SCO Madness Reigns Supreme

Sri Lumpa writes "It will come as little surprise for those of you that followed the SCO stories and read their latest filing that an IP attorney, Douglas Steele, Esq., thinks that 'SCO is trying to get the judge to declare all works released under the GPL for the last 3 years put into the public domain.' Meanwhile, more lawyers give their opinions, with Eben Moglen saying 'It's just rubbish,' while another says of SCO's defense: 'From the outside, it appears so bizarre and so ridiculous that I fear their argument is being misstated,' while Blake Stowell of SCO believes Congress has drawn a boundary between proprietary and open source and still insists that IBM should indemnify its Linux users while refusing to indemnify SCO's Samba users against a potential MS lawsuit. More links to related news stories continue to appear in the comment section of the first link, thanks to the Groklaw readers." Read on for another handful of updates in SCO vs. The World.

Roblimo knows good, honest Constitutional argumentation when he sees it, and over on NewsForge amplifies SCO's claims that the GPL is unconstitutional.

Dopey Panda writes "Looks like SCO has become just a bit worried about their liabilities for distributing the Linux kernel. Starting November 1 you will have to be a registered SCO customer to be able to access their FTP site. So that leaves just a couple days for you to download your own genuine SCO-approved GPL code!"

And perhaps today's most interesting SCO submission: 1HandClapping writes "In alwayson-network.com, Mark F. Radcliffe (HIAL) writes about a little-reported aspect of the SCO vs IBM case: 'Novell, as part of its sale of the UNIX licenses to SCO, retained the right to require SCO to "amend, supplement, modify or waive any right" under the license agreements (and if SCO did not comply, Novell could exercise those rights itself on SCO's behalf). At IBM's request, Novell employed this right and demanded that SCO waive IBM's purported violations. When SCO did not do so, Novell exercised its right to waive the violations on SCO's behalf. Basically, this defense destroys the core of the SCO case: IBM's violation of its UNIX license with SCO.'"

Restricting access to FTP won't help SCO

[47PHA60]

"Looks like SCO has become just a bit worried about their liabilities for distributing the Linux kernel. Starting November 1 you will have to be a registered SCO customer to be able to access their FTP site."

Doesn't matter; it is OK under the GPL to make code available only to those people who received binaries from you. You must, however, grant the same rights to those recipients so that they can further modify or distribute what they got from you.

In other words, if the GPL is enforceable, this move by SCO does not mitigate their responsibility to honor the terms of the license which they accepted by distributing the software.

If the GPL is enforceable, SCO has lost their rights by attempting to add further restrictions (in the form of their "SCO IP License"). If the GPL is not enforceable, then the whole software industry is in for a shake-up, because a license is the only way that software copyright holders extend any rights to you beyond what copyright allows.

Re:The Madness of King Darl

[Anonymous Coward]

RTFL: [fsf.org]: the GNU General Public License is intended to guarantee your freedom to share and change free software--to make sure the software is free for all its users.

Re:for the sake of arguement...

[Anonymous Coward]

A license is a contract, and under US law, contracts are void (no court will here a "breach of contract" case) if the contract stipulates that the promisee or promisor violates any law or statute. It's contract law 101. There are a few exceptions to this rule, but in the case of employment contracts, the law is heavily weighted towards the employee not the employer.

Huh?

[siskbc]

How about any licensings that violates or circumvents a persons constitutional rights (US)?

Any contract whose terms are not legal is null. So I think that's already the case.

Note that there is a difference between someone waiving their rights and inalienable rights being violated. In any contract there is give and take - for example, in exchange for payment I give up some specific rights (like working for my employer's competition on the side, for instance). However, I couldn't sign a contract making me a slave. That's not legal.

Re:(e)stop the madness

[baileytal]

My understanding of estoppel is that it only operates when party A has 1) made a statement that it knows to be untruthful or incorrect and 2)party B actually relies upon that statement 3) after which party A seeks to rely on the actual state of affairs 4) to party B's actual detriment or loss. Estoppel would stop party A from being able to give legal effect to the actual state of affairs.

The textbook example I remember involved trespass, which is a pretty cut-and-dried legal doctrine. In that example, party A owned a piece of land, which party B used to regularly travel over. Party A allowed B to continue to regularly travel over the land for a long time, such that B actually developed some sort of monetary gain from it. Party A then tried to sue B in trespass. B pleaded estoppel, and the court agreed. It was outrageous that A should lie in wait, and lead B to believe that it had no objection to the trespass.

It's essentially an ancient legal doctrine meant to counter frauds or bait-and-switch operations.

It's important to note that estoppel is an equitable doctrine, meaning it's a subset of legal arguments traditionally pled where someone's clear legal rights will lead to an egregious injustice.

A discussion of Copryright Preemption

[criquet]

Copyright Preemption [richmond.edu]

Re:(e)stop the madness

[cmason32]

You're thinking of equitable estoppel. There is also collateral and judicial estoppel. Collateral estoppel means that once a court has come to a decision, that decision affects other similarly related facts. Judicial estoppel prevents a party from asserting one thing in one instance and then the opposite in another instance.

Re:How does this stay off the financial newswires?

[milo_Gwalthny]

Some of the smart money is getting out. Integral Capital Partners just filed an amended S-13G showing that they no longer own any SCOX. They were one of the largest holders prior to the lawsuits.

ICP is one of the smartest private investors in California. My advice on news... watch what they do, not what they say. On news sources: best source is EDGAR [sec.gov].

The SEC needs some help from *you*

[anomaly]

I contacted the SEC about SCO, and they called me back!

I posted a comment [slashdot.org] with more information about this yesterday....

Re:Why is IBM so quiet?

[Rimbo]

Have you ever heard a representative of one company or another say, "I'm sorry, but we cannot comment on legal matters?"

There is a very good reason why you should keep your trap shut when you're involved in a lawsuit: "Everything you say can and will be used against you in court." Now I KNOW you've heard that one.

You do not discuss legal action until the case is over with. Time and time again, SCO's refusal to keep their lips zipped has fed IBM more fuel for their own counter-suits and defense. Everything they have said can and will be used against them by IBM.

IBM is not making the same mistake.

I also feel that their brevity and silence makes the cloud forming over SCO only seem darker, but that's just my own bias talking there. The reality is that what you don't say won't come back to haunt you later.

Re:The Madness of King Darl

[Nucleon500]

I'm replying to SCO's argument, not you personally:

SCO will say that GPLed code cannot be restricted by export controls, thus violates national security laws.

To quote the GPL:

8. If the distribution and/or use of the Program is restricted in
certain countries either by patents or by copyrighted interfaces, the
original copyright holder who places the Program under this License
may add an explicit geographical distribution limitation excluding
those countries, so that distribution is permitted only in or among
countries not thus excluded. In such case, this License incorporates
the limitation as if written in the body of this License.

Depending on how strictly this is interpreted, SCO may or may not have a point - is this limited to "patents and copyrighted interfaces" limitations? It would be better if they left out that clause, or added export laws to it.

While I'm at it, the GPL ought to include something affirming that contributors, and specifically not end users, are responsible for verifying the code they contribute is theirs. Also, how about a clause that specifically states that an author can limit what he believes is a derivative work. I once knew someone who thought that Linus's comment at the top of linux/COPYING had no legal force, and that proprietary userland programs are at risk, which is of course crazy.

Re:This one's Malice *and* Stupidity

[WalletBoy]

See that's one of the reasons why companies get confused and fear the GPL. They don't have to give up their candy if they made it themselves without any help from you. Companies have knee-jerk reactions to the GPL and think that just because they use it on one product it means all of the sudden everything they ever produced now falls under the GPL. Another analogy of GPL might be what's mine is yours, what's yours is yours what you do with my stuff is yours and mine and his and hers.