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To read comments to this article, go here
So That's Where He's Been
Saturday, June 07 2003 @ 01:46 AM EDT

If, like me, you've been wondering where David Boies has been throughout the SCO storm, the answer appeared today in a Law.com story. He went to court today in Manhattan, representing Court TV, trying to have the state law banning TV cameras in court, 52 of New York Civil Rights Law, declared unconstitutional.

Obviously, he wasn't retained by Court TV on a contingency basis. (Clue: lawyers do more for you when they are paid. It's how they make a living.)

The declaratory judgment action argues that there is no modern basis for the ban, which was passed on such grounds as the size of cameras back then in the early fifties being disruptive, as well as making First Amendment claims that the law is an unlawful restraint on free speech. Yes. Free speech. This has certainly been a week for irony. Speaking of irony, SCO used to call its collection of "public domain or freely distributable programs" including the GNU tools SCO Skunkware. Hmm. Maybe that should have been our first hint.

Now that copyright is back on the table in the SCO case, you might like to read the law on copyright.

SCO held another telephone conference today, but you had to be on time. I tried to call in later, when I was free, to hear the recording, but although the operator told me it had been recorded, it wasn't being made available. She suggested I contact SCO and ask to hear it. Meanwhile, someone who did listen posted on Slashdot as "mec" and he or she heard this question and answer:

[question #3] Stephen Shankland, CNET --

Q: Copyright office does not have an assignment on file [for the Unix copyrights from Novell]. "Is it your understanding that the copyrights have not been registered yet?"

A: Stephen is correct ... [if we need] we will change the assignment of copyright ... [we can do that at any time].

If this is true, that they failed to register, it puts another interesting twist on this story. (Novell put a twist of its own, by posting a press release on its site saying that while the amendment that SCO sent them seemed to support their claim "that ownership of certain copyrights for UNIX did transfer to SCO in 1996", Novell doesn't seem to have the amendment in its own files, and patents for sure didn't transfer.)

It's true you can register a copyright any time, but you can't sue for infringement until you have registered and you can't get certain damages for infringement that occurred prior to registration:

Before an infringement suit may be filed in court, registration is necessary for works of U. S. origin.
Section 411 says it precisely like this:
411. Registration and infringement actions

(a) Except for an action brought for a violation of the rights of the author under section 106A(a), and subject to the provisions of subsection (b), no action for infringement of the copyright in any United States work shall be instituted until registration of the copyright claim has been made in accordance with this title....

You are limited as to remedies without registration, as Section 412 sets forth:
412. Registration as prerequisite to certain remedies for infringement

In any action under this title, other than an action brought for a violation of the rights of the author under section 106A(a) or an action instituted under section 411(b), no award of statutory damages or of attorney's fees, as provided by sections 504 and 505, shall be made for-

(1) any infringement of copyright in an unpublished work commenced before the effective date of its registration; or

(2) any infringement of copyright commenced after first publication of the work and before the effective date of its registration, unless such registration is made within three months after the first publication of the work.

It's a criminal offense to claim, with fraudulent intent, that you have a copyright if you don't, by the way. The bottom line is that they are limited as to what they can now do with this copyright, if they indeed have it. They can't sue for statutory damages for pre-registration infringement, for starters, or lawyers' fees. Mr. Boies might be interested in that, because of his contingency arrangement. They can only sue for actual damages and court fees, and actual damages are hard to prove, which is why normally you want to go after statutory.

One other advantage to registering is that registering within five years provides prima facie evidence in court of the validity of the copyright and the facts stated in the certificate. That deadline is long past for that benefit. People are always thinking they don't need to "waste" money hiring a lawyer. Well, as one of my previous lawyer-employers used to say, "There's no problem until there is a problem." As SCO is now perhaps realizing, they should have had a lawyer register this. Now they have a problem, resulting from their own carelessness or thrift or whatever it was that resulted in this copyright transfer never being registered. Why wasn't all this looked into prior to filing the lawsuit? With the scale of this case, they just said bye-bye to a lot of money, from all I can see so far, if they failed to register this transfer properly back in 1996, at least from a copyright claim. Perhaps this is why they keep saying they aren't planning on any copyright actions "at this time".

Then there is the deeper question: what exactly is copyrightable about software? To read up on this very real issue and some historical cases that have struggled to set forth an answer, try this site. For a primer on copyright and software and to understand what registration means to an infringement suit, try this article on Gigalaw. Gigalaw also has an article on the SCO/IBM case. The article explains that the issue in the SCO case is how Linux users can be sure some programmer didn't introduce IP issues that will bite the end user:

The GPL restricts upstream developers from enforcing their IP rights against downstream licensees in certain respects. However, parties not privy to the GPL are not necessarily restricted from enforcing their IP rights against those downstream end users. For example, if someone prior to the current end user made changes to the OSS code that infringe on a third party's patent, the patent holder could assert claims against the end user, even though the end user had no knowledge of the patent infringement. Red Hat, the most well-known Linux distributor, addresses some of the patent issues by a "patent promise" found on its website.
Red Hat's patent promise is here.

In the SCO case, the real problem arose, if SCO can be believed -- and that's a big if -- not under patent law but because of licenses SCO has with a number of companies regarding UNIX code. The GPL, if SCO released its disputed code under the GPL, and all indications are that they did, would pretty much cut off their claims. But a license is mighty strong, because it's voluntary, consensual. Courts do enforce valid contracts, so that gives SCO a strong position on that count. If they can prove purloined code, then anyone that signed a license agreement with them who is using that code should have to pay for the privilege.

Or just stop using the code, the more likely result. This is the worst case scenario I see: that companies will either have to pay a license fee for continued use of SCO-owned code, or they'll have to upgrade to SCO-free Linux code, which really isn't a big deal at all. Because of all that secrecy in SCO's claims, no one yet can just start pulling out any disputed code and replace it. Perhaps that is the purpose of all the mystery on SCO's part -- to keep the community from being able to replace the code before the case even gets to trial, which would eliminate any motive to license SCO's code.

The end result of this whole storm is likely to just be this: that no one in their right mind will ever enter into a business relationship with SCO again, now that it's clear they are happy to sue their own customers. And UNIX will die a hastier death than it already was, replaced by Linux. SCO, IMO, put its money on the wrong pony.

The other lesson from this tale of woe is, as Gartner already pointed out, if you stick to GPL software from the Free Software Foundation, you are safe. Their stringent review of all copyright and patent issues prior to accepting code is well-known.

This is the clash of the titans, for real -- proprietary vs. free. It hasn't been hard to see which side holds the high ground or just how low the money-grubby low ground can be. It's unlikely that anyone following this case can ever forget what we have seen coming out of the Utah desert. As Andy Grove of Intel has pointed out, sometimes a company makes a move that changes the entire plane for everyone and that, like chaos, it is unpredictable in its results and can turn around and bite the company itself. He mentioned Napster as such a case. I think this case is another: SCO thought it was just doing what execs are supposed to do, make money, no matter what. Their mind view was "you pay for IP." What they have done is put a face, a caricature, on the proprietary side of the argument. They thought you could kill Linux. They are probably surprised at the outcry over their behavior, in effect a nearly unanimous, international great big Eww. And the world will never be the same in how it looks at this issue. No wonder Microsoft is now moving toward a more open development strategy. How else can you compete with Linux after you find out you can't kill it?


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