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

[Paul Tansom]

** Alex Hudson <home at alexhudson.com> [2003-08-27 14:27]:
> On Wed, 2003-08-27 at 00:27, Paul Tansom wrote:
> 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). 

I think you're right here, we are working on differing basic
assumptions.  As I see it you are working on the premise that SCO did
not work on the offending code and are simply acting as a distribution
channel for it (probably along the lines of some of the smaller Linux
distros that largely package and compile the code), whereas I am working
on the premise that they are a long standing distribution that have had
direct development involvement with the kernel (including embeded work
in the past) and therefore probably have worked directly with the code.
If your assumption is correct, then they have not released it under the
GPL; if mine is then it is likely they have.

> 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).

Absolutely, there is an amazing amount of misconception being written
the the press on this issue.  It is quite simply not possible for anyone
other than the copyright holder to release the code under any license,
GPL or otherwise.

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

As with everything in the SCO case, the true facts are not available,
and SCO show no signs of changing this.  I guess the key question is, if
they did actually work on the code in question (or some of it) and
knowingly applied the GPL license to it by including it, but didn't
realise that it originated from the Unixware side of the company do they
have any comeback on anyone except themselves?

> 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. 

Thinking it through, there is no way without knowing:

- whether the code in question is genuinly SCO's, and..
- what route it took betwen the Unixware and Linux groups

there is no way of knowing whether it is their own fault and they should
have checked.  If the route was internal, then more fool them; if on the
other hand the route was external things get more complicated - if via
an unrelated third party then they probably have a legal case against
that third party, - if via a third party privvy to the Unixware code
then it may well come down to processes and checking again (should the
third party have been restricted from passing the SCO between parts of
the SCO company?  Should/was the source of the code identified?), then
again we may be back to the legal case again!

This seems to boil down to the crux of the case they have against IBM
(in which they conveniently ignore any potential involvement by the SCO
Linux group), and all of it boils down to what the code is and whether
they have a legal claim to it in the first place.

<snipped for another thread!>

> 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.

Indeed, apart from the fact that I can't see IBM doing it (but then I'm
no expert), SCO have attacked in so many different directions that I
(still as a non expert) can only see it as how long, and how much
collateral damage to Linux/GPL/GNU/etc. before they go down.

> 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. 

The license is, as you say, largely irrelevant to the technicalities,
however the fact that it is the GPL in this case is what is raising the
profile so high.

> 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.

If I can remember the right bits from the vast amount of writing there
has been on the subject, and assuming some degree of accuracy/truth in
the reporting, the derivative works could have a massively wide reaching
implication should SCO win the case.  iirc the only company with 'clean'
code as far as SCO are concerned is Sun, which leaves both Apple and
Microsoft potentially in the firing line, not to mendiong BSD (even
though they've already been there!), and the demise or near demise of
things like AmigaDOS, OS/2, BeOS, etc. would be the only things keeping
them out of the firing line.  Just to keep things interesting and
bubbling along there's also the Red Hat case and their fund in
concunction with SuSe, and I've read of Linux groups in both Australia
and Canada taking some form of action, although I don't see them as
being anything more than a news story for a month or so!

** end quote [Alex Hudson]

-- 
Paul Tansom:  -  contact paul at aptanet.com for more information
Internet and Intranet Solutions   --   http://www.aptanet.com/