 14, 2003 invoice to Leggett & Platt . . . for an 'IP Compliance License' does not even mention Linux and did not license Linux or any IBM work;

g. SCO's December 19, 2003 agreement with Questar . . . granted a license to use 'SCO IP rights' which were defined as SCO's UNIX rights and expressly excluded Linux, and did not license Linux or any IBM product;

h. SCO's December 22, 2003 press release . . . announced 'new initiatives to enforce and protect the company's intellectual property rights,' and this release does not reflect any attempt by SCO to license Linux or any IBM product;

i. SCO's December 19, 2003 template letter . . . restated SCO's belief that SCO's proprietary code had been illegally copied into Linux, and this release does not reflect any attempt by SCO to license Linux or any IBM product;

j. SCO's January 16, 2004 letter to Lehman Brothers Holdings . . . stated that legal action would be considered unless Lehman purchased a UNIX license, and this letter does not reflect any attempt by SCO to license Linux or any IBM product.

k. SCO's March 1, 2004 agreement with Everyones Internet . . . granted a license to use SCO's proprietary UNIX code, and did not grant a license for Linux or any IBM product;

l. SCO's March 3, 2004 suit against AutoZone . . . alleges infringement of SCO's UNIX copyrights and does not reflect any attempt by SCO to license Linux or any IBM product;

m. In August 2004, SCO contemplated raising the price of its UNIX License . . . , and SCO did not attempt to license Linux or any IBM product;

n. SCO's SCOSource division sells the UNIX License . . ., and neither this division nor any other part of SCO has ever attempted to license Linux or any IBM product."

Well, how do you like that? *Now* they tell us it isn't about Linux. Their "Intellectual Property License for Linux" wasn't about Linux. It was their goofy name for their "UNIX License". Go figure. They certainly had us fooled, didn't they? Didn't they just? With all the media hype, you can hardly blame folks for being confused now. But if you are hunting for GPL code out of fear of SCO, I believe they have sent you on a fool's errand.

IBM will file its answer to this, barring any further extensions, on January 14. If you would like to read their 8th counterclaim, about copyright infringement, it's here and their Motion for Partial Summary Judgment on this counterclaim, which is what SCO's document is answering, is here. IBM's Redacted Memorandum in Support of their motion, which explains the GPL pickle SCO now finds itself trying to explain away, is here. I look forward to IBM's reply very much. If I were EV1, I'd be mighty interested in all this, too. What, exactly, did they think they were buying?

I viewed the article like this: that Black Duck Software has a product they naturally want people to buy, but the FUD was over the top. There is no more danger in using the GPL than in using any other licensed software, Black Duck marketing notwithstanding. I realize it could be the journalist who put the spin on the ball. Whoever did it, it's unattractive.

The bottom line is always the same: If you steal someone's code, there will be consequences. That's true for the GPL (if you distribute the code -- you are free always to use any GPL code in-house without any consequences at all), but it's not unique to it. If you steal Microsoft's code, there are consequences also. You do have to respect other people's intellectual property rights, as lawyers call them. That's true for all licensed code, including the GPL. If, in the past, some didn't take the GPL seriously enough, they do need to wake up and smell the coffee. But SCO has nothing to do with companies needing to pay attention to FOSS licenses, except perhaps that their stepping like fools straight into quicksand helps other companies to know where not to step. By all means, study up about FOSS licenses so you don't do what SCO did to itself.

OSDL, realizing that a lot of folks simply don't know the difference between all the various licenses or what their responsibilities are but want to learn about this subject, is having a seminar on that very subject at the end of January. Larry Rosen, Eben Moglen, OSDL's Diane Peters, and Alston Bird's Jim Harvey will be there, the latter talking about the SCO litigation. You recognize the name, I'm sure. Think Autozone.

Harvey also was a panelist at the end of October at another seminar where the upshot of it all was their conclusion that a lot of the worries about using free and open source software can be alleviated by educating folks on licenses and how they work. I remember the seminar, naturally, because an attorney on the panel, David Byer, a partner with Testa, Hurwitz & Thibeault LLP's patent and intellectual-property practice group, was reported to have said this about Groklaw:

"SCO's open-source prosecutions also mark a new kind of litigation, one that involves a community of defendants who use the Web as a tool for real-time communication, says David Byer, a partner with Testa, Hurwitz & Thibeault LLP's patent and intellectual-property practice group. Their most prominent tool is, a Web site and blog created by paralegal Pamela Jones with the help of volunteers who post immediate responses to any new developments in SCO's various cases.

"'It's an extraordinary thing to watch, to have evidence provided within minutes of arguments being brought in court,' Byer says. 'This type of response will be with us for a long time.'"

Encourage your boss to go to the OSDL seminar, if possible. If you are the boss, and you have any uncertainty about this subject matter, I hope you go yourself, and if you do, kindly tell us all about it. The more everyone understands, the less worries they will have and the less damage FUD can do. Knowledge is the antidote to FUD.

Here's the OSDL press release.


Open Source Software Licensing/Legal Track

Beaverton, Ore. - December 27, 2004 - The Open Source Development Labs (OSDL), a global consortium dedicated to accelerating the adoption of Linux® in the enterprise, today announced the creation of a Open Source Software Licensing & Legal education track at its upcoming Enterprise Linux Summit - January 31 through February 2, 2005 in Burlingame, CA. The track will focus on OSS Licensing and the impact of OSS on enterprise computing as its use becomes more prevalent.

''Currently there are knowledge gaps among some of the most Open Source-savvy users about how OSS licenses work,'' said Diane Peters, General Counsel for OSDL. ''Open Source Software affords users extensive flexibility with respect to usage and distribution. But each license carries certain obligations that must be understood.''

The OSDL- Enterprise Linux Summit legal track is designed to cover a range of OSS License topics necessary to help attendees make more informed choices about OSS acquisition and use. An application is pending for approval of this activity for MCLE credit by the State Bar of California. The track consists of the following tutorials and conference sessions:

Open Source Licensing Strategy Instructor: Larry Rosen, Attorney, Rosenlaw & Einschlag

Open Source Licensing Implementation Ira Heffan, Associate, Testa, Hurwitz & Thibeault, LLP Karen Copenhaver, EVP and General Counsel, Black Duck Software

Open Source Licensing Issues Larry Rosen, Attorney, Rosenlaw & Einschlag

OSS Licensing and Best Practices Karen Copenhaver, EVP and General Counsel, Black Duck Software

GPL v.3 - Issues of Substance and Process Prof. Eben Moglen, Columbia Law School; General Counsel (pro bono), Free Software Foundation

SCO Litigation: Implications for OSS Jim Harvey, Partner, Alston & Bird LLP

The tutorials and conference sessions were developed by and for lawyers involved in the OSS industry, and for those whose business interests include OSS in the future. Attendees who would benefit from this specialized legal education track are those who work for or advise OSS users and developers. This includes corporate and outside legal counsel for IT vendor companies, line of business mangers for OSS/Linux product companies, corporate counsel and outside legal counsel for enterprise users of OSS/Linux and OSS/Linux-based products.

OSDL's Enterprise Linux Summit is scheduled to take place January 31 - February 2, 2005 in Burlingame, CA, USA. As a whole, the Summit conference sessions are designed to address the needs of senior level IT managers, corporate developers, ISVs and others who want to learn more about successful enterprise deployment of Linux solutions and how to successfully integrate Linux into their overall IT infrastructure. For a schedule of conference tutorials, sessions and more details, visit

OSDL is a member-supported, non-profit organization dedicated to the acceleration of Linux. The Enterprise Linux Summit is sponsored by OSDL and its member companies. The base conference fee is $595.00. A $50.00 off the base price, early bird discount is available to all until December 17, 2004. A $100.00 discount off the base price is exclusively available to OSDL members. Base prices for the tutorials are $250.00 per half day session, or $400.00 for the full day. To register, visit

About the Open Source Development Lab

OSDL - home to Linus Torvalds, the creator of Linux - is dedicated to accelerating the growth and adoption of Linux. Founded in 2000 by CA, Hitachi, HP, IBM, Intel and NEC, OSDL is a non-profit organization at the center of Linux supported by a global consortium of more than 40 of the world’s largest Linux customers and IT industry leaders. OSDL sponsors industry-wide initiatives around Linux in telecommunications, in the enterprise data center and on corporate desktops. The Lab also provides Linux expertise and computing and test facilities in the United States and Japan available to developers around the world. Visit OSDL on the Web at

OSDL is a registered trademark of Open Source Development Labs, Inc. Linux is a registered trademark of Linus Torvalds. Third party marks and brands are the property of their respective holders.

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