Subject: Re: SCO Drops Linux, Says Current Vendors May Be Liable (fwd)
From: "Karsten M. Self" <kmself@ix.netcom.com>
Date: Fri, 16 May 2003 16:07:45 +0100

on Fri, May 16, 2003 at 08:34:01AM -0600, Jonathan Corbet (corbet-fsb@lwn.net) wrote:
> > What's more interesting is if there's a less clear link - code that *looks
> > like* or *embodies some ideas from* SCO source code that IBM licensed -
> > then you're going to find SCO asking the court to define a new litmus test
> > for when software is a derivative work.
> 
> To me, this is the scary scenario.  SCO is already making all kinds of
> noise about how code was "obfuscated" to hide its proprietary origins.  So
> now you have some judge deciding whether some chunk of Linux is an
> obfuscated version of Unix.  And that process, I would say, is
> nondeterministic at best.  It depends on the clue level of the judge, and
> that's frightening.

To prove illegal copyright infringment, SCO must demonstrate three things:

  - A substantially similar work.
  - A derivation line showing how copying of the allegedy infringed work
    to the alleged infringing work occured.  Note that this must be
    copying of the expression itself, not of the ideas, methods,
    mechanism, or information contained in the original work.
  - Demonstration that the copying was infringing.  That is:  not
    expressly authorized by the copyright holder of the allgedly
    infringed work, or permitted under one of numerous exceptions to
    exclusive rights of authors (17 USC 107-122 lists fifteeen such
    exemptions).

Given that SCO distributed the very same works itself for three years
under the GPL (and for several years prior as Caldera), making the last
case seems quite difficult.  Eben Moglen is quoted on this point in and
InternetNews.com article:

    http://www.internetnews.com/dev-news/article.php/2207791


    "There is absolute difficulty with this line of argument which ought to 
    make everybody in the world aware that the letters that SCO has put out 
    can be safely put in the wastebasket," Moglen told internetnews.com, 
    noting that SCO distributed its own version of Linux with a kernel that 
    allegedly contains Unix-derived code.

    "From the moment that SCO distributed that code under the GNU General 
    Public License, they would have given everybody in the world the right 
    to copy, modify and distribute that code freely," he said. "From the 
    moment SCO distributed the Linux kernel under GPL, they licensed the 
    use. Always. That's what our license says." 

SCO's backed itself into a corner.

There remains thte potential for small actions involving the individuals
or organizations directly responsible for misappropriation, if any, of
SCO's work.  Broader claims would appear to be almost wholly invalidated
by SCO's own actions, and apparent lack of due dilligence in securing
its own IP, which it touts repeatedly for its vast value in the
complaint.

IANAL, TINLA, YADA.

Peace.

-- 
Karsten M. Self <kmself@ix.netcom.com>        http://kmself.home.netcom.com/
 What Part of "Gestalt" don't you understand?
    The truth behind the H-1B IT indentured servant scam:
    http://heather.cs.ucdavis.edu/itaa.real.html