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I've Got Mail
Monday, June 09 2003 @ 07:36 PM EDT

I got an extremely thoughtful and info-filled comment from a reader who sent me a post he made to Slashdot, which I didn't see, asking me some followup questions. So here you go, answers, one by one.


Q: what about uscode/17/411.html? Doesn't the infringer have to give 48 hours notice?

A: If you look at the referenced statute, Title 17 Chapter 47 Sec. 411, you'll notice that it is basically talking about live performances of "sounds, images or both" where the first "fixation" is in real time performance. Live music performances, for example. That wouldn't apply to software. Or more accurately, that wasn't what Congress thought they were talking about in this section, and I've no knowledge of it being used for software. The actual wording is:

(b) In the case of a work consisting of sounds, images, or both, the first fixation of which is made simultaneously with its transmission, the copyright owner may, either before or after such fixation takes place, institute an action for infringement under section 501, fully subject to the remedies provided by sections 502 through 506 and sections 509 and 510, if, in accordance with requirements that the Register of Copyrights shall prescribe by regulation, the copyright owner -
(1) serves notice upon the infringer, not less than 48 hours before such fixation, identifying the work and the specific time and source of its first transmission, and declaring an intention to secure copyright in the work; and (2) makes registration for the work, if required by subsection (a), within three months after its first transmission.
Q: wouldn't SCO have to reveal the offending file to ISPs if they sent a notice of infringement to them as per Title 17, Chapter 47, Section 512, 17/512.html and if the web site offered the kernel on a file by file basis?

A: Yes, if I understood the question. If the ISP is hosting a site offering the kernel on a file by file basis, they would have to identify the offending file. But they may be offering a CD instead (think Red Hat or Mandrake) or in addition to file by file downloads. Still, the reader is correct that they are supposed to identify the precise infringement. They have to be precise enough so that the ISP knows what needs to be removed to solve the infringement. But the file by file arrangement would absolutely force them to identify the file if they wanted it removed. My question then is: could you do that? Break the kernel into individual files? If so, that'd work, I think. Very creative idea. However, it doesn't seem to me it'd be necessary. By now, I'm sure IBM knows what the "offending" code is, even if they can't tell us. You have to reveal things in the discovery phase of a lawsuit, and that is no doubt going on right now. And anybody else under a license arrangement with SCO could conceivably figure it out by just doing what SCO did, looking for identical code. My understanding of the complaint is that they intend to bring into the argument not only identical code, though.

Q: Isn't it true that Linus and developers couldn't be held liable for infringement if there is no notice?

A: Yes, that is true to a point, as far as statutory damages and attorney fees as concerned. But as I pointed out earlier, infringers, even innocent ones, are still liable for actual damages, if they can be proven. If SCO can prove that they actually lost money from the infringement, and that is a big if, then there could be liability to that extent. However, suing with little or no hope of collecting meaningful amounts isn't what lawyers usually do. Unless Linus and the other developers have reeeeally a lot more money than I know, that scenario seems unlikely. Or more exactly, SCO could sue individuals for infringement and ask for money damages, but the relief they would ask for would be more likely an injunction. Of course, if they intend to follow in RIAA's footsteps in all respects, then who knows? Maybe they will go after everybody's life savings. SCO is free to do that too, if they ever conclusively prove they have copyright rights and that there is an infringement. Copyright is powerful. I don't even want to think about the criminal sanctions possible if they prove their points and then somebody continues to offer infringing software. The bottom line, to me anyway, for the future is: use the GPL and transfer your copyrights to FSF. They have the ability to legally take on such battles, where you might not, and they wrote the GPL. They also have a process to weed out any contaminated code. Deeper, they invented the GPL, so they know how to use it best. And don't steal code, obviously, or obfuscate it to conceal a theft. If anyone did it in the past and he or she knows it, I'd hope that person would fess up to Linus and/or FSF and tell them exactly where, so they can fix it asap. I realize that it is highly unlikely anyone did that, but just in case.

The next point the reader raises is this:

Also, what about the downstream effects of the GPL implict licensing. SCO has sold and distributed under the terms of the GPL license. That covers everything GPL'ed up to and including the kernel-2.4.19. SCO have admitted that they knew about the "common" source months before they started the lawsuit, but kept selling and distributing openlinux. Does the former action imply implicit consent? Remember that both Caldera and SCO have been distributing GPL'ed source code for almost a decade - How could they deny that SCO and their lawyers don't understand the terms conditions?
I addressed this earlier. I personally believe they can't deny knowing. They are claiming it wasn't "authorized". Check out my posts for the dates June 7 (Gigalaw quotation), May 23 (Somebody Doesn't Grok the GPL), May 19 (links to GPL info from SCO's sites), Friday, May 18 (Moglen Confirms GPL Boomerang), and May 17 (first post on SCO, with rms quote and Gartner on GPL). What I notice is SCO hasn't yet said anything on the GPL point. Either they don't understand it (the new management) or they understand it and don't want to speak to it now because they have no answer, or because they plan on attacking it. You be the judge after you read all the info I collected. It's my understanding from something Kuhn said that FSF has paperwork from Caldera when they contributed code under GPL.

Next the reader writes:

For the current development kernel, it's currently still in beta development and is not being deployed in a commercial capacity. There is effectively no damage to SCO's Unix "Market-share" and SCO's disclosure and proof of "ownership" of the offending source code would allow Linus to remove it from the source repostory. The missing gaps would quickly be rewritten.
Yes, that's the solution. Take out the code and replace it. That doesn't wipe out prior damages, actual damages, in this case, but it fixes the problem once and for all for anyone who isn't in a contractual relationship with SCO. As for not damaging anyone's market share, that definitely helps with any actual damages a judge might order paid. But you still can't copy someone else's work and use it yourself no matter what the end result is financially under US copyright law. Copyright law isn't just about money. It's about ownership rights. You can't drive off with my car even if you return it with a full tank of gas and there is no damage to it.

I wrote an article once and an online mag accepted it. Before it was published online, someone I had shown it to tried to change it just a bit and use it as if it was her writing. No money was involved as far as any loss to me. But I was plenty mad, and I used copyright law to stop her, because the ideas in the piece were mine and I had worked hard thinking them up and expressing them in a creative way on a subject no one had written about before, as far as I knew. She thought I hadn't registered the article, but I had, so she realized the theft wasn't worth the lawsuit it would bring on her, so she stopped. Without the registration, she intended to go forward with no shame. Laws are supposed to be about protecting people from those with no shame. It wasn't about money; it was about credit and about fair play. Copyright protects that too. It doesn't say you can copy and use as long as it doesn't hurt the author financially. If you hurt him or her financially, then the law tries to get the money back from you and gives it to the author as compensation. But either way, it stops you. Of course, software and word articles aren't identical as far as copyright issues are concerned, because open standards for articles aren't an issue at all, but this blog isn't about what copyright law should or shouldn't be; it's just about what it is.

Next, he writes:

Since The SCO Group now admits that it does not own Novell's Unix patents, the rewrite becomes a much easier job.
A: Yes! If SCO had patent rights, my heart would be hurting.

The deeper question I see in what the reader wrote is this: Shouldn't SCO have to show us the code and play fair? And the answer to that is morally yes and legally no, not now. They are likely limiting their financial damages by not showing the allegedly infringing code now, but they seem willing to let that happen for other strategic reasons. Don't forget that they have made no copyright claims yet against anyone. So far it's all trade secrets and contract violation stuff. So they will protect those claims over any possible copyright claims. They can in theory collect more money from IBM than from Linus, so they will go after them. I am not sure that the fact that there are no copyright claims yet means anything though. Remember that they filed in state court, where a copyright claim would be impossible. However, IBM moved the case to federal court and that is where copyright claims are heard. Conceivably, at some point SCO could add copyright infringement to their claims against IBM.

Feedback is fun. Thank you for the questions.

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