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[ox-en] SCO to argue General Public Licence invalid

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And this is from the  sarai commons - law list :
-------- Original Message --------
Subject: 	commons-law digest, Vol 1 #124 - 3 msgs
Date: 	Sat, 16 Aug 2003 06:28:38 [PHONE NUMBER REMOVED]
From: 	commons-law-request
Reply-To: 	commons-law
To: 	commons-law


Today's Topics:

   1. Q&A re: SCO vs. IBM by Lawrence Rosen General Counsel, Open Source
       Initiative (Sunil Abraham)
   2. SCO to argue General Public Licence invalid (Sunil Abraham)


Message: 1
From: Sunil Abraham <sunil>
To: Commons Law <commons-law>
Organization: MAHITI
Date: 15 Aug 2003 14:34:36 [PHONE NUMBER REMOVED]
Subject: [Commons-Law] Q&A re: SCO vs. IBM by Lawrence Rosen General Counsel, Open Source

?Â?© Copyright 2003 Lawrence Rosen. 
Licensed under the Open Software License version 2.0 (available at
Q&A re: SCO vs. IBM 
by Lawrence Rosen 
General Counsel, Open Source Initiative
The following questions and answers were prepared by the author at the 
request of the Open Source Development Lab (OSDL) as a result of
intellectual property issues arising in the wake of SCO Group's lawsuit
against IBM. This position paper is intended by the author to calm some
of those uncertainties. Filed a few months ago, SCO's lawsuit against
IBM has rankled the Linux community and disconcerted its users. Much of
the worry is caused by press exaggeration. Not many lawsuits, and
certainly not this one, deserve to be called the "trial of the century."
SCO vs. IBM should not be over-rated. It is a contract dispute between
two companies with deep pockets, both of whom are prepared to send their
attorneys into battle to protect their reputations and their economic
interests. SCO is seeking lots of money from IBM and IBM refuses to pay.
SCO obviously wants to force IBM's hand, and that accounts for at least
some of the tactical moves being undertaken by SCO and its allies to
stir up fear among Linux customers. IBM has responded with a
countersuit, and now Red Hat has entered the fray to defend Linux and 
the right of the open source community to distribute that operating
system to users worldwide. 
The entire situation must seem very murky to those of you not following
it intently. These questions and answers may help you understand what's

Q: Is this a lawsuit against Linux? 
A: No. This is a lawsuit by SCO against IBM, with counterclaims by IBM
against SCO. SCO claims money damages for breach of confidentiality and
the disclosure of its Unix-related trade secret information to the
public. IBM and SCO had an agreement to work together on IBM's AIX
operating system. SCO alleges that, when IBM changed its business
strategy and refocused its efforts on Linux, IBM disclosed SCO's 
confidential technical information. That confidential information, they
assert, ultimately found its way into Linux. IBM denies all of SCO's
material allegations. Recently IBM filed a countersuit against SCO
alleging, among other things, that SCO is infringing some IBM patents, 
a move on IBM's part to put its strategic patent portfolio to defensive
use. As this Q&A paper is written, the SCO vs. IBM litigation is still
in its early stages. If this were a typical federal civil lawsuit, it
would probably continue for 12-18 months and then settle before trial.
But this case is such a public event that it may linger for a while
before resolving itself ?Â?­ at the end ?Â?­ with either a defense judgment or
with money changing hands. This lawsuit, with its claims and
counter-claims, is at heart a legal dispute between those two companies
over money. The Linux operating system itself, and its contributors,
distributors and users, are not parties to this litigation and cannot be
directly affected by it. But the indirect effects are being felt. The
real problem for Linux and open source is not the lawsuit itself, but
that the SCO vs. IBM case is creating confusion and doubt among Linux

Q: How is Linux involved? 
SCO claims that IBM took SCO's confidential information about Unix and
the AIX operating system and improperly contributed it to Linux. The
Linux operating system, they assert, was infected with SCO's
confidential information and, because Linux is open source, that
confidential information has been disclosed to the world. 
Now that Linux is replacing Unix in the operating system marketplace,
SCO has lost business. It claims over $1 billion in damages. 
Just because two parties enter into a confidentiality agreement and
exchange so-called "confidential information" doesn't mean that there
really are trade secrets involved. Sometimes the secrets are already
out. In most jurisdictions, confidential information loses its trade
secret status when it becomes a matter of public knowledge 
through no fault of the recipient, or was known to the recipient before
it was disclosed, or was independently developed by the recipient
without the use of the discloser's confidential information. 
Unix operating systems have been in widespread use for many years. How
Unix works is not a trade secret -- it hasn't been a trade secret since
long before SCO and IBM started to work together on AIX. In other words,
there may have been some trade secrets exchanged between SCO and IBM,
but there weren't that many secrets left for them to exchange that could
relate to Unix and Linux functionality. Furthermore, SCO needs to prove
that those trade secrets were actually copied into Linux. Linus
Torvalds, working alone in his home in the early days on his Linux 
program, didn't have access to SCO's trade secrets. Nor did thousands of
other programmers around the world who have made contributions to Linux
software. Their work is original work based on commonly understood
operating system principles and they didn't need to know SCO's trade
secrets to write that software. But let's assume the worst. Suppose the
jury, in its wisdom after hearing all the evidence, concludes that there
are a few of SCO's trade secrets that ended up in Linux. This
worst-case-scenario exercise will help us set the outer limits of risk
to Linux and to its users. 
Not surprisingly, given my work with Linux and the open source
community, I conclude below that the risk is very small indeed. But
don't trust my judgment. I'm not trying to give you legal advice. Ask
your own attorney to read these Qs and As 
and form your own judgment based on his or her advice. 

Q: Does SCO have a copyright on Linux? 
A: Perhaps. SCO can register a copyright in any software it wrote or
modified or that it distributed as a collective work. So can Linus
Torvalds, and Red Hat, and SuSE, and Debian, and so can anyone
(including IBM) who contributed more than a trivial bit of code to
Linux. Any of those people or organizations in the U.S. can send $30,
and a form, and 50 pages of their source code to the Library of Congress
and get a certificate of copyright registration suitable for framing.
The procedures are described at There are similar
procedures in other countries. Registering a copyright is only a ticket
to get to court. Registration itself isn't proof of anything important. 
Of course, registration doesn't give SCO ownership rights to the
original versions of the software it modified or re-distributed. Nor
does SCO have any copyright ownership in software that is independently
written by others, even if that software is based on ideas learned from
SCO. Because copyright law only imperfectly applies to software, SCO has
an even bigger hurdle to jump before it can assert its copyrights.
Here's where the copyright aspects of this case will be a thrill for
those of us who enjoy puzzles or metaphysics. The parties will, through
expert witnesses, help the court undertake a somewhat mysterious
"abstraction, filtration, comparison" test to remove the functional
elements of SCO's copyrighted software and isolate the expressive
elements. The law says that only the expressive elements of the software
deserve copyright protection. And the "doctrine of merger" also applies,
which denies copyright protection to expression necessarily incidental
to the idea being expressed. This legal analysis will keep the parties
busy in court for many months. Ultimately, after these tests and the
merger doctrine are applied to SCO's software, far less will be legally
copyrightable by SCO than the code they submitted to the Library of
Congress along with their $30 check. And finally, SCO has to prove
actual copying or modification of its copyrightable code. 
Linux's history is not secret. Linux source code is published for all to
see, with copyright notices throughout. SCO can find who wrote Linux and
ask them, under oath, to describe how they wrote their code. Many Linux
programmers are already asserting publicly that they implemented their
own software without input from SCO and that SCO's claims are
exaggerated. It could take years for SCO to complete the 
depositions of programmers around the world who contributed to Linux
and, when that's all done, SCO will probably not have much copyrightable
code left to assert against Linux. 
Suppose though, after leaping those hurdles, SCO manages to convince the
court that IBM improperly copied or modified some portion of SCO's trade
secret copyrightable work and contributed it to be part of Linux. The
Linux development community is prepared to address this risk head-on, if
necessary, by re-implementing any portion of Linux that was written by
SCO has refused so far to reveal which portions of Linux are derived
from their software. If they did, the open source community would
immediately start to design around those portions. I know Linus
Torvalds, and I know a fair number of open source programmers who work
on Linux worldwide. They are the best operating system engineers
available anywhere. It is a safe bet that, whatever infringing 
software is ultimately found in Linux -- if any at all ?Â?­ it will be
replaced within weeks by non-infringing versions. 
That's one of the strengths of open source software development. Like
the automatic re-routing that makes the Internet such a robust network,
the open source community can quickly route around software that doesn't
belong because of third-party copyright claims.
Q: Can SCO demand license fees to use Linux? 
A:Sure. But just because someone demands money doesn't mean you should
pay them. SCO has sued only IBM, remember, not you, and is demanding at
least $1 billion in economic damages. IBM didn't reach for its checkbook
yet. Why should you? SCO already licensed Linux to you royalty-free when
it distributed Linux under the GPL license. Although SCO purported to
suspend its Linux distribution after the commencement of this lawsuit,
SCO continued to make Linux code available for download from its
website. By distributing Linux products under the GPL, SCO 
agreed, among other things, not to assert certain proprietary rights ?Â?­
such as the rights to collect license fees ?Â?­ over any source code
distributed under the terms of the GPL. 
Some people complain about the absence of indemnity in open source
licenses, including the GPL license used currently for Linux. The
economic equation is simple: Because the software is given away for
free, no open source licensor can afford to offer indemnity. 
I don't believe indemnity matters anyway in this case, because of the
way SCO has structured its complaint. Assume, for example, that SCO wins
its case against IBM and IBM pays $1 billion in damages to compensate
for the use of SCO's confidential code in Linux. (Again, this is a worst
case scenario helpful only to assess risk to Linux users.) How then
could SCO turn to Linux users and ask for the same damages all 
over again. That double-dipping isn't fair in law or in equity. Courts
usually don't allow that. 
Simply by being an interested and aggressive defendant with deep
pockets, IBM is now effectively shielding Linux users from damages, even
without an indemnity provision in the GPL. 

Q: What is my risk if I continue to use Linux? 
A:Assume the very worst: Assume SCO wins its case against IBM and IBM
writes a big check for damages. Assume SCO proves that some portion of
Linux is a copy or derivative work of its trade secret software. Assume
SCO gets an injunction to prevent anyone from using any version of Linux
containing infringing code. As I previously assured you, long before
that happens there will be a new open source version of Linux omitting
any SCO code. Non-infringing Linux will be readily available for
everyone's free use because the open source community is entirely 
committed to Linux. Whatever IBM may be forced to pay will presumably
compensate SCO for its damages. It would be astonishing if, after IBM p
aid SCO some huge damage award, a court would let SCO go after users as
well for the same damages. For these reasons, the SCO vs. IBM lawsuit is
not likely to have any real impact on Linux users. It is a battle of big
companies that will be resolved in due course by the court, perhaps by
the payment of money.  In the meantime, and forever, Linux is available
for free. 

Q: What is the effect of the Red Hat lawsuit against SCO? 
A: Some of the major players in the open source community ?Â?­ in
particular Red Hat ?Â?­ have finally had enough of SCO's efforts to disrupt
the progress of Linux and to spread fear among its users. Red Hat has
now sued SCO for unfair business practices. The stakes for SCO are now
much higher. It is one thing to start a contractual dispute with IBM and
to seek economic damages appropriate for the injury supposedly 
suffered. It is yet another thing to disparage the reputation of an
operating system that was independently designed and developed by open
source contributors worldwide, and to instill unreasonable fear in Linux
customers about the possible consequences of using that operating
system. The Red Hat lawsuit is one of a number of steps being taken by
leaders of the open source community to respond to SCO's tactics against
Linux. Meanwhile, development of Linux continues unaffected. You may
continue to use Linux without fear.

Attribution Notice: Lawrence Rosen is founding partner of Rosenlaw &
Einschlag, a technology law firm, with offices in Los Altos Hills and
Ukiah, California ( He serves also as general counsel
and secretary of Open Source Initiative (, which
reviews and approves open source licenses and educates the public about
open source issues. While this paper is written by an attorney, you are
not my client and I am not intending this to be legal advice. You are 
encouraged to show this article to your attorney and obtain his or her
independent advice about how to proceed. This paper was written at the
request of the Open Source Development Lab (OSDL). The content of this
paper and the opinions expressed herein are solely those of the author
and do not necessarily represent those of OSDL or its members 
Sunil Abraham, sunil
MAHITI Infotech Pvt. Ltd.'Reducing the cost and complexity of ICTs'
314/1, 7th Cross, Domlur Bangalore - 560 071 Karnataka, INDIA
Ph/Fax: [PHONE NUMBER REMOVED]. Mobile: 98455 12611
"If you have an apple and I have an apple and we exchange apples 
then you and I will still each have one apple. 
But if you have an idea and I have one idea and we exchange these ideas,
then each of us will have two ideas" George B. Shaw


Message: 2
From: Sunil Abraham <sunil>
To: Commons Law <commons-law>
Organization: MAHITI
Date: 15 Aug 2003 14:37:59 [PHONE NUMBER REMOVED]
Subject: [Commons-Law] SCO to argue General Public Licence invalid

The wacky wacky world of corporate lawyers

ByINQUIRER staff: Thursday 14 August 2003, 08:56

SCO WILL attempt to win its $3 billion case against IBM by arguing that
the General Public Licence (GPL) is invalid.

That's what a pleader at legal practice Boies Schiller and Flexner is
telling the Wall Street Journal today.

The GPL licence allows software and work derived from it to be copied by
anyone at no charge.

But according to today's WSJ, quoting lawyer Mark Heise, the GPL is
pre-empted by US federal copyright law.

How does that work then? According to Heise, federal law only lets
people make a single backup copy of software, and that makes the GPL
void under US law.

Seems like a bloody flimsy argument to us, but in the topsy-turvy Alice
in Wonderland world of law, who knows what characters might suddenly
turn into wild cards?

In effect, Heise's argument seems to be that you have to have copyright
on software even if you insist that your software is not copyrighted.

Of course GPL software is copyright and only public domain works,
apparently, lack copyright protection, maybe. The GPL specifically makes
use of copyright holders' authority to grant the right to copy

Effectively, GPL does not remove the copyright of the original author,
it instead allows the work to be freely distributed as long as the
distributions and works derived from them are also made available under
the licence.

If SCO's pleaders win this one, then surely it is guilty of massive
copyright infringement too? And if they do, then surely it must apply to
BSD and Apache style licences as well?

Has the whole world gone stark staring bonkers? [Yes. Ed.] ?Â?µ

Sunil Abraham, sunil
MAHITI Infotech Pvt. Ltd.'Reducing the cost and complexity of ICTs'
314/1, 7th Cross, Domlur Bangalore - 560 071 Karnataka, INDIA
Ph/Fax: [PHONE NUMBER REMOVED]. Mobile: 98455 12611
"If you have an apple and I have an apple and we exchange apples 
then you and I will still each have one apple. 
But if you have an idea and I have one idea and we exchange these ideas,
then each of us will have two ideas" George B. Shaw


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