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."
Users liable? Someone thinks so. (Score:5, Interesting)
Quoted from the July 28th edition of Information Week magazine in an Article by Larry Greenmeier titled "Sco Group Threatens Users in Linux Fight" p.24 -- sorry, I couldn't find a link online.
Agree with it or not, at least one lawyer thinks users could be liable. -Derek
Re:SCO is plainly lying (Score:3, Interesting)
Re:Mistake in the first sentance, not good! (Score:2, Interesting)
SCO, HAS NOT yet got after any end customers...
Yes they have. They are calling Fortune 1500 companies telling them, buy a licence now and when we'll win this legal battle, you will be fine. If you don't buy this licence now, you'll have to pay much much more after we win the case.
my thoughts on his main three arguments (Score:5, Interesting)
this is the key argument: without evidence of infringement they clearly have no claim.
2. you can't charge a license fee to users
this has to be correct: if there has been a breach of SCO's copyright then SCO has a right to sue the Linux distributors. It has no right to charge or sue Linux users.
3. SCO distributed the allegedly-copyrighted work themselves, and have therefore licensed it under GPL
I'm not sure it's no simple. SCO will no doubt argue that, at the time, they didn't realise the source contained their copyrighted material. This raises the question of whether you can be legally bound by the GPL if you don't realise what you were licensing. This is a tricky question under English law; I've no idea what the US position is but doubt it is straightforward.
Re:SCO is plainly lying (Score:5, Interesting)
Re:Mistake in the first sentance, not good! (Score:2, Interesting)
Think about it this way... when a big company ( say Ford) buys and rolls out Windows 2000 in the enterprise... do they license the use of Windows? Or do they license the use of the Windows technologies in order to create their own derived OS!? Beyond selling SCO, or Caldera Linux to these companies... or residual revenue from one of their licensees selling their product to Fortune 1500 companies... SCO HAS NOTHING TO DO WITH THEM!
SCO's intentions in sending the letters to the Fortune 1500 wasnt to get money from each of these companies, but to cause FUD and damage to Linux distro's everywhere, in an attempt to make themselves as much of an attractive buy out target as possible. I think they figured a big company such as IBM, would rather just buy them to silence them... then to bother to fight. It was in everybodies best interest to stem amy damage that SCO's FUD might be causing the Linux industry.
Bias? (Score:4, Interesting)
But I don't see anyone complaining that the OSDL certainly has a vested interested here and is hardly to be expected to provide an unbiased report.
Discuss.
What Is The Real News Here? (Score:2, Interesting)
Microsoft spends quiet a bit of money studying "things" and one thing they admitted was that their FUD attempts have backfired at every twist and turn and the only thing that seems to get businesses to listen to was legal liablity.
Microsoft & SCO are simply trying to stop Linux anyway they can. SCO is simply a "middle man" between the two major forces here: Linux & Microsoft. Microsoft does not worry itself (or share holders) about SCO; they can easily be gotten rid of, and it's no small bonus that this whole ordeal will do it for them. They can't stop Linux adoption so it's simple case of "an enemy of my enemy is my friend" - until such time as it's not needed...
Legal liability is the card they are playing because it's the only one they have left regardless of merit. We all know it but businesses play by the rule of corporate liablity; which is how much money can we make/lose.
Conspiracy theory! (Score:5, Interesting)
Or, is it maybe some pension fund or something like that with corrupt management "investing" in the SCO stock, helping their PHB pals at SCO?
Conspiracy!
(Well, that would make more sense than most other explanations...)
Re:No, this has *nothing* to do with that (Score:3, Interesting)
Who modded this guy up? You, sir, are talking out of your ass. The person who developed the RCU code for Dynix is not the same who did the work on Linux. The RCU implementation you see on Linux was done by 3 engineers, none of them having anything to do with the original Sequent employee. I know, I was at Sequent at that time.
Brett Glass
Re:Bias? (Score:2, Interesting)
It is of course, biased toward Linux.
Gartner is an analyst firm. The two organizations serve entirely different functions.
Re:my thoughts on his main three arguments (Score:1, Interesting)
And the counter-argument will be...
"Six months after you announced you had found out that the source contained your material, you were STILL distributing it (on your FTP site). Your honor, please open up your computer and point it to ftp.sco.com - you will notice that even as we sit here in this courtroom, SCO continues to distribute this material under the GPL. Clearly, they know the code contains their material, as they have explicitly stated so. Clearly, they are distributing the material with the GPL. Thus, they have no basis to say they did not "knowingly" release the code."
--AC
Re:Users liable? Someone thinks so. (Score:2, Interesting)
Incorrect. The GPL is an end-user license agreement. Also, Mandrake, and RedHat both have a EULA section in the installation.
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 they have software that infringes on the copyright and IP claims of another party, they will be liable for what is in their possession. If they weren't copying anything, how did it get on their hard drive?
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.
Lets just rename the site, "Slashdot: News for Nerds, who pretend to be lawyers."
Re:SCO is plainly lying (Score:1, Interesting)
If you owned stock that hadn't been above $10 in 2 years, I imagine that you would sell too.
Remember, there is only 1 reason to buy or maintain equities, but there are BILLIONS of reasons to sell. So don't go blowing the conspiracy theory horn just yet.
Do not give to PHB - this is very unconvincing. (Score:2, Interesting)
1. Where's the beef?
His first point argues that he doesn't have all the facts. He sets up a strawman outlining what he thinks SCO's position is, and then proceeds to argue against it. Bad form.
2. Why do User's need licenses?
Except for Free software, it's accepted that users need valid licenses for their software. His argument hinges on the position that SCO is going after copyright issues, which SCO hasn't claimed (point 1). PHBs accept software needs licenses.
3. Do Users already have a license?
I thought his argument was that they don't need a license? His argument here is the same as IBM's position paper - they distributed under the GPL so tough luck. It may be as cut and dry as this, but I would like to hear a judgement from the courts.
If you take my work, break the license and then distribute it as GPL, if I distribute your product under the GPL without knowledge that it infringes on my work, should I suffer?
In short, I think SCO is going to lose, but this article does little to convince me that companies may not be vulnerable. In fairness to the author, he admits not knowing the facts of the case at the beginning - so everything after that is pretty pointless.
Re:A reply be another lawyer (Score:2, Interesting)
I stopped reading at that point. The lawyer is a moron. Every time you read a book, the light reflects off it, making a copy. I doubt THAT would cause a point of dispute.
And both types of copy are needed before use of the work under copy right becomes useful, so the analogy works.
Paper is flawed (Score:2, Interesting)
Flaw 2: An end user can't be sued over copyright since he's not the one copying. - This is flawed in that many Linux distributors have licensing agreements with end users where they waive all responsibility for copyright vioaltions. This shifts the burden from the copyright infringer to the end user.
This doesn't mean I think people should start paying licensing fee to SCO, but don't be surprised if a court orders it some day.
Re:No, this has *nothing* to do with that (Score:2, Interesting)
Not quite.
What IBM got was a "letter of understanding" from AT&T. That is much, much, different from an admendment to IBM's contract.
The letter explained to IBM what AT&T belived the contract meant in terms of "real world" situations that IBM might face.
An "understanding" by AT&T to any holder of the contract would apply to ALL holders of that contract who where faced with issues similar to IBM's. AT&T cannot claim its words "meant" one thing when using them with IBM, and another when using them with somebody else.
Even if the "understanding" applied only to IBM, when it bought Sequent it came into possesion of a contract worded exactly the same as the one AT&T "explained" to them. In what worldview could IBM be expected to interpret multiple copies of the exact same contract, one that was carefully explained to them, in two very diffrent ways?
You can sign and posses as many copies of an agreement/contract as you like. They always, by definition, mean the same thing. So, IBM has two copies, how nice.
Re:SCO is plainly lying (Score:1, Interesting)
Merchants are held to a HIGHER standard (Score:3, Interesting)
IANAL, but I have studied enough law to know that laws are much more strict when a Merchant (someone who is distributing a good as a business) gets involved. There are specific warranties a Merchant grants which CANNOT be waved. If Walmart sells you a microwave, do you think they have a right to send you a letter later saying you need to send them $1,000 for IP fees they failed to include in the price? No dice, Walmart implied a warranty that what you were getting was legit and SCO implied what they were distributing was legit.
Let me put it this was, if merchants were not forced to assume the risk of distributing the wrong thing, for the wrong pice, the entire U.S. economy would collapse. No one would buy ANYTHING because such transactions would represent an infinite legal liability to the purchaser.
They must be breaking some kind of law (Score:3, Interesting)
Let's put and end to this. (Score:3, Interesting)
Isn't it just as valid to say AT&T UNIX is a derived work of MULTICS?
Who owns the copyright to MULTICS, Honeywell.
So if Honeywell would just start send letters to all of SCO's customers (both of them) demanding they buy a license...
Re:SCO is plainly lying (Score:3, Interesting)
I think it is not unlikely that IBM will file counterclaims that SCO will have to defend. I'd expect them to pull out every patent that they've contributed to Linux under terms that require GPL distribution and to bitch-slap SCO with them. Oddly enough, one of them is the RCU patent. I would not be surprised to see them to retailiate with business libel, unfair competition, and deceptive trade practices claims.
Re:No, this has *nothing* to do with that (Score:3, Interesting)
Other posters seem to have raised some doubts about the accuracy of your facts, but assuming what you say is true, you're still mixing up patent and copyright.
Not having read the document myself, I can't say this with absolute certainty, but AT&T's license clause saying they get the rights to any changes you make to Unix sounds like it's talking about copyright rights. If that's the case, then SCO would own the copyright on the lines of code belonging to Sequent's Unix RCU implementation, not the patent rights to the RCU technology itself. Therefore, SCO cannot claim that the Sequent programmer doesn't have the right to re-implement the technology in Linux; what they can claim is that he doesn't have the right to take the implementation he wrote for Unix and copy that code into Linux.
So the question is, is the Linux RCU implementation an independent rewrite, or a copy of the original implementation? Unfortunately, we won't know unless SCO shows us their implementation. But in any case the fact that the technology was developed and patented before it was implemented in Unix is irrelevant.
Re:Conspiracy theory! (Score:3, Interesting)
On a clear blue day, with all of the facts in your favor, and with no chance of losing the case, going to court means you have about a 20% chance of losing.
So, to turn that around, SCO probably has about a 20.01% chance of WINNING this case.
Of course, that won't happen, since the moment it gets close, IBM would sue them for infringing about 2000 patents that IBM holds in reserve just for such celebratory occasions; buy them cheap; and sell their HQ for parking space.
Even if they did win, though, they've lost in terms of Linux. A win against IBM is just that: a win against IBM. To press a case against a USER of Linux without having pressed a case against the distributors first would place them in such a messy situation, that the litigation risk might well be moot in the face of the counter-suits that they would be slapped with for using the legal system for purposes of implementing a protection racket!
Also, and all of the rest asside, go to their FTP server and download yourself a copy of the Linux source code, licensed under the GPL. There, you're done. If you're super-paranoid, don't use any version of Linux after 2.4.13 (the version they distribute) until this case is settled.
Re:Bias? (Score:5, Interesting)
Do you see something in Moglen's paper that ignores SCO's side of the argument?
It's hard to be unbiased when the only available facts are so one-sided.
Some people like to ignore facts if it helps them look less "biased," because facts tend to lead the mind to certain conclusions. I mean, we wouldn't want actual critical thought at the expense of giving both parties equal benefit of the doubt, would we?
So far, I have yet to see one single, tangible, FACT from SCO that would support their claims in the least amount. And yet I see all sorts of "journalism" that lends credibility to SCO's claims for the sake of "unbiased" reporting.
Keep checking www.scoblo.com (not up yet) (Score:1, Interesting)
Where's the IBM-SCO contract for Monterey? (Score:1, Interesting)
SCO is suing IBM for breach of contract. However, courts don't read minds. The court does not know what a contract says unless somebody enters it into evidence.
In their lawsuit, SCO has filed exhibits showing the AT&T contract with IBM (which SCO is successor in interest), with an addendum between AT&T and IBM, and a later contract transferring the rights from Novell to SCO, with consent by IBM.
However -- SCO has not filed any exhibit showing a contract for Project Monterey, or any exhibit showing a contract between AT&T and Sequent for the code that SCO claims infringes.
Where are those contracts, SCO?