GROKLAW

GROKLAW
Putting some meat on legal news' bones.

When you want to know more
about a legal story . . .
but don't know where to look.

IANAL. I am a paralegal, so if you have a legal problem
and want advice, this isn't the place. Hire an attorney
instead. Research is, however, what paras do, so here
I am sharing things I have found in my research.

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Sunday, May 18, 2003

MOGLEN CONFIRMS GPL BOOMERANG FOR SCO
InternetNews.com has the best article I have seen yet on the SCO-IBM case. The reporter actually contacted Columbia Law School Professor Eben Moglen, attorney for the Free Software Foundation, who confirms the GPL snag in SCO's strategy:
"From the moment that SCO distributed that code under the GNU General Public License, they would have given everybody in the world the right to copy, modify and distribute that code freely," he said. "From the moment SCO distributed the Linux kernel under GPL, they licensed the use. Always. That's what our license says."
The article continues:
"Moglen noted that SCO cannot readily make the claim that it inadvertently released the code, because the GPL requires that when code is released under its auspices, the developers must release the binary, the source code and the license, and the source code must be able to build the binary. Presumably, then, the binary functions the way the creators want it to function and has the capabilities they want it to have.
"'This isn't an inadvertent distribution case,' he said. However, he noted that the Free Software Foundation works with companies to ensure that they do not release anything under the GPL that they do not intend to release. In fact, he said, when SCO first filed its suit against IBM, he approached SCO's lawyers because it is the Free Software Foundation and not IBM which holds the copyright to the Linux distribution IBM created, Linux for S/360. IBM created the Linux distribution but released it under the GPL and signed the copyright over to the Free Software Foundation."
"Moglen said that when he approached SCO's lawyers he asked them to show him any problems with the particular Linux distribution and if there were any he would stop its distribution. 'They have never responded to that invitation,' he said.
WHY, THEN, DO THIS, SCO?
A lot of pundits have said that it's because SCO wants IBM to buy them out and put an end to their money misery. I think the refusal to show the code and the following quote in the article points to another motive, and I think this quote may come back to haunt them in court, if patent infringement becomes an issue, with regard to refusing to mitigate damages. SCO still says it won't show its evidence to Linux distributors:
"That's akin to saying, 'Show me the fingerprints so I can clean them off.' The Linux community would love for us to point out the lines of code. We're willing to show that under non-disclosure to select individuals, but the first time we show that publicly will not be in the open," SCO spokesman Blake Stowell told internetnews.com.
So, this is confirmation that SCO is not interested in fixing the problem. Rather it wishes to maintain the staus quo. It seems unlikely that any court will reward that behavior. And it indicates to me that Boies needs to muzzle his client, before his entire case goes down the toilet. Not that I'm not hoping for exactly that.
Meanwhile, the InternetNews article is well done and even goes into the SCO decision to file originally in Utah state court instead of federal, which explains why they filed only a misappropriation claim, not copyright infringement. I have just bookmarked InternetNews.com.
1:29:42 PM

UM...Stay Focused People... Nah. Let's Not.

SCO's Sontag says that even if Unix code is in SCO's own Linux distribution, which SCO has just taken off the market, it would not invalidate SCO's claim. He says if it's in there, it wasn't authorized by SCO but would have been put there by "third parties who violated their contract and licenses."

My favorite quotation: "The issue is that SCO's intellectual property is in Linux, and that's where we have to stay focused."

Heh Heh. He wishes. This is getting more enjoyable by the day. I do not rule out some surprises, but only because Boies is who he is, and he wouldn't be going forward with nothing up his sleeve, but so far, the more SCO attacks the tar baby, the more stuck in tar it gets.

If you want to see what they think is the crux of their dispute with IBM, SCO has put up selections from their complaint, and since they are highlighting it by doing this, it likely means they think it's the best they have. Proof to follow. Or not. Clearly, though, SCO is feeling some heat from the backlash. Actually, it's more a culture clash.
2:12:25 AM

MY LAWYER MADE ME DO IT

SCO now says it has no intention of suing Linux users. Their lawyer made them send out their notice, which they say wasn't a warning.

Huh? So ... which is it? Here's a snip on reaction to the SCO mess from the article on Yahoo:

"Meanwhile, SCO's actions have created a backlash among Linux programmers....In any case, SCO's tactics look to some like an act of desperation. 'SCO seems willing to play as hardball and as dirty as they can,' says Gordon Haff, an analyst with IT research firm Illuminata. 'My view is, they want to be bought. I don't see how they can continue in this business long term after this.'"

And here is an interesting thought from Bruce Perens, namely that SCO might have already lost because SCO was also, until this week, a Linux vendor. And the Linux kernel is released under the GPL. Perens points out that if the disputed code was released under the GPL, SCO at that point lost their proprietary rights anyway.

The GPL (General Public License) says this, in relevant part:

"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:

" a) You must cause the modified files to carry prominent notices stating that you changed the files and the date of any change.

"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. . . .

"These requirements apply to the modified work as a whole. If identifiable sections of that work are not derived from the Program, and can be reasonably considered independent and separate works in themselves, then this License, and its terms, do not apply to those sections when you distribute them as separate works. But when you distribute the same sections as part of a whole which is a work based on the Program, the distribution of the whole must be on the terms of this License, whose permissions for other licensees extend to the entire whole, and thus to each and every part regardless of who wrote it."
12:09:07 AM