SCO Attorney Declares GPL Invalid 1137
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.
Hold up a second... (Score:4, Interesting)
So the GPL violates copyright law, eh? I thought the GPL is copyleft.
From the FSF website [fsf.org]:
Copyleft is a general method for making a program free software and requiring all modified and extended versions of the program to be free software as well.
...
In the GNU project, our aim is to give all users the freedom to redistribute and change GNU software. If middlemen could strip off the freedom, we might have many users, but those users would not have freedom. So instead of putting GNU software in the public domain, we ``copyleft'' it. Copyleft says that anyone who redistributes the software, with or without changes, must pass along the freedom to further copy and change it. Copyleft guarantees that every user has freedom.
So why is anyone talking about copyright When the GPL is specifically designed to provide copyleft? :)
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].
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.
So if this actually gets upheld... (Score:3, Interesting)
Sigh....
Copyright... (Score:3, Interesting)
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.
This would make other licenses illegal (Score:5, Interesting)
If the GPL violates copyright... (Score:2, Interesting)
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.
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.
BWAHAHAHAH! (Score:3, Interesting)
Since SCO issued their own version of Linux, bound by the GPL, if they were actually able to get the GPL declaired invalid, this means any intellectual property of theirs that was released in that variant is now in the public domain.
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.
Re:...and I declare SCO "petunias"... (Score:3, Interesting)
I think I forgot the <smartass> tags around that. No, I don't really think that Linus should start suing. However, it seems like a pretty stupid idea to begin making claims that, when pared to their essence, would indicate that you've violated the same rights of the person you're suing that you claim they infringed. Why even bring it up?
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...
Re:Hold up a second... (Score:3, Interesting)
You're the worst damn lawyer I EVER seen! (Score:3, Interesting)
Idiots.
TWW
Re:This is stupid (Score:1, Interesting)
Basically, copyright allows you to limit the distribution and redistribution of your software and its derivatives. The GPL does NOT go beyond these limitations. It limits only the distribution of the original work and its derivatives, and it's fairly generous about that (though I DO prefer the BSD license, myself).
For those of you who are about to say, "It doesn't allow linking with proprietary software, which is a limitation on its use", you're wrong. The idea is that, by linking with GPL-covered software, you are incorporating it into your own work-- thus creating a derivative work that requires a license. The GPL simply refuses to grant a license for unacceptably-licensed software. So applications which incorporate GPLed software but are not themselves under the GPL or compatible licenses are considered to be using the GPLed software without a license-- a violation of copyright law.
Anyway, there are NO contractual obligations placed on distributors or users of GPLed software. That's why, if SCO is really violating the GPL in this case, the Linux developers wouldn't be able to sue SCO for "breach of contract", but only for "violation of copyright" (which is also a criminal offense, made worse by the fact that they were distributing Linux for money at one point).
That help clear things up?
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".
Re:Hmm (Score:2, Interesting)
Wrong. I mean, really wrong.
Public Domain is a great concept, and release into Public Domain by the author has long been upheld as legally binding.
If I write a novel, host it on my website, and clearly state that it's in the public domain (a nice "this whole novel is in public domain" should work), I won't be able to sue someone for taking my PD novel and selling it for thousands of dollars.
(well, I could, but I'd have to convince a Jury that I didn't mean to put that statement there--something like "that was never there" or "hey, a hacker did it!" would be plausible.)
Re:SCO and UNIX (Score:3, Interesting)
Sun should be worried since they use the Apple business strategy of using software to lock you into buy their hardware. Once a client no longer needs Solaris, they no longer need Sun's overpriced, underperforming hardware.
Hold on a second... (Score:1, Interesting)
Lawyer (Score:5, Interesting)
If this is the real position of SCO, that the GPL is invalid because of no restriction on the number of copies... I am utterly speechless. This is the most retarded legal assertion I have ever heard.
In fact, this tidbit coupled with the revelation that it is Sequent's code that is the whole basis of this dispute has completely reduced SCO and its allegations, for me anyway, to utter nonsense without the slightest doubt.
As to Mr. Boies' stellar legal reputation, don't forget that big-name partners very often flash grins and sign up clients without a whole lot of thought about the merits of a case. (Happened quite often in my firm) Very often plebes in the bowels will then do all the shit-disturbing to see if there's really a case for the big-name partner to win.
I think Mr. Boies will enjoy his retainer on this one then wash his hands and move on to his next case. Publicity will only help him. I wonder if it's possible that Mr. Boies took any shares in lieu of payment and has already cashed them in? Our firm also used to do that too!
Re:I've Got It Figured Out (Score:3, Interesting)
This is actually a viable arguing strategy if the point you're arguing is wholly wrong. If you say things that are wrongly based, confusing, or self-contradictory, you raise the bar for people unfamiliar with the reality of the situation to make sense of it. People who understand the SCO situation, or are willing to take half an hour to examine it, are going to think SCO's full of shit in any case; that's not who this is aimed at.
Also in the Wall Street Journal (Score:2, Interesting)
This was covered in the marketplace section of today's WSJ. The odd thing about that article was that it quoted Eric Raymond as saying that Linus had said that he had some other license he would agree to switch Linux to if the GPL was invalidated. Anyone have anymore detail on that aspect?
-Rich
Legal Position issued by OSDL (Score:3, Interesting)
It is the first LEGAL statement I have seen. This is important as everyone can hide behind this if they are later sued.
It is not a good defense in court to state that you chose to ignore this whole issue based on advice from you uncle or your friends at Slashdot.
However if you say that you sought legal council and behaved as advised, you are OK in the sense that your max exposure is the License payment not recieved, no Punitives, fines etc.
Best quote from the Article: Quote:
Simply by being an interested and aggressive defendant with deep pockets, IBM is now effectively shielding Linux users from damages, even without an indemnity provision in the GPL.
Here is the timeline (Score:5, Interesting)
Enter Microsoft and their legal department. They "suggest" that SCO make a play for Linux. Of course McBride says "What's in it for me, my stock is in the can, and a lawsuit this big will bankrupt us."
Microsoft's answer (delivered by Ballmer) "Make the play, we'll make sure you and the stockholders get a great deal when we buy you out. In the meantime, it slows the progress of Linux and allows us to test the weaknesses in the GPL (which we hate)".
Darl goes after IBM first because it is following the licencing trail. Next, it goes after users (FUD for Microsoft's cause). Finally, it goes after the GPL. THAT is the real legal test. Even though it looks like a lost cause, SCO doesn't care, the buyout is in place.
When this is all said and done, M$ will buy out SCO (worth $120mill, chump change for M$). Then they will sit around and tell large buyers (i.e goverments and F500s) "SEE all the trouble you can get into with that "free" software? Is it really worth it to you to trust your business to a bunch of immature geeks and their "quaint" licence? This could happen again ANY DAY!!!"
For the cost of lawyers and the $120 million for SCO, M$ gets a great piece of sales FUD to push. They MIGHT get IBM to back off of the Linux train, and they might even cripple Linux for a bit by getting features (NUMA, SMP) removed.
This is getting so obvious.
Re:Hold up a second... (Score:5, Interesting)
Very bad move (Score:5, Interesting)
Re:Hold up a second... (Score:5, Interesting)
They are barely into the discovery phase of the law suit and they're already gasping for air?
This doesn't bode well for the credibility of the company.
Re:Hold up a second... (Score:5, Interesting)
Absolutely correct, and that's why invoking preemption isn't so crazy as many seem to think. The federal courts, in Vault Corp. v. Quaid Software [harvard.edu], held that Title 17 Sec. 117 [gpo.gov] of the U.S. Code preempted terms in Vault's shrink-wrap licensing, so there's precedent for applying the preemption doctrine to private contracts in copyright litigation.
Without knowing more about SCO's argument, we certainly can't argue on the merits of it, but there's always the possibility that some enterprising copyright lawyer has found a potential incompatibility between the GPL and copyright law. (Offhand, though, any argument based on Title 17 Sec. 117(a) seems specious to me, since I don't see how it could possibly affect the right to authorize copies and derivative works in Sec. 106 -- but IANA(IP)L.)
And, actually, *I* say :x!, but who's keeping track?
Re:Hold up a second... (Score:0, Interesting)
to slander and libel the liberal cause by calling
their license a copy"left", the base hipocrosy of
wanting to release source code whilst at the same
time trying to maintain a proprietary level of
control over the software is odious to anybody who
has eyes with which to see. Stallman's heavy handed
and domineering ways of promoting his cause would
offend many liberals who see that only through
toleration of difference can a society survive. His
exclusive us-versus-them vision of "community" is at
its heart a very conservative. Any body who
dissents to his beliefs is no longer to be considered
part of his "Free Software Community".
He talks of freedom whilst at the same time he
tries his damndest to quash those who dissagree
with him.
He is a man who is willing to trample and hurt
others for the furthurance of his principles,
noble may they be, and I find that abhorrent.
Re:Hold up a second... (Score:3, Interesting)
Why is SCO fighting the GPL? (Score:3, Interesting)
After all, they have offered absolutely zero credible evidence to back their claims that the Linux kernel contains their code.
-Aaron
Re:Preemption of Contract is a Zero Traction Argum (Score:2, Interesting)
You've just demonstrated that judges are capable of ignoring both law and constitution when it suits them. Although the case you describe could be seen to set a precedent against preemption it is also a case of a much more worrying precedent, that is it is a case of judges coming to a conclusion that flies in the face of the law and logic. Given that it can not be assumed that any ludicrous argument presented for the the GPL being invalid will not be upheld.
This is classic poker (Score:3, Interesting)
Declaring the GPL invalid? Terminating IBM's AIX license? Sending unsolicited invoices to companies that use Linux?
BLUFF.
They've got a mish-mash of cards in their hands that amount to absolutely nothing, and they keep smirking and pushing these massive piles of chips into the pot hoping the world will back down.
Be prepared to take the Greyhound home, boys - you're going to lose everything.
The reason for the anti-GPL declaration (Score:3, Interesting)
This, in conjunction with today's amazing declaration by that lawyer, says to me that SCO is definitely on an anti-GPL agenda. Why? Perhaps because part of IBM's countersuit is an alleged GPL violation by SCO, and given that SCO threats of trying to gain money by billing Linux users and the strange idea of a binary only licence for Linux is clearly against the GPL, SCO is probably scared that they might very well lose this portion of the case.
It might very well be a ploy by Microsoft using SCO as a proxy to demolish the GPL, and given that the large majority of SCO's FUD has been directed against Linux the signs do tend to point in that direction. But that is something for the DOJ to investigate.
More probable is that it is partly an idea based on some lawyer deciding that SCO has a good case in winning the case on derivative works, mixed in with a clever marketing department deciding to use the suit as a tool to push stocks up.
I do however think that the mainstream press is no longer taking SCO's statements as seriously as they did in the beginning. The sheer volume of SCO press releases and the high level of contradictions within those releases pointing towards a strategy being made up as they go along is boring and irritating even the most anti Linux reporters out there. The statements by SCO especially those relating to Linux (no problem in the beginning , then the 1500 letters, then the threat to sue Linus, then the retraction, then the wierd pricing scheme and the binary licence being compliant with the GPL, then the decalration that the GPL is null and void) might frighten some PHBs and encourage some day traders, but it will wear off as time goes on and people tire of SCO's embarassing craziness in public.
This is very good news (Score:3, Interesting)
Not quite time to go out in the streets and celebrate, but I have a big smile on my face.