OSDL Position Paper on SCO and Linux

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."

ODSL?

The ODSL has released a position paper...

I'm really glad to see the Old Dominion Soccer League (ODSL) [odsl.org] taking a kick at this. Hopefully they'll have the balls hang tough with SCO and score one for Linux lovers everywhere!

You evil, evil, little man

Why do you want those soccer moms and kids to get slashdotted?

This is probably because what those jocks did to you in high school, eh?

Forgive and forget, man.
Forgive and forget.

So basically....

So basically all they did was smarten up a few thousand /. comments and put it into a PDF? so buissness plan for them is. 1: read /. comments 2: insert good grammer and spelling 3: mash them all together 4: release as pdf 5: ??? 6: Profit!!!

SCO is plainly lying

I think any geek worth his salt can see that they're lying about the merits of the suit, they've already released everything with thier Linux distributions, and they top execs are dumping stock as fast as they can.

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.

Re:SCO is plainly lying

Interesting indeed. Insiders have sold ~125,000 shares [yahoo.com] since late June (with no purchases), when it poked through the $10 mark for the first time in over two years. Not exactly a ringing endorsement of SCO's future from their own leadership!

Conspiracy theory!

What I'd find interesting is, who the hell are idiot enough to buy SCO stock...? Or gambling, "ok, there's 0.1% chance SCO will win, and then their stock price will really go up"?

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:Conspiracy theory!

If people were short selling SCO would that not bring the price up?

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!

Bzzzzzttt!!! Wrong answer...

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:SCO is plainly lying

I've read that many of the SCO execs took stock options instead of cash for working there. Perhaps some of these people are getting paid. Undoubtably many of them are cashing out when they think the stock has peeked, including their vice presendent for engineering who quit as of yesterday. But if you where a (sleezy) exec who agreed in Janurary to get paid in stock options, you might want to get some money by now.

Re:SCO is plainly lying

Adam Rightman wrote:
> 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

This whole thing is ridiculous

It all hinges on how fair you think reverse engineering is. The fact is, anyone should be able to come out with a competing product without worrying that any similarity will bring a huge lawsuit and patent problems. If you stole their secrets, that's another thing, but a competing product should not automatically be illegal.

No, this has *nothing* to do with that

The deal is, AT&T had a 'standard' contract for licensing Unix, which IBM, Sequent, and other companies signed. Sun Microsystems didn't, they purchased their license outright, and thus don't have a contract (or something, not really important but sun can do whatever it wants.)

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:This whole thing is ridiculous

Yeah. Trade secret law is actually the law of unfair competition. That is, it is considered unfair to permit corporate espionage; we care about the behavior, not the actual secrets.
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.

Read the paper yesterday.

We all know what's going on. The people who really need to read this sort of paper are the PHBs-- the sort of people who would believe the latest Gartner Group rubbish stating that Linux should be avoided...

End Users?

One thing that hit me from the first paragraph: Why would they be going after the end users first, rather than the people who profit from their supposed patents? It's really starting to sound like FUD tactics against Linux. Why else would they try to scare people off of using it rather than getting $ that should have been theirs (that is, a legitimate copyright beef).

Wow!

The position paper, which casts doubt on SCO's position, was authored by one of the world's leading legal experts on copyright law

Wow! He actually casts doubt on SCO's claims! That must have taken a legal genius! Certainly something none of the nerds on /. could have done!

Why Linux needed SCO

Call me a troll, but something like SCO case was actually needed by the Linux community. While the game was "just for fun", no one really paid attention to any licensing issues. However, currently we're experiencing major expansion of Linux-based systems into business field, and business executives usually ask about IP rights and responsibilities.

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.

Linux Needs SCO Like a Hole in the Head

I can't believe the moderators were silly enough to moderate this up. Perhaps

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 ... there are still rampent copies of illegal windows installations running all over the place, as the BSA is all too willing to exploit and emphesize. Virtually every client I've done work for ... my current employer excepted thanks to our meticulous internal audits conducted by yours truly ... has been running numerous unlicensed programs, including Windows) and then write off any copyright or patent concerns as someone elses problem.

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 ... hardly an outcome that will undue years of repetition of untruthful innuendo and FUD that Linux and free software will have to try and combat in the meantime.

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

The Press

This is all great, but I think this sort of thing needs more press. Every time SCO speaks, it's everywhere, but these sorts of things are never mentioned. Hopefully some people notice.

Users liable? Someone thinks so.

I posted this comment in an earlier article [slashdot.org] on the same issue, but it is also relevant here. According to Melise Blakeslee (a partner with the law firm McDermott, Will & Emery),

"Users meanwhile need to understand that Linux enduser license agreements are an 'as is' contract, meaning Linux users aren't protected from copyright or intellectual-property infringement claims..."

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:Users liable? Someone thinks so.

If lawyers didn't disagree, I guess we wouldn't need courtrooms :)

Re:Users liable? Someone thinks so.

Re-read that..

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.

Re:Users liable? Someone thinks so.

The GPL is a license. It is the declarations of actions an individual is allowed to do with the software.

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."

typo

s/ODSL/OSDL

ODSL = ??
OSDL = OpenSource Development Lab

(this sentence is here to bypass the lame lameness filter)

Mistake in the first sentance, not good!

was authored by one of the world's leading legal experts on copyright law as applied to software

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... " ...users of free software around the world are being pressured to pay...". Something about reading an article when the first line of it is incorrect doesnt bode well with me! SCO, HAS NOT yet got after any end customers... they have threatened that they could be in volilation, but have not gunned after anybody but distributors for money!

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

The truth of the matter is that SCO isn't even sure itself as to why they should sue IBM. Originally it was a matter of OPIP (Other Peoples' Intellectual Property). But, in this article [mozillaquest.com] with Mozilla Quest, Blake Stowell, Director of Corporate Communications for SCO indicated that the IP rights of things such as AIX, Linux, NUMA, and JFS belong to IBM. Apparently all of these problems are due to contract issues. I just can't believe how much crap this dumb Utah-based company has been dumping and how much trouble they have been causing.

Sorry. My bad

I was working for several years at SCO, and was the lead developer for their SMP module. Anyway, I was also good friends with Linus Torvalds at this time. Once I was working at home, and he came round to visit me. Anyway, when I got back to work, I noticed that my printer's paper tray was empty. I didn't think anything of it at the time, but I guess Linus must have printed off a copy of the code, and used that for Linux SMP support.

No idea why he didn't just ftp it to himself. I guess the guy never was too hot when it comes to computers.

SCO the jilted bride

SCO got stood up at the wedding (project monteray) and is now suing IBM's new bride Linux, cause she didn't get what was promised to her.

And now she wants to ruin everyone elses wedding, unless she gets a gift for her ruined wedding.

my thoughts on his main three arguments

1. where's the evidence of infringement?

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:my thoughts on his main three arguments

Even after they knew there was "infringing code", SCO continued to distribute it.

Nothing new, but good

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.

Another attorney comments

Here is some more legal commentary [internet.com]. It seems to dispute some of the OSDL's position - but comes up with other reasons why SCO's case may be flawed.

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.

A useful tool

Sure, a lot of us here were thinking the same things that this paper says (albiet with more four-letter words).

However, this is a pretty useful tool for showing to the people who normally WOUDLN'T have our technical backgrounds. I plan to point some folks to it.

Bias?

You guys always complain about bias when the Gartner Group etc., releases a study about how Microsoft is better at this or that.

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.

Re:Bias?

Gratner claims to be unbiased, OSDN doesn't.

Re:Bias?

Do you see something in Moglen's paper that isn't certifiably factual?

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.

What Is The Real News Here?

Linux is the direct competitor to SCO & Microsoft for position in markets they lose ground to every day that passes.

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.

Text extracted from PDF, with permission

Questioning SCO: A Hard Look at Nebulous Claims
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

When is this case going to trial ?

Only way to stop the FUD is to let everyone have their say in the court and see what happens. If any case needs a speedy trial, this is definitely that case.

So when is this slated to go to trial ?

What the GPL says

There are allegedly two categories of SCO code in the Linux kernel:

• 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:

2. You may modify your copy or copies of the Program or any portion of it, thus forming a work based on the Program, and copy and distribute such modifications or work under the terms of Section 1 above, provided that you also meet all of these conditions:

[...]

b. You must cause any work that you distribute or publish, that in whole or in part contains or is derived from the Program or any part thereof, to be licensed as a whole at no charge to all third parties under the terms of this License.

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.

A reply be another lawyer

http://boston.internet.com/news/article.php/224331 1

my letter to SCO

Here is an actual letter I sent to SCO. I'm hoping to receive a response soon:

COUNTRY: United States
CONCERNING: Lost/Replacement Licences
MESSAGE:
I\'de like to buy a license for Linux... not so I can use Linux, just so I can hang it on my wall and laugh when I tell my
grand-kids how stupid you guys are. Thank God your shareholders aren\'t programmers, or lawyers for that matter.
Please send me information on how to obtain one of these modern antiques.
And also if you could, a good re-seller of picture frames so I can frame it.
OH! and an autograph too... I\'de like it to be autographed by one of your lawyers... I think if you did that and sold the framed
licenses on eBay you\'e make more money selling them that way. But that\'s just my $.02... you should continue to grant new and
exciting opportunities as you see fit.
Please send more information on how to purchase ASAP.

Do not give to PHB - this is very unconvincing.

He argues 3 points:
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.

Put your money where your mouth is

1. SCO makes sweeping claims
2. stock goes through the roof
3. short SCOX
4. profit!

SCO conference call Aug 14

http://money.cnn.com/services/tickerheadlines/pr n/ laf014.P2.07312003225845.23971.htm

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 /PRNewswire-FirstCall/ -- The SCO(R) Group, Inc. will host its third-quarter 2003 financial results conference call on Thursday, August 14, 2003.

(Logo: http://www.newscom.com/cgi-bin/prnh/19990421/SCOLO GO )

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

IAAL - and I do software licensing & copyright.

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.

legal mumbo jumbo

I read the article, and it always amazes me how (although basically simple concepts) complicated open licences and copyright structures are when theyre actually written down by a lawyer. Now wonder SCO is having some success with nervous and uninformed organisations.
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?

Echo

At first I was going to ask, as others have, how many times we need to hear that SCO is full of shit before we finally believe it.

But then I realized the more proper question is how many times does SCO have to hear they're full of shit before they finally believe it. Of course, some executives at SCO have already realized this, hence the large number of 'insider' shares already sold.

Does GPL cover unintended release?

It sounds to me that SCO effectively released code into the GPL, although it was at best unintentially released. They believe they own that code.

I think I've heard GPL described as a viral license. I wonder if this test is intended to put an end to that effect.

Wishfull thinking?

Anyone else notice that the NasDaq Summary Quotes for SCOX nasdaq.com [nasdaq.com] has a article link at the bottom called /K I L L K I L L K I L L -- The SCO Group/ ? I wonder if it works?

Paper is flawed

Flaw 1: SCO gave up their rights by distributing GPLed Linux code. - This is false because there is a difference between intentionally introducing code into Linux under GPL and redistributing code that others claim has a valid GPL copyright. So unless SCO intentionally introduces IP by introducing the code themselves, this arguement is weak.

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.

Let's put and end to this.

SCO claims seem to be based on the fact AIX and Linux are derived works of AT&T UNIX, to which they hold the copyright.

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...

Yup..

Granted it's not any sort of official judgement, in my opinion this PDF pretty much sums it up.

It should take any doubt anyone has about not using Linux due to fear of owing SCO money.

Keep checking www.scoblo.com (not up yet)

i'm an employee of sco. been with them for awhile. some very interesting doings and sayings happening here. watch for scoblo.com. couple of us are going to put some very enlightening tidbits up. we're leaving here fairly soon (4 of us) so we have nothing to lose.

Why do the UNIX people have to be such farts?

Just be nice you stupid UNIX fart-sniffers! Or, even better throw UNIX in the trash, and get a Linux!

Rewrite offending sections

It seems to me that the reason why SCO has been so secretive about the offending code is that as soon as they disclose what code was supposedly copied from SCO Unix, hundreds of programmers will begin work on rewriting it in the clear.

Interesting McBride Interview

http://zdnet.com.com/1601-2-1027557.html [com.com]

Warning: Windows Media or RealOne needed.

SCO is to Slashdot...

...as Kobe Bryant is to TV News.

CSound going Open Source is to Slashdot as Afghanistan is to TV News.

$evil_company is to Slashdot as $(kidnapping_involving_white_girl | rape_involving_Black_sports_figure) is to TV News.

$truly_interesting_tech_news is to Slashdot as $foreign_news is to TV news.

As an antidote to regular TV news, try BBC world or Google news. As an antidote to Slashdot? I dunno, else I'd not be here.

Re:Ugh. ENOUGH of SCO

ditto

Re:I hereby declare any comments..

void complaint = NULL; sorry, it won't compile.

Re:Ugh. ENOUGH of SCO

There's an easy way to avoid this: go to your user settings and tell it not to put stories about Caldera on your home page. Seriously, the tools are there, use them.

Re:OT: Stop Using Palatino

Wow, "responsible consumer of type". Boggles the mind. Who knew there would be people encouraging us to boycott typefaces.

Re:Nice read...

but I don't how this adds anything that wasn't already said.

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.

Re:"Leading experts"?

Just as there are many types of medical experts so there are many types of lawyer. A professor of law such as Eben Moglen is very different from a trial lawyer.

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"?

blockquoth Rogerborg:

Hey, Eben, when's the last time you won a case? When's the last time you were even arguing before a judge or jury court?

This might be difficult, but try to wrap your head around the concept that your second question actually answers your first. It could be argued that the best lawyers never have to go to court because they're able to build such a strong case that those opposed to them realize that they would lose and therefore do not pursue the matter.

Having met the man and attended one of his presentations, I have absolutely no doubt that Eben is exactly that good. If "leading expert" could ever be applied to someone in the legal career field, I believe it is most definitely applicable here.

--K.

Re:"Leading experts"?

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:Ugh. ENOUGH of SCO

I can see how someone who doesn't want to hear more about SCO was confused when they saw a story labeled "OSDL Position Paper on SCO and Linux" and decided to read it.. Oh wait :P If you're not interested in the topic of a story, why read it?

Re:"Leading experts"?

Well, let me see, i guess his biggest legal victory is when he defended, the creator of PGP (i think his name was zimmerman), against the government, when he was accused for exporting encryption that is too strong.

His victory subsequently allowed for strong encryption to be used accross the US border, which itself allowed international internet commerce to exist. Strong encryption also helps many dissidents in repressive countries communicate without fear for their lives.

He is also defending the kids that cracked the DVD format. This one was not going that well last time i checked, but we shall see.