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All Your Code Are Belong to Us
Thursday, August 21 2003 @ 02:03 AM EDT

When I first heard that SCO's lawyers had "declared" the GPL "invalid", as one headline earnestly put it, I thought that SCO still just didn't get how the GPL works.

I was going to write a funny piece explaining it in Little Golden Book style so as to make sure they really grasped it. I figured I could solve McBride's anxiety about proprietary code ending up GPLd ("Everybody is scared to death that their own IP is going to get sucked into this GPL machine and get destroyed.") by simply pointing out that he doesn't have to distribute his code with GPL code in the first place. Presto. Worry solved.

Nobody is forced to use GPL code. If you leave GPL code alone and just don't distribute it yourself with your code aggregated with it, you never have to worry about your code ending up GPLd. Evidently, however, "everybody" wants to use GPL code, hence the worry. And their dilemma: How to "use" it, in the worst connotation of the word, and get away with it, without having to pay for it or give anything back.

And what to do about about SCO's already having distributed their code under the GPL and continuing to distribute GPL code after they filed the lawsuit, as IBM accuses them of doing? That, at least, is a rational worry on their part. Their attack on the GPL, then, is an attempt to wiggle out of that result by creating an escape hatch. That indicates that they finally read the GPL and now agree with us that unless they can get the GPL declared invalid, they have no wiggle room at all and are like a butterfly pinned to a display.

Here is what "lead attorney", note not David Boies, according to the article, but Mark Heise of Boies' law firm, said:

"'The GPL tries to define the rights of copyright holders with respect to copying, distribution and modification of copyrighted source code. These are activities covered by the [US] Copyright Act,' the lawyer firm said.

"'Article I of the [US] Constitution vests in congress the right to regulate copyrights. When congress enacted the Copyright Act, it defined certain exclusive rights that copyright holders can rely upon to protect their rights.'

"These rights include copying, authorising derivative works, modifying and distributing the copyrighted material, while an interest in copyrighted material cannot be transferred unless expressly authorised in writing, they said."

Translation: Woops, our code is GPLd. What to do? What to do? Attack one particular aspect of the GPL, namely whether you must GPL your code if you distribute it aggregated with GPL code. That's the part that sticks in their craw.

They are afraid their claim of not realizing their code was being distributed isn't going to fly. Now, they are in a tight spot, and getting that code back isn't what they really want anyway, so they now come up with this argument: copyyright law defines a copyright holder's rights to restrict copying. The GPL broadens the amount of copies recipients can make, so it overrules copyright's protection, so it can't be valid without a written waiver from the copyright holder, because you can't waive your copyrights without a written waiver, and they never signed the GPL, so therefore they can rely on their copyright limitations on copying instead of the GPL. It's as incomprehensible and hard to explain as the Trinity, unless you realize that they mean quite simply this: "We don't want our code that we distributed under the GPL to be GPL any more, because that would be the end of our lawsuit, and we don't want our UNIX code to end up GPLd." Then it all makes a kind of SCOSense.

In short, it's Hail Mary time. They would like to eat their cake and have it too. They want to be able to have accepted other people's code under the terms of the very license they now seek to invalidate, make money from the code for years, money which helped them have the funds to buy rights to certain UNIX software, presumably, and then turn around and not abide by the rest of the terms of the GPL license because, according to them now, the license conflicts with copyright law.

Maybe they can get Judge Kimball to recuse himself and get the case assigned to Judge Judy instead. She might buy this. Even with Judge Judy, though, they will face another issue: the GPL isn't a waiver of copyrights, despite what they are saying. Those rights are retained, not waived, and the license, which sits on top of copyright, merely relaxes some of the limitations of copyright law and says the copyright holder is willing to expand your rights.

They didn't accept the code under the terms of the GPL, you argue? Then they had no right to copy, authorize derivative works, modify, or distribute the aggregated code at all, according to the very copyright law which they rely on. But they did all those things. Linux is copyrighted, in addition to being under the GPL. Faced with two poisons, I gather they chose what seems the least damaging.

Evidently they have decided it's less dangerous to rely on copyright and get sued for violating all the coder's copyright rights, which is the position they are in if the GPL were to be declared invalid, rather than losing their code to the GPL and their case. Yes, that IBM counterclaim is what they are responding to, and their response is, to me, quite a validation of the strength of the GPL if their only escape is to rip it up. Here's what the GPL says happens if the GPL is invalid (that is, invalidated in toto, as opposed to one part only being invalidated):

"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. However, parties who have received copies, or rights, from you under this License will not have their licenses terminated so long as such parties remain in full compliance.

"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. Therefore, by modifying or distributing the Program (or any work based on the Program), you indicate your acceptance of this License to do so, and all its terms and conditions for copying, distributing or modifying the Program or works based on it. . . .

"7. If, as a consequence of a court judgment or allegation of patent infringement or for any other reason (not limited to patent issues), conditions are imposed on you (whether by court order, agreement or otherwise) that contradict the conditions of this License, they do not excuse you from the conditions of this License. If you cannot distribute so as to satisfy simultaneously your obligations under this License and any other pertinent obligations, then as a consequence you may not distribute the Program at all. For example, if a patent license would not permit royalty-free redistribution of the Program by all those who receive copies directly or indirectly through you, then the only way you could satisfy both it and this License would be to refrain entirely from distribution of the Program. . . ."

If only one part is invalidated, this is what the GPL says, as section 7 continues:

"If any portion of this section is held invalid or unenforceable under any particular circumstance, the balance of the section is intended to apply and the section as a whole is intended to apply in other circumstances."

You can't blame them for trying, I suppose, but it does indicate that they are beginning to grasp the full implications of the GPL and what it means for them that they have allowed continued downloads of the kernel and all the rest, even after the lawsuit. Yes, I heard their "explanation" that they only allowed updates, not the full kernel. But I have heard and seen too much to believe that story. So they are in a real pickle. Talk about all your code are belong to us. Not to mention "You are on the way to destruction." That's what must have had them staring at the ceiling at 2 AM. They are not alone in wanting to invalidate the GPL, of course.

But the deeper question is, why are they still using GPL applications, like Samba, if the GPL is invalid? They reportedly had a How-To on GNU tools at SCOForum. And why are they, even now, offering code under the GPL from their web site, and I don't mean the kernel? Reading that they are working on a new kernel gives us the necessary clue to what, I believe, has been the plan from the beginning: to destroy or at least taint the reputation of the Linux kernel, replace it with their own, and offer UNIX with GNU tools and applications on top as something "better" than GNU/Linux, Linux without the lawsuit. And then charge you fees until your eyeballs pop out. Here's what gives me that idea:

"The SCO Group, on a mission to monetize its Unix assets using legal and licensing maneuvers, told channel partners that it expects to revive its Unix business in 2004 with the help of licensing revenue and the significant launches of its OpenServer and UnixWare products.

"At SCO Forum 2003 in Las Vegas, SCO channel partners will see better upgrade and sell-in opportunities from the company's SCOx Web services platform, the planned delivery of major new version of OpenServer being developed under the name Project Legend, and a major upgrade of UnixWare in late 2004, said Erik Hughes, director of product management at SCO. The first components of SCOx were delivered this week at the Las Vegas conference.

"The 'Legend' edition of OpenServer, which is targeted at SMB customers, will be refitted with SCOx Web services support, an XML parser and SOAP toolkit, an OpenLDAP directory, better multithreading, open-source tools Tomcat, PHP and Mozilla, enhanced J2EE support and enhanced security with support for IPsec, VPN and PAN capabilities.

"SCO also plans to debut in 2004 or 2005 a 64-bit version of UnixWare for enterprise customers that incorporates all of the features of Legend as well a major new version of the Unix kernel itself, System V Release 6 (SVR6), the executives said.

"UnixWare 2004 -- SCO's latest stab at providing a 64-bit platform -- will also offer built-in SCOx Web services support with XML and SOAP support, as well as better support for enterprise databases and large file support, they said. . . .

"However, at last week's partner event, SCO product executives insisted that they will fight to keep SCO Unix alive in the marketplace by modernizing the code and broadening its base of value-added options on top of the Unix kernel."

Hmm. SOAP means Windows, does it not? Why, yes it does. The plot thickens. Now if they can just slow down the Linux juggernaut and keep it off 64-bit long enough to get that kernel written...

When this all began, Eben Moglen in May said that he had approached SCO's lawyers and personally promised that if they would identify the code, it would be immediately removed. The Free Software Foundation, not IBM, holds the copyright to the Linux distribution IBM created, Linux for S/360. IBM created the Linux distribution but released it under the GPL and signed the copyright over to the Free Software Foundation. If all SCO wanted was to protect their IP, that's irrational on their part, not to accept that kind offer from Moglen. But if the goal is to destroy or at least slow Linux down long enough to come up with a replacement for the enterprise customer, Brand X Linux, then every irrational act becomes rational in SCOThink.

When Bruce Perens posted on his web site a 2002 letter in which SCO, then known as Caldera International, put some older Unix code under an open-source license, it drew this response today from SCO's attorney, Michael Heise, and ask yourself as you read it, does this sound like the response of a man who truly and authentically believes the GPL is invalid? If so, why didn't he say that?:

"Michael Heise, a partner with Boies, Schiller & Flexner who's representing SCO, downplayed concerns that the contested code may be covered by an open-source license. In an interview with CNET at the SCO show, Heise said even if, hypothetically, some older Caldera code were open-source, it wouldn't make a difference to the case.

"'Let's say you have a hundred files, and you put one of your hundred files under the GPL ( GNU General Public License ). That doesn't mean you've lost the rights to your other 99 files,' Heise said. So I don't think it's going to have an impact.'"

Except to your entire case, that is. And your credibility. You'd better sit down, Mr. Heise. I need to explain something to you, and I don't want you to faint. You are basing your entire licensing program on an allegation of copyright infringement. Can you connect the dots from here?

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