IBM/SCO/GPL (Was: Re: (L)GPL remarks and FreeGIS licensing)

[Alex Hudson]

On Wed, 2003-08-27 at 00:27, Paul Tansom wrote:
> No, I am not commenting at all about the logistics of how it should be
> done.  What I am saying is that if employee U of a company S writes a
> piece of code and releases it under license P the code belongs to
> company S; then employee L of the same company S gets the same piece of
> code and works with it without knowing that he shouldn't have it, and
> subsequently releases it under license F, the code still belongs to
> company S, and it is still company S releasing it under a different
> license; hence I don't see how company S can then say "oops, we didn't
> realise we'd done that, I'm really sorry but everyone who bought the
> code under license F now has to pay us X amount extra", when it is their
> internal processes that allowed them to release the code they owned
> under the wrong license.

Ah, I think we're arguing about different things here. This isn't SCO
EULA vs. GPL (P vs F ?). The problem here is that employee L of other
company Y released the code. Releasing and redistributing are different
acts, and I think it's fairly obvious SCO/Caldera made clear they were
redistributing it (modulo their patches). 

If you read the section of the GPL which talks about applying the GPL,
it states how important it is to have an accurate copyright claim and
licence. Releasing something without it puts you in a grey area; I
suspect that it's not possible to license your copyrights implicitly
(certainly, the snippet from the Canadian Copyright Act I posted
yesterday appears to explicitly say that cannot happen).

If SCO have indeed released the code themselves, then fair enough. But
that's not what they are saying has happened.

> If they had no reason to look, then why did they?  The fact that they
> did look means that there must be a practical method of doing so!

No-one actually knows if they did look. For example, there is a
third-party with known interest in Linux that has extremely good
knowledge of the codebase (they developed it) and recently gave SCO a
lot of money. 

I'm not sure the point is relevant anyway; they are not under any onus
to check that people are not infringing their copyright: unlike
trademarks, it's not something you have to defend actively. You don't
even need to enforce it consistently. 

> > That's exactly what's happening. They're not taking action against
> > users. I also think SCO's licensing system is subtley clever: they are
> > ensuring it continues to be infringment to run Linux, but not to use it
> > (if you have a SCO licence). This doesn't conflict with the GPL, AFAIK
> > (in terms of use of the software).
> 
> I disagree here to some extent.  While they are not actually taking
> direct action they are saying that they consider themselves entitled to.
> As such they are using the threat of taking action as a means of
> 'selling' their license.  To my mind they appear to be running a hi-tech
> protection racket, but this is not the point being discussed here.

Oh, I'm not disagreeing with that ;) I wasn't trying to evaluate the
morals of such an action (I think they are completely wrong), just that
it seemed quite cute. The GPL covers distribution, their licences are
run-time. They're offering people who use Linux an easy exit without
conflicting with the GPL, but still cutting off distributors. 

Sorry, it was a side-issue, and probably deserves separate commentary. I
would be interested to know whether or not people think it's legal or
not; other than false claims/fraud, it seems fairly sound.

> I see, yes there is a risk that other companies could see this as
> demonstrating how the GPL could be a risk to their own code.  This would
> be on the development side rather than the using side, and I'm not
> entirely sure how much of an impact the SCO case would have on this.  It
> all comes down to the perception of the validity of their claim I guess.
> I do see your point though. 

To be honest, it's likely the damage has already been done - people are
aware the problem exists (at least in the mind of SCO), that basically
makes the problem real. People would probably associate Linux with the
SCO issue for years to come unless SCO are shot down in a very public
manner. By this logic, the absolute worst thing that could happen is
that SCO and IBM come to a private settlement. Thankfully, it looks
fairly unlikely that will happen.

> I would hope that it would be seen that SCO
> was guilty of not doing 'due diligence' to protect their code in a
> situation that is quite clearly requiring a great deal of care.

Hmm. I'm personally hoping the GPL doesn't come into it. If code was
stolen, I say the licence the stolen code was released under shouldn't
matter (GPL or not). However, I strongly suspect the code wasn't
'stolen' and that SCO will just be shown to be wrong. 

If there is an argument in court, I think it will probably be about two
things: whether or not the IBM contract covers the derived works of AIX,
and what the definition of a derived work actually is. I think both
arguments are incidental to the GPL, except for the fact that derived
work decisions obviously have an effect on the scope of the GPL (since
they are effectively demarquing the scope of copyright law, at least in
the US). In past years, I think it's the case that the notion of a
derived work is quite a broad one, so it could come down basically to
the contents of the contract.

Cheers,

Alex.