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SCO Attorney Declares GPL Invalid
Posted by
michael
on Thu Aug 14, 2003 01:40 PM
from the look-at-the-silly-monkey dept.
from the look-at-the-silly-monkey dept.
chrullrich writes "According to heise (German, fishbait), SCO's chief counsel Mark Heise (unrelated) of Boies, Schiller and Flexner has declared that the GPL violates the US copyright law and is thus null and void. SCO's legal position is actually a little too crazy to believe: The GPL allows unlimited copies, the copyright law allows one. Therefore, the GPL is invalid. Apparently, they try to argue that the copyright law, in giving consumers the right to make one backup of their software without any permission from the copyright holder, outlaws any contractual agreement that allows users to make more than one copy." There's an Inquirer article in English. Apparently SCO is now using the Chewbacca Defense. Other SCO news: SCO reports a profit, examining SCO's contributions to Linux, an attorney summarizes the case.
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SCO and UNIX (Score:5, Interesting)
Sun Microsystems doesn't seem to mind what's happening with SCO. I wonder why?
The penguin is insatiable. Better wake up and smell the coffee [slashdot.org].
There is no way to win! (Score:5, Interesting)
If the GPL is compeletly invalid -- they have a singular problem : Distributing copywrited software without a license. Linus et all can sue for massive damages.
If the GPL is valid, they are in a boatload of shit anyway: How the fuck could they get EXT2 compatability in SCO Unix? They sure the hell didn't clean room it. I wanna see the code to their filesystems. How about the Linux Compatability crap? Clean room? NO FUCKING WAY!
any way you slice it, SCO is gettin' ready to get their butts kicked, but IBM, Redhat SuSE and others.
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Re:There is no way to win! (Score:5, Insightful)
-molo
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Re:SCO and UNIX (Score:5, Funny)
Yeah, with a Q-Tip.
Pathetic.
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Hmm (Score:5, Insightful)
Re:Hmm (Score:5, Insightful)
This is not quite so dumb as it sounds, however. (Disclaimer - IANAL, I'm also Canadian) According to US law, there's 2 ways to release your work - with or without copyright. They seem to be arguing that the GPL invalidates itself since it doesn't seek to restrict how the work is distributed, and all GPLed works should therefore be in the public domain (no copyright).
OK, so it's really a bad argument, since the GPL does place restrictions on distrubuton, but it's likely the best of a bad lot.
Unfortunately for SCO, they're about to get on the wrong side of Microsoft too, since MS allows large coprorate customers to make unlimited copies of thier software, but with restrictions. Someone could use the precedent set by this case (should SCO win - HA) to invalidate those licenses as well.
All in all, I'd say RMS was at his insideous best when he crafted the GPL - delcare the GPL invalid, and all other IP licenses are fair game too.
Soko
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"Insightful?" Grrrrrrr... GPL !=Public Domain! (Score:5, Informative)
Furthermore, if I am the creator of a GPL project there is nothing at all to prevent me from making the code I wrote and making it both GPL and shrinkwrap.
That's the whole point of copyright: you can "give away" your rights for one method of distribution and not lose control of the work. GPL is absolutely, completely and utterly NOT "public domain."
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Re:Battle of Stalingrad? (Score:5, Funny)
IMHO this case will more resemble Bambi vs Godzilla. SCO's about to get squashed.
Or would a simple shark feeding-frezny do.
There's an old joke about sharks not eating lawyers out of professional courtesy. Draw your own conclusions.
Soko
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...and I declare SCO "petunias"... (Score:5, Insightful)
Re:...and I declare SCO "petunias"... (Score:5, Interesting)
1) Profits were $3.1 million
2) According to a story over at Infoworld [infoworld.com], Microsoft may have paid $6 million for their Unix license.
3) Out of $20.1 million in revenues, $7.3 million came from SCOsource, which is the unit driving this whole nonsense.
4) And according to SCO itself [yahoo.com], they've spent around $1 million on legal costs so far related to the IBM suit.
Bottom line: SCO's fundamental business is still in a death spiral. Take away the legal fees and the SCOsource revenue, and the rest of the biz lost around $2.2 million, on revenues of $16 million...
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in additional news... (Score:5, Funny)
Review of Attorney's Summary (Score:5, Interesting)
First, on point two he states:
While it is most assuredly true that parties in a contract have a duty to mitigate their damages, that mitigation duty hasn't been applied as far as I can tell to copyright infringement. And even if it is applied to copyright issues, the duty to mitigate only goes to the question of the amount of damages sustained by the plaintiff, not to if the defendant is infringing.
Second, in point four he stated that:
First, it is clear that SCO is offer a per seat license at 50% and will increase after a certain date (Oct. 15>) Second, statutory damage amounts are provided by law to those who have a registered copyrighted work infringed. This amount is above any "ceiling" that Mr. Carey may mistakenly assert that exists.
Finally, Mr. Carey is right. If SCO's claims are without merit, then they have placed themselves at a huge risk of a substantial judgment against them. Of all our sakes, I hope that this is the case.
Re:Review of Attorney's Summary (Score:5, Interesting)
In at least one case, it has been applied. Someone was denied damages because they didn't mitigate their damages even though it was found that the other work did infringe on theirs.
And the judge in that matter is the same Judge Kimball who is presiding over this case. In the opinion, he said "Had Jacobsen voiced his disapproval in 1996, Hughes would have had the opportunity to take the offending material out of the books".
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howto: disable caldera news (Score:5, Informative)
and check Caldera under topics, then hit save.
I'm sure i'm not the only one tired of these sco articles.
Re:howto: disable caldera news (Score:5, Funny)
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Re:howto: disable caldera news (Score:5, Insightful)
The GPL is being formally challenged in court. I fail to see how that *couldn't* be "News for Nerds" or "Stuff that Matters". This affects *everyone* here, and hundreds of millions of people that don't read
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This is stupid (Score:5, Insightful)
Because authors and publishers make a contract?
The GPL is, in a sense, also a contract. It says, "We're giving these rights to you. You don't have to agree to our terms, but if you want the rights we give to you, you have to agree to our other terms." The GPL doesn't modify copyright laws, any more than a contract an author makes with a publishing house does.
Sheesh.
SCO's legal team (Score:5, Funny)
HH
The future of SCO. (Score:5, Funny)
What a joke. Johnnie Cochran must be part of their legal team.
In other news... (Score:5, Funny)
Future targets, according to the press release, may include schools, small businesses, and FTP 'mirrors', which not only house myriad copies of copyrighted works, but also make them available to further illegal duplication by end users.
SCO Claims that copyright law prohibiting multiple backups of information may also cover music, movies, and published works. The RIAA and MPAA were reportedly intrigued, but unavailable for comment.
--Jasin Natael
His argument is invalid (Score:5, Informative)
Re:His argument is invalid (Score:5, Informative)
You have the right to make one copy, not the limitation to be allowed only one even if your license and contract agree to more than one. The law here allows ONE copy where a contract is silent, it does not command a limitation where a contract speaks of more.
This kind of arguement makes lawyers look bad. If I were IBM I would file for sanctions against this lawyer.
The purtainent chapter of the Copywrite Code [copyright.gov] reads:
117. Limitations on exclusive rights: Computer programs53 (a) Making of Additional Copy or Adaptation by Owner of Copy. -- Notwithstanding the provisions of section 106, it is not an infringement for the owner of a copy of a computer program to make or authorize the making of another copy or adaptation of that computer program provided: (1) that such a new copy or adaptation is created as an essential step in the utilization of the computer program in conjunction with a machine and that it is used in no other manner, or (2) that such new copy or adaptation is for archival purposes only and that all archival copies are destroyed in the event that continued possession of the computer program should cease to be rightful.
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This would make other licenses illegal (Score:5, Interesting)
SCO Went Over This In The Conference Call (Score:5, Informative)
rah rah rah
go sco
we made money. our market cap went from 10 million to over 140 million making it one of the leaders on the Nasdaq (Go lawsuit go!).
we r the "leader" in the Unix market.
over 100 parties have seen the code
our linux license was based on "demand". LOL. (because people who came and looked at the code inquired as to whether they would offer a license). that's demand?
companieS have been signing up! (no mention of who or how many). I didnt know ONE was plural.
4Q revenue to grow to 22-25 million due to ScamSource licensing
there are two Operating System platforms in the world. Windows and Unix. Microsoft owns Windows, we own Unix. We don't have a VERSION of Unix, we own ALL of it.
we will see this case through to the end despite what our competitors say (red hat: unmentioned by name).
the industry is being divided into two camps: those who respect IP and the those who are trying to destroy it. the "silent majority" is firmly behind SCO.
legal position is ROCK SOLID.
we continue to gain in credibility.
Q&A:
Budgeted Legal Expenses?
We have spent less than half of what we budgeted so far. Million/quarter range. 600,000-700,000 so far. they include these costs in as "costs of sales".
Guidance on First Linux License you sold?
Confidential. sorry, no.
The GPL
building your company around a GPL licensed software is like building your HQ on quicksand.
Even Linux companies that are pro-Linux are scared that their code "will get sucked into the GPL machine". Pure FUD.
Linux License
If you bought SCO linux, the binary license will be given to you for free.
Our "heritage line of software" wont grow but not because everyone hates us and thinks the product sucks, but because of the global economic slowdown.
Do you have new licensees?
Umm, hmmm, hummina, ermmmm, we are projecting we will for next quarter!
More GPL
When we were more involved in Linux, companies came in and said "how can you get involved with this beast.
There is NO WARRANTY in the license. This is problematic.
We look forward to going into a courtroom and dealing with these GPL licenses. We are very confident.
Insider Trading
When their shares vest, it causes the executives a tax event and this is the only way they can pay those taxes.
Darl McBride
My goal is to get money back on the shares I put into the company in 2000. The strike price on those is 56 dollars a share.
rofl. Good luck buddy.
Silent Majority? (Score:5, Funny)
In the RED Corner, weighing in at $140M, we have the Self-Proclaimed Siiiilent Majorrrity. . .
And in the BLUE corner, weighing in at One Hunnnndred and Fifty Beeeellion Dollars, The Heavyweight Champion of Patent Litigation, DEEEEEEEEP POCKETTTTTTTS!!!!
Round 1.
Fight!
Not How I Expected the GPL to be Challenged (Score:5, Insightful)
no GPL means SCO is and was infringing copyright (Score:5, Informative)
They are selling this product.
Infringing copyright for financial gain is a criminal offense. By arguing that SCO does not have a license to distribute Linux definately hurts them.
To actually hurt ANY Linux distributer they would have to #1 prove they don't have a license to distribute. #2 be a copyright holder.
This is so obvious to me leads me to think that they really are MS monkeys and this may be the strongest attack they could muster.
Wrong (Score:5, Informative)
Copyright dictates that the copyright holder has final say on who, exactly, will have permission to copy a work. The single backup copy issue is "fair use", and has nothing to do with this.
The GPL works *WITH* copyright by telling recipients that the author has explicitly granted them permission to further distribute their works only so long as they comply with the terms of that license. If they do not wish to comply to those terms, they do not have permission from the author to distribute. End of story.
I've Got It Figured Out (Score:5, Funny)
It's like a two year old that keeps arguing that the sky is, in fact, green, and that he'll never grow up to be a basketball player if you don't let him eat cookies for breakfast. It's cute the first couple of times, then becomes slightly annoying, but eventually you are so baffled by the shear stupidity that you stop tyring to correct him, stop trying to prove your point, and simply say 'yes, dear.'
That, my friends, is SCO; Litigation through Temper Tantrum.
Copyright law (Score:5, Informative)
anyway something serious:
For the USA Copyright law: here [copyright.gov]
See paragraph 106 wich says:
Subject to sections 107 through 122, the owner of copyright under this title has the exclusive rights to do and toauthorize any of the following:
(1) to reproduce the copyrighted work in copies or phonorecords;
(2) to prepare derivative works based upon the copyrighted work;
(3) to distribute copies or phonorecords of the copyrighted work to the public by sale or other transfer of ownership, or by rental, lease, or lending;
(4) in the case of literary, musical, dramatic, and choreographic works, pantomimes, and motion pictures and other audiovisual works, to perform the copyrighted work publicly;
(5) in the case of literary, musical, dramatic, and choreographic works, pantomimes, and pictorial, graphic, or sculptural works, including the individual images of a motion picture or other audiovisual work, to display the copyrighted work publicly; and
(6) in the case of sound recordings, to perform the copyrighted work publicly by means of a digital audio transmission.
Sounds clear to me....
ROTFLMAO (Score:5, Funny)
Thanks, I needed that. Can't remember when I heard something so goddamn funny. I nearly blew Mountain Dew through my nose on that one.
What, you're serious?! Ssnnnorrkkk!!! Damn, that's even funnier! Have you guys thought about doing a stand-up routine somewhere?
Really. Just too f'ing funny. Pardon me while I wipe the tears out of my eyes.
You're the best,
Bill Gates
Finally, a Substantive Claim from SCO (Score:5, Interesting)
To counter this argument, SCO claims that GPL itself is invalid. Hence, even if SCO did previously distribute the disputed source code under GPL, SCO is still entitled to demand royalties because GPL violates the law.
Finally, SCO has a substantive claim. Apparently, the court case will finally come down to one issue: "Is GPL valid and enforceable?" If the answer is "yes", then SCO does not have a case.
Ok then, SCO's guilty of copyright infringement. (Score:5, Interesting)
Obviously this is sheer nonsense. Yes, I'm trying to derive logic from an illogical fallacy. But, it's a slow news day, and I find that trying to make sense of SCO's legal argument is rather a cheap way to amuse oneself and pass some free time.
Certainly, they cannot be serious. That naturally leads to a question how could they possibly even think of coming up with such a big, fat whopper. I mean, you have to be doing some serious drugs in order for such a thought to enter your mind, through nothing but random, natural processes.
I think this is nothing more than a knee-jerk response to IBM's countersuit. SCO's got blindsided when IBM's countersued them for violating the GPL. I'm sure that SCO has planned their legal strategy (or whatever passes for one) in advance, and must've considered all kinds of potential responses from IBM to their original suit. They must've considered many possibilities, but it never considered that IBM would respond by countersuing them for violating the GPL.
Dollars-to-doughnuts SCO didn't even realize that large portions of the Linux kernel, which SCO themselves sold, were copyrighted by IBM, and licensed under the GPL, and IBM is now suing SCO not just for violating the GPL in general (which would be somewhat difficult, since IBM would have no real standing to sue) but IBM is now suing SCO as a copyright owner, and for full-fledged copyright infringement.
This is serious stuff. The GPL itself is not even the primary focus. Just forget about the "controversial" copyleft aspect of the GPL. Pretend for a moment that SCO had some kind of a license from IBM on IBM-copyrighted code, and they distributed the code in violation of the license agreement. Or they had no license at all. And now, IBM is suing them for copyright infringement. That's exactly what's happening here, and GPL just happens to be the terms of the original licensing agreement.
SCO didn't expect it this kind of a response, and got caught, flatfooted. So now they're scrambling to figure out how to respond to charges of full-fledged copyright infringement. I guess they figured that their best chance is to try to declare GPL invalid, and hence the idiocy from their legal beagle. So now, I'm waiting for them to explain exactly what kind of a license would then they believe to have to sell IBM's copyrighted code.
Q&A re: SCO vs. IBM by Lawrence Rosen (Score:5, Informative)
That does it! (Score:5, Funny)
SCO: What are you doing?
IBM: I'm declaring Shenanigans on you. This lawsuit is rigged.
SCO's agreement with IBM (Score:5, Insightful)
Come to think of it, SCO's source code agreements with everyone else (including Sun and MS) are probably invalid also. This is hilarious.
I am now waiting for SCO's explanation on how code in Linux can still be a secret in spite of the fact that tens of thousands of people regularly look at it. Next, we can learn how patent law does not permit Novell to retain Unix patents when relinguishing the source code and why SCO really does have the right to keep talking about its right to the 'Unix' IP (when it is supposed to have no such right because it does not even own the Unix trademark).
By their logic (Score:5, Insightful)
Some praise for RMS (Score:5, Insightful)
It seems to me the GPL acts as a balancer against a changing legal climate - the more "IP" friendly and less "fair use" friendly that climate becomes, the stronger the GPL becomes.
Brilliant.
Re:So I can't copy something I create? (Score:5, Informative)
I see no mention of how many copys are allowed from the ppl that wrote the law here [copyright.gov].
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Re:So I can't copy something I create? (Score:5, Insightful)
That does appear to be their argument. IANAL, but I cannot imagine that any judge could be convinced that the provision of the copyright law that allows you to make a backup copy, even if you don't have the permission of the copyright owner, somehow constrains the owner from permitting you to make modifications or copies or whatever.
To me, this just makes it abundantly clear -- as if further proof were necessary -- that SCO has no desire for this lawsuit to ever see the inside of a courtroom.
I think SCO is beginning to feel cornered -- not before time. In their earnings webcast today, they presented a "defense" of the stock sales by corporate insiders, which somehow left out how all these pre-planned sales happened (coincidentally, I'm sure) to start right after the lawsuit was announced.
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Re:Hold up a second... (Score:5, Funny)
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Re:Hold up a second... (Score:5, Insightful)
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Re:Hold up a second... (Score:5, Informative)
When the FSF refers to the GPL license as being a "copyleft" they're making a joke, because they're using COPYRIGHT law to ensure that the code remains freely available. Copyleft is not a principle the law recognizes.
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Re:Hold up a second... (Score:5, Funny)
And not a character the Unicode recognises.
Bastards.
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Re:Hold up a second... (Score:5, Insightful)
However, that being said, Copyleft is BASED on Copyright. What they are saying is.. no matter what the license says, you can only make one copy. Of ANYTHING.
So the Book Publishers and Authors need to start suing the printing press companies, since they give them the "right" to make copies so they can sell them.
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Re:Copywrong (Score:5, Funny)
- Michael
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Re:Hold up a second... (Score:5, Interesting)
Now in truth while IANAL, when he wrote the GPL rms did consult with law professors who created a document that should stand up in court.
SCO can say that it not valid, but they are probably wrong.
They could say that 2+2 = 5 but they would probably be wrong about that too.
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Re:Hold up a second... (Score:5, Funny)
Jaysyn
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Re:Hold up a second... (Score:5, Informative)
Here are the pertinant facts
You cannot loose your copyright on something that you wrote. It is yours for life unless you assign it to someone
You can ceed it to someone else under a license, but your protection under copyright prevents them from every taking that license off you.
When you work for someone the copyright on the work you produce during the time that they pay you belongs to them, and they can do what they want with it. It is not clear what determines the copyright of items created for a company.
Copyright applies to code, text, music and video.
Copyright has a stronger status than a patent in law because it is easier to prove a violation of it (here is the *copy* that you have made instead of here is the *idea* you used) But items that are copyrighted by someone can be protected by a patent, and licensed items can be protected by patents. This is the killer for Linux and will be how people get it if they every get it, because if someone has a patent on a GPL'ed item they will be able to enforce that patent on derivitive works that are not covered by the GPL and it is argueable that a rewritten class is separated from the initial license because the copyright has now passed to the author of the rewrite (who can grant a license to the copyright, but not to the patent)
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Re:Are you PURPOSELY being thick?!? (Score:5, Insightful)
Copyright dictates that *only* those who have been permission to distribute a copyrighted work may do so (Note, *distribute*, not merely copy.... copyright law is actually quite relaxed on the allowance of copying for purposes of fair use).
The GPL outlines what terms a person must agree to in order to acquire permission from the copyright holder to distribute copies of the works.
Therefore, simple failure to abide by those terms while continuing to distribute such works is plain ordinary copyright infringement.
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