By McBride's characterization of copyright law, all libraries should be shuttered and even burned to the ground, because all the intellectual property contained within them is allowed to be used *free of charge*. Shouldn't librarians change things so that the various library collectives around the nation can make a profit by renting books instead of lending them? What about all the trade secrets that are being distributed illegally and against the profit motive inherent in the Constitution's copyright clause by these illegal knowledge lending factories??

I hope you give as much credence to Darl's arguments as you do to mine above. Mine are obviously crazy talk; so are Darl's.

JMW-

I'll agree that the case law is messy. Lotus stands by default because the SC split 4-4. Note that there was no copying of code in this case; it was about copyright of the user interface. Like you, I'm glad that Whelan is now discredited.

As for Eben Moglen, since he (depending on which story you read) either co-wrote or advised Stallman on writing the GPL, it seems like he is in a pretty good position to comment. I think it's safe to say that he wouldn't have accidentally put together a contract.

The GPL is a license in that it gives you permission to do something that you ordinarily wouldn't be allowed to do. IMO, the fact that there are limiting conditions on that permission doesn't make it a contract.

On technologically-clued jurists, Justice Breyer recently addressed this very topic. Congress has to take its share of the blame for the mess, too.

I don't plan to check this talkback thread again, so e-mail me at if you want to discuss the topic further.

Hi Vance.

I'm aware of Apple vs Franklin, and several others,
ruling on the assumption that the law can be read to
permit copyright of software. You didn't mention Apple
vs Formula International (1984), expressing the
same opinion.

But, it's all apples and apples: These are the errors
I was referring to in an earlier post.

You didn't mention Lotus vs Borland
(1996), in which my proposition in a previous posting
was substantiated. I think that one was let
stand by the US Supreme Court on the basis of
USC 17 102(b), which I quoted above. I won't bore
you with more case law, because I think on this topic
it is seriously defective.

The law means what it says. Judges and juries sometimes
bend its meaning, but that doesn't change the law. I think
it's unfortunate that there are not specialized courts
which can deal with software or hardware innovation
in a more knowledgeable way than that of someone trained
to decide divorce cases or real estate swindles.

Your usual court of law doesn't have time, or doesn't want
to expend the effort and learning, to deal with software.
This may change, but I think it is true up to now.

I don't dispute that Mr. Moglen may have studied and
practised the law more than I, but he is no more
"qualified" than I to comment on the topics posted here.

I am dubious of the effect on invention of trying to
shoehorn software into a patent context, too. Maybe if
we had people more "qualified" than plain lawyers deciding
how to deal with software, this kind of dispute (SCO vs IBM)
could not arise. A summary judgement of "frivolous"
would be rendered.

Software licensing is the only approach that I see
as successful in practice (viz., in the sw market);
Lessig's generic license may be the only way to
sell software with full support of the courts.

I don't use GPL in my own software (I don't release
source code); but, I hope you will agree GPL is a license.

I consider it a contract, too; however, I don't consider
this an important point. Moglen and you vs I, then, may
draw seriously divergent conclusions because of
emphasis on this point.

From the copy
I found posted at http://www.gnu.org/copyleft/gpl.html

I find there is a lot of worthless rhetoric; disregarding
that (maybe "In consideration of reading this diatribe, GPL
hereby grants . . .."), I would call this a consideration:

GPL: "You may copy and distribute verbatim copies of the
Program's source code as you receive it, in any medium,
provided that you conspicuously and appropriately publish
on each copy an appropriate copyright notice and ...".

Agreeing to append a copyright notice has nothing to do
with whether copyright law bears on such an agreement.

So, in return for advertising the Free Software Foundation,
the GPL may be used to grant copying and distribution
rights.

Wouldn't you call this a contractual obligation? Omission
of the advertisement might be shown in court . . ..

Or, am I missing your point, somehow?

JMW-

I think you have it exactly backwards. My reading (IANAL) of the GPL shows it doesn't meet the elements required of a contract. In particular, there is no consideration. Good luck arguing detrimental reliance. In any event, the person most qualified to comment on the topic is Eben Moglen, and he states in the article (and elsewhere) that it is not a contract.

As for the application of copyright to software, the third circuit wrote in Apple v. Franklin: "Thus a computer program, whether in object code or source code, is a 'literary work' and is protected from unauthorized copying, whether from its object or source code version. Accord Midway Mfg. Co. v. Strohon, slip op. at 25--27; see also GCA Corp. v. Chance, 217 U.S.P.A. at 719--20." It goes on to say that operating system software is included.

I will agree with you on your opinion of SCO. :)

Hi Steve.

You are missing, as I understand it, that the GPL is
a LICENSE. It is a contractual agreement. It is
binding because of what the parties agree to do, not
because of Federal law.

To my knowledge (and we do need a new kind of protection
in the law for software), there are three ways to protect
something intangible as though it were some kind of common
law "property":

Copyright (applies to writings, and by generalization,
to other kinds of expression). Copyright protects
rights, for limited times, to advance progress in
literature and other kinds of expression.

Patent (applies to inventions, and by generalization
to ideas or plans for inventions). Patent protects,
for limited times, technological progress in its most
general form. I think some kinds of embedded software
can be patented, if special-purpose.

License (protects anything the parties can agree to
protect, for any time). GPL is a license.

I think SCO's claims of copyright infringement are
ignorant and fallacious. The judge should fine
them for filing a frivolous suit.

However, if SCO and IBM, and their respective
progenitors, have signed a license agreement, and
if either has violated it, each may have a valid claim in
court against the other.

Personally, I think there may be grounds for violations
of some license agreement, but that is something to
be argued out in court.

I think copyright infringement is a phoney charge in
this case(s).

This concept of a program or system not covered by copyrights is troubling since the GPL is based on copyright law - tell me what I am missing.

Hi Calvin.

I think it's more limited than that:

Is an operating system a "SYSTEM" or not?

I think it is. If so, then take a look at
my previous posting of 17 USC 102(b)
(yesterday):

A system may not be copyrighted. Period.
Furthermore, read the final sentence of
that paragraph: No copyright for a
system, no matter how or what is expressed.

This means that if a system includes, somehow,
a short story, or a poem or painting, or
an animated cartoon that sings and dances,
it can not be copyrighted. No exceptions.

You lose the right to copyright anything
that is part of a system (or method of operation
or anything else in Chapter 102(b)). Or anything
similar, by usual legal practice. The first
time someone uses your system in public, its
expressive aspects all go into public domain, so
far as copyright is concerned. Patents
are another story.

The final sentence in 102(b) eliminates any possible
copyright protection for any part of a
software program, no matter what its expressive content.

There are indeed a few court rulings implying
that software might be copyrighted, but they seem
to have ignored the copyright law (above); and,
so, they were wrong.

In software, the only things that might be
copyrighted are (1) comments in the source code,
which are ipso facto not part of the method
of operation; or, (2) things such as help menues
or interludes of music, provided they operate
nothing and have no functionality.

Even if there is "expressive content", no
part of a system or method of operation may
be copyrighted. That's why 102(b) is so
explicit and imperative. No weasling around
with tort law or common law; straight and
clean Federal law, as of 1976, anyway.

That's how I read the law, and I think it is
supported by most of the case law on
"software copyrights", those cases that have
gotten anywhere beyond the first judge.

What does the law say? A judge can be wrong,
and that's why there are appeals courts;
but the law always is right.

Altai vs Computer Associates is often cited as a reference to the limits of copyright in protecting computer program. In Altai, Computer Associates accused Altai of copying (literal copy) of code of the system adapter (OSCAR) which allowed the same scheduling program to be used for IBM VSE and IBM MVS. The appeal found that while the general concepts were copied, the code was not and so Altai was for the most part not infringing. Some alterations to the code were required.
This is why the clean room approach is used (code reader reads source code or reverse engineers and writes specification, code writer (a different person) reads specifications and writes code). Since there is no literal copying, there is no infringement. If the two result in the same source code, there a number of "outs" that are not infringment, for example if there is only one way to accomplish function efficiently.
Copyright applies to computer programs, but you must dot the i's and cross the t's and keep the source code secure to get any protection at all.

Heh. Galen, you clearly have issues.

Greetings, and Warning: this is just an opinion, any relation to reality is your fault.

SO...
Let's not forget the open letter Linus Tolvalds released that refutes any claim SCO thinks it may have regardless of who/what/when/where happened to distribute code under a GPL... SCO's position was as I remember only sections of the source code were SCO's intellectual property. The focus of Mr. Tolvalds letter was show us the code!! SCO never said what part or section of code was "copied". He stated: paraphased - "let us know where it is, and we'll recode it!"

Let's think way back when to the "Look and Feel" Apple vs. Microsoft case, when clearly anyone who knew anything about that "original" GUI, was developed at Xerox PARC. - The Apple coding team was given everthing they needed to "create" the Mac GUI. Big Bill sees this new system and soils himself. He has the business savvy to know that in the early days of computing - most if not ALL Exec's can't TYPE. Give them a little "mouse" and they have access to all forms of information they had to depend on other to provide to them before... Quite the innovation. Steve on the other hand, was totally slanted at education, at that time. Neither Steve or Bill saw NCSA Mosaic would become.

On I go...

Tangent to this case Copyright Law and Patent Law ARE clearly defined. The De-encryption of a DVD is what the DMCA protects. At the expense of current Coptyright Law that permit "fair use". (gosh my dog just chewed up my copy of 2001, awwwww, poor me, guess I'll just go BUY a NEW one. To bad I can't copy the original and play the copy... HAT'S off to DVD X-Copy, capture the de-crypted stream, and DMCA is a moot point - Love it. Sorry MPAA)

Recently SCO received over 60 million in new funds from a "unnamed investor" - Most on Wall street who research these types of things infer that Microsoft is this "investor".

Mr. Bill even PAID SCO's license fee... Hmmm. Does anyone think all that verbal poison about Linux spews out of top MS execs by accident? Bill HATES Mr. Torvalds. Why? That's anyone's guess, one could say he (Linus) is not a greedy bastard, and wants the world to have an OS that is not just a monopoly generating hundreds of billions over decades of the MS/Intel parnership. "WinTel" inside. More bloated code, needs more powerful proc's)

XP is a joke. Mr. Bill's "security" exec VP laughed in the face of many who looked at the raw socket kernal, (noted: Steve Gibson, of ZoneAlarm fame, his XP security patch worked better that MS produced - that is AFTER the Passport fiasco...) - I digress. Ranting about rights is ALL MS does, then if any poor SOB who put all that private info i.e. Visa/MC SSN Address etc... into "Passport" then it released that info UN-encrypted to the WWW. Bill you're a gem.

Billions are lost every time some 16 year old script-kiddie uses VBS or reads how to overflow an unchecked buffer the US economy takes a hit. (How come MS ca't find ANY security problems first? Why does it always seem like some small bunch of scurity guys/grrls who know their stuff???)

New Mission statement from MS:
"Micorsoft, we dont't care, 'cause we don't have too... - besides we have more cash than any human can even conceive of!!!! HAHAHA!!! (evil laughter)

Back to the other world -

Patent Law protects a specific expression of and idea... (I could "invent" a cotton gin, and if the engineering I used was more refined, and used electric motors, etc... I would Patent THAT expression. The end use is the same but the means are different) - That gets us back to the Apple vs. MS Lawsuit... Guess what? x86 code set is different than Motorola 68000 set... See 'ya Steve. Off Apple went into history. Gosh Steve, why do I HAVE to but YOUR hardware if I want Panther OS? I think Mr. Bill has done just fine financially without selling hardware for many, many years.

Conclusion:

SCO wanted cash. Why work when you can sue? They have cash, all is quiet... for now. SCO has no case. They have something better THREAT. $$$$ makes the world go around.

Defending lawsuits cost money, a REALLY good liar... oops, Lawyer charges around 400 an hour, now... imagine you have a business to run... and need a lot of those guys?? And require lots of TIME to defend?? Cogitating...........

ALL HAIL the RIAA. Same thing: THREAT. Stop or we'll crush you like a bug, or.... cost you sooooo much that you PAY the bogus "License Fee". It's cheaper and makes more sense.

Ideology costs big bucks folks. Few have the nerve and will to pony it up, when the rubber hits the road.

Whew... That was good for me... Was it good for you?

P.S.
PLEASE don't sue me.

GPL protects the work of people who choosed to offer their contribution at their own choice and belives. If GPL is illegal, then so is the freedom of people. The only concern of SCO is to make as much money as possible out of this issue.

Anyone who hasn't read the Samba group's comments on this subject (i.e. SCO's inclusion of Samba3 in their new version of OpenServer) will learn much about the utter hypocrisy of Darl & Co's financial play:

http://us1.samba.org/samba/samba.html

A short excerpt: "We observe that SCO is both attacking the GPL on the one hand and benefiting from the GPL on the other hand. SCO can't have it both ways. SCO has a clear choice: either pledge not to use any Open Source/Free Software in any of their products, or actively participate in the Open Source/Free Software movement and reap the benefits. For SCO to continue to use Open Source/Free Software while attacking others for using it is the epitome of hypocrisy."

I only hope any judge with a brain (and by the way, I thought Boise was smarter than that) reads the same.

I find the idea that there is "no middle ground" in this whole thing laughable, nearly as senseless a declaration as the GNU/GPL is unconstitutional.

You can't FORCE people to keep their work secret. The GPL is no different then liscensing your product out to another company.

You also can't say that the two can't co-exist. They have co-existed for the past 20 or 30 years with little or no significant impact on each other, apart from driving each other to higher levels of quality.

I admit I don't have in-depth knowledge of the subject, I've been following it in the news and have some familiarity with the GNU/GPL, but to me SCO's letter just has them coming off as idiots looking for a way to prove they're right.

Yohannon - it was Caldera that acquired SysV from SCO and then took the name SCO. Caldera was already distributing Linux as that is what their initial IPO was based on. Old SCO is now Tarantella. The fact that Caldera, now SCO, used to be a Linux shop and now claims the GPL to be an abomination is what the true ABOMINATION is.

> if I were a greedy bastard in his shoes, how would I do this?

I fear that this sort of rhetoric just plays into SCO's hands. Remember Microsoft's original antitrust strategy? "Lie so much to the judge that he keeps upset enough for a higher court to reverse his ruling on grounds of bias." Also, even though I agree with the "greedy bastard" comment, I don't think it's terribly useful language to get people who haven't studied the issue on your side. After all, there may be some people previously ignorant of the details of the case reading this (say, clicking a link from Google news, or a Windows-bound CEO doing a web search to find out why SCO is making all these threats; and this is also why the unsubtle fink above has a point about spelling out GPL is the first time its mentioned (just basic journalism, folks), and such heated rhetoric doesn't draw them to your side. Quite the opposite. The more firmly the facts on your side (and really, is their anyone who actually thinks the facts are on SCO's side?), the more cooly and rationally you should argue your case for the maximum effect.

SCO claiming they didn't know that they were distributing software under the GPL (General Public License, and what did y'all think Google.com was FOR, Mr. Fink?) is disingenuous at best: Since they acquired their linux distribution as a part of Caldera, it was THEIR responsibility to do what is called "due diligence". This isn't just a good idea, it's the only way to avoid essentially buying trouble for your company.

For example (and I may be off on this, so others should feel free to correct me if I'm wrong) it would be as if I wanted to buy a house, but failed to inspect it thoroughly beforehand, or even asked if the house had any problems. Now if I did ask, and the owners said "No, no problems..." and I took their word for it, some might say I deserved any issues that tripped me up later as an owner, though it could equally be argued that the previous owner had defrauded me. By checking things out before I buy, I avoid any ambiguity for both myself AND the seller. That's why mortgage companies are so big on these very same inspections, after all.

Now, if we extend this tortured analogy even further, SCO could be claiming that the GPL was somehow hidden from them, much like someone selling a home might somehow hide a problem from the buyer... perhaps slips the underpaid inspector a hundred to overlook that mold, another hundred to look the other way as termites munched the foundations.

The trouble here is that it assumes the "secret" is something that a mere mortal couldn't be expected to see for themselves. In this case, the GPL is littered throughout each and every copy of Caldera's distribution. All you had to do was actually LOOK AT the installation, and read anything that came with it. Even if SCO... a SOFTWARE COMPANY... somehow didn't understand that there might be responsibilities relating to license when buying a company that sold (duh) software, then it had a responsibility to hire someone who did. If they didn't, then it's basically their tough luck... even more so, because a publicly held company's officers could (and should) be sued unto oblivion by its shareholders.

In other words, like the man said... it's all a load.

Hi Rajiv.

You claim that a computer program (as opposed
to music or movies) can be copyrighted: Give
the reference! The law says otherwise, as I just
posted.

Actually it has been proven that copyright law does apply to software in several cases. Also this is outlined in the DMCA, even though I find the DMCA to be the most obserd copyright act ever created. It has nothing to do with copyright, and is pretty much a worthless law that was never needed and just removes some of our constitutional rights. I do agree however that SCO has no valid claims about the GPL not being legally valid. There whole case is foolish and it is most likely that the code originated under the GPL and then a company SCO purchased used that code and when SCO purchased them, they just assumed they owned it. I think the reason SCO has not actually pursued attacking the GPL in court because they sell so much GPL software.

I agree that Mr. McBride's position is untenable, both
legally and from the perspective of common sense, but I
don't quite agree with Prof. Moglen's analogy.

Copyright law is Federal law, and a common law approach,
intended to deal with tangible property, may not always be
the best approach.

Copyright law deals only with copying, not with trespassing
or ownership rights. In patent law, sometimes confused
with copyright law because of the silly generalization,
"intellectual property", it is possible to use the patent
to control the disposition of an embodiment of an invention.

The patent itself, as distinct from a generic license (as
described by Prof. Moglen), allows control over the use
of the patented invention.

Copyright only allows control over the act of copying;
once a noninfringing copy has been made, the author or
other owner of the copyright has no further interest.
The copyrighted work may be used any way the copier pleases,
provided it is not further copied. This permits freedom
of speech and expression, neither of which is an issue
where an invention is involved.

The DMCA might seem to modify this, but it does not: DMCA
only deals with "copyright management" technology of a
device or product. In my opinion, DMCA has no place
in Federal law, because it defines protection of
property, which should be reserved to State law:
A "copyright management" device is no different that a
brass chain on a book at a bookstore, and DMCA merely
forbids breaking the chain to steal the book.

DMCA should not be in Title 17 of the Federal
code (copyright law), because it has nothing to do
with copyright, any more than do locks, chains,
or safes.

As for SCO, they should read Title 17,Chapter 102. It
forbids copyright of an operating system or
anything representing one.

There is a copy at: http://uscode.house.gov/usc.htm .
Type in "17" in the Title box, and "102" in Chapter;
then pick the link: You get:

...
(b) In no case does copyright protection for an original work
of authorship extend to any idea, procedure, process, system,
method of operation, concept, principle, or discovery,
regardless of the form in which it is described, explained,
illustrated, or embodied in such work.

Even though Chapter 109 mentions "computer programs",
it is in the context of sound recordings and entertainment.

When someone uses a computer program, other than a
preprogrammed musical or other performance, they enter
stuff at the keyboard or mouse--thus, the computer
does the USER's work, not the work of the persons
who produced the software running it.

Software in general can't be copyrighted, and Mr. McBride's
letter is too foolish to take seriously.

There's something I don't understand about the SCO case ...

SCO is still distributing Linux, which means that they are distributing code written by many distinct people, each of whom has licensed it ONLY under GPL.

So if SCO (and McBride) reject the validity of GPL, aren't they in violation of each of those people's copyright?

And if so, wouldn't EACH owner of such a copyright have the right to sue them for the ENTIRE sum of the revenues they receive frm Linux?

Since that would come to a significant sum, isn't that a good strategy to pursue?

SB

You might want to explain what the fuck a GPL is is you use the term 10 times in an article.

Nope. If SCO's case was that the GPL was invalid, then they'd be hit for distributing GPL'ed software which they do NOT have specific permission to distribute from the authors.

In fact, SCO is harping on their inclusion of Samba (released under the GPL).

OK... Be sure to sue them for infringement the minute they send an invoice to anyone for using GNU/Linux.

But I am strongly convinced this GPL being invalid thing is diversionary. If it wasn't, Boise would have been in court today....and not Darl McBride's brother Kevin, with his rants. Darl was quoted as saying he expected this ruling.

Therefore, their real case must be in claiming that they unwhittingly redistributed their code under the GPL. This, too me, is their strongest argument. They will cast themselves as victims of deceit. And as for their continuing distribution, they will simply claim that its regular security patches and such to their own customers of OpenLinux, to whom they have not added any additional terms to the GPL.

I am being the Devil's advocate here, because I just cannot believe that even Darl McBride could be that stupid. He must have some tricks up his sleeve. And I want to imagine, if I were a greedy bastard in his shoes, how would I do this?

So the core, most difficult part of winning a GPLized case will not be defending the validity of the GPL, but rather proving that it applies in this case.

IBM should say that their developers should have known and recognized their code. But SCO will say that it only recently became their code and therefore they did not yet know it well enough to recognize it. IBM should then say that SCO employees contributed to the development of things like SMP in Linux, and SCO can just discard those specific parts of the claim and point to others.

So the decisive question in this aspect of the case would be, does SCO have responsibility for what they distribute regardless? And SCO could simply answer, "Normally yes. But in this case, the GPL disclaimed all responsibility."

IBM could then argue against that saying, "The GPL disclaimed responsibility to effects on the end user, but not responsibility