Subject: Re: SCO Drops Linux, Says Current Vendors May Be Liable (fwd)
From: "Karsten M. Self" <kmself@ix.netcom.com>
Date: Mon, 19 May 2003 03:26:23 +0100

on Sat, May 17, 2003 at 07:04:11PM -0700, Greg Broiles (gbroiles@parrhesia.com) wrote:
> On Sat, May 17, 2003 at 05:28:16AM +0100, Karsten M. Self wrote:
> > 
> > In the presence of an affirmative defense (eg:  fair use, prior
> > authorization), the plaintiff would have to demonstrate, with a
> > preponderance of the evidence (in a civil case such as SCO v. IBM) that
> > no authorization or exception to exclusive rights existed.
> 
> No, that's still wrong.
> 
> If the defendants offer evidence which might (or might not- it's all
> up to the finder of fact) establish an affirmative defense, the
> plaintiffs are free to simply ask the finder of fact to ignore the
> evidence as unreliable, or as insufficient to draw the conclusions
> that the defendants propose. 

I'm not the lawyer here, and I'm not trying to play one.  I am trying to
give my understanding of the law here.

And that is, to show infringing copyright violation, there needs to be a
similar work, a trail of derivation, and (whether countering affirmative 
defenses, presumtion, or other means) no legitimate authorization or
exemption allowing the copy.



> I think you're getting confused by the difference between argument and
> evidence - if you reworded the above to say that "SCO should be
> prepared to address IBM's argument that their use of SCO's code was 
> pursuant to a valid license", then it wouldn't be wrong. 

That's probably a fair restatement of my meaning.



> But, worse, aren't you already giving away the farm, by assuming that
> IBM has copied SCO code, but saying they've got a good defense? 

No.  

I'm saying that the bar extends beyond showing that the code was 
copied.  It must be copied unlawfully.  There are several lawful ways 
by which the code may have been introduced to the Linux kernel, 
including that it was originally introduced by SCO, or that SCO by 
practicing poor control over its source releases of Linux, released 
under GPL code it later felt it didn't want to (as seems to be the 
case).

> My impression is that SCO has, thus far, been reluctant to expose the
> "smoking gun" code samples that actually show copying in the 
> first place - so, in my mind, I'm still waiting for them to show me
> that there ever was a copy made, without getting into whether or not
> the copier had a right to make it. There's a big difference between
> saying "I didn't shoot that guy" and "I shot him, but I had a good
> reason." 

Or more "the guy didn't shoot me" (SCO being the aggreived party), vs.
"he shot me with good reason".  SCO haven't credibly established a
shooting, but even were they to do so, they would have to clear the
additional hurdle of circumstances, if not by absolute legal 
requirements, then by virtue of the fact that IBM or others are very
likely to raise the same extenuating circumstances.

Peace.

-- 
Karsten M. Self <kmself@ix.netcom.com>        http://kmself.home.netcom.com/
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