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When you want to know more
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IANAL. I am a paralegal, so if you have a legal problem
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instead. Research is, however, what paras do, so here
I am sharing things I have found in my research.

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Monday, July 21, 2003

It's About Copyright, All Right,
and a Licen$e on top of the GPL

I did attend, and I indicated I wished to ask a question, but they did not call on me. Here's the scoop.

They announced that they have registered a copyright and that they are offering "enterprise" users of Linux a "run-only" license for binary use of their product which they claim is inside the Linux kernel. Here's why I think their proposal violates the GPL:

"What is the difference between "mere aggregation" and "combining two modules into one program"?

"Mere aggregation of two programs means putting them side by side on the same CD-ROM or hard disk. We use this term in the case where they are separate programs, not parts of a single program. In this case, if one of the programs is covered by the GPL, it has no effect on the other program.

"Combining two modules means connecting them together so that they form a single larger program. If either part is covered by the GPL, the whole combination must also be released under the GPL--if you can't, or won't, do that, you may not combine them."

Since this is not "mere aggregation" the whole must be released as GPL:

"I'd like to incorporate GPL-covered software in my proprietary system. Can I do this?

"You cannot incorporate GPL-covered software in a proprietary system. The goal of the GPL is to grant everyone the freedom to copy, redistribute, understand, and modify a program. If you could incorporate GPL-covered software into a non-free system, it would have the effect of making the GPL-covered software non-free too.

"A system incorporating a GPL-covered program is an extended version of that program. The GPL says that any extended version of the program must be released under the GPL if it is released at all. This is for two reasons: to make sure that users who get the software get the freedom they should have, and to encourage people to give back improvements that they make.

"However, in many cases you can distribute the GPL-covered software alongside your proprietary system. To do this validly, you must make sure that the free and non-free programs communicate at arms length, that they are not combined in a way that would make them effectively a single program.

"The difference between this and "incorporating" the GPL-covered software is partly a matter of substance and partly form. The substantive part is this: if the two programs are combined so that they become effectively two parts of one program, then you can't treat them as two separate programs. So the GPL has to cover the whole thing.

"If the two programs remain well separated, like the compiler and the kernel, or like an editor and a shell, then you can treat them as two separate programs--but you have to do it properly. The issue is simply one of form: how you describe what you are doing. Why do we care about this? Because we want to make sure the users clearly understand the free status of the GPL-covered software in the collection.

"If people were to distribute GPL-covered software calling it "part of" a system that users know is partly proprietary, users might be uncertain of their rights regarding the GPL-covered software. But if they know that what they have received is a free program plus another program, side by side, their rights will be clear."

Can you get around this by releasing binary-only? Not if they are part of the same program:

"Can I release a modified version of a GPL-covered program in binary form only?

"No. The whole point of the GPL is that all modified versions must be free software--which means, in particular, that the source code of the modified version is available to the users."

This seems to put enterprise users in a Catch 22: they can violate SCO's demands and get sued or they can violate the GPL and get sued. Of course, it puts SCO in a Catch 22 also. How do you get the legal system to back you up if you are asking people to violate someone else's license? I think they still don't totally get the GPL, unless what they said verbally at this teleconference was a case of imprecise language. They also don't intend to prove anything further as to what code they are talking about, so I really wonder how they can ask for enforcement unless they are prepared to indicate exactly what the infringing, allegedly infringing, code is.

With regards to copyright registration, here are some snips from the Copyright Office:

"§ 412. Registration as prerequisite to certain remedies for infringement

"In any action under this title, other than an action brought for a violation of the rights of the author under section 106A(a) or an action instituted under section 411(b), no award of statutory damages or of attorney's fees, as provided by sections 504 and 505, shall be made for --

"(1) any infringement of copyright in an unpublished work commenced before the effective date of its registration; or

"(2) any infringement of copyright commenced after first publication of the work and before the effective date of its registration, unless such registration is made within three months after the first publication of the work."

So damages would not be retroactive, because they didn't register within 3 months of first publication. Any damages would be from date of registration. Here's another snip:

"§ 410. Registration of claim and issuance of certificate

"....(c) In any judicial proceedings the certificate of a registration made before or within five years after first publication of the work shall constitute prima facie evidence of the validity of the copyright and of the facts stated in the certificate. The evidentiary weight to be accorded the certificate of a registration made thereafter shall be within the discretion of the court."

System V was first published more than 5 years ago, so it would appear that they lack prima facie evidence of the validity of the copyright, and I wonder if this would hamper them in any immediate cease and desist and takedown action, since the judge would have to evaluate the validity of the license? I don't know the answer to that question yet. I am just thinking aloud. Maybe a reader knows the answer and will share.

Here's what prima facie means: "Latin for 'at first look,' or 'on its face,' referring to a lawsuit or criminal prosecution in which the evidence before trial is sufficient to prove the case unless there is substantial contradictory evidence presented at trial."

P.S. I checked the copyright filing, and they appear not to have registered as a new filing, so the above won't help. They filed as revision and new matter to a copyright from 1992. Details to follow.

And just so you don't go to bed morose and glum, here are some quotations from IBM and an attorney, who don't think much of SCO's chances, from this article:

"'I don't consider it a significant step in the lawsuit in any way, although they will probably paint it differently,' said Brian Ferguson, an attorney at McDermott, Will, & Emery in Washington D.C.

"'SCO needs to openly show the Linux community any copyrighted Unix code which they claim is in Linux,' IBM spokeswoman Trink Guarino said. The company has said in the past that the suit is baseless. IBM argued the licensing program is not grounded in the facts. 'SCO seems to be asking customers to pay for a license based on allegations and not facts,' IBM's Guarino said.

Here's another reaction:

"I.D.E.A.L. Technology's Douglass Hock said he is skeptical of SCO's copyright-infringement claims. 'I don't feel they have much to go on at this point,' said Hock, president of the Orlando, Fla.-based Linux solution provider. 'Customers know that SCO has been a dying beast, and they see this as a last breath or effort to retain some sort of market share,' he said.

And, my personal favorite:

"Jonathan Eunice, an analyst at Illuminata Inc. in Nashua, N.H., said... 'I think that from a legal point of view, we're in the incredibly early days' of this legal fight, Eunice said. For some users, the offer may be enticing, depending on the cost of the special Unix licenses, he said. Some may see it as a 'cheap insurance policy' to protect them against eventually being sued by SCO, he said. On the other hand, because the case isn't even yet in the courtroom, the risk for users is essentially unchanged from recent months, Eunice said.

"'I don't see it as something that should incite an enterprise Linux customer to do any more than they did last week,' he said. 'The threat level increases a bit, but mainly because of the perception that SCO is a psycho killer, not that the case has changed.'"

Heh heh. You said it, pal.

comment [] 1:06:09 PM    

Microsoft Debunks the Pregnant Cow Argument
& Explains SCO Can't License on Top of the GPL

I'm sure they didn't intend what they wrote to be used like this, but here is the page where MS explains in what way it sees the GPL as being viral. But it also happens to explain how the GPL blocks SCO from any code distribution with a license on top (note the second bulleted item). Later today, we'll find out if they plan any distributions or not, or if they have another scheme in mind, but MS has correctly explained how the GPL blocks any license on top of it. It also debunks the "we didn't release under the GPL because we didn't know our code was in there", the "pregnant cow" argument:

" The GPL permits unlimited free use, modification, and redistribution of software and its source code, but imposes three key restrictions on every licensee:

" -- If the licensee redistributes any code licensed under the GPL, it must guarantee availability of the code for the entire work for unlimited replication by anyone requesting it.
" -- If the licensee redistributes GPL code, it may not charge a licensing fee or royalty, but may charge only for distribution costs.
" -- If the licensee includes any GPL code in another program, the entire program becomes subject to the terms of the GPL.

"This third restriction is what makes the GPL 'viral,' because it causes GPL terms to apply to software that incorporates or is derived from code distributed under the GPL, regardless of whether the program's developer intended that result or even knew of the presence of GPL code in the program.
Violation of these restrictions may subject the offender to civil and criminal penalties for copyright infringement.

"Microsoft does not oppose the use of the GPL by individual developers, but does want developers and researchers to be aware of risks and restrictions they may face in using or developing GPL software."

This is, of course, classic MS FUD. As we pointed out before the restrictions of the GPL only kick in if you are distributing software, not if you are merely using it. And as David Mohring correctly points out in his comments, a company that wishes to dual license can also do that. An example of that would be StarOffice, which you can buy as a proprietary version or get as a GPLd version. But my point was simply this: by their own logic, the pregnant cow argument fails.

comment [] 1:05:53 AM    

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