SCO, owner of several key copyrights related to the Unix operating system, has been aggressively defending its intellectual property holdings connected to Unix System V, and filed a $3bn (£1.87bn) lawsuit against IBM earlier this year. The suit claims that IBM has committed trade-secret theft and breach of contract for allegedly copying proprietary Unix source code into its Linux-based products.
IBM's defence will partly rest on the argument that SCO distributed its own version of Linux for many years, containing the allegedly infringing code, and that by this action effectively placed the code in question under the GPL.
SCO is planning to respond that the GPL itself is invalid, SCO's lead attorney, Mark Heise of Boies Schiller & Flexner, told the Wall Street Journal in a report on Thursday.
If SCO is successful, its lawsuit would undermine the legal basis for Linux and much other open-source software, although the open-source community has prepared an alternative licence that could be used by Linux if the GPL is invalidated.
SCO will argue that the GPL's provisions allowing unlimited copying and modification are not compatible with US copyright law, which allows software buyers to make only a single copy, says the Journal. Heise said the GPL "is pre-empted by copyright law", according to the report.
Broadly speaking, the GPL allows anyone to modify and redistribute a piece of software covered by the licence, as long as the modified code is returned to the developer community. The licence also requires that software which incorporates GPL-covered code must itself be placed under the GPL, a provision that led a Microsoft executive to compare the GPL to an "un-American cancer".
Heise's remarks echo the comments of SCO chief executive Darl McBride during a recent teleconference, in which he announced a set of licence fees that companies using Linux could pay if they wanted to avoid legal action by SCO.
McBride was unusually blunt in attacking open-source software, saying the GPL is fundamentally flawed from a business and legal perspective. "At issue here is more than just SCO and Red Hat," McBride said. "What is at issue here is whether intellectual property rights will have any value in the age of the Internet."
Red Hat, one of the largest distributors of Linux and related applications, filed a suit against SCO earlier this month in the US District Court in Delaware. The suit in part seeks a court ruling affirming that the company has not violated SCO's trade secrets or intellectual property rights. It claims that SCO's actions are intended to hurt Red Hat and other Linux backers by creating "an atmosphere of fear, uncertainty and doubt about Linux", according to the suit.
CNET News.com's Matt Hines contributed to this report.
Talkback
A quick collection of references for the upcoming battle
GNU General Public License homepage
http://www.gnu.org/licenses/gpl.html
Frequently Asked Questions about the GNU GPL
http://www.gnu.org/licenses/gpl-faq.html
Findlaw copy of Caldera System Inc copy of GPL
http://contracts.corporate.findlaw.com/agreements/sco/gnu.lic.1991.06.html
Findlaw copies of Caldera System Inc contract documents
Including Caldera's use of GPL with other parties
http://contracts.corporate.findlaw.com/alpha/c/1568.html
Findlaw copies of SCO Group contract documents
http://contracts.corporate.findlaw.com/alpha/s/2892.html
Enforcing the GNU GPL
By Eben Moglen ( http://moglen.law.columbia.edu/ )
professor of law and legal history at Columbia University Law
School. He serves without fee as General Counsel of the Free
Software Foundation.
http://www.gnu.org/philosophy/enforcing-gpl.html
"Despite the FUD, as a copyright license the GPL is absolutely
solid. That's why I've been able to enforce it dozens of times over
nearly ten years, without ever going to court."
From: Michael C. Berch (mcb@ncis.tis.llnl.gov)
Date: 1989-10-19 13:57:20 PST
http://groups.google.com/groups?selm=558@ncis.tis.llnl.gov
QUOTE
1. The Copyleft/GPL is unequivocally a license. The concept of a
license for copyrighted material is very well developed in copyright
case law, and there is nothing about the Copyleft/GPL that would render
it anything other than a license. There are many examples of public
licenses for copyrighted material; most of them simply add terms such
as requiring identification of the source of the material; forbidding
changes except for personal use (i.e., reserving from the license the
right to make derivate works); granting the right to copy for
noncommercial use only, etc. There is nothing in copyright case law
to suggest that these (public) licenses are invalid.
2. Under copyright case law, there is no requirement that a license of
copyright be supported by consideration (compensation). This is because
it is not a contract but a grant of property rights. Contracts
require consideration, but grants do not. This is an elementary and
well-settled principle of property law.
3. In the United States, the Copyright Act of 1976 pre-empts all state
law that previously dealt with intellectual property rights in the
matter subject to the Act (as defined in Sections 102 of the Act).
This was the explicit intent of Congress and has been repeatedly
upheld by the courts. Therefore, any pre-existing state law that
purported to modify the nature or terms of a license of copyright
would be pre-empted, and any subsequent state law that did likewise
would be inoperative. In either case, I doubt if the state law would
operate in any case to render the Copyleft/GPL unenforceable, because it
is a grant and not a contract.
UNQUOTE
OSDL position paper, written by Eben Moglen on the issue of SCO and
intellectual property.
http://www.osdl.org/docs/osdl_eben_moglen_position_paper.pdf
Q&A document, written by Lawrence Rosen, noted technology legal expert,
designed to help Linux users better understand the implications of the
current SCO litigation.
http://www.osdl.org/docs/qa_re_sco_vs_ibm.pdf
Heise's argument is absurd.
Copyright law does indeed allow end-users to make a backup copy of software, but this is only a minimum. It most certainly does NOT disallow the copyright holder from setting the terms for further copying to be allowed.
Case in point: Some of Microsoft's site licenses allow the installation media to be copied and used throughout the site. Also, the MS Office 2000 license allows the end-user to install it on a desktop and a laptop. By Heise's argument, these licenses are trumped by copyright law.
Another example: Shareware programs. These have been around for over a decade, and no one has challenged their legality or implied that they are not copyrighted.
In addition, I fail to see what SCO has to gain by invalidating the GPL. The GPL is the ONLY thing that gives them the right to distribute Linux. If they claim it is invalid, they have no right to distribute Linux and, since they continue to distribute it (even if it is just to existing customers), they are infringing on the copyrights of countless kernel contributors.
The only way SCO could benefit from breaking the GPL is if they could convince the court that GPL software is actually in the public domain. It seems inconsistent, though, that the self-proclaimed Royal High Guardian of Intellectual Property in the Internet Age(tm) should attempt to protect its own intellectual property by voiding the copyrights of every Linux contributor.
McBride has stated many times that there are two kinds of people: those who respect intellectual property and those who don't. It's painfully clear what side he is on.
SCO's argument is specious.
US Copyright law grants the copyright holder the right to make copies or derivitive works or *authorize others* to make copies or derivitive works.
What the GPL does is authorize others to copy and derive on certain conditions.
If SCO is correct, then "site" licenses would also be invalid because they authorize you to copy the software on many machine at a site.
If that's the case, make sure you destory everything else you have a copy of.
Yes, you may not copy something more than once, even if the person who created it says you can. So says SCO.
Good plan, that should work well!
Invalidate the GPL!
Thats what you get when you've a legal team on crack.
SCO has ZERO case! Why is Ziff Davis propogating this mythology spouted by SCO? If the GPL is ruled invalid by the court because "copyright only allows one copy" then by god, this will also mean the end to the publishing industry (an industry that makes millions of copies of books every day), the music industry (how many millions of CD's of music are created each day?) and every other industry that relies on copyrights. What a rediculous claim! I am astounded that anyone would take this seriously. I fully expect SCO's next legal argument to be "the tooth fairy hacked into our computers and magically transferred source code into the Linux kernel!" Then Ziff Davis will publish an article discussing the implications of the tooth fairy hacking into people's computers. Pathetic.
Even if one would accept the absurdity that the right to make one copy is a maximum (in contast to its obvious intent of protecting against efforts to forbid users from making any backups at all), SCO still loses. At most, such a restriction can apply only to those licensed merely as users, not to those licensed as distributors.
The GPL is, by nature, a license to distribute, not a license to use. According to the GPL, mere users do not have to accept the GPL since they have not signed it, but accepting the GPL is the only way to have legal authority to distribute GPLed code to others. If it is a violation of copyright law for Free Software authors to grant third parties the right to copy and redistribute their code, SCO's licenses allowing Sun, IBM, HP, and various others to distribute and sell their own versions of Unix must be considered equally a violation of copyright law.
I think there is a deeper worry with the SCO case. Is microsoft backing SCO? Who knows. But the problem with open source is you are letting the world know what your source code is. If we looked at the other organisations like Sun, MS, etc, would they have source code and ideas from other companies. Years ago I worked with Oberon and it was radicle. It is strange how a lot of the ideas incorporated in it appears in modern software.
SCO is wrong. See the following for the governing US copyright law:
http://www.copyright.gov/title17/92chap1.html#106
Took me about 2 minutes to find this, IBM's lawyers have to be ROTFL over this latest claim. How come no comment from ZDNET about this in the story? One more thing, if you are going to claim section 117 says they can't...Scroll down a bit further and you will see that section 117 permits the owner of a copy of a software program to make a backup copy regardless of the copyright holders limits. This does not mean the copyright holder is limited to only one copy.
What nonsense.
> Heise said the GPL "is pre-empted by
> copyright law"
But it shouldn't be really, because it's just a license, not a copyright.
Let SCO take the highground and remove all the GPL software from its products. I am curious how long will SCO survive without gcc or samba or apache.