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Monday, June 30, 2003
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Hamidi Wins on Appeal
This isn't about SCO, but the case is so significant, I wanted to post it immediately. Intel v. Hamidi has been overturned on appeal. The court ruled that no trespass to chattels can occur without actual physical interference with use or physical damage. Annoying doesn't count.
You can read the case from the CA Supreme Court website. It's a .pdf. Click on "Jun 30 2003 S103781A.PDF". This case matters a great deal, because this trespass to chattels tort has been used over and over, by ISPs against spammers and by companies against bots and crackers, and gradually it's been getting larger and larger and basically narrowing freedom on the internet. This court just put that spread into reverse. To get a clear picture of just what was at stake and every little reason why it matters so much, you can read the Harvard Law Review article, "The Long Arm of Cyber-reach."
You can read some other cases where trespass to chattels was used, and the definition is here. Also here is EFF's explanation. This is a huge win for EFF. Jennifer Granick, Esq. helped out too. You can read EFF's amicus brief, which is a work of art, if you love the law. To really understand what the Supreme Court wrote, you need to read the lower Appeals Court decision. That's what they just overturned. Under the old ruling, you could be sued just for sending email, in effect. I don't know yet if Intel will appeal this higher. If not, this is huge.
P.S. CNN is quoting an Intel spokesman on this:
Chuck Mulloy, an Intel spokesman, said the company was "disappointed in the court's decision. We're studying the opinion to assess our options in the event that Hamidi resumes spamming against Intel."
That doesn't sound like an appeal to me. It may be foreshadowing that they intend to sue Hamidi afresh, using a different type of claim, something the judge indicated might be done. The judge mentioned such claims as interference with prospective economic relations or intentional infliction of emotional distress and some other speech-based torts. Hamidi's group, FACE-Intel, uses some strong language on that site. You surely are not in any doubt as to their views on Intel. No doubt Mr. Hamidi's lawyers are explaining exactly what not to do to avoid being sued again. Of course the decision literally just happened, so Intel's lawyers are still looking it over carefully and will decide what they will do only after they complete that review and then ask Intel what it wants to do.
3:53:09 PM 
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What Moglen Really Said
The official FSF Statement on SCO v IBM is available, written by their pro bono attorney, Eben Moglen, Esq. I haven't seen anyone yet notice what jumped off the page to me:
The Foundation notes that despite the alarmist statements SCO's employees have made, the Foundation has not been sued, nor has SCO, despite our requests, identified any work whose copyright the Foundation holds-including all of IBM's modifications to the kernel for use with IBM's S/390 mainframe computers, assigned to the Foundation by IBM--that SCO asserts infringes its rights in any way.
So, FSF holds the copyrights to all of IBM's contributions to the kernel "for use with IBM's S/390 mainframe computers" and yet SCO hasn't even contacted, or worse, responded to FSF contacts, in order to identify any allegedly infringing code?
This is a significant piece of news, because it'll be mighty hard down the road to claim damages for copyright infringement, certainly for this time period and maybe at all, if SCO isn't lifting a finger to mitigate its damages and is allowing infringement without protest. You can lose your rights by doing exactly that. If you read what I wrote about Judge Kimball, on June 10, you'll find a case where a plaintiff lost his copyright because he allowed it for too long before protesting.
In brief, evidently, he is pointing out, SCO's copyright isn't being infringed. It's just a contract case. And if all of IBM's kernel contribution copyrights belong to FSF, it means that if SCO released "Linux" under the GPL inadvertently (ha ha), then they were violating those FSF copyrights. Which leaves open some possiblities for FSF to go after SCO, should they choose to, and a defense should SCO later decide to attack for copyright infringement, which so far they have said they will, said they won't. I think, if I have understood what Moglen wrote correctly, he's saying they don't need to worry about which it should be, because they can't -- or at least that they would be walking into a minefield if they try. Certainly, this public statement from FSF makes it impossible for SCO to now wait until after the IBM case before it leaps on "Linux", which seemed to be the game plan. It's now or never.
1:57:07 AM
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Legal Links Page Done
I finally got the legal links page finalized, or at least categorized. There is a permanent link on the left of the page. It should make it easier to find what you need to understand the legal tactics, pronouncements, allusions, whatever. I've got several categories:
SCO Court Documents Filed
The Court System and the Pertinent Laws
Explanations of Legal Terms and Concepts
General Legal Research Resources
SCO Financial Information
Evidence Re GPL
No doubt the page will grow and evolve, and if you think of anything you think should be added, let me know. But the foundation is there. Enjoy.
1:12:05 AM
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