OSDL Position Paper on SCO and Linux 421
cshabazian writes "The OSDL has released a position paper raising serious questions about SCO Group's threatened litigation against end users of Linux. The position paper, which casts doubt on SCO's position, was authored by one of the world's leading legal experts on copyright law as applied to software, Professor Eben Moglen of Columbia University."
typo (Score:2, Informative)
ODSL = ??
OSDL = OpenSource Development Lab
(this sentence is here to bypass the lame lameness filter)
Re:Ugh. ENOUGH of SCO (Score:5, Informative)
Another attorney comments (Score:4, Informative)
Here's another lawyer (Australia), saying don't "drop your pants [idg.com.hk]" to SCO.
Finally, here's IBM planning a response to SCO's amended complaint [weblogs.com]. Once again SCO's web site seems to omit some important issues.
Re:my thoughts on his main three arguments (Score:5, Informative)
Even after they knew there was "infringing code", SCO continued to distribute it.
Re:Mistake in the first sentance, not good! (Score:3, Informative)
The author of the article (Egen Moglen) is an extremely well known IP lawyer. He has been the general counsel of the FSF for about 10 years. He has contributed more the Open Software movement than it's likely you ever will, and by several magnitudes. Go listen to him talk sometime, you may find it educational, he's a Very Neat Person.
The typo you complained about was made by the guy who alerted
Text extracted from PDF, with permission (Score:2, Informative)
Eben Moglen
Users of free software around the world are being pressured to pay The SCO Group, formerly Caldera, on the basis that SCO has "intellectual property" claims against the Linux operating system kernel or other free software that require users to buy a "license" from SCO. Allegations ap-parently serious have been made in an essentially unserious way: by press release, unaccompanied by evidence that would permit serious judgment of the factual basis for the claims. Firms that make significant use of free software are trying to evaluate the factual and legal basis for the demand. Failure to come forward with evidence of any infringement of SCO's legal rights is suspicious in itself; SCO's public announcement of a decision to pursue users, rather than the authors or distributors of allegedly-infringing free software only increases doubts.
It is impossible to assess the weight of undisclosed evidence. Based on the facts currently known, which are the facts SCO itself has chosen to disclose, a number of very severe questions arise concerning SCO's legal claims. As a lawyer with reasonably extensive experience in free software licensing, I see substantial reason to reject SCO's assertions. What follows isn't legal advice: firms must make their own decisions based upon an assessment of their particular situations through consultation with their own counsel. But I would like to suggest some of the questions that clients and lawyers may want to ask themselves in determining their response to SCO's licensing demands.
Eben Moglen is professor of law at Columbia University Law School. He has served without fee as General Counsel of the Free Software Foundation since 1993. This paper is based on a presentation given to the Open Source Development Lab's User Advisory Council in New York, July 24, 2003.
1 Where's the Beef?
What does SCO actually claim belongs to it that someone else has taken or is misusing? Though SCO talks about "intellectual property," this is a general term that needs specification. SCO has not alleged in any lawsuit or public statement that it holds patents that are being infringed. No trade-mark claims have been asserted. In its currently-pending lawsuit against IBM, SCO makes allegations of trade secret misappropriation, but it has not threatened to bring such claims against users of the Linux OS kernel, nor can it. It is undisputed that SCO has long distributed the Linux OS kernel itself, under the Free Software Foundation's GNU General Public License (GPL).1 To claim that one has a trade secret in any material which one is oneself fully publishing under a license that permits unlimited copying and redistribution fails two basic requirements of any trade secret claim: (1) that there is a secret; and (2) that the plaintiff has taken reasonable measures to maintain secrecy.
So SCO's claims against users of the Linux kernel cannot rest on patent, trademark, or trade secret. They can only be copyright claims. Indeed, SCO has recently asserted, in its first specific public statement, that certain versions of the Linux OS kernel, the 2.4 "stable" and 2.5 "development" branches, have since 2001 contained code copied from SCO's Sys V Unix in violation of copyright.2
The usual course in copyright infringement disputes is to show the dis-tributor or distributors of the supposedly-infringing work the copyrighted work upon which it infringes. SCO has not done so. It has offered to show third parties, who have no interest in Linux kernel copyrights, cer-tain material under non-disclosure agreements. SCO's press release of July 21 asserts that the code in recent versions of the Linux kernel for symmet-ric multi-processing violates their copyrights. Contributions of code to the Linux kernel are matters of public record: SMP support in the kernel is predominantly the work of frequent contributors to the kernel employed by Red Hat, Inc. and Intel Corp. Yet SCO has not shown any of its code said to have been copied
Re:SCO is plainly lying (Score:1, Informative)
go here [sec.gov] and look at Form-4s for even more sales.
Re:Mistake in the first sentance, not good! (Score:2, Informative)
Oh, and by the way, s/sentance/sentence/
Re:Users liable? Someone thinks so. (Score:5, Informative)
Linux enduser license agreements are an 'as is' contract... Linux users aren't protected from copyright or intellectual-property infringement claims...
First, there are no "Linux enduser license agreements" (except perhaps the one from Caldera), so whoever wrote this knows jack about shit.
Second, even if there were Linux EULAs, it would still be irrelevant, because he's saying "the EULA doesn't protect you from copyright or IP claims" - all the while ignoring the fact that people would be immune anyway, as they're not copying anything.
If the New York Times got sued for plagarism and lost, would that make it's readers liable? Of course not. This is really no different.
at least one lawyer thinks users could be liable
No, actually - at least one lawyer, who doesn't have a clue about the facts in the case, thinks that an EULA (which doesn't exist) wouldn't stop liability, when standard property-rights laws would.
A reply be another lawyer (Score:3, Informative)
Re:Users liable? Someone thinks so. (Score:3, Informative)
it does not cover use of GPL'ed software. The GPL is in fact a license for
the creation and distribution of derivative works, which not all end users
(see 17 USC 117) will bother doing. Very many in fact, couldn't care less
about whether _they_ can utilize the GPL if they desire to do so. Unless
you're going to modify and redistribute GPL'ed software, it's basically
irrelevant to you. The truth is, most GPL'ed software is sold outright or
given away for free. Since the transfer of copies has no bearing on the
transfer of copyrights, it's not an unusual practice. Pretty much all
copyrighted matter other than software is sold or given away as well, and
there's a pretty strong argument that EULAs are not generally valid which
would put them into the same boat.
SCO conference call Aug 14 (Score:3, Informative)
http://money.cnn.com/services/tickerheadlines/p
The SCO Group Extends Invitation to Join Its Third-Quarter 2003 Financial Results Conference Call
August 1, 2003: 7:00 a.m. EST
LINDON, Utah (PRNewswire) - LINDON, Utah, Aug 1
(Logo: http://www.newscom.com/cgi-bin/prnh/19990421/SCOL
WHAT: The SCO Group, Inc. Third-Quarter Financial Results
Conference Call
WHEN: Thursday, August 14, 2003, 9:00 a.m. Mountain Daylight Time.
HOW: If you would like to participate in the live call, you may
dial 1.800.811.0667 or 1.913.981.4901; Passcode: 452322.
You may also join the call in listen-only mode via Web cast.
The URL is listed at http://ir.sco.com/medialist.cfm
Only for US copyright law - not true for the UK (Score:5, Informative)
Prof. Moglen makes the point that mere use of a program doesnt infringe the copying provisions of the Copyright Act. That may or may not be the correct analysis, noonetheless its worth pointing out that this is only true for US law. UK readers may be interested to note that under the Copyright Designs and Patents Act section 17(6) (here) [hmso.gov.uk]the making of transient or incidental copies is an infringing act i.e. the mere act of loading it into RAM.
In the UK therefore users of 2.4 kernels would not have this defence if SCO is right. The same may be true elsewhere in the EU.
Re:Conspiracy theory! (Score:4, Informative)
The price would go up if people were covering their shorts(ie. cashing them out). Generally you see a bounce(often called a dead cat bounce) right before a stock goes under as people buy the stock to cover their shorts. To short a stock you don't have to own it, and from what I understand the stock has been going up so people most likely aren't covering their shorts yet.
More than likely people are betting that someone(ie. MS, IBM, whoever) will come along and buy them.
Re:Conspiracy theory! (Score:5, Informative)
Short selling works as follows:
First the short-seller sells the stock in question, without actually having any in their portfolio. Typically in looking at your brokerage account the position would be listed as -X shares of the stock. The actual shares in question are "borrowed" from other accounts temporarily. This selling activity initially places downward pressure on the share price, which can become significant if short-selling becomes intense. If you look here [yahoo.com], for example, you can see that about 5.5% of the existing float for SCOX has been sold short. That's significantly higher than the figures for MSFT, IBM, and SUNW, which are all around 1%.
Once the stock in question has fallen, the short seller then buys back the shares at the lower price. Their profit, minus transaction fees, is the difference between the initial sell and the final purchase. Usually the short-seller has control over when they'd like to buy back the shares, but sometimes in rare circumstances they can have their positions called in, or more commonly, an unexpected upturn in the company's outlook causes a rise in the share price. In order to minimize their losses, the short sellers rush in to cover their positions, which puts additional upward pressure on the stock, which becomes a "short squeeze."
Re:Users liable? Someone thinks so. (Score:4, Informative)
More accurately, it is an agreement that anyone in possession of the software can choose to enter with the copyright holders of that software, the acceptance of which grants that person rights they would not otherwise have.
A person in possession of the software can choose not to accept the agreement, and thus ignore its terms completely. The GPL excplicitly recognizes this option:
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.
If the user opts to ignore the GPL, copyright law prohibits modification or distribution of the software, but does not govern use.
Calling the GPL a EULA is misleading. EULA's are generally understood to be click-through agreements that limit the rights of the user beyond the exclusive rights already provided by copyright. Companies that distribute software with EULA's attempt to force users to accept the agreement before they can use the software.
Classifying distribution and reproduction under "use" is also misleading. "Use" is understood to mean "running the program." End-users are understood to be parties who use the software but do not distribute it; hence "end" as in "terminal to the distribution process."
Re:They must be breaking some kind of law (Score:2, Informative)
Re:Only for US copyright law - not true for the UK (Score:1, Informative)
97.--(1) Where in an action for infringement of copyright it is shown that at the time of the infringement the defendant did not know, and had no reason to believe, that copyright subsisted in the work to which the action relates, the plaintiff is not entitled to damages against him, but without prejudice to any other remedy.
Given the lack of evidence provided by SCO to date, I would imagine that anyone using 2.4 could avoid paying damages even if SCO is right - after all they got this kernel in good faith, apparently licenced under GPL.
Re:"Leading experts"? (Score:2, Informative)
SCO trying to damage the GPL? (Score:2, Informative)
Maybe there is more to this than meets the eye: Is the purpose of SCO's actions to damage the GPL? [slashdot.org]