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."
SCO is plainly lying (Score:4, Insightful)
So, I see at least Two Commandments broken here, Thou Shall Not Bear False Witness, and Thou Shall Not Steal.
Sadly, I doubt the courts will apply any punitive measures, even when SCO loses. I think if the top SCO execs, and Bois, were to be publically flogged on the Washington Mall, we might see a return to ethics in the boardroom.
This whole thing is ridiculous (Score:5, Insightful)
Read the paper yesterday. (Score:5, Insightful)
End Users? (Score:5, Insightful)
Why Linux needed SCO (Score:4, Insightful)
If Linux wants to be a player in the business world, it's got to play by the rules, and that's what SCO case is about to clarify. If there is any verdict on the SCO case, it will allow the Linux OS to be treated more seriously than just a hobby operating system.
Now faced with the question "How does Linux deal with copyright issues and licensing?" one can always point to the SCO case (assuming that the trial gets resolved in IBM's favor) and quote the precedent, which is usually good enough in the US.
This last outbreak of FUD attack by SCO will actually stop all the FUD and conspiracy theories surrounding Linux in the business world.
The Press (Score:2, Insightful)
Mistake in the first sentance, not good! (Score:1, Insightful)
Anyone notice how many "leading experts" there are these days?!?! That word has come to be so badly abused, I tend to ignore it. Once I hear "worlds... well... relatively mediocre expert" then I will stand up and take notice!!!
My only other complaint is from the very opening sentence... "
On the whole, not a nice way for one of the worlds leading experts (tm) to start, imho!
SCO doesn't know why they should sue IBM (Score:4, Insightful)
Re:Users liable? Someone thinks so. (Score:5, Insightful)
Nothing new, but good (Score:3, Insightful)
He's basically boiled the thing down to three points, familiar to any regular slashdot reader by now, but put in a nice simple, short, easy to digest form by a qualified lawyer. Great link to send any PHB that is worried by SCOs FUD.
No, this has *nothing* to do with that (Score:4, Insightful)
The standard contract said that AT&T has rights on any changes you make to your Unix code, IBM got a special amendment to the contract stating that they owned any changes they made to AIX. but Sequent did not, and Sequent, not IBM developed the tech that SCO is bitching about (NUMA, RCU, ETC). IBM, SCO and Sequent were all working together on project Monterey, which was supposed to be an 'industry standard' Unix, but IBM lost interest in Monterey, purchased Sequent and left SCO out to dry (now, this was the 'old' SCO, not Canopy/Caldera SCO).
Anyway, SCO thinks that it owns the contracts because it owns the original Unix IP (or at least the copyrights anyway, none of the patents)
In fact, the person who wrote the RCU code for Dynix (or whatever Sequent's *nix was called) for Sequent is the sameperson who wrote the RCU code in Linux for IBM.
but, and here's the thing, Sequent developed it's tech independent of Unix. RCU and that stuff would work on any modern OS's kernel. They published their papers and filed their patents before they implemented it in their own version of Unix.
So the issues are:
Did the contract rights really transfer to SCO?
Does the "naked" contract Sequent signed mean all their tech is owned by SCO now? Does it mean that the "naked" contract mean that any technology that you develop, and later put into a Unix clone automatically become the property of SCO?
Does IBM's special contract apply to stuff they acquire from other Unix vendors?
The answers to these questions aren't totally obvious, although to me they should mostly go to IBM's favor here. On the other hand, the claim that SCO owns all of Unix is ridiculous. The proper thing to do is tell everyone what files are infringing and then have them rewritten by the community. SCO seems to claim now that anyone who touches any Licensed Unix code, or any code by anyone who has touched any Licensed Unix code has sold their soul to them, which is just idiotic.
Re:Why Linux needed SCO (Score:1, Insightful)
Re:SCO is plainly lying (Score:5, Insightful)
What the GPL says (Score:4, Insightful)
- Code deliberately licensed by SCO under the GPL
- Secret code copied into the GPL by a third party
Moglen seems to be claiming that since SCO has distributed Linux after discovering its secret code, and thereby accepted the GPL licensing of Linux, it must therefore have accepted that its secret code is also now licensed under the GPL. Its odd that Moglen never actually quotes the GPL itself, although he does cite it.Obviously the licensing of certain code under the GPL by an organisation does not infect everything else published by that organisation. If the secret code exists in the kernel then SCO retains copyright and has not licensed anything.
The only clause that might "infect" the secret code with GPL-ness is the derivative works clause. Section 2 of the GPL states:
So if SCO has modified a stock version of the kernel to create a derivative work then it automatically licenses everything in that new derived work, and all works subsequently derived from it, under the GPL. In theory this applies whether a human being at SCO spotted the secret code or not, although I'm not at all sure that such an argument would stand up to the legal principle that you can only agree to something if you consciously know you are agreeing to it. However, having modified the kernel (creating a derivative work) and then distributed that derivative work, or one further derived from it, knowing that it contains the secret code, it does seem that SCO has indeed licensed the secret code under the GPL.
Moglen states that SCO has dontated chunks of code the Linux kernel. Torvalds has stated that it will be very easy to find out who contributed what in the past. So, can we find out exactly which bits of code were granted by SCO, and if it did indeed create a derived work that would trigger section 2b of the GPL?
Paul.
Re:SCO is plainly lying (Score:5, Insightful)
> I think any geek worth his salt can see that they're lying about the merits of the suit
Unfortunately, it's not geeks that are going to rule on this, so SCO's loss isn't a foregone conclusion. IBM's best bet may just be to buy them out because from where I sit, IBM's purported right to put stuff into Unix without it becoming "derivative work" may not extend to things developed by other people (Dynix) and brought in after their IP has been bought.
What's a judge going to think? Wopner might agree with the geeks: SCO is obviously lying. But will the judge that gets the case in whatever district it goes to trial have the insight of a Penfield Jackson?
too soon to hold our breath...ank
Re:Nice read... (Score:4, Insightful)
Hmmmmmm...I think it adds the credibility of a lawyers expert opinion. Now I think that adds something to the argument. IANAL is a big joke around here, but its true. We are not lawyers. You can quote common sense all you want, but if a lawyer agrees with you, then your opinion may truly count in the only place this will eventually matter - the courtroom.
Linux Needs SCO Like a Hole in the Head (Score:5, Insightful)
Call me a troll, but something like SCO case was actually needed by the Linux community.
I don't believe you are a troll, so much as woefully (perhaps willfully?) ignorant of recent free software and open source history. I could speculate on an agenda you might push with such a reasonable sounding, but factually incorrect, comment, but as you are an Anonymous Coward it is pointless to do so. The moderators who modded this +5 on the other hand are fair game, and almost certainly Microsoft/Sun astroturfers in local garb.
While the game was "just for fun", no one really paid attention to any licensing issues.
Untrue. Linus released the original kernel he wrote under the GPL quite deliberately. Even then he was paying attention to licensing issues and their impact on his project (though he never dreamed of the magnitude of that impact).
RMS has always paid meticulous attention to licensing issues. Recall KDE/qt's GPL issues, that resulted in the creation of a competing project (gnome). Trolltech eventually addressed those issue, and KDE today is legal and solidly licensed under the GPL, but that entire process was a prime example of the community addressing licensing issues long before business issues were the driving force.
However, currently we're experiencing major expansion of Linux-based systems into business field, and business executives usually ask about IP rights and responsibilities.
Actually, that is rarely true. Business executives purchase a license (or not
This despite the fact the neither Microsoft, nor anyone else, offers any substantive indemnification to end users against 3rd party lawsuits (Redmond PR comments notwithstanding).
If Linux wants to be a player in the business world, it's got to play by the rules, and that's what SCO case is about to clarify.
Linux has been playing by the rules, meticulously and in a very open manner. The SCO case isn't going to 'clarify' this, as it is a contract dispute between IBM and SCO. Quite the contrary, the SCO FUD and misinformation, which contradicts itself from one day to the next, is doing anything but muddy the issue with as much misinformation as they can squeeze into a daily press release.
This last outbreak of FUD attack by SCO will actually stop all the FUD and conspiracy theories surrounding Linux in the business world.
Long term you may be correct. In the ensuing years however it will have the opposite effect, do to a gaping flaw in the US legal system that allows companies to spread disinformation and FUD without legal consiquence (one can "allege" anything, even with zero evidence). Contrast that with the laws of more reasonable countries, such as Germany and Australia, where doing this sort of thing can and does land one in hot water.
Worse, legal disputes that have dragged on for years usually rate one report ("SCO Lost, IBM vindicated") and are no longer news
The result is that this is a net-negative for Free Software and Linux, and is clearly going to be the tactic employed by Our Masters in their efforts to divide and conquer those of us uppity enough to recognize and exploit economic value in cooperation, rather than cutting one anoth
legal mumbo jumbo (Score:3, Insightful)
There always seems to be a disclaimer with articles like this that the author is not giving legal advice - is it an American thing? For the author not to be responsible for any legal action you take after reading such information?
Re:This whole thing is ridiculous (Score:4, Insightful)
If you independently discover a trade secret, you're fine. Depending on your state law, you might even be able to approach or use unfair methods. And if a secret is disclosed, no one can claim it as being a secret anymore, even if the disclosure had nothing to do with them.
This is why 'IP' is such an awful term. It groups together fields of law that are very diverse, and have no common basis or doctrines, basically. Better to deal with each field on its own.
Re:"Leading experts"? (Score:5, Insightful)
Which would I rather have? It depends, just as with medicine. If I've just been diagnosed with cancer I'd like to see an oncologist, if I've just had an axe embedded in my head I'd rather see a trauma specialist.
Eben Moglen is an expert in his field and works quietly (and by all accounts very effectively) behind the scenes to ensure that the best possible legal framework is in place to protect the FSF code. You will note that no FSF code has not been attacked by SCO. A professor of law would definitely be best for drawing up licenses and covering all the bases.
On the other hand, a trial lawyer would be a far better person to have if you are about to accuse someone of breaking a license or have to defend such an action.
Both have their place. Being a professor of law doesn't mean he has to win court cases, it means he understands the law, can interpret the law, and can protect his clients appropriately. You will also note that SCO have not attacked the GPL, they just claim that their release of "protected" code was inadvertant and therefore not covered by the GPL.
Re:"Leading experts"? (Score:3, Insightful)
You are an idiot, and so are the moderators who got this up to +4.
News flash - you don't need to be a trial lawyer to be an expert in a legal issue. Maybe you should try reading his resume [columbia.edu] before you go off sounding like a moron. He is professor of law at Columbia University and the FSFs general counsel, but you would rather listen to some Lionel Hutz [snpp.com] when it comes to a legal opinion about copyright issues. Yeah, that sounds like a great idea.
Re:Bias? (Score:5, Insightful)
You are getting close to the primary issue... (Score:2, Insightful)
I'd say that such an assertion is tenuous at best. Those technologies did not exist in System V when it was lisenced by IBM. They are not extensions or newer versions of anything in System V. SCO's argument would have to be that AIX is a derivative work of of System V (which it is) and that those technologies are part of AIX. Thus, SCO is asking the judge to hold that new technologies not based on anything even remotely derived from System V are derivative works of System V if used in AIX.
I haven't actually done the research, but I don't think that this fits the definition of derivative works. I'll have to pull out my old Copyright textbook when I get home.
Re:Does GPL cover unintended release? (Score:3, Insightful)
Re:Users liable? Someone thinks so. (Score:3, Insightful)
No, you are incorrect. The GPL explicitly disavows being a USER agreement. It is a DISTRIBUTION agreement. There is a huge difference between using something and distributing it.
If they have software that infringes on the copyright and IP claims of another party, they will be liable for what is in their possession.
No, they won't. They received the software in good faith. I note how you conveniently dismissed my argument about the New York Times, as it directly covers this.
If they weren't copying anything, how did it get on their hard drive?
Copying for personal use (such as putting it on your hard drive) is expressly allowed under copyright law. (It's called 'fair use'.) Since they received the software in good faith, they would not be liable.
Notice how the RIAA doesn't go after people who download sogns via P2P? They go after the people who share the songs.
Again, copyright law does not cover use.
Re:SCO is plainly lying (Score:2, Insightful)
Short term it would be, and there's no guarantee they wouldn't take the easy out.
But SCO doesn't have the choice to settle if IBM isn't willing to do so.
Re:"Leading experts"? (Score:3, Insightful)
It is the academics and professors who are generally the foremost experts on legal matters. When experts on the law are required, particularly on technical or recherche subjects like public software licensing, the experts are most often academics rather than practising lawyers.
Yes, the professorship at Columbia carries a lot more "credentials" in the legal field than 25 years of slogging it in litigation, or licensing work, or what have you.
Practising lawyers defer to the expertise of academics all the time. We have to; they have the time to study issues in depth. Practising lawyers can't do the same in most cases, because your client would murder you if they found out that you spent 100 hours of your time, on their dime, researching a point instead of relying on the expertise that is out there.
Don't let your ignorance get in the way of ranting, though. It's endearing.
Rewrite offending sections (Score:1, Insightful)
Re:Paper is flawed (Score:1, Insightful)
Their continued redistrtibution of Linux is a legal accpetance of the GPL and also applies to the alleged copyrighted code since they continue to redistribute Linux after making the legal claims.
Re:Conspiracy theory! (Score:2, Insightful)
1. "Nobody invests in the stock market with a time frame of less than 10 years until they need the money, it is stupid."
I assume that you mean that an investor, as opposed to a speculator, having done their own due dilligence, intends to be invested in a company for the long term, unless some emergency requires the use of those invested funds. No argument here.
2."Speculators can change the short term price of stock, but have little effect on the long term price. Don't worry about the short term investers, because either they will be out before you need the money, or you can afford to wait them out a little for a better price before you put it in. "
Speculators have no place in a rational market. In speculation, *when* you buy and sell is much more important than *what* you buy or sell. That, is a poker game, not capitlism.
I do worry about what speculators can do, as the ruins of pension plans (both private and State sponsored) and retirement funds, directly caused by stocks that were manipulated, are abundant.
The problem is that you have two groups of people, ostensibly playing the same game, but they are playing by different rules. To a speculator, K. Lay, A. Fastow and J. Skilling's sin was in not keeping the mirage going long enough; to an investor, these people are simply criminals. I understand hedge strategies, derivatve instruments and various flavors of arbitrage, and still believe that they are playing a different game. It is a hustle, not capitalism.
3."As Warren Buffet (second richest person in the world, and got it all in stocks) said something like "Short term the stock market is a voting machine, long term it is a weighing machine.""
I'm glad you gave me the opportunity to talk about Buffett.
(Remember, he also said something like, "The opening of the stock market in the morning is an opportunity for someone else to do something foolish.")
Buffett is a prime example of not just how to succeed, but how to do things the right way. He did not succeed through "shorting" or other market tricks, he didn't take advantage of his shareholders by overpaying himself with salary and options, his wealth is due to the fact that he simply understood and applied the sound and incisive analytical methods taught to him by his Finance professor, Benjamin Graham. Graham's 1934 "Security Analysis" is still a sort of bible in some homes, including my own. What he teaches is that any sort of reckless behavior, his word for it is "speculation", is an indication of bad business practice. 70 years later and it's still true. Business is not just an activity; it's the way you conduct that activity.