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02/20/2004 Archived Entry: "Why SCO can't win"

I like a company with a sense of humor. After an Amsterdam court ruled that "Lindows" infringed the "Windows" trademark, Lindows.com adopted the name Lin---s.com (pronounced "Lindash") in the affected countries. Meanwhile a U.S. court has refused to enjoin Lindows from using the name; so Microsoft is suing next in Canada.

Security updates: if you're using Zone Alarm firewall, a flaw has been found which means you should download an updated copy. And the Microsoft MS04-007 ASN.1 flaw, mentioned here a few days ago, is now reported to also affect Windows 98 machines (and I'd guess Win 95 as well). No word of a patch for Win 9x yet. Sir Bill would really prefer that you upgrade to a new OS.

Meanwhile, in the month since we've had the You-Can-SPAM Act, spam has more than doubled. I'm not saying this is cause and effect... more like cause and complete-lack-of-effect. (Kudos to Bloomberg News, though, for perceiving that the purpose of MyDoom and its ilk is to create spam zombies. Unlike the clueless wonders at The Toronto Star, who still think it's a Linux plot against SCO.)

Speaking of SCO, February 18th came and went with nary a lawsuit. That was the day SCO had announced, frequently and publicly, that they would take a Linux user to court for using Linux. Instead they announced an OpenServer update, which gave their stock price a kick, although I notice that their stock price is jumping on trades of 10,000 shares or fewer.

Without delving into the overriding question of whether you can sue a user, rather than a distributor, for copyright infringement, here are at least five obstacles to SCO successfully suing anyone for purported copyright violations in Linux. (Remember, I Am Not A Lawyer.)

1. Novell didn't transfer the Unix copyrights. Amazing, but true: Novell never registered a transfer of copyright, so SCO doesn't own them. Novell did agree to transfer some copyrights, but apparently that hasn't happened yet, and exactly which copyrights isn't clear. So right now, SCO doesn't own the copyrights, and they need to enforce a contract claim against Novell before they do.

2. Novell has granted IBM permission to contribute the disputed code. Because IBM bought Unix before it was sold to SCO, Novell apparently has the right to do this, irrespective of SCO's wishes. So IBM's contributions to Linux aren't in violation of contract. (Novell has also confirmed IBM's "irrevocable" Unix license, so IBM's continuing sales of AIX aren't a copyright violation.)

3. IBM retains the copyright to IBM-written code. It seems clear from the IBM Unix contract that IBM retains the copyright to any code they create. So while the contributions may represent a breach of contract between IBM and SCO, they aren't a copyright violation.

4. These aren't derivative works in the meaning of copyright law. Imagine that someone wrote a cookbook without dessert recipes, and you added some dessert recipes. While the combined work is a derivative work, your own contribution is not, and you can contribute those recipes to another cookbook. (See the LamLaw discussion of February 10, 6:45 am PST -- use your browser's search function for the text "Friday's Hearing".) Also, AT&T (who wrote the original contract) stated long ago that additions to Unix weren't to be considered derivative works.

5. SCO has released the code themselves under the GNU General Public License. They've sold it, and they've offered it for download -- even after all the fracas started -- and now some Australian Linux users are saying, reasonably, that you can't change the terms of a license unilaterally and retroactively. This means that anyone who acquired it under the GPL can distribute it under the terms of the GPL.

As far as I can tell, any one of these is sufficient to derail any SCO case against Linux users for copyright infringement. SCO has to win all five points in order to even have a case... and even in that unlikely circumstance, it's far from clear that they would prevail.


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