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OSDL Position Paper on SCO and Linux

michael posted more than 10 years ago | from the mincing-words dept.

Unix 421

cshabazian writes "The OSDL has released a position paper raising serious questions about SCO Group's threatened litigation against end users of Linux. The position paper, which casts doubt on SCO's position, was authored by one of the world's leading legal experts on copyright law as applied to software, Professor Eben Moglen of Columbia University."

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421 comments

cock! (-1)

(TK)Max (668795) | more than 10 years ago | (#6588550)


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Remember, kids... (-1, Troll)

Anonymous Coward | more than 10 years ago | (#6588552)

SCO OWNS LINUX FP!

ODSL? (5, Funny)

TopShelf (92521) | more than 10 years ago | (#6588555)

The ODSL has released a position paper...

I'm really glad to see the Old Dominion Soccer League (ODSL) [odsl.org] taking a kick at this. Hopefully they'll have the balls hang tough with SCO and score one for Linux lovers everywhere!

You evil, evil, little man (5, Funny)

Anonymous Coward | more than 10 years ago | (#6588896)

Why do you want those soccer moms and kids to get slashdotted?

This is probably because what those jocks did to you in high school, eh?

Forgive and forget, man.
Forgive and forget.

RUB MY COCK WITH VINEGAR (-1)

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I hereby declare any comments.. (-1, Offtopic)

Anonymous Coward | more than 10 years ago | (#6588567)

that complain about slashdot posting too many SCO stories to be null and void.

Re:I hereby declare any comments.. (-1, Offtopic)

Anonymous Coward | more than 10 years ago | (#6588619)

What about posts that complain about posts that complain? What about this post?

Re:I hereby declare any comments.. (0)

Anonymous Coward | more than 10 years ago | (#6588733)

and what about a mirror of this post?

So basically.... (2, Funny)

double-oh three (688874) | more than 10 years ago | (#6588571)

So basically all they did was smarten up a few thousand /. comments and put it into a PDF? so buissness plan for them is. 1: read /. comments 2: insert good grammer and spelling 3: mash them all together 4: release as pdf 5: ??? 6: Profit!!!

SCO is plainly lying (4, Insightful)

Adam Rightmann (609216) | more than 10 years ago | (#6588579)

I think any geek worth his salt can see that they're lying about the merits of the suit, they've already released everything with thier Linux distributions, and they top execs are dumping stock as fast as they can.

So, I see at least Two Commandments broken here, Thou Shall Not Bear False Witness, and Thou Shall Not Steal.

Sadly, I doubt the courts will apply any punitive measures, even when SCO loses. I think if the top SCO execs, and Bois, were to be publically flogged on the Washington Mall, we might see a return to ethics in the boardroom.

Re:SCO is plainly lying (3, Interesting)

Tirel (692085) | more than 10 years ago | (#6588657)

We all know they're lying, the question now is what are they getting out of it? Do they get a deal with MS? Do they hope IBM will buy them? Do they just hope to raise share prices for a while? All of the above? It's high time for things to clear up really.

Re:SCO is plainly lying (0)

Anonymous Coward | more than 10 years ago | (#6588676)

IBM will give a nominal settlement and SCO will fuck off. I doubt it will go to courts. It wouldn't be in SCO's interest.

Re:SCO is plainly lying (5, Interesting)

TopShelf (92521) | more than 10 years ago | (#6588732)

Interesting indeed. Insiders have sold ~125,000 shares [yahoo.com] since late June (with no purchases), when it poked through the $10 mark for the first time in over two years. Not exactly a ringing endorsement of SCO's future from their own leadership!

Re:SCO is plainly lying (1, Informative)

Anonymous Coward | more than 10 years ago | (#6588852)

Yahoo understates seems to be missing some earlier sales in June (at least).

go here [sec.gov] and look at Form-4s for even more sales.

Conspiracy theory! (5, Interesting)

Urkki (668283) | more than 10 years ago | (#6588902)

What I'd find interesting is, who the hell are idiot enough to buy SCO stock...? Or gambling, "ok, there's 0.1% chance SCO will win, and then their stock price will really go up"?

Or, is it maybe some pension fund or something like that with corrupt management "investing" in the SCO stock, helping their PHB pals at SCO?

Conspiracy!
(Well, that would make more sense than most other explanations...)

Re:SCO is plainly lying (5, Insightful)

elvesRgay (685389) | more than 10 years ago | (#6588958)

I've read that many of the SCO execs took stock options instead of cash for working there. Perhaps some of these people are getting paid. Undoubtably many of them are cashing out when they think the stock has peeked, including their vice presendent for engineering who quit as of yesterday. But if you where a (sleezy) exec who agreed in Janurary to get paid in stock options, you might want to get some money by now.

Re:SCO is plainly lying (1)

packethead (322873) | more than 10 years ago | (#6588808)

I agree.

Darl, this is Bubba. Bubba, this is Darl McBride, your new bit^H^H^H, I mean, cellmate.

Re:SCO is plainly lying (2, Funny)

BobTheLawyer (692026) | more than 10 years ago | (#6588816)

Citing of broken Commandments? Public flogging? Are you the geek version of Jerry Falwell?

Re:SCO is plainly lying (1)

dnoyeb (547705) | more than 10 years ago | (#6588875)

The article does a good job of displaying this fact own its own. Was that a paraphrase or editorialization?

The article makes solid points, though it could have used a second pass from the English teacher..

Re:SCO is plainly lying (5, Insightful)

ansak (80421) | more than 10 years ago | (#6589017)

Adam Rightman wrote:
> I think any geek worth his salt can see that they're lying about the merits of the suit

Unfortunately, it's not geeks that are going to rule on this, so SCO's loss isn't a foregone conclusion. IBM's best bet may just be to buy them out because from where I sit, IBM's purported right to put stuff into Unix without it becoming "derivative work" may not extend to things developed by other people (Dynix) and brought in after their IP has been bought.

What's a judge going to think? Wopner might agree with the geeks: SCO is obviously lying. But will the judge that gets the case in whatever district it goes to trial have the insight of a Penfield Jackson?

too soon to hold our breath...ank

This whole thing is ridiculous (4, Insightful)

192939495969798999 (58312) | more than 10 years ago | (#6588580)

It all hinges on how fair you think reverse engineering is. The fact is, anyone should be able to come out with a competing product without worrying that any similarity will bring a huge lawsuit and patent problems. If you stole their secrets, that's another thing, but a competing product should not automatically be illegal.

Re:This whole thing is ridiculous (2, Funny)

Error27 (100234) | more than 10 years ago | (#6588747)

It's not reverse engineering.

It's about creating new products that are trade secrets owned by SCO. For example, JFS is a trade secret owned by SCO.

Yes, I known that SCO hasn't published anything like JFS, that's obviously why it's a secret.

Re:This whole thing is ridiculous (1, Redundant)

pyros (61399) | more than 10 years ago | (#6588996)

JFS is a trade secret owned by SCO

No, it is not. [slashdot.org]

No, this has *nothing* to do with that (4, Insightful)

autopr0n (534291) | more than 10 years ago | (#6588765)

The deal is, AT&T had a 'standard' contract for licensing Unix, which IBM, Sequent, and other companies signed. Sun Microsystems didn't, they purchased their license outright, and thus don't have a contract (or something, not really important but sun can do whatever it wants.)

The standard contract said that AT&T has rights on any changes you make to your Unix code, IBM got a special amendment to the contract stating that they owned any changes they made to AIX. but Sequent did not, and Sequent, not IBM developed the tech that SCO is bitching about (NUMA, RCU, ETC). IBM, SCO and Sequent were all working together on project Monterey, which was supposed to be an 'industry standard' Unix, but IBM lost interest in Monterey, purchased Sequent and left SCO out to dry (now, this was the 'old' SCO, not Canopy/Caldera SCO).

Anyway, SCO thinks that it owns the contracts because it owns the original Unix IP (or at least the copyrights anyway, none of the patents)

In fact, the person who wrote the RCU code for Dynix (or whatever Sequent's *nix was called) for Sequent is the sameperson who wrote the RCU code in Linux for IBM.

but, and here's the thing, Sequent developed it's tech independent of Unix. RCU and that stuff would work on any modern OS's kernel. They published their papers and filed their patents before they implemented it in their own version of Unix.

So the issues are:

Did the contract rights really transfer to SCO?

Does the "naked" contract Sequent signed mean all their tech is owned by SCO now? Does it mean that the "naked" contract mean that any technology that you develop, and later put into a Unix clone automatically become the property of SCO?

Does IBM's special contract apply to stuff they acquire from other Unix vendors?

The answers to these questions aren't totally obvious, although to me they should mostly go to IBM's favor here. On the other hand, the claim that SCO owns all of Unix is ridiculous. The proper thing to do is tell everyone what files are infringing and then have them rewritten by the community. SCO seems to claim now that anyone who touches any Licensed Unix code, or any code by anyone who has touched any Licensed Unix code has sold their soul to them, which is just idiotic.

Re:No, this has *nothing* to do with that (0)

Anonymous Coward | more than 10 years ago | (#6588814)

SCO seems to claim now that anyone who touches any Licensed Unix code, or any code by anyone who has touched any Licensed Unix code has sold their soul to them, which is just idiotic

You forgot to mention IBM's side letter to the contract, explicitly says this isn't the case, at least as far as IBM is concerned

Re:No, this has *nothing* to do with that (3, Interesting)

Anonymous Coward | more than 10 years ago | (#6588903)

Who modded this guy up? You, sir, are talking out of your ass. The person who developed the RCU code for Dynix is not the same who did the work on Linux. The RCU implementation you see on Linux was done by 3 engineers, none of them having anything to do with the original Sequent employee. I know, I was at Sequent at that time.

Brett Glass

Brett Glass is a friend of mine (-1, Troll)

Anonymous Coward | more than 10 years ago | (#6589023)

I know Brett Glass. Brett Glass is a friend of mine. And, you sir, are no Brett Glass.

Re:No, this has *nothing* to do with that (0)

Anonymous Coward | more than 10 years ago | (#6588992)

But the Sequent Code is not IBM code. Therefore the licensing is under IBM contract.

After all, SCO aren't AT&T, so the clause terms are transferrable.

Re:This whole thing is ridiculous (0)

Anonymous Coward | more than 10 years ago | (#6588899)

If someone figures out a trade secret on their own, without stealing any documents or information from a company, does that mean they did not steal it?

I just think it's odd since a patent could be much more useful than keeping a trade secret. Sure, the patent is a matter of public record, but it's seems easier to enforce a patent than to prove theft of a trade secret.

Re:This whole thing is ridiculous (0)

Anonymous Coward | more than 10 years ago | (#6589039)

If I have a arguably patentable process that I can base my core business on or substantially enhance it with, and I patent it, I run the risk of my competitors coming up with solutions based on viewing the patent but coming up with an alternative that my idea turns them on to.

Whereas, if I keep it a trade secret, I lose the protections afforded me by patent law, but I also don't provide possible new research directions for my competitors. It's a choice you have to make for the competitiveness of your business.

Read the paper yesterday. (4, Insightful)

JessLeah (625838) | more than 10 years ago | (#6588583)

We all know what's going on. The people who really need to read this sort of paper are the PHBs-- the sort of people who would believe the latest Gartner Group rubbish stating that Linux should be avoided...

End Users? (5, Insightful)

chefbb (691732) | more than 10 years ago | (#6588598)

One thing that hit me from the first paragraph: Why would they be going after the end users first, rather than the people who profit from their supposed patents? It's really starting to sound like FUD tactics against Linux. Why else would they try to scare people off of using it rather than getting $ that should have been theirs (that is, a legitimate copyright beef).

And the position is... (0)

Anonymous Coward | more than 10 years ago | (#6588599)

...right behind SCO with a sharp object in hand.

Ugh. ENOUGH of SCO (0)

Anonymous Coward | more than 10 years ago | (#6588606)

Seriously. STOP!

We get it.

Re:Ugh. ENOUGH of SCO (5, Informative)

saskwach (589702) | more than 10 years ago | (#6588742)

There's an easy way to avoid this: go to your user settings and tell it not to put stories about Caldera on your home page. Seriously, the tools are there, use them.

You bet the tools are there (0)

Anonymous Coward | more than 10 years ago | (#6588983)


They're everywhere on this site. They love downmodding anything they can, spilling their chai drinks in the frenzy to nail every troll they think they see. In the meantime, perfectly funny, worthwhile, and/or simply insightful posts fall into the drip tray of Slashdot.

Oh, and don't forget michael, king of the tools.

Regards,

Hank Kingsley

Wow! (2, Funny)

El (94934) | more than 10 years ago | (#6588611)

The position paper, which casts doubt on SCO's position, was authored by one of the world's leading legal experts on copyright law


Wow! He actually casts doubt on SCO's claims! That must have taken a legal genius! Certainly something none of the nerds on /. could have done!

Re:Wow! (1)

craigoda (7137) | more than 10 years ago | (#6588830)

The problem of course is that not every IT manager is as clever as you. Some people read the articles about the claims that SCO makes and don't question the article contents as much. Linux needs more people like you that are taking a public stance that about dismissing SCO's claims. The more public, the better. Everyone needs to know that SCO's claims have a lack of merit. Get the word out.

Re:Wow! (1)

Cyno (85911) | more than 10 years ago | (#6588954)

Nope, its a problem within our society. We don't trust anyone unless they got that piece of paper saying they're professional. Many people quoting here are professionals, but there's also the chance that its a kid. When I don't get, personally, is why we won't look at our children's opinions as if they could be authoritative over a certain subject and why we look at adult opinions like they are authoritative, Bush for example, when their arguements fall short of logic and reason.

I think the only way to solve this problem is for kids to rebel, like never before. "Fuck you I won't do what you tell me." comes to mind.

Why Linux needed SCO (4, Insightful)

Anonymous Coward | more than 10 years ago | (#6588614)

Call me a troll, but something like SCO case was actually needed by the Linux community. While the game was "just for fun", no one really paid attention to any licensing issues. However, currently we're experiencing major expansion of Linux-based systems into business field, and business executives usually ask about IP rights and responsibilities.

If Linux wants to be a player in the business world, it's got to play by the rules, and that's what SCO case is about to clarify. If there is any verdict on the SCO case, it will allow the Linux OS to be treated more seriously than just a hobby operating system.

Now faced with the question "How does Linux deal with copyright issues and licensing?" one can always point to the SCO case (assuming that the trial gets resolved in IBM's favor) and quote the precedent, which is usually good enough in the US.

This last outbreak of FUD attack by SCO will actually stop all the FUD and conspiracy theories surrounding Linux in the business world.

Re:Why Linux needed SCO (1, Insightful)

Anonymous Coward | more than 10 years ago | (#6588795)

Not to be a troll begotten from a troll, but your statement, "...allow the Linux OS to be treated more seriously than just a hobby operating system." is a bit off. I think Linux in general is and is considered to be a more serious operating system than say...SCO's offerings (UnixWare/OpenServer). My company is rolling out a very, very large number of Linux based machines to our customers. It may be of note that we are not sticking to one CPU arch. either. There will be DEC, PPC and Intel based hardware running Linux (mostly SUSE distro). This ain't no hobbyist venture...

Re:Why Linux needed SCO (0)

Anonymous Coward | more than 10 years ago | (#6588888)

but your statement, "...allow the Linux OS to be treated more seriously than just a hobby operating system." is a bit off

The image was supported by Linus Torvalds himself in his book "Just for fun". However, things changed since the publication date of the book, I admit.

Don't assume that a trial will take place (1)

lildogie (54998) | more than 10 years ago | (#6588916)

> Now faced with the question
> "How does Linux deal with copyright issues and licensing?"
> one can always point to the SCO case
> (assuming that the trial gets resolved in IBM's favor)
> and quote the precedent, which is usually good enough in the US.

There may not be (and IMHO, probably won't be) a trial.

If SCO and IBM settle out of court, there is no precedent.

Even if the settlement says that SCO should pay IBM, it could be a secret settlement, and there still would be no precedent to slay the FUD.

Re:Why Linux needed SCO (0)

Anonymous Coward | more than 10 years ago | (#6588917)

Not to troll but who cares what business thinks of Linux? I was happy with Linux as a hobby OS.

The Press (2, Insightful)

Sp4c3 C4d3t (607082) | more than 10 years ago | (#6588617)

This is all great, but I think this sort of thing needs more press. Every time SCO speaks, it's everywhere, but these sorts of things are never mentioned. Hopefully some people notice.

Users liable? Someone thinks so. (5, Interesting)

Derek (1525) | more than 10 years ago | (#6588623)

I posted this comment in an earlier article [slashdot.org] on the same issue, but it is also relevant here. According to Melise Blakeslee (a partner with the law firm McDermott, Will & Emery),

"Users meanwhile need to understand that Linux enduser license agreements are an 'as is' contract, meaning Linux users aren't protected from copyright or intellectual-property infringement claims..."

Quoted from the July 28th edition of Information Week magazine in an Article by Larry Greenmeier titled "Sco Group Threatens Users in Linux Fight" p.24 -- sorry, I couldn't find a link online.

Agree with it or not, at least one lawyer thinks users could be liable. -Derek

Re:Users liable? Someone thinks so. (4, Insightful)

EastCoastSurfer (310758) | more than 10 years ago | (#6588692)

If lawyers didn't disagree, I guess we wouldn't need courtrooms :)

Courtrooms? What ever happend to the time held... (2, Funny)

nlinecomputers (602059) | more than 10 years ago | (#6588878)

...tradition of dueling to solve disagreements? Sounds like a great way for lawyers who disagree to resolve disputes to me. Dontyathink?

Re:Users liable? Someone thinks so. (1)

southpolesammy (150094) | more than 10 years ago | (#6588886)

It's a case of distribution vs. use. SCO can not hold end users liable for using a product, but if they think they have a case, they should be going after those that are [re-]distributing the kernel. It's like the article said, if someone reads a book that a rival publisher claims was plagiarized, the reader is not at fault, the publisher of that book is.

The GPL however should prevail given SCO's continued distribution of the kernel, so all in all, this whole argument is quickly becoming a moot point. To elaborate on the publisher idea, the "infringed upon publisher" is still saying that you can't read that because it's our work, in spite of the fact that they themselves are distributing it as well under the same terms.

It's like one McDonald's chain telling another than they can't sell Big Mac's to their customers because they sell them too. Ridiculous.

Re:Users liable? Someone thinks so. (5, Informative)

schon (31600) | more than 10 years ago | (#6588893)

Re-read that..

Linux enduser license agreements are an 'as is' contract... Linux users aren't protected from copyright or intellectual-property infringement claims...

First, there are no "Linux enduser license agreements" (except perhaps the one from Caldera), so whoever wrote this knows jack about shit.

Second, even if there were Linux EULAs, it would still be irrelevant, because he's saying "the EULA doesn't protect you from copyright or IP claims" - all the while ignoring the fact that people would be immune anyway, as they're not copying anything.

If the New York Times got sued for plagarism and lost, would that make it's readers liable? Of course not. This is really no different.

at least one lawyer thinks users could be liable

No, actually - at least one lawyer, who doesn't have a clue about the facts in the case, thinks that an EULA (which doesn't exist) wouldn't stop liability, when standard property-rights laws would.

Re:Users liable? Someone thinks so. (1)

irix (22687) | more than 10 years ago | (#6588945)

IANAL, but this just sounds like a lawyer talking out of their ass. You can tell by the term "intellectual property infringement claims" - that term is completely meaningless. I would suspect the context of that quote is that the license you purchased, say, RedHat under doesn't indeminfy you against "intellectual property infringement" claims from 3rd parties, in the general sense. Well, neither does Microsoft sometimes [slashdot.org] but you don't hear that from them do you?

Read Professor Moglen's paper - it is a carful examination of the issues, not some soundbite from Joe random lawyer.

Mistake in the first sentance, not good! (1, Insightful)

Serapth (643581) | more than 10 years ago | (#6588634)

was authored by one of the world's leading legal experts on copyright law as applied to software

Anyone notice how many "leading experts" there are these days?!?! That word has come to be so badly abused, I tend to ignore it. Once I hear "worlds... well... relatively mediocre expert" then I will stand up and take notice!!! ;)

My only other complaint is from the very opening sentence... " ...users of free software around the world are being pressured to pay...". Something about reading an article when the first line of it is incorrect doesnt bode well with me! SCO, HAS NOT yet got after any end customers... they have threatened that they could be in volilation, but have not gunned after anybody but distributors for money!

On the whole, not a nice way for one of the worlds leading experts (tm) to start, imho! :)

Re:Mistake in the first sentance, not good! (2, Interesting)

Anonymous Coward | more than 10 years ago | (#6588705)

SCO, HAS NOT yet got after any end customers...

Yes they have. They are calling Fortune 1500 companies telling them, buy a licence now and when we'll win this legal battle, you will be fine. If you don't buy this licence now, you'll have to pay much much more after we win the case.

Re:Mistake in the first sentance, not good! (2, Interesting)

Serapth (643581) | more than 10 years ago | (#6588768)

No, they havent. They have gone to customers and warned them they could be in violation... nothing more. SCO is not in the business of licensing SCO itself, they license out the technology to other developers. It is people that use SCO technology in their derived products that require a license.

Think about it this way... when a big company ( say Ford) buys and rolls out Windows 2000 in the enterprise... do they license the use of Windows? Or do they license the use of the Windows technologies in order to create their own derived OS!? Beyond selling SCO, or Caldera Linux to these companies... or residual revenue from one of their licensees selling their product to Fortune 1500 companies... SCO HAS NOTHING TO DO WITH THEM!

SCO's intentions in sending the letters to the Fortune 1500 wasnt to get money from each of these companies, but to cause FUD and damage to Linux distro's everywhere, in an attempt to make themselves as much of an attractive buy out target as possible. I think they figured a big company such as IBM, would rather just buy them to silence them... then to bother to fight. It was in everybodies best interest to stem amy damage that SCO's FUD might be causing the Linux industry.

Re:Mistake in the first sentance, not good! (3, Informative)

Calibax (151875) | more than 10 years ago | (#6588839)

You must be new here. And a little ignorant to boot.

The author of the article (Egen Moglen) is an extremely well known IP lawyer. He has been the general counsel of the FSF for about 10 years. He has contributed more the Open Software movement than it's likely you ever will, and by several magnitudes. Go listen to him talk sometime, you may find it educational, he's a Very Neat Person.

The typo you complained about was made by the guy who alerted /. to the article, not by the author of the article referenced as you appear to believe.

Re:Mistake in the first sentance, not good! (2, Informative)

Anonymous Coward | more than 10 years ago | (#6588872)

I think Eben Moglen can lay fair claim to the title leading expert. Head counsel for the FSF for the last 10 years ought to qualify him.

Oh, and by the way, s/sentance/sentence/

SCO doesn't know why they should sue IBM (3, Insightful)

Chagatai (524580) | more than 10 years ago | (#6588648)

The truth of the matter is that SCO isn't even sure itself as to why they should sue IBM. Originally it was a matter of OPIP (Other Peoples' Intellectual Property). But, in this article [mozillaquest.com] with Mozilla Quest, Blake Stowell, Director of Corporate Communications for SCO indicated that the IP rights of things such as AIX, Linux, NUMA, and JFS belong to IBM. Apparently all of these problems are due to contract issues. I just can't believe how much crap this dumb Utah-based company has been dumping and how much trouble they have been causing.

Sorry. My bad (4, Funny)

Anonymous Coward | more than 10 years ago | (#6588667)

I was working for several years at SCO, and was the lead developer for their SMP module. Anyway, I was also good friends with Linus Torvalds at this time. Once I was working at home, and he came round to visit me. Anyway, when I got back to work, I noticed that my printer's paper tray was empty. I didn't think anything of it at the time, but I guess Linus must have printed off a copy of the code, and used that for Linux SMP support.

No idea why he didn't just ftp it to himself. I guess the guy never was too hot when it comes to computers.

Re:Sorry. My bad (1)

MindStalker (22827) | more than 10 years ago | (#6588724)

Well see printing it out and typing it up by hand is a cude method of Clean Room engineering :)

SCO the jilted bride (2, Funny)

jhines (82154) | more than 10 years ago | (#6588672)

SCO got stood up at the wedding (project monteray) and is now suing IBM's new bride Linux, cause she didn't get what was promised to her.

And now she wants to ruin everyone elses wedding, unless she gets a gift for her ruined wedding.

Re:SCO the jilted bride (0)

Anonymous Coward | more than 10 years ago | (#6588779)

oh great! up until this point I was actually looking forward to IBM eviscerating SCO with a dull knife! Now I actually feel sorry for SCO. Who would stand up someone at their wedding?!

SCO won't let facts get in the way ! (0, Troll)

ozzee (612196) | more than 10 years ago | (#6588673)

Since when has SCO demonstrated ANY interest in the truth ? This is just more fodder for the SCO FUD machine.

The best thing we could all do is ingnore SCO and boycot them into oblivion and discuss the matter no further than we absolutly need to. While this document may be interesting, it's nothing extraordinary in that we have not already read it all before.

SCO has embarked on a truly extraordinary path of self destruction and they will get their wish. Let us not be the ones to prolong their demise.

text of article (-1, Redundant)

Anonymous Coward | more than 10 years ago | (#6588694)

Something like this is bound to get Slashdotted, so.... Questioning SCO: A Hard Look at Nebulous Claims Eben Moglen Users of free software around the world are being pressured to pay The SCO Group, formerly Caldera, on the basis that SCO has "intellectual property" claims against the Linux operating system kernel or other free software that require users to buy a "license" from SCO. Allegations apparently serious have been made in an essentially unserious way: by press release, unaccompanied by evidence that would permit serious judgment of the factual basis for the claims. Firms that make significant use of free software are trying to evaluate the factual and legal basis for the demand. Failure to come forward with evidence of any infringement of SCO's legal rights is suspicious in itself; SCO's public announcement of a decision to pursue users, rather than the authors or distributors of allegedly-infringing free software only increases doubts. It is impossible to assess the weight of undisclosed evidence. Based on the facts currently known, which are the facts SCO itself has chosen to disclose, a number of very severe questions arise concerning SCO's legal claims. As a lawyer with reasonably extensive experience in free software licensing, I see substantial reason to reject SCO's assertions. What follows isn't legal advice: firms must make their own decisions based upon an assessment of their particular situations through consultation with their own counsel. But I would like to suggest some of the questions that clients and lawyers may want to ask themselves in determining their response to SCO's licensing demands. Eben Moglen is professor of law at Columbia University Law School. He has served without fee as General Counsel of the Free Software Foundation since 1993. This paper is based on a presentation given to the Open Source Development Lab's User Advisory Council in New York, July 24, 2003. Where's the Beef? What does SCO actually claim belongs to it that someone else has taken or is misusing? Though SCO talks about "intellectual property," this is a general term that needs specification. SCO has not alleged in any lawsuit or public statement that it holds patents that are being infringed. No trademark claims have been asserted. In its currently-pending lawsuit against IBM, SCO makes allegations of trade secret misappropriation, but it has not threatened to bring such claims against users of the Linux OS kernel, nor can it. It is undisputed that SCO has long distributed the Linux OS kernel itself, under the Free Software Foundation's GNU General Public License (GPL).1 To claim that one has a trade secret in any material which one is oneself fully publishing under a license that permits unlimited copying and redistribution fails two basic requirements of any trade secret claim: (1) that there is a secret; and (2) that the plaintiff has taken reasonable measures to maintain secrecy. So SCO's claims against users of the Linux kernel cannot rest on patent, trademark, or trade secret. They can only be copyright claims. Indeed, SCO has recently asserted, in its first specific public statement, that certain versions of the Linux OS kernel, the 2.4 "stable" and 2.5 "development" branches, have since 2001 contained code copied from SCO's Sys V Unix in violation of copyright. The usual course in copyright infringement disputes is to show the distributor or distributors of the supposedly-infringing work the copyrighted work upon which it infringes. SCO has not done so. It has offered to show third parties, who have no interest in Linux kernel copyrights, certain material under non-disclosure agreements. SCO's press release of July 21 asserts that the code in recent versions of the Linux kernel for symmetric multi-processing violates their copyrights. Contributions of code to the Linux kernel are matters of public record: SMP support in the kernel is predominantly the work of frequent contributors to the kernel employed by Red Hat, Inc. and Intel Corp. Yet SCO has not shown any of its code said to have been copied by those programmers, nor has it brought claims of infringement against their employers. Instead, SCO has demanded that users take licenses. Which lead to the next question. (1)Linux kernel source under GPL was available from the SCO's FTP site as of July 21, 2003. (2)See SCO Press Release, July 21, 2003, http://ir.sco.com/ReleaseDetail.cfm?ReleaseID=1141 70 Why Do Users Need Licenses? In general, users of copyrighted works do not need licenses. The Copyright Act conveys to copyright holders certain exclusive rights in their works. So far as software is concerned, the rights exclusively granted to the holder are to copy, to modify or make derivative works, and to distribute. Parties who wish to do any of the things that copyright holders are exclusively entitled to do need permission; if they don't have permission, they're infringing. But the Copyright Act doesn't grant the copyright holder the exclusive right to use the work; that would vitiate the basic idea of copyright. One doesn't need a copyright license to read the newspaper, or to listen to recorded music; therefore you can read the newspaper over someone's shoulder or listen to music wafting on the summer breeze even though you haven't paid the copyright holder. Software users are sometimes confused by the prevailing tendency to present software products with contracts under shrinkwrap; in order to use the software one has to accept a contract from the manufacturer. But that's not because copyright law requires such a license. This is why lawsuits of the form that SCO appears to be threatening-- against users of copyrighted works for infringement damages--do not actually happen. Imagine the literary equivalent of SCO's current bluster: Publishing house A alleges that the bestselling novel by Author X topping the charts from Publisher B plagiarizes its own more obscure novel by Author Y. "But," the chairman of Publisher A announces at a news conference, "we're not suing Author X or Publisher B; we're only suing all the people who bought X's book. They have to pay us for a license to read the book immediately, or we'll come after them." That doesn't happen, because that's not the law. But don't users of free software make copies, and need a license for that activity? The Copyright Act contains a special limitation on the exclusive right to copy with respect to software. It does not infringe the copyright holder's exclusive right to copy software for the purpose of executing that software on one machine, or for purposes of maintenance or archiving. Such copying also requires no license. But what if a firm has gotten a single copy of the Linux kernel from some source, and has made many hundreds or thousands of copies for installation on multiple machines? Would it need a license for that purpose? Yes, and it already has one. Do Users Already Have a License? The Linux kernel is a computer program that combines copyrighted contributions from tens of thousands of individual programmers and firms. It is published and distributed under the GPL, which gives everyone everywhere permission to copy, modify and distribute the code, so long as all distribution of modified and unmodified copies occurs under the GPL and only the GPL. The GPL requires that everyone receiving executable binaries of GPL'd programs must get the full source code, or an offer for the full source code, and a copy of the license. The GPL specifies that everyone receiving a copy of a GPL'd program receives a license, on GPL terms, from every copyright holder whose work is included in any combined or derived work released under the license. SCO, it bears repeating, has long distributed the Linux kernel under GPL, and continues to do so as of this writing. It has directly given users copies of the work and copies of the license. SCO cannot argue that people who received a copyrighted work from SCO, with a license allowing them to copy, modify and redistribute, are not permitted to copy, modify and distribute. Those who have received the work under one license from SCO are not required, under any theory, to take another license simply because SCO wishes the license it has already been using had different terms. In response to this simple fact, some SCO officials have recently argued that there is somehow a difference between their "distribution" of the Linux kernel and "contribution" of their copyrighted code to the kernel, if there is any such code in the work. For this purpose they have quoted section 0 of the GPL, which provides that "This License applies to any program or other work which contains a notice placed by the copyright holder saying it may be distributed under the terms of this General Public License." The Linux kernel contains such notices in each and every appropriate place in the code; no one has ever denied that the combined work is released under GPL. SCO, as Caldera, has indeed contributed to the Linux kernel, and its contributions are included in modules containing GPL notices. Section 0 of the GPL does not provide SCO some exception to the general rule of the license; it has distributed the Linux kernel under GPL, and it has granted to all the right to copy, modify and distribute the copyrighted material the kernel contains, to the extent that SCO holds such copyrights. SCO cannot argue that its distribution is inadvertent: it has intentionally and commercially distributed Linux for years. It has benefited in its business from the copyrighted originality of tens of thousands of other programmers, and it is now choosing to abuse the trust of the community of which it long formed a part by claiming that its own license doesn't mean what it says. When a copyright holder says "You have one license from me, but I deny that license applies; take another license at a higher price and I'll leave you alone," what reason is there to expect any better faith in the observance of the second license than there was as to the first? Conclusion Users asked to take a license from SCO on the basis of alleged copyright infringement by the distributors of the Linux kernel have a right to ask some tough questions. First, what's the evidence of infringement? What has been copied from SCO copyrighted work? Second, why do I need a copyright license to use the work, regardless of who holds copyright to each part of it? Third, didn't you distribute this work yourself, under a license that allows everyone, including me, to copy, modify and distribute freely? When I downloaded a copy of the work from your FTP site, and you gave me the source code and a copy of the GPL, do you mean that you weren't licensing me all of that source code under GPL, to the extent that it was yours to license? Asking those questions will help firms decide how to evaluate SCO's demands. I hope we shall soon hear some answers. (c) Eben Moglen, 2003. Verbatim copying of this article is permitted in any medium, provided this notice is preserved.

my thoughts on his main three arguments (5, Interesting)

BobTheLawyer (692026) | more than 10 years ago | (#6588712)

1. where's the evidence of infringement?

this is the key argument: without evidence of infringement they clearly have no claim.

2. you can't charge a license fee to users

this has to be correct: if there has been a breach of SCO's copyright then SCO has a right to sue the Linux distributors. It has no right to charge or sue Linux users.

3. SCO distributed the allegedly-copyrighted work themselves, and have therefore licensed it under GPL

I'm not sure it's no simple. SCO will no doubt argue that, at the time, they didn't realise the source contained their copyrighted material. This raises the question of whether you can be legally bound by the GPL if you don't realise what you were licensing. This is a tricky question under English law; I've no idea what the US position is but doubt it is straightforward.

Re:my thoughts on his main three arguments (4, Informative)

janda (572221) | more than 10 years ago | (#6588789)

Even after they knew there was "infringing code", SCO continued to distribute it.

Re:my thoughts on his main three arguments (1)

Suppafly (179830) | more than 10 years ago | (#6588906)

Karma: Trading Spaces (Mostly affected by While You Were Out).

Thats awesome.. made me laugh.

Re:my thoughts on his main three arguments (1, Interesting)

Anonymous Coward | more than 10 years ago | (#6588991)

I'm not sure it's no simple. SCO will no doubt argue that, at the time, they didn't realise the source contained their copyrighted material.
And the counter-argument will be...

"Six months after you announced you had found out that the source contained your material, you were STILL distributing it (on your FTP site). Your honor, please open up your computer and point it to ftp.sco.com - you will notice that even as we sit here in this courtroom, SCO continues to distribute this material under the GPL. Clearly, they know the code contains their material, as they have explicitly stated so. Clearly, they are distributing the material with the GPL. Thus, they have no basis to say they did not "knowingly" release the code." :-b

--AC

Remember ( 5core:5, insightful ) (-1, Troll)

Anonymous Coward | more than 10 years ago | (#6588713)

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OT: Stop Using Palatino (0, Offtopic)

Ikari Gendo (202183) | more than 10 years ago | (#6588716)

Stop Using Palatino [landlubber.com]

Many of the letter shapes that make Palatino so distinctive and recognizable when used as a display face are ugly and distracting in text.

Of course, this looks like it was set in LaTeX so it's probably using URW's Palladio knockoff anyway.

Re:OT: Stop Using Palatino (1)

CableModemSniper (556285) | more than 10 years ago | (#6588809)

Wow, "responsible consumer of type". Boggles the mind. Who knew there would be people encouraging us to boycott typefaces.

Re:OT: Stop Using Palatino (0)

Ikari Gendo (202183) | more than 10 years ago | (#6588897)

Heh, thanks moderator, for clarifying that "OT" indeed means Offtopic. Of course, the paper has no substance to comment on -- it's a rehash of what has been said for months.

Nothing new, but good (2, Insightful)

Arker (91948) | more than 10 years ago | (#6588743)

He's basically boiled the thing down to three points, familiar to any regular slashdot reader by now, but put in a nice simple, short, easy to digest form by a qualified lawyer. Great link to send any PHB that is worried by SCOs FUD.

Another attorney comments (4, Informative)

Anonymous Coward | more than 10 years ago | (#6588773)

Here is some more legal commentary [internet.com]. It seems to dispute some of the OSDL's position - but comes up with other reasons why SCO's case may be flawed.

Here's another lawyer (Australia), saying don't "drop your pants [idg.com.hk]" to SCO.

Finally, here's IBM planning a response to SCO's amended complaint [weblogs.com]. Once again SCO's web site seems to omit some important issues.

A useful tool (1)

Badgerman (19207) | more than 10 years ago | (#6588792)

Sure, a lot of us here were thinking the same things that this paper says (albiet with more four-letter words).

However, this is a pretty useful tool for showing to the people who normally WOUDLN'T have our technical backgrounds. I plan to point some folks to it.

Bias? (4, Interesting)

grennis (344262) | more than 10 years ago | (#6588796)

You guys always complain about bias when the Gartner Group etc., releases a study about how Microsoft is better at this or that.

But I don't see anyone complaining that the OSDL certainly has a vested interested here and is hardly to be expected to provide an unbiased report.

Discuss.

Re:Bias? (0)

Anonymous Coward | more than 10 years ago | (#6588815)

Eben Moglen is also an avowed communist.

I hate SCO as much as the next guy, but we shouldn't let these freaks speak on our behalf.

Re:Bias? (0)

Anonymous Coward | more than 10 years ago | (#6588936)

As a CD carrying FSF'ian, I'm an avowed communist. That's why they do the donations thing. You know, its the communist way, begging.

Re:Bias? (2, Interesting)

craigoda (7137) | more than 10 years ago | (#6588904)

OSDL clearly says that it is an organization that is advocating the adoption of Linux in the enterprise. It is a non-profit, vendor-neutral, publication-neutral organization of Linux IT vendors, Linux developers, and Linux end-users.


It is of course, biased toward Linux.


Gartner is an analyst firm. The two organizations serve entirely different functions.

What Is The Real News Here? (2, Interesting)

deadlinegrunt (520160) | more than 10 years ago | (#6588818)

Linux is the direct competitor to SCO & Microsoft for position in markets they lose ground to every day that passes.

Microsoft spends quiet a bit of money studying "things" and one thing they admitted was that their FUD attempts have backfired at every twist and turn and the only thing that seems to get businesses to listen to was legal liablity.

Microsoft & SCO are simply trying to stop Linux anyway they can. SCO is simply a "middle man" between the two major forces here: Linux & Microsoft. Microsoft does not worry itself (or share holders) about SCO; they can easily be gotten rid of, and it's no small bonus that this whole ordeal will do it for them. They can't stop Linux adoption so it's simple case of "an enemy of my enemy is my friend" - until such time as it's not needed...

Legal liability is the card they are playing because it's the only one they have left regardless of merit. We all know it but businesses play by the rule of corporate liablity; which is how much money can we make/lose.

Text extracted from PDF, with permission (2, Informative)

Anonymous Coward | more than 10 years ago | (#6588849)

Questioning SCO: A Hard Look at Nebulous Claims
Eben Moglen

Users of free software around the world are being pressured to pay The SCO Group, formerly Caldera, on the basis that SCO has "intellectual property" claims against the Linux operating system kernel or other free software that require users to buy a "license" from SCO. Allegations ap-parently serious have been made in an essentially unserious way: by press release, unaccompanied by evidence that would permit serious judgment of the factual basis for the claims. Firms that make significant use of free software are trying to evaluate the factual and legal basis for the demand. Failure to come forward with evidence of any infringement of SCO's legal rights is suspicious in itself; SCO's public announcement of a decision to pursue users, rather than the authors or distributors of allegedly-infringing free software only increases doubts.

It is impossible to assess the weight of undisclosed evidence. Based on the facts currently known, which are the facts SCO itself has chosen to disclose, a number of very severe questions arise concerning SCO's legal claims. As a lawyer with reasonably extensive experience in free software licensing, I see substantial reason to reject SCO's assertions. What follows isn't legal advice: firms must make their own decisions based upon an assessment of their particular situations through consultation with their own counsel. But I would like to suggest some of the questions that clients and lawyers may want to ask themselves in determining their response to SCO's licensing demands.

Eben Moglen is professor of law at Columbia University Law School. He has served without fee as General Counsel of the Free Software Foundation since 1993. This paper is based on a presentation given to the Open Source Development Lab's User Advisory Council in New York, July 24, 2003.

1 Where's the Beef?

What does SCO actually claim belongs to it that someone else has taken or is misusing? Though SCO talks about "intellectual property," this is a general term that needs specification. SCO has not alleged in any lawsuit or public statement that it holds patents that are being infringed. No trade-mark claims have been asserted. In its currently-pending lawsuit against IBM, SCO makes allegations of trade secret misappropriation, but it has not threatened to bring such claims against users of the Linux OS kernel, nor can it. It is undisputed that SCO has long distributed the Linux OS kernel itself, under the Free Software Foundation's GNU General Public License (GPL).1 To claim that one has a trade secret in any material which one is oneself fully publishing under a license that permits unlimited copying and redistribution fails two basic requirements of any trade secret claim: (1) that there is a secret; and (2) that the plaintiff has taken reasonable measures to maintain secrecy.

So SCO's claims against users of the Linux kernel cannot rest on patent, trademark, or trade secret. They can only be copyright claims. Indeed, SCO has recently asserted, in its first specific public statement, that certain versions of the Linux OS kernel, the 2.4 "stable" and 2.5 "development" branches, have since 2001 contained code copied from SCO's Sys V Unix in violation of copyright.2

The usual course in copyright infringement disputes is to show the dis-tributor or distributors of the supposedly-infringing work the copyrighted work upon which it infringes. SCO has not done so. It has offered to show third parties, who have no interest in Linux kernel copyrights, cer-tain material under non-disclosure agreements. SCO's press release of July 21 asserts that the code in recent versions of the Linux kernel for symmet-ric multi-processing violates their copyrights. Contributions of code to the Linux kernel are matters of public record: SMP support in the kernel is predominantly the work of frequent contributors to the kernel employed by Red Hat, Inc. and Intel Corp. Yet SCO has not shown any of its code said to have been copied by those programmers, nor has it brought claims of infringement against their employers. Instead, SCO has demanded that users take licenses. Which lead to the next question.

1 Linux kernel source under GPL was available from the SCO's FTP site as of July 21,
2003.
2 See SCO Press Release, July 21, 2003,
http://ir.sco.com/ReleaseDetail.cfm?Release ID=1141 70

2 Why Do Users Need Licenses?

In general, users of copyrighted works do not need licenses. The Copyright Act conveys to copyright holders certain exclusive rights in their works. So far as software is concerned, the rights exclusively granted to the holder are to copy, to modify or make derivative works, and to distribute. Parties who wish to do any of the things that copyright holders are exclusively entitled to do need permission; if they don't have permission, they're in-fringing. But the Copyright Act doesn't grant the copyright holder the ex-clusive right to use the work; that would vitiate the basic idea of copyright. One doesn't need a copyright license to read the newspaper, or to listen to recorded music; therefore you can read the newspaper over someone's shoulder or listen to music wafting on the summer breeze even though you haven't paid the copyright holder. Software users are sometimes confused by the prevailing tendency to present software products with contracts un-der shrinkwrap; in order to use the software one has to accept a contract from the manufacturer. But that's not because copyright law requires such a license.

This is why lawsuits of the form that SCO appears to be threatening-- against users of copyrighted works for infringement damages--do not ac-tually happen. Imagine the literary equivalent of SCO's current bluster: Publishing house A alleges that the bestselling novel by Author X topping the charts from Publisher B plagiarizes its own more obscure novel by Au-thor Y. "But," the chairman of Publisher A announces at a news conference, "we're not suing Author X or Publisher B; we're only suing all the people who bought X's book. They have to pay us for a license to read the book im-mediately, or we'll come after them." That doesn't happen, because that's not the law.

But don't users of free software make copies, and need a license for that activity? The Copyright Act contains a special limitation on the exclu-sive right to copy with respect to software. It does not infringe the copy-right holder's exclusive right to copy software for the purpose of executing that software on one machine, or for purposes of maintenance or archiving. Such copying also requires no license. But what if a firm has gotten a single copy of the Linux kernel from some source, and has made many hundreds or thousands of copies for installation on multiple machines? Would it need a license for that purpose? Yes, and it already has one.

3 Do Users Already Have a License?

The Linux kernel is a computer program that combines copyrighted con-tributions from tens of thousands of individual programmers and firms. It is published and distributed under the GPL, which gives everyone every-where permission to copy, modify and distribute the code, so long as all distribution of modified and unmodified copies occurs under the GPL and only the GPL. The GPL requires that everyone receiving executable bina-ries of GPL'd programs must get the full source code, or an offer for the full source code, and a copy of the license. The GPL specifies that every-one receiving a copy of a GPL'd program receives a license, on GPL terms, from every copyright holder whose work is included in any combined or derived work released under the license.

SCO, it bears repeating, has long distributed the Linux kernel under GPL, and continues to do so as of this writing. It has directly given users copies of the work and copies of the license. SCO cannot argue that people who received a copyrighted work from SCO, with a license allowing them to copy, modify and redistribute, are not permitted to copy, modify and distribute. Those who have received the work under one license from SCO are not required, under any theory, to take another license simply because SCO wishes the license it has already been using had different terms. In response to this simple fact, some SCO officials have recently ar-gued that there is somehow a difference between their "distribution" of the Linux kernel and "contribution" of their copyrighted code to the kernel, if there is any such code in the work. For this purpose they have quoted section 0 of the GPL, which provides that "This License applies to any program or other work which contains a notice placed by the copyright holder say-ing it may be distributed under the terms of this General Public License."

The Linux kernel contains such notices in each and every appropriate place in the code; no one has ever denied that the combined work is released un-der GPL. SCO, as Caldera, has indeed contributed to the Linux kernel, and its contributions are included in modules containing GPL notices. Section 0 of the GPL does not provide SCO some exception to the general rule of the license; it has distributed the Linux kernel under GPL, and it has granted to all the right to copy, modify and distribute the copyrighted material the kernel contains, to the extent that SCO holds such copyrights. SCO cannot argue that its distribution is inadvertent: it has intentionally and commer-cially distributed Linux for years. It has benefited in its business from the copyrighted originality of tens of thousands of other programmers, and it is now choosing to abuse the trust of the community of which it long formed a part by claiming that its own license doesn't mean what it says. When a copyright holder says "You have one license from me, but I deny that license applies; take another license at a higher price and I'll leave you alone," what reason is there to expect any better faith in the observance of the second license than there was as to the first?

4 Conclusion

Users asked to take a license from SCO on the basis of alleged copyright infringement by the distributors of the Linux kernel have a right to ask some tough questions. First, what's the evidence of infringement? What has been copied from SCO copyrighted work? Second, why do I need a copyright license to use the work, regardless of who holds copyright to each part of it? Third, didn't you distribute this work yourself, under a license that allows everyone, including me, to copy, modify and distribute freely? When I downloaded a copy of the work from your FTP site, and you gave me the source code and a copy of the GPL, do you mean that you weren't licensing me all of that source code under GPL, to the extent that it was yours to license? Asking those questions will help firms decide how to evaluate SCO's demands. I hope we shall soon hear some answers.

c Eben Moglen, 2003. Verbatim copying of this article is permitted in any medium, provided this notice is preserved.

"Leading experts"? (0, Flamebait)

Rogerborg (306625) | more than 10 years ago | (#6588868)

This is the guy who won't give a straight answer to explicit questions about the LGPL and Java linking?

Hey, Eben, when's the last time you won a case? When's the last time you were even arguing before a judge or jury court?

My medical studies make me an "leading expert" on the vulnerable areas of the human body. Funnily enough, that doesn't mean that any untrained street punk can't kick my ass.

Frankly I'd give more credence to a practicing lawyer than a guy who got tenure by documenting other peoples' achievements.

When is this case going to trial ? (1)

Vedanti (689689) | more than 10 years ago | (#6588912)

Only way to stop the FUD is to let everyone have their say in the court and see what happens. If any case needs a speedy trial, this is definitely that case.

So when is this slated to go to trial ?

What the GPL says (3, Insightful)

Paul Johnson (33553) | more than 10 years ago | (#6588966)

There are allegedly two categories of SCO code in the Linux kernel:
  • Code deliberately licensed by SCO under the GPL
  • Secret code copied into the GPL by a third party
Moglen seems to be claiming that since SCO has distributed Linux after discovering its secret code, and thereby accepted the GPL licensing of Linux, it must therefore have accepted that its secret code is also now licensed under the GPL. Its odd that Moglen never actually quotes the GPL itself, although he does cite it.

Obviously the licensing of certain code under the GPL by an organisation does not infect everything else published by that organisation. If the secret code exists in the kernel then SCO retains copyright and has not licensed anything.

The only clause that might "infect" the secret code with GPL-ness is the derivative works clause. Section 2 of the GPL states:

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:

[...]

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.

So if SCO has modified a stock version of the kernel to create a derivative work then it automatically licenses everything in that new derived work, and all works subsequently derived from it, under the GPL. In theory this applies whether a human being at SCO spotted the secret code or not, although I'm not at all sure that such an argument would stand up to the legal principle that you can only agree to something if you consciously know you are agreeing to it. However, having modified the kernel (creating a derivative work) and then distributed that derivative work, or one further derived from it, knowing that it contains the secret code, it does seem that SCO has indeed licensed the secret code under the GPL.

Moglen states that SCO has dontated chunks of code the Linux kernel. Torvalds has stated that it will be very easy to find out who contributed what in the past. So, can we find out exactly which bits of code were granted by SCO, and if it did indeed create a derived work that would trigger section 2b of the GPL?

Paul.

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