If SCO were right, they would've given some evidence to the public by now. It's not like doing that would hurt their case.

Changing it doesn't change previously released versions, so they would still have a case.

That may well be the point of view of the law.

But if so, I think it does rather validate the 'viral license' accusation, although not quite in the way MS seemed to be intending it to be taken.

Here's the scenario: your company, a medium-sized software business, has a few commercial projects underway. One of your employees naughitly includes some of the code from the commercial project into some GPL'd project, which later makes its way into RedHat. Let's say over a few years she steals quite some bucketful of code. You don't notice, of course, because checking all your code against all of RedHat's source would be kinda onerous and not something that would occur to most people.

Then your company starts distributing RedHat. Then you discover that you've been distributing your own code, inadvertantly, under the GPL, so there's nothing that you can do except fire and sue your employee.

'Tough Cheese', you may respond. But if this is right, then it's going to make many companies quite wary about having anything to do with the GPL.

Which I think would be bad.

How does this effect the argument for bazzar versus catherdral style development?

This is what has always worried me about bazzar projects, since there is no controling body, it depends on the honesty of those developing the code not to violate anyones IP rights, or anything else for that matter.

This is like the plaintiff in a personal injury suit refusing to see a doctor in case he might be cured and not have a reason to sue. I know that the court would not look kindly on such a case - does this sort of thing extend to SCO's lawsuits?

What happens if you're a software company that buys some closed source static libraries from another company and link them to your proprietary product and sell the result to customers and later discover the library company included GPL'd code without telling you?

We all must remember that the purpose -- and, in fact, the raison d'être -- of the GPL is to destroy software companies. Richard Stallman, in The GNU Manifesto, specifically stated that the purpose of the GNU Project, and the GPL, was to "ban" high-paying jobs for programmers and successful software businesses. And it has been quite effective in doing so -- recent history is literally littered with the corpses of failed companies that attempted to deal in GPLed software. The MIT X License and the BSD License do not have within them the business-destroying "poison pill" that's built into the GPL, but the pointy-haired bosses and ideologically minded, young employees of these companies did not recognize this. Hence, Stallman's dream is coming true: software companies are failing and job prospects for programmers are drying up. (Many of the jobs that remain are being exported to countries where programmers are paid a pittance for their work.)

SCO is flailing, trying to save itself by attacking IBM and others. But it may be too late.

So you'd like compensation for your precious code?

I thought this was a copyright case - there are still damages, even if infringement has since stopped.

Is it? A developer who includes proprietary code in a project will be bound by the limitations of originator's license. Any code that further makes use of the new code will also be so bound, as will every further re-use. GPL affects the re-use of code in exactly the same way.

It seems to me there are two real differences. Being open to anyone's examination, GPL code is far more likely to be re-used than code requiring NDAs and an army of lawyers. Additionally, GPL differs in the form of payout. The cost of re-using proprietary code is monetary, the cost of using GPL code is communal. GPL code isn't any more viral than proprietary code, it more accessible.

I seriously doubt that. Had SCO released their code due to some sort of internal mixup, it would be their fault. But the chronology, according to SCO, is that IBM released SCO source code, in violation of the terms on which IBM was given the code, which led to that proprietary code being integrated into Linux as a whole. Only later did SCO release the code, and SCO was not the one to release it as GPL.

Since SCO didn't label it as GPL, SCO's code was never licensed as GPL by the owner, hence, it was never legally GPL'ed. Whether or not SCO released their code, unintentionally, while leaving it as GPL is really irrelevent, since it was, according to SCO, never actually GPL'ed to begin with, and their actions merely resulted from IBM's violation of their IP.

No one could ever, succesfully, argue in court that SCO "inadvertently" licensed their code as GPL. You cannot do such a thing inadvertently; if SCO did not know that their code was contained in Linux, the responsibility lies with IBM's alleged violation of SCO's IP, not with SCO itself. This is a very neat, cute scenario, but I can't imagine it would have any weight in court.

SCO clearly didn't consider all sides of the pro and anti GNU License issue carefully before entering the market.

I don't see how this is true. If I remember the chronolgy correctly, Caldera was a software company, they started a Linux distro (therefore benefiting from the GPL), then they bought SCO and took the name. They were already using the GNU license long before they acquired SCO, and I'm sure they understood the implications well.

If Linux developers took so much SCO code, then why didn't Caldera notice it right away? Their people had to be knee deep in Linux code. I doubt it would take them 2 years to figure out if there was so much SCO Unix code in Linux as they say. This leaves two possibilities:

1. SCO/Caldera is lying about the copyright / trade secret violations, or
2. SCO/Caldera knew about it, but did nothing. Hoping the code would become more entrenched, and they'd be able to sue for more money. Who knows, maybe they put the code in Linux or someone from SCO put Linux code in SCO Unix. Many of the clauses in the GPL were intended specificly to defend against this sort of thing.

Either way, I don't think SCO/Caldera deserves anything--except to get reamed.

It's pretty clear that with it's anti-business qualities, the GNU license (and any code under it) has to be handled with care.

I don't like the GNU license much, but it doesn't have "anti-business" qualities any more than anything else. Plenty of businesses use GPLed software just fine. Yeah the GPL is viral, but you can say the same thing about obvious patents and ethically bankrupt software companies.

At least the GPL doesn't take away your rights to use something you made, and many people made Linux. SCO's claim in their court papers amount to "all Linux developers are disorganized stupid incompetent back-wood hicks who couldn't code their way out of a paper bag, so they must have stolen our code!" I not only find this insane, I find it insulting.

I don't understand... if someone did this then why doesn't (or shouldn't?) SCO sue IBM or the coder that did this? Sending letters to users of Linux is like Honda stealing trade secrets from Ford on how to build a certain engine, me buying a Honda, and then getting a letter from Ford letting me know that I may be in violation of something.

It just seems bogus to me. The users of Linux didn't commit a crime. They used what they had every reason to believe was free, GPL software. If that isn't the case then the guilty party is the person that put the offending code in Linux, not all the users (commercial or not) that later used Linux.

At least that's the way it would be in a sane justice system...

It gets a bit more interesting, though. By claiming to go after non-IBM users, they're also effectively limiting distribution of GPL code that they've been distributing. This leaves them in violation of the GPL -- so they've now lost all right to distribute the impugned GPL code. This means (for the moment, anyways -- until and unless they describe which Linux code they're accusing of containing their IP) that if they try to distribute any Linux code, they'll be open to Copyright lawsuits themselves.

Time for the FSF lawyers to get their suits ironed.
(this all, of course, presumes that there really is Unix code in Linux -- which is still a question.)

As soon as they find them, they drop their Linux product, and launch a lawsuit.

But what they did not do is stop shipping their Linux distribution as soon as they claimed IBM had leaked their code into Linux. If you assume that their lawsuit was filed legitimately, in that they knew there was proprietary code of theirs included in Linux, it then follows that they, under the terms of the GPL, were giving an implicit license to that code by continuing to distribute it. They didn't cease shipping their distribution of the code for nearly two months after they first alleged infringment.

So no, they did not do everything they could to limit their damages. In fact, by not stipulating what the infringing code is (which, as many others have noted, would not prevent them from seeking damages for the past infringment), they are in fact trying to increase their alleged damages by not allowing the infringing developers to fix the problem. SCO is acting in bad faith on every front to try and get a court to give them what they have never been able to achieve on their own merits (either as Caldera or as SCO in its previous incarnations) - dominance in the UNIX for x86 space.

It's funny - I always thought Caldera was a bit of a joke with Ransom Love at its helm. I recall the cheering that went on when he was no longer in charge there. Now, though, I think we'd rather have the clownish Love, who just didn't get it, instead of Darl McBride and crew, who don't get it and are determined to mess it up for everyone else.

If you rummage through Microsoft's garbage and find a printout and then release it as a GPL program that does not suddenly mean Microsoft lost their copyright. If you broadcast it on the internet with no copying restrictions whatsoever, it does not mean Microsoft lost their copyright. What it means is that you violated the copyright.

Trying to assign mystical impossible powers to the GPL is I think a new tactic to discredit it.

The GPL grants "exceptions" to copyright. It allows the receiver to do everything that copyright allows, plus more. If the GPL had all these powers than putting code into public domain would be even worse, since it grants all the powers the GPL has and many many more!

The original poster is absolutely correct that there is no difference with the GPL code from any other license, even public-domain, in this case.

Actually, the mitigation of damages doctrine is applied in reverse. It is SCO's duty to mitigate the damages of the party in breach. This means that SCO cannot attempt to prolong any offense in hopes of cashing in on more damages.

Additionally, there is no law protecting trade secrets once the information is publicly available. Trade secret law only applies to the original individual who divulged the information.

So SCO's claim that they cannot point out which part of already publicly available code was once their trade secret has little legal merit. I would argue they are operating as such so that they are able to prosecute as many offenders as possible, therefore increase the potential damages, before said offenders are able to rectify their potential infringements.

As to the infringing code, there is no legal protection for independent creation of similar works. If there is a clear evolution of ideas within the Linux community that demonstrates uninformed (with no possible link to SCO code) and independent creation, the code can be character for character identical to SCO's code without being a copyright infringement.

In short, it is SCO's responsibility to notify others of the exact nature of the infringement. Simply claiming that something somewhere infringes their copyright is not sufficient. SCO's only recourse with regards to dissemination of their trade secrets would be to prosecute the individual or individuals who originally divulged SCO's trade secrets. And as for copyright infringement, SCO much demonstrate that whoever introduced infringing code into the Linux kernel had access to SCO's source code. The individual could point to the evolution of independent development, especially since there should be a publicly available record of fact, as a defence.

If it is trade secret issue, then this would be a bad thing for open source on PR grounds, but it wouldn't be a huge deal for anybody other than IBM (although losing IBM contributions would be too bad). It'd pretty clear to me that SCO in any case is making the most of the publicity to spread anti-Linux FUD.

Right, but why not the (supposed) idiot programmer who stole code from SCO and stuck it in Linux? If it happened, THAT'S where the law was broken and where justice should be done. If that idiot goes bankrupt, sorry, SCO is out of luck. But to hold Linux End Users financially responsible through license fees for someone elses copyright violation just because the responsible party doesn't have deep enough pockets to make SCO happy is bogus.

Just for clarification - to my knowledge, SCO has not sent any C&D letters to any Linux vendors. The letters we're talking about are hypothetical follow-ups to the open letter thats posted on thier website, which does include any details, simply claiming that Linux contains SCO IP, with no details, no authentication, and no collaborating evidence. There's not even enough information for the vendor to do a check themself. Based on SCOs behavior up to this point, however, it wouldn't suprise me a great deal to learn that they would in fact send C&Ds that nebulous.

Another clarification - I have no especial love for Linux - I'm actually a Windows user, myself - but I have a great hatred of manipulation of the legal system, which this clearly is. It's a grevious example of corporate misbehavior, and, like many people, I find SCOs behavior puzzling enough that I can't rationally explain it without resorting to conspiracy theories. Chief among these behaviors is that EVERY informed analysis of the case that I've come across, except SCOs, is extremely dismissive - for a great many reasons. And all the analysises(?) I've read are equally puzzled - SCO is doing a great deal of posturing and attempting to make a great deal of press, and not providing even the most reasonable amounts of information. It's childish, it's disrespectful, and it stinks of ulterior motives.

It's exactly like that, but with these additions: not only did you get your Honda, you also got the plans for it and you have the ability to produce them yourself and make a profit from delivering them. In that case, I think Ford would be justified in sending you a letter.