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| Why the Novell Deal is Bad & SCO's Memo in Support of Motion for SJ: We Did Not Breach the GPL |
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Tuesday, December 05 2006 @ 04:06 AM EST
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We have read IBM's scathing Memorandum in Opposition to this SCO motion already, but here's SCO's Memorandum in Support of its Motion for Summary Judgment on IBM's Sixth, Seventh and Eighth Counterclaims [PDF] as text. IBM's Memo provides a point by point answer and then some. Of all the motions in this world, this one is the least deserving to succeed. SCO is asking the court to kill IBM's copyright infringement counterclaims, the ones based on the GPL violations, on the grounds that it never violated the GPL. SCO was the first to try to get cute with the GPL on a grand scale, and as you will see, they do it with panache, with cases and arcane arguments, even some truly silly ones, like their antitrust allegations which another judge has already laughed out of court in a companion lawsuit. Sadly, SCO's attempt to wiggle around the GPL turned out not to be the last. The Novell-Microsoft agreement also, as Richard Stallman put it, cunningly tries to sidestep GPLv2. So we have an attack from within. A serious one, because everything SCO and its backers wanted from this litigation, but failed to achieve, Novell just handed to Microsoft on a silver platter by signing that patent agreement. Let me explain why I see it that way.
There's a reason why corporate interests are not enamored of the GPL. It's also the reason why it it matters: it has proven effective in forcing the greedy and unscrupulous to play fair with code they didn't write but would love to get illegitimate money from somehow anyway. (It's fine to make money from GPL code. IBM and Red Hat and many others do. But you have to respect the license, which has as its goal freedom for the code, so you are allowed to use GPL
code as long as you let its authors (and everyone else) freely and without restrictions outside the four corners of the GPL itself use/study/modify your code that
you write based on that code.) However, there is a concerted effort, in my opinion, to destroy the GPLv2, death by a thousand cuts and compromises. I think they'd like to do to Linux what they did to Unix. The GPL stands in their proprietary way, so they are doing all they can dream up to overthrow it or get around it with cleverness. That is one reason we need GPLv3, obviously. Here is one extreme example, SCO's contribution to the effort. It's important to remember, as you watch SCO try to persuade the court that it didn't do what it did, or that the GPL doesn't mean what it says and what its authors say it means, that this was one of the prime goals of this litigation: 1. to try to prove that the GPL is not legally binding and so can be violated in order to make some money, honey. 2. Another goal was to cast a legal cloud over Linux, so in the enterprise, PHBs would be afraid to employ it for fear of legal consequences of possibly violating SCO's "IP". 3. And also there was the apparent goal of forcing Linux to cost something, by adding on top of it the SCOsource license at $699 a pop. Groklaw has written about all of this and more since mid-May of 2003, daily, with only two or three days off in all that time. This is Groklaw's 2,838th article. We now have 10,549 members, who have worked very hard to disprove SCO's scurrilous claims, and we did. We succeeded, beyond my hopes when we started. But here's the sad part. As victory is in sight, Novell signs a patent agreement with Microsoft that does the following:
1. Novell agrees to violate the clear intent and spirit of the GPL in an attempt to comply literally with the words but not with the actual known purpose of the license to make money off of code Novell didn't write and doesn't own. So instead of trying to prove the GPL isn't binding, they just kick it to the curb and step over it and dare the community to do something about it?
2. puts a FUD legal cloud over Linux (this time a patent cloud) or in any case an "IP" cloud, as per Steve Ballmer's vague wording -- and was Darl McBride's less vague?;
3. makes Novell's Linux cost more, because it has agreed to pay Microsoft royalties, whereas SCO asked for money for its license;
What is the cotton pickin' difference? Other than being worse? Novell, I'd like you to answer that question. From Microsoft's point of view, I see no difference.
What SCO could not win, Novell has handed Microsoft without a fight. The community didn't fight this hard and this long for such a result.
So there you have it, as I see it: two companies claiming to be Linux companies that turned on the GPL and the rest of the community for money, and the beneficiary is Microsoft. What a coincidence. Does it matter that one did it maliciously and the other was merely a dope? I don't know for sure which is which or even if either is properly described since I can't read hearts, but my answer to the hypothetical question is: no. The effect is the same. It matters only in that one makes you mad and the second makes you sad and mad. That's why I call it SCO2 Deja Vu, with Novell playing the part of EV1. Only this is far worse than SCO. And that is precisely what is wrong with what Novell did in signing that patent agreement, and that may help to explain the deep, deep anger that the community, which has worked night and day to defend and protect Linux and the GPL, now feels. I feel it too. We worked hard, were victorious, and now are denied the reward. And until Novell fixes that agreement or pulls out, it will never be accepted by the FOSS community again, in my view. I certainly think I have enough input to form an educated opinion. So I hope they come to their senses. If not, GPLv3 will deal with it. But if it goes that far, then Novell's reputation will never be made whole. For that, it must act. ***************************
Brent O. Hatch (5715)
Mark F. James (5295)
HATCH, JAMES & DODGE
[Address]
[Telephone]
[Facsimile]
Stuart H. Singer (admitted pro hac vice)
BOIES, SCHILLER & FLEXNER LLP
[Address]
[Telephone]
[Facsimile]
Robert Silver (admitted pro hac vice)
Edward Normand (admitted pro hac vice)
BOIES, SCHILLER & FLEXNER LLP
[Address]
[Telephone]
[Facsimile]
Stephen N. Zack (admitted pro hac vice)
BOIES, SCHILLER & FLEXNER LLP
[Address]
[Telephone]
[Facsimile]
Attorneys for The SCO Group, Inc.
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF UTAH |
THE SCO GROUP, INC.
Plaintif / Counterclaim-Defendant,
vs.
NTERNATIONAL BUSINESS
MACHINES CORPORATION,
Defendant / Counterclaim-Plaintif |
SCO'S MEMORANDUM IN SUPPORT
OF ITS MOTION FOR FOR SUMMARY
JUDGMENT ON IBM'S SIXTH,
SEVENTH AND EIGHTH
COUNTERCLAIMS
Case No. 2:03CV0294DAK
Honorable Dale A. Kimball
Magistrate Judge Brooke C . Wells
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TABLE OF CONTENTS
Page
PRELIMINARY STATEMENT..................................................1
STATEMENT OF UNDISPUTED FACTS ..........................................2
I. IBM'S COUNTERCLAIMS AND THE GPL ..............................2
II. SCO'S CONDUCT WITH RESPECT TO THE GPL.........................4
LEGAL STANDARD..........................................................7
ARGUMENT.................................................................7
I. SCO DID NOT BREACH THE GPL....................................9
A. Where SCO Has Copied, Distributed or Sublicensed Linux,
It Has Done So in Compliance With the GPL ..............................9
B. SCO's Licensing of UNIX Did Not Breach the GPL .............11
II. SCO HAS NOT INFRINGED IBM'S COPYRIGHTS............................11
A. The GPL Authorized SCO's Re-Distributions of Linux.................11
B. Nothing in the GPL Supports IBM's Claim Of Breach
and Retroactive Termination.......................................12
C. IBM's Proposed Interpretation of the GPL Would Impermissibly
Interfere with Enforcement of Intellectual Property Rights and
Would Raise Serious Antitrust Concerns ..............................13
1. The GPL Should Not be Read to Interfere with SCO’s
Right to Enforce Its Own Intellectual Property Rights .............13
2. The GPL Should Not be Read to Allow a Competitor
to Regulate What May Be Charged for an Intellectual
Property License ...................................................13 CONCLUSION................................................................15
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2
TABLE OF AUTHORITIES
Cases
Page
Allegro Corp. v. Only New Age Music, Inc.,
No. Civ. 01-790-HU, 2003 WL 23571745 (D. Or. Jan. 23, 2003) ..........8
Bd. Of Dirs. And Officers, Forbes Fed. Credit Union v. Nat'l Credit Union Admin.,
477 F.2d 777 (10th Cir. 1973)....................................................................14
Carpenter v. Boeing,
456 F.3d 1183 (10th Cir. 2006).........................................7
Concrete Mach. Co., Inc. v. Classic Lawn Ornaments, Inc.,
843 F.2d 600 (1st Cir. 1988............................................13
Dreiling v. Peugeot Motors of Am., Inc.,
850 F.2d 1373 (10th Cir. 1988) .......................................7
Ford v. United States,
273 U.S. 593 (1927).................................................12
Foresight Res. Corp. v. Pfortmiller,
719 F. Supp. 1006 (D. Kan. 1989)......................................8
Gates Rubber Co. v. Bando Chem. Indus., Ltd.,
9 F.3d 823 (10th Cir. 1993) ..........................................8
Grady v. de Ville Motor Hotel,
415 F.2d 449 (10th Cir. 1969) ........................................13
Graham v. James,
144 F.3d 229 (2d Cir. 1998)............................................8
Grundberg v. Upjohn Co.,
140 F.R.D. 459 (D. Utah 1991) ........................................13
Guthart v. White,
263 F.3d 1099 (9th Cir. 2001) .......................................14
Indep. Serv. Orgs. Antitrust Litig.,
964 F. Supp. 1469 (D. Kan. 1997)......................................8
ii
3
Jacob Maxwell, Inc. v. Veeck,
110 F.3d 749 (11th Cir. 1997) .......................................10
Justine Realty Co. v. Am. Nat'l Can Co.,
976 F.2d 385 (8th Cir. 1992) .......................................13
Lawmaster v. Ward,
125 F.3d 1341 (10th Cir.1997) ........................................7
MCA Television, Ltd. v. Public Interest Corp.,
171 F.3d 1265 (11th Cir. 1999) .......................................10
NLRB v. Local 32B-32J Serv. Employees Int'l Union,
353 F.3d 197 (2d Cir. 2003)...........................................14
NYNEX Corp. v. Discon, Inc.,
525 U.S. 128 (1998)...................................................14
San Juan New Materials High Tech, Inc. v. Int'l Trade Comm'n,
161 F.3d 1347 (Fed. Cir. 1998)........................................13
Seneca-Cayuga Tribe of Okla. v. Nat'l Indian Gaming Comm'n,
327 F.3d 1019 (10th Cir. 2003) ..................................12
Stenograph L.L.C. v. Bossard Assocs., Inc.,
144 F.3d 96 (D.C. Cir. 1998) .........................................8
Tolboe Constr. Co. v. Staker Paving & Constr. Co.,
682 P.2d 843 (Utah 1984)..............................................7
United States v. Socony-Vacuum Oil Co.,
310 U.S. 150 (1940).................................................14
Other
Nimmer on Copyright § 10.15[A] at 10-120 (2004)....................10
Restatement of Contracts § 90......................................7
iii
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Plaintiff, the SCO Group, Inc. ("SCO"), respectfully submits this Memorandum in
Support of its Motion for Partial Summary Judgment on IBM's Sixth, Seventh and Eighth
Counterclaims ("IBM's Counterclaims").
PRELIMINARY STATEMENT
IBM's Sixth, Seventh and Eighth Counterclaims concern certain programs that IBM
licensed for free use under the GNU General Public License and Lesser General Public License
(collectively, the "GPL"), and all turn on the allegation that SCO has violated the GPL in seeking
to enforce its contractual and intellectual property rights. The Sixth Counterclaim asserts that
SCO breached the GPL. The Seventh Counterclaim seeks to recover damages based on IBM's
alleged reliance on SCO's promise to not breach the GPL. The Eighth Counterclaim asserts that
SCO's distribution of Linux infringed IBM's alleged copyrights on code it released to Linux
under the GPL. These Counterclaims all fail as a matter of law because it is undisputed that:
· Where SCO copied, redistributed or sublicensed Linux, it did so in compliance
with the GPL;
· Nothing in the GPL prohibits SCO from licensing its UNIX technology; and
· Nothing in the GPL or the case law supports IBM's argument for "retroactive
termination" and "retroactive infringement."
SCO further shows below that the GPL should not be read as IBM has read it to interfere
with SCO's right to enforce its own intellectual property rights, or to allow a competitor to
decide what may be charged for an intellectual property license.
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STATEMENT OF UNDISPUTED FACTS
I. IBM'S COUNTERCLAIMS AND THE GPL
1. IBM's Sixth Counterclaim, for breach of the GNU General Public License,
alleges that SCO has breached the GPL by "among other things, copying, modifying,
sublicensing or distributing programs licensed under the GPL, including IBM contributions, on
terms inconsistent with the GPL, and seeking to impose additional restrictions on the recipients
of programs licensed under the GPL, including IBM contributions, distributed by SCO." (IBM's
2d Am. Counterclaims ¶ 145.) The counterclaim also alleges that SCO's license under the GPL
"terminated" because of this alleged breach. (IBM's 2d Am. Counterclaims ¶ 146.)
2. IBM's Seventh Counterclaim, for promissory estoppel, seeks to recover damages
resulting from IBM's reliance on SCO's promise not to breach the GPL. (IBM's 2d Am.
Counterclaims ¶¶ 148-53.)
3. IBM's Eighth Counterclaim, for copyright infringement, alleges that SCO has
infringed upon IBM's copyrights by "copying, modifying, sublicensing and/or distributing Linux
products except as expressly provided under the GPL." (IBM's 2d Am. Counterclaims ¶ 159.)
4. Section 0 of the GPL (Ex. A) provides: "Activities other than copying,
distribution and modification are not covered by this license; they are outside of its scope."
5. Section 0 further states: "This License applies to any program . . . which contains
a notice placed by the copyright holder saying it may be distributed under the terms of this
General Public License." It is undisputed that IBM placed such a notice with respect to the code
it added to Linux, and that SCO never placed such a notice on any code in Linux.
6. Under the GPL, a licensee may charge a fee for its distribution of GPL licensed
software. (GPL Preamble ¶¶ 2, 4; GPL § 1.)
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7. Section 1 of the GPL authorizes the general public to copy and distribute
verbatim copies of the source code of the licensed program, subject to certain notice publication
requirements. (GPL § 1.) SCO complied with all of these requirements in all of its Linux
distributions. (Hughes Decl. ¶ 9; (Ex. B); Hughes Dep. (5/11/04) at 67 (Ex. C); Sontag Dep
(5/12/04) at 211 (Ex. D).)
8. Section 2 of the GPL states that if a licensee modifies the licensed work, the
modified work must be licensed at no charge. (GPL § 2.) SCO never modified any of IBM's
contributions to Linux. (Sontag Decl. (Ex. E) ¶ 31.) In contrast to Section 2 (which authorizes
the copying of modified works), Section 1 (which authorizes verbatim copying) does not require
no-charge licensing. (GPL §§ 1-2.)
9. Section 3 of the GPL authorizes the general public to copy and distribute verbatim
copies of the licensed program in object code or executable form, subject to the condition that it
be accompanied by the source code or by an offer to provide the source code. (GPL § 3.) SCO
complied with these conditions in all of its Linux distributions. (Hughes Decl. ¶ 9; Hughes Dep.
(5/11/04) at 67; Sontag Dep. at 211.)
10. Nothing in the GPL prohibits the licensing of other intellectual property that may
pertain to the Program. In fact, Section 7 of the GPL contemplates that "the Program" may
implicate other intellectual property rights. (GPL § 7.)
11. Section 3 of the GPL does not prohibit a licensee from charging "royalty or
licensing fees" on the licensed works. Section 3 does not mention fees or royalties. (GPL § 3.)
12. Section 3 of the GPL requires that a party who distributes copies of works subject
to the GPL in executable form, provide the customer "with the complete corresponding machine-
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readable source code" on a "medium customarily used for software interchange" or with an offer
to provide the code at cost. (GPL § 3.)
13. Section 4 of the GPL states that a licensee's use of licensed material beyond the
scope of the License will "automatically terminate" the licensee's rights under the License, but it
does not say when such a termination becomes effective, and it provides no mechanism by which
the licensee is put on notice of an alleged unauthorized use of the licensed material. (GPL § 4.)
14. GPL Section 6 states that each time a licensee redistributes "the Program (or any
work based on the Program), the recipient automatically receives a license from the original
licensor to copy, distribute or modify the Program subject to these terms and conditions. [The
licensee] may not impose any further restrictions on the recipients' exercise of the rights granted
herein." (GPL § 6.)
II. SCO'S CONDUCT WITH RESPECT TO THE GPL
15. SCO copied and distributed the Linux kernel and other related Linux software for
years prior to 2003, when SCO discovered that IBM and others had misappropriated SCO's
copyrighted UNIX code by contributing it to Linux without SCO's approval. On May 14, 2003,
SCO suspended all sales and marketing of its entire Linux product line. (Hughes Decl. ¶ 3;
Hughes Dep. (3/2/06) at 179, 186 (Ex. F); Hughes Dep. (5/11/04) at 16, 37, 48, 51.)
16. In light of the legal issues arising from the misappropriation, SCO began offering
its Intellectual Property License for UNIX (the "UNIX License") for sale beginning on August 5,
2003. (Hughes Decl. ¶ 6.) The UNIX License is a license of SCO's UNIX software, not a
license or sublicense of Linux or of any IBM-copyrighted work. (Hughes Dep. (3/2/06) at 181-
82; Sontag Decl. ¶ 30.)
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17. SCO has never attempted to license or sublicense Linux or any IBM copyrighted
work, or any other GPL-licensed source code. (Sontag Decl. ¶ 30.) SCO offered its UNIX
License, beginning in August 2003, because SCO believes IBM had misappropriated SCO's
proprietary material and contributed that material into Linux. (Hughes Decl. ¶ 6.)
18. SCO has not sought to collect royalties or licensing fees for any of IBM's
allegedly copyrighted works. (Hughes Decl. ¶ 9; Sontag Decl. ¶ 30.)
19. SCO has not attempted to sell a UNIX License to anyone who received a Linux
distribution from SCO. (Hughes Decl. ¶ 8.)
20. SCO distributed SCO Linux Server 4.0 for less than six months, from November
19, 2002, until May 14, 2003. (Hughes Decl. ¶¶ 2-3; Hughes Dep. (3/2/06) at 186; Hughes Dep.
(5/11/04) at 16, 37, 57.) Once SCO arrived at the conclusion that Linux was tainted with
misappropriated material, SCO suspended its sales of Linux products pending clarification of the
intellectual property issues. (Hughes Decl. ¶ 3; Hughes Dep. (3/2/06) at 179, 186; Sontag Dep.
(5/12/04) (Ex. E) at 208-09.) After May 14, 2003, SCO entered into no further obligations to sell
SCO Linux Server 4.0 or any other Linux product. (Hughes Decl. ¶ 3; Hughes Dep. (5/11/04) at
53.) SCO made limited post-May 14 sales to customers in consideration of its obligations to its
customers. (Hughes Decl. ¶¶ 3-5; Hughes Dep. (3/2/06) at 188-89; Hughes Dep. (5/11/04) at 72-
73; Sontag Decl. ¶¶ 12-14; Sontag Dep. (5/12/04) at 221-23.) The last sale of Linux Server 4.0
was on May 31, 2004. (Hughes Decl. ¶ 4; Hughes Dep. (11/1/05) at 60 (Ex. G).) All of SCO's
Linux distributions (both prior to and after May 2003) were made under the GPL, with no charge
of any nature for royalties or licensing fees. (Hughes Decl. ¶ 9.)
21. In accordance with its obligations, SCO continued to provide its Linux customers
with internet access to files containing Linux source code and enhancements thereto. SCO
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stored these files on its computers, which its customers could access via the internet. In
accordance with its agreement with the UnitedLinux consortium, SCO provided customers who
purchased SCO Linux Server 4.0 with a password to enter at a log-in screen on SCO's download
site so that only they would have access. (Hughes Dep. (3/2/06) at 195; Hughes Dep. (11/1/05)
at 37-38; Sontag Decl. ¶¶ 17-19.)
22. SCO permitted access to Linux source code files via its website after August 5,
2003, because of SCO's pre-existing contractual obligations with its customers and with the
UnitedLinux consortium. (Hughes Dep. (3/2/06) at 190-91, 194; Sontag Decl. ¶ 17-19.) SCO
complied by making the source code available to its customers on its website. SCO removed all
Linux-related code from its website promptly after expiration of the last of its contractual
commitments, on December 31, 2004. (Hughes Decl. ¶ 11; Hughes Dep. (3/2/06) at 191, 194;
Hughes Dep. (11/1/05) at 37-38, 121; Sontag Decl. ¶ 17.)
23. SCO suspended its Linux distribution activities in May 2003 (Hughes Decl. ¶ 3;
Hughes Dep. (3/2/06) at 186,), months before it began selling the UNIX License in August of
2003. (Hughes Decl. ¶ 6.) This suspension was also months before IBM registered any of the
sixteen alleged copyrights. (IBM Mem. in Supp. of IBM's Mot. for Partial Summ. J. on Its
Eighth Counterclaim (8/16/04) ¶ 8.)
24. Prior to the filing of its Counterclaim on August 6, 2003, IBM never provided
SCO with any notice of its claim that SCO's rights under the GPL had terminated or that SCO
was infringing its copyrights. (Hughes Decl. ¶ 12.)
25. SCO never repudiated the GPL, and it always endeavored to comply with its GPL
obligations. (Hughes Decl. ¶ 9; Hughes Dep. (3/2/06) at 200-01; Sontag Dep. (5/12/04) at 211.)
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LEGAL STANDARD
Summary judgment should be granted if "the pleadings, depositions, answers to
interrogatories, and admissions on file, together with the affidavits, if any, show that there is no
genuine issue as to any material fact and that the moving party is entitled to a judgment as a
matter of law." Carpenter v. Boeing, 456 F.3d 1183, 1192 (10th Cir. 2006) (quoting Fed. R. Civ.
P. 56(c)). An "issue of material fact is genuine only if the nonmovant presents facts such that a
reasonable jury could find in favor of the nonmovant." Id (quoting Lawmaster v. Ward, 125
F.3d 1341, 1347 (10th Cir.1997)).
ARGUMENT
Summary judgment is appropriate on IBM's Sixth Counterclaim, unless IBM
demonstrates a genuine issue of material fact as to the existence of a breach of the GPL. See
Dreiling v. Peugeot Motors of Am., Inc., 850 F.2d 1373, 1378 (10th Cir. 1988). In its Seventh
Counterclaim, IBM alleges that it relied on SCO's promise not to breach the GPL. Accordingly,
in order to survive summary judgment on this counterclaim, IBM must demonstrate an issue of
fact as to the existence of a breach of the GPL. See Tolboe Constr. Co. v. Staker Paving &
Const. Co., 682 P.2d 843, 845-46 (Utah 1984) (addressing elements of a promissory estoppel
claim under Utah state law). Restatement of Contracts § 90 (allowing remedy for "breach" of
promise "as justice requires").
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In order to prevail on its Eighth Counterclaim, IBM bears the burden of proving that SCO
violated the Copyright Act. See Allegro Corp. v. Only New Age Music, Inc., No. Civ. 01-790-
HU, 2003 WL 23571745, at *10 (D. Or. Jan. 23, 2003) (Ex. 1); Indep. Serv. Orgs. Antitrust
Litig., 964 F. Supp. 1469, 1472 (D. Kan. 1997). This requires proof that SCO's actions were
unauthorized. See Gates Rubber Co. v. Bando Chem. Indus., Ltd., 9 F.3d 823, 832 (10th Cir.
1993) ("Once the plaintiff has shown that it holds a valid copyright, it must next prove that the
defendant unlawfully appropriated protected portions of the copyrighted work."); Foresight Res.
Corp. v. Pfortmiller, 719 F. Supp. 1006, 1011 (D. Kan. 1989) ("In general, a prima facie case of
copyright infringement consists of proof that the plaintiff owns a valid copyright and the
defendant has engaged in unauthorized copying."). IBM bears the burden of proving that SCO
violated the GPL. See Allegro, 2003 WL 23571745, at *10 ("To prevail on their counterclaim of
copyright infringement under a license, defendants must prove 1) ownership of copyright, and 2)
`copying' of protectible expression beyond the scope of the license."); see also Graham v. James,
144 F.3d 229, 236 (2d Cir. 1998) (noting that "the copyright owner bears the burden of proving
that the defendant's copying was unauthorized under the license"); Stenograph L.L.C. v. Bossard
Assocs., Inc., 144 F.3d 96, 99 (D.C. Cir. 1998) (explaining copyright plaintiff must prove
defendant's copying of protected expression exceeded scope of "the license possessed by the
defendant").
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I. SCO DID NOT BREACH THE GPL
IBM's Sixth and Seventh Counterclaims fail as a matter of law because SCO did not
breach the GPL.2First, where SCO has copied and re-distributed Linux, it has done so in
compliance with the requirements of the GPL. Second, nothing in the GPL which by its very
terms is limited to "copying, distribution and modification" of Linux precludes SCO from
issuing licenses to its UNIX software.
A. Where SCO Has Copied, Distributed or Sublicensed Linux,
It Has Done So in Compliance With the GPL.
SCO's copying, distribution and sublicensing of Linux which activity ended in May
2003 complied with the terms of the GPL. Section 1 of the GPL allows licensees to "copy and
distribute verbatim copies of the [licensed] Program's source code as [the licensee] receive[s] it,
in any medium" without requiring the licensee to grant any rights to third parties. The only
conditions imposed on a licensee exercising the right to distribute verbatim copies are that the
licensee "publish an appropriate copyright notice and disclaimer of warranty; keep intact all the
notices that refer to [the GPL] and to the absence of any warranty; and give any other recipients
of the [covered] Program a copy of [the GPL] along with the [covered] Program." It is
undisputed that SCO complied with these requirements. SCO's distribution included 2 compact
disks: one with SCO's proprietary material and one with material from OpenLinux.
IBM has previously argued that SCO's efforts to license its UNIX software which
started in August 2003 somehow violated the GPL, and thereby retroactively terminated SCO's
right to copy, distribute and sublicense Linux under the GPL, and retroactively turned SCO's
13
lawful activity under the GPL into acts of copyright infringement. IBM's argument is meritless
for a number of reasons.
First, as set forth below, SCO's actions in licensing UNIX are not prohibited by the GPL.
Second, nothing in the GPL supports the concept of retroactive termination. And the
cases do not support IBM's argument either. The copyright cases expressly discussing the issue
have rejected the notion of "retroactive" breach, termination and infringement. In MCA
Television, Ltd. v. Public Interest Corp., 171 F.3d 1265 (11th Cir. 1999), for example, the court
explained:
The notion that MCA had the power retroactively to rescind the contract makes a
mockery of that contractual agreement and would put any contracting party in
PIC's position in terror of upsetting the licensor in any way for fear of being
declared in breach, having the contracted-for licenses "retroactively revoked," and
being sued both for breach of contract and in copyright for statutory damages that
can far outweigh contractually negotiated licensing fees.
Id at 1274 n.8; see also Jacob Maxwell, Inc. v. Veeck, 110 F.3d 749, 753 (11th Cir. 1997)
(holding that one party's breach does not automatically rescind a contract simply because that
breach might give the other party the right to rescind); 3 Melvin B. Nimmer, Nimmer on
Copyright § 10.15[A] at 10-120 (2004) ("[T]he license is terminated and the copyright proprietor
may hold his former grantee liable as an infringer for subsequent use of the work. Failing such
rescission . . . the grant continues in place . . . until such time as the copyright owner exercises
his entitlement to rescind.").
Third, Section 4 of the GPL provides that in the event of a licensee's breach and
termination, sublicenses previously granted by the licensee remain in full force and effect. Since
the GPL effectively ratifies sublicenses granted prior to the alleged breach, IBM cannot complain
that the initial grant was unauthorized.
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B. SCO's Licensing of UNIX Did Not Breach the GPL.
Nothing in the GPL prohibits SCO from licensing UNIX. Nothing in the GPL warrants
that Linux is beyond the reach of patents, copyrights or other intellectual property. To the
contrary, Section 7 of the GPL expressly contemplates and warns of that possibility. Even if a
license to SCO's UNIX intellectual property were necessary to the use the of Linux, nothing in
the GPL prohibits SCO from offering such a license. (SCO has not offered a UNIX license to
anyone who received Linux from SCO. There can be no argument that SCO has violated Section
6 of the GPL by imposing further restrictions on any party to who received Linux from SCO.)
II. SCO HAS NOT INFRINGED IBM'S COPYRIGHTS
IBM's Eighth Counterclaim for copyright infringement is based on the argument that
SCO some how breached the GPL in August 2003, and that this rendered SCO's prior
redistribution of Linux retroactively unlawful. IBM's claim fails for at least three reasons. First,
SCO's redistribution of Linux is authorized by the GPL. Second, nothing in the GPL supports
IBM's claim of breach and retroactive termination/infringement. Third, under Tenth Circuit law,
because Linux is an infringing derivative work of SCO's UNIX System V, IBM cannot assert
rights in Linux against SCO.
A. The GPL Authorized SCO's Re-Distributions of Linux.
IBM's copyright infringement claim is based on SCO re-distribution of Linux. The GPL
grants the public at large "freedom to distribute copies" of the software licensed by it and to
"charge for this service if [the licensee] wish[es]." (GPL Preamble ¶ 2.) Section 1 of the GPL
authorizes the public to "copy and distribute verbatim copies" of source code licensed
thereunder, subject only to certain notice publication requirements. (GPL § 1.) SCO complied
with these requirements, and thus was entitled to copy any material IBM licensed under the GPL.
15
Section 1 also expressly permits the charging of fees for transfer of the software and for
warranty protection. There is nothing in the GPL to indicate that other types of fees are
prohibited. Such a reading of the GPL would be inappropriate and even "dangerous" in the
construction of contracts and statutes. Ford v. United States, 273 U.S. 593, 612 (1927); Seneca-Cayuga Tribe of Okla. v. Nat'l Indian Gaming Comm'n, 327 F.3d 1019, 1034-35 & n.26 (10th
Cir. 2003). In addition, Section 2(b), which prohibits licensing fees where the licensee
distributes modified works, shows that the drafters knew how to write a fee prohibition where
such was intended.
Section 3 authorizes a party to copy and distribute the licensed works verbatim in object
code or executable form under the terms of Section 1, as long as the party accompanies it with
the source code or with an offer to provide the source code. SCO has complied fully with this
condition. IBM does not dispute the fact that the material it allegedly owned was copied and
distributed verbatim. Section 3 allows a licensee to comply by "offering access to copy from a
designated place" (such as an internet site). The undisputed evidence shows that SCO offered
customers access to Linux source code files that contain verbatim copies of IBM's allegedly
copyrighted material via SCO's website.
SCO complied with all of the GPL's requirements and therefore was authorized to
distribute all of the works allegedly copyrighted by IBM that IBM contributed to Linux.
B. Nothing in the GPL Supports IBM's Claim
Of Breach and Retroactive Termination.
As noted above, IBM's claim that SCO somehow breached the GPL by licensing UNIX
finds no support in the GPL. Nothing in the GPL prohibits SCO from licensing its intellectual
property. Even if there were a breach, nothing in the GPL supports the concept of retroactive
termination. To the contrary, Section 4 of the GPL provides that in the event of a licensee's
16
breach and termination, sublicenses previously granted by that licensee remain in full force and
effect. Since the GPL effectively ratifies sublicenses granted prior to the alleged breach, IBM
cannot complain that the initial grant was unauthorized. The premise of IBM's copyright
infringement claim breach of the GPL and retroactive termination fail as a matter of law.
C. IBM's Proposed Interpretation of the GPL Would Impermissibly
Interfere with Enforcement of Intellectual Property Rights and
Would Raise Serious Antitrust Concerns.
1. The GPL Should Not Be Read to Interfere with SCO's Right to
Enforce Its Own Intellectual Property Rights.
The above arguments easily suffice to resolve the pending motions, but there are
additional reasons why IBM's position must be rejected. Nothing in the GPL expressly forbids a
party from licensing its own software or entering into settlements to resolve potential
infringement of such rights. Any construction of the GPL to do so should be rejected as
inconsistent with the public policy in favor of protecting intellectual property, San Juan New
Materials High Tech, Inc. v. Int'l Trade Comm'n, 161 F.3d 1347, 1363 (Fed. Cir. 1998);
Concrete Mach. Co., Inc. v. Classic Lawn Ornaments, Inc., 843 F.2d 600, 612 (1st Cir. 1988), as
well as the public policy favoring and encouraging settlements, Grady v. de Ville Motor Hotel,
415 F.2d 449, 451 (10th Cir. 1969); Grundberg v. Upjohn Co., 140 F.R.D. 459, 468 (D. Utah
1991); see also Justine Realty Co. v. Am. Nat'l Can Co., 976 F.2d 385, 391 (8th Cir. 1992).
2. The GPL Should Not Be Read to Allow a Competitor to Regulate
What May Be Charged for an Intellectual Property License.
In previously arguing that SCO breached the GPL by collecting "royalties and licensing
fees in excess the fees permitted by the GPL," IBM has sought in essence an interpretation for
the GPL fixes limits on the amounts that may be charged for unmodified works, even though the
parties to the agreement are competitors. Agreements between competitors that fix a maximum
17
price that may be charged for products are per se illegal under antitrust law. NYNEX Corp. v.
Discon, Inc., 525 U.S. 128, 133 (1998); United States v. Socony-Vacuum Oil Co., 310 U.S. 150,
218 (1940).
In addition to its inapplicability shown above, Section 2 (the only GPL provision
requiring licensing "at no charge") is illegal and unenforceable. The general counsel for the
Open Source Initiative acknowledges in his recent treatise: "There is also a problem that may
prevent enforcement of the GPL's "at no charge" provision. It may be an illegal restraint of
trade in some countries. Ordinarily, companies are allowed to set their own prices, and it is
improper for a GPL licensor to restrain that any way." L. Rosen, Open Source Licensing 132
(2004), available at http://www.phptr.com/content/images/0131487876/samplechapter/
0131487876_ch06.pdf.
It is a "well settled principle that where a contract is susceptible of two interpretations,
preference will be given to the interpretation which does not violate the law." Bd. of Dirs. And
Officers, Forbes Fed. Credit Union v. Nat'l Credit Union Admin., 477 F.2d 777, 784 (10th Cir.
1973); accord NLRB v. Local 32B-32J Serv. Employees Int'l Union, 353 F.3d 197, 202 (2d Cir.
2003); Guthart v. White, 263 F.3d 1099, 1104 (9th Cir. 2001). Accordingly, the Court should
not construe the GPL as IBM suggests.
18
CONCLUSION
SCO respectfully submits, for the reasons set forth above, that the Court should grant
SCO's motion for partial summary judgment and dismiss the Sixth, Seventh and Eighth
Counterclaims.
/s/ Brent O. Hatch
HATCH, JAMES & DODGE, P.C.
Brent O. Hatch
Mark F. James
BOIES, SCHILLER & FLEXNER LLP
Robert Silver (admitted pro hac vice)
Stephen N. Zack (admitted pro hac vice)
Stuart H. Singer (admitted pro hac vice)
Edward Normand (admitted pro hac vice)
Attorneys for The SCO Group, Inc.
1
Summary judgment is also appropriate on the Sixth and Seventh Counterclaims because IBM has
not incurred any compensable harm as a result of SCO's alleged conduct. In this regard, SCO
incorporates by reference Part III of its Memorandum in Support of Its Motion for Summary Judgment on
IBM's Second, Third, Fourth and Fifth Counterclaims (9/25/06). J.R. Kearl, IBM's expert on alleged
counterclaim damages, does not separately address counts Six and Seven in his analysis. (Kearl Report,
5/19/06, at 3 note 1, attached to above-cited memorandum.) It is inconceivable that SCO's
alleged conduct (the leaving of Linux code on SCO's website after SCO's right to distribute Linux was
purportedly terminated) could have caused IBM the slightest harm, particularly since Linux is available
for free download on many non-SCO websites.
2As an initial matter, it is not at all clear that IBM has standing or the authority to sue SCO for any
alleged violation of the GPL. By addressing IBM's arguments, SCO does not concede that IBM has any
such standing or authority.
19
CERTIFICATE OF SERVICE
Plaintiff, The SCO Group, Inc., hereby certifies that a true and correct copy of the
foregoing SCO's Memorandum in Support of the foregoing SCO's Motion for Summary
Judgment on IBM's Sixth, Seventh and Eighth Counterclaims was served on Defendant International
Business Machines Corporation on the 25th day of September, 2006, by CM/ECF to the
following:
David Marriott, Esq.
Cravath, Swaine & Moore LLP
[Address]
Donald J. Rosenberg, Esq.
[Address]
Todd Shaughnessy, Esq.
Snell & Wilmer LLP
[Address]
/s/ Brent O. Hatch
20
|
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|
|
| Authored by: martimus on Tuesday, December 05 2006 @ 04:17 PM EST |
Put any off topic items here, and make them clicky!
---
To paraphrase Benjamin Franklin: Billions for defense, but not one cent for
dhimmitude.[ Reply to This | # ]
|
- Off Topic Here, Please! - Authored by: thombone on Tuesday, December 05 2006 @ 04:24 PM EST
- MS/Novell billboard "moreinterop" - Authored by: Anonymous on Tuesday, December 05 2006 @ 04:49 PM EST
- Whoa! - Authored by: Anonymous on Tuesday, December 05 2006 @ 05:49 PM EST
- Did Microsoft outsmart itself? - Authored by: ssavitzky on Tuesday, December 05 2006 @ 04:49 PM EST
- The Question is why - Authored by: DBLR on Tuesday, December 05 2006 @ 05:30 PM EST
- SCOX stock tanks again. Closed at $1.06, down another 5 cents, volume about 440K - Authored by: SirHumphrey on Tuesday, December 05 2006 @ 05:44 PM EST
- SCOX - Authored by: Yossarian on Tuesday, December 05 2006 @ 05:52 PM EST
- Chump change - Authored by: SpaceLifeForm on Tuesday, December 05 2006 @ 08:09 PM EST
- SCOX - Authored by: Anonymous on Tuesday, December 05 2006 @ 08:25 PM EST
- SCOX - Authored by: DaveJakeman on Wednesday, December 06 2006 @ 08:12 AM EST
- SCOX - Authored by: Anonymous on Wednesday, December 06 2006 @ 11:31 AM EST
- SCOX - Authored by: Anonymous on Wednesday, December 06 2006 @ 12:55 PM EST
- SCOX - Authored by: Yossarian on Wednesday, December 06 2006 @ 03:34 PM EST
- "SME associations call on Commission to fix ICT Task Force weaknesses" - Authored by: Brian S. on Tuesday, December 05 2006 @ 06:24 PM EST
- Hey, Propellerheads! A Question About Live CD's - Authored by: Anonymous on Tuesday, December 05 2006 @ 06:29 PM EST
- short answer YES - Authored by: Anonymous on Tuesday, December 05 2006 @ 06:46 PM EST
- Hey, Propellerheads! A Question About Live CD's - Authored by: Arker on Tuesday, December 05 2006 @ 06:53 PM EST
- security from Live CD - Authored by: Anonymous on Tuesday, December 05 2006 @ 06:53 PM EST
- Hey, Propellerheads! A Question About Live CD's - Authored by: Ed L. on Tuesday, December 05 2006 @ 07:06 PM EST
- Jak se mas! - Authored by: artp on Wednesday, December 06 2006 @ 01:32 AM EST
- At Home....Thank You, Everybody! - Authored by: TheBlueSkyRanger on Tuesday, December 05 2006 @ 07:56 PM EST
- it's even worse... no https on signin - Authored by: Anonymous on Tuesday, December 05 2006 @ 08:23 PM EST
- Hey, Propellerheads! A Question About Live CD's - Authored by: Anonymous on Tuesday, December 05 2006 @ 09:14 PM EST
- Another solution - Authored by: Anonymous on Tuesday, December 05 2006 @ 09:36 PM EST
- Hey, Propellerheads! A Question About Live CD's - Authored by: Anonymous on Wednesday, December 06 2006 @ 11:24 PM EST
- I think you want a privacy service - Authored by: darthaggie on Thursday, December 07 2006 @ 09:18 AM EST
- "Novell Feedback and the BSA" - Authored by: Brian S. on Tuesday, December 05 2006 @ 06:41 PM EST
- "Just As Far Beyond As I Can See, I Still Don't Know What This All Means To Me" - Authored by: TheBlueSkyRanger on Tuesday, December 05 2006 @ 08:19 PM EST
- Chances are good... - Authored by: bdog on Wednesday, December 06 2006 @ 12:22 AM EST
- "What This All Means To Me" - Authored by: Ed L. on Wednesday, December 06 2006 @ 12:35 AM EST
- Linux is international (warning RANT) - Authored by: Winter on Wednesday, December 06 2006 @ 03:04 AM EST
- "Just As Far Beyond As I Can See, I Still Don't Know What This All Means To Me" - Authored by: Anonymous on Wednesday, December 06 2006 @ 05:58 AM EST
- "Just As Far Beyond As I Can See, I Still Don't Know What This All Means To Me" - Authored by: Steve Martin on Wednesday, December 06 2006 @ 09:17 AM EST
- "Just As Far Beyond As I Can See, I Still Don't Know What This All Means To Me" - Authored by: tanner andrews on Wednesday, December 06 2006 @ 09:33 PM EST
- "Just As Far Beyond As I Can See, I Still Don't Know What This All Means To Me" - Authored by: moosie on Friday, December 08 2006 @ 03:16 AM EST
- The Microvell Deal - It's all in the timing. - Authored by: Brian S. on Tuesday, December 05 2006 @ 08:20 PM EST
- Warning Vulture Central items - Authored by: analyzer on Tuesday, December 05 2006 @ 08:36 PM EST
- Judge Wells jails the Inner Tube Gang - Authored by: Anonymous on Tuesday, December 05 2006 @ 08:48 PM EST
- First Attempt, What Do You Think? - Authored by: TheBlueSkyRanger on Tuesday, December 05 2006 @ 11:19 PM EST
- Remember Wordperfect - Authored by: UncleVom on Tuesday, December 05 2006 @ 11:20 PM EST
- OT - Vendor satisfaction survey - Authored by: Anonymous on Wednesday, December 06 2006 @ 03:39 AM EST
- Todays UserFriendly - Authored by: Naich on Wednesday, December 06 2006 @ 03:52 AM EST
- Why did Novell do this - My €0.02 worth - Authored by: luvr on Wednesday, December 06 2006 @ 04:02 AM EST
- I do not understand all the fuss - Authored by: Anonymous on Wednesday, December 06 2006 @ 04:55 AM EST
- strange argumentation - Authored by: Anonymous on Wednesday, December 06 2006 @ 05:29 AM EST
- "Novell Aids Microsoft" - to be continued... - Authored by: MarkJu on Wednesday, December 06 2006 @ 05:55 AM EST
- page wont load - Authored by: Anonymous on Wednesday, December 06 2006 @ 07:44 AM EST
- "Green Party slams Microsoft OLPC involvement" - Authored by: Brian S. on Wednesday, December 06 2006 @ 07:56 AM EST
- "Microsoft Office has "extremely critical" hole - Don't mess with untrusted Word docs" - Authored by: Brian S. on Wednesday, December 06 2006 @ 08:03 AM EST
- Is it me... - Authored by: Anonymous on Wednesday, December 06 2006 @ 10:58 AM EST
- Sidebar - Another knockout punch - Will this get to a jury? - Authored by: Anonymous on Wednesday, December 06 2006 @ 08:17 AM EST
- "ATI losing market share willy-nilly - AMD to blame, reckons researcher" - Authored by: Brian S. on Wednesday, December 06 2006 @ 08:27 AM EST
- "Motorola "burning phone" investigated" - Authored by: Brian S. on Wednesday, December 06 2006 @ 08:33 AM EST
- Microsoft copyright feature - Authored by: The Cornishman on Wednesday, December 06 2006 @ 09:43 AM EST
- Today's User Friendly Comic - Authored by: Anonymous on Wednesday, December 06 2006 @ 10:28 AM EST
- IBM sues PSI for Patent Infringement - Authored by: Anonymous on Wednesday, December 06 2006 @ 10:29 AM EST
- DEATH to SCO - Authored by: rhodanman on Wednesday, December 06 2006 @ 10:52 AM EST
- DEATH to SCO - Authored by: tknarr on Wednesday, December 06 2006 @ 11:24 AM EST
- DEATH to SCO - Authored by: Anonymous on Wednesday, December 06 2006 @ 11:47 AM EST
- HA HA HA - Authored by: Anonymous on Wednesday, December 06 2006 @ 11:59 AM EST
- Off Topic Here, Please! - Authored by: Inevitable on Wednesday, December 06 2006 @ 10:06 PM EST
- Novell Screw Up BIG article - Authored by: thombone on Thursday, December 07 2006 @ 07:32 AM EST
| |
| Authored by: thombone on Tuesday, December 05 2006 @ 04:20 PM EST |
| =) [ Reply to This | # ]
|
- "why it it matters" - Authored by: DMF on Tuesday, December 05 2006 @ 04:32 PM EST
- Should be about SCO not Novell again... - Authored by: Anonymous on Tuesday, December 05 2006 @ 05:22 PM EST
- dupe or dope? - Authored by: alisonken1 on Tuesday, December 05 2006 @ 05:48 PM EST
- somehow > someone or somewhere - Authored by: Gerry on Tuesday, December 05 2006 @ 07:36 PM EST
- "I hope they come to their senses. If not, GPLv3 will deal with it." - Authored by: Anonymous on Tuesday, December 05 2006 @ 07:51 PM EST
- CORRECTION: corporate interests - Authored by: grouch on Tuesday, December 05 2006 @ 07:56 PM EST
- cunningly ... - Authored by: Anonymous on Tuesday, December 05 2006 @ 09:01 PM EST
- Stallman link ??? - Authored by: Totosplatz on Tuesday, December 05 2006 @ 10:27 PM EST
- Why would Suse "cost more"? - Authored by: Anthem on Wednesday, December 06 2006 @ 12:31 AM EST
- "FOR FOR" and "NTERNATIONAL" - Authored by: Anonymous on Wednesday, December 06 2006 @ 04:42 PM EST
- Plaintif -> Plaintiff - Authored by: Anonymous on Wednesday, December 06 2006 @ 08:55 PM EST
| |
| Authored by: MathFox on Tuesday, December 05 2006 @ 04:20 PM EST |
And please check in the original PDF whether the error was on SCO!
---
If an axiomatic system can be proven to be consistent and complete from within
itself, then it is inconsistent.[ Reply to This | # ]
|
| |
| Authored by: Peter H. Salus on Tuesday, December 05 2006 @ 04:21 PM EST |
Ha, ha; ha, ha, ha.
This is well-written, contains many false statements,
and ultimately resolves itself as a tragi-comic exercise.
---
Peter H. Salus[ Reply to This | # ]
|
| |
| Authored by: thombone on Tuesday, December 05 2006 @ 04:21 PM EST |
..because most people are probably going to be laughing too hard to type!
Ok, back to reading the post now that I've calmed down.
Seriously, this reads like a bad teen movie script or something. Only it's
funny.[ Reply to This | # ]
|
| |
| Authored by: tangomike on Tuesday, December 05 2006 @ 04:28 PM EST |
Personally, I don't see any real difference. They both did it for money,
"it" being violated the GPL. Both of them knew they were doing it.
Both of them feigned surprise at the reaction they got. And on and on and on...
---
Deja moo - I've heard that bull before.
[ Reply to This | # ]
|
| |
| Authored by: Anonymous on Tuesday, December 05 2006 @ 04:30 PM EST |
If I buy SCO software, make copies of it and sell it for a dollar, SCO can't
complain because to do so is an ANTITRUST VIOLATION!
Where's my CD burner?[ Reply to This | # ]
|
- I've got it! - Authored by: Anonymous on Tuesday, December 05 2006 @ 04:55 PM EST
| |
| Authored by: jamienk on Tuesday, December 05 2006 @ 04:53 PM EST |
Thank you PJ. This is the clearest explanation you've given yet for your
emphasis on the Novell deal. Even though I understood the issues before, I
didn't realize how they fit together. Please don't leave this buried under the
wrong headline though. "Why Novell's deal with MS is very very bad"
would be better.[ Reply to This | # ]
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| Authored by: whoever57 on Tuesday, December 05 2006 @ 05:07 PM EST |
SCO removed all Linux-related code from its website promptly after
expiration of the last of its contractual commitments, on December 31, 2004
(Hughes Decl. ¶ 11; Hughes Dep. (3/2/06) at 191, 194; Hughes Dep. (11/1/05) at
37-38, 121; Sontag Decl. ¶ 17.)
Given the many reports of
Linux-code on SCO's site (ftp/web) after the end of 2004, does this mean that
someone perjured themselves? [ Reply to This | # ]
|
- Only if you are egregious - Authored by: Anonymous on Tuesday, December 05 2006 @ 05:20 PM EST
- Only if you are egregious - Authored by: whoever57 on Tuesday, December 05 2006 @ 05:27 PM EST
- Could it be - Authored by: DBLR on Tuesday, December 05 2006 @ 05:40 PM EST
- Could it be - Authored by: Anonymous on Tuesday, December 05 2006 @ 05:49 PM EST
- 0-6 septal - Authored by: Anonymous on Tuesday, December 05 2006 @ 06:36 PM EST
- 0-6 septal - Authored by: Kevin on Tuesday, December 05 2006 @ 09:26 PM EST
- 0-6 septal - Authored by: Anonymous on Tuesday, December 05 2006 @ 09:56 PM EST
- 0-6 septal - Authored by: Anonymous on Wednesday, December 06 2006 @ 12:49 PM EST
- wrong - Authored by: PJ on Tuesday, December 05 2006 @ 05:35 PM EST
- Perjury? - Authored by: Anonymous on Tuesday, December 05 2006 @ 05:31 PM EST
- And they didn't repudiate the GPL? - Authored by: NetArch on Tuesday, December 05 2006 @ 05:59 PM EST
| |
| Authored by: rsteinmetz70112 on Tuesday, December 05 2006 @ 05:07 PM EST |
I have wondered how one can breach the GPL in general. Not breach the license
for the Linux kernel, which is in the form of the GPL or the license for Samba,
which is licensed under the terms of the GPL or something similar.
As I understand it the GPL is a model or standard license and covers nothing
until an author decides to license their original work in accordance with the
GPL. The author can apply the GPL as written or modify and amend it in any way
the author desires.
I understand how SCO breached IBM's copyrights as claimed in IBM Eighth
counterclaim by copying IBM copyrighted material in violation of the terms of
the GPL.
I don't understand how anyone can breach the GPL as a standard license, unless
they violate it with regard to a specific authors copyrights on the material
licensed. I further understand that only the author or the authors agent or
assignee would have standing to bring suit.
I'd appreciate some help understanding this.
---
Rsteinmetz - IANAL therefore my opinions are illegal.
"I could be wrong now, but I don't think so."
Randy Newman - The Title Theme from Monk
[ Reply to This | # ]
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| Authored by: LouS on Tuesday, December 05 2006 @ 05:16 PM EST |
I would modify PJ's analysis slightly (not that it affects the main point of
her
argument). I would say that the main point of the GPL is to allow you to use my
code as long as you let me (and everyone else) use/study/modify your code that
you write based on my code. It is not "don't make money on my
code".
OF course Microsoft et al don't know how to make money without locking up the
source code so I can't see/use/modify it so to them so to them there is little
difference, but the GPL is really about freedom not about money.[ Reply to This | # ]
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| Authored by: Anonymous on Tuesday, December 05 2006 @ 05:23 PM EST |
well said pj as usual
in my book right now novell is a dead end. I can't recommend it anymore and
would not touch it with a ten foot pole.
I hope all the short term gains were worth it for them.
I don't understand what novell is doing - and since the agreement is closed I
guess I never will - but whatever it is doing it isn't going to do with my
money.
FOSS does not need interoperability agreements - the code is out there for all
to see and write their stuff too.
ODF is a document format and should be the only one - it is open and meets the
needs of everybody.
how awesome would it be to have one document format to write your word processor
too.
I know my customers deserve one format for their data and that is what I am
giving them with ODF. we do not need any secret agreements or partially open
formats from companies who want to lock my customers into their products.
why can't novell realize that. the industry needs to force microsoft to embrace
the odf format. it is an approved ISO standard and is much better than
microsoft's open xml.
this is the chance for the industry to give its customers one format open and
for all to see to store their data in and have a choice of products to use to
access their data.
what is wrong with that and why can't novell and microsoft see this.
[ Reply to This | # ]
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| Authored by: Anonymous on Tuesday, December 05 2006 @ 05:39 PM EST |
The SEC releases from Novell said they get $390mil from
Microsoft and pay them $40mil. Makes $350mil plus
for Novell in the end. If making Linux cost
more was Microsoft's goal here they didn't succeed.
[ Reply to This | # ]
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| Authored by: gore on Tuesday, December 05 2006 @ 05:42 PM EST |
<blockquote>3. makes Novell's Linux cost more, because it has agreed to
pay Microsoft royalties, whereas SCO asked for money for its
license;</blockquote>
Odd... I don't remember seeing any price hikes recently in Novell products. If
anything, the price of SUSE Linux went down from $99.99 to $59.99 after Novell
acquired SUSE. I know because I've always purchased SUSE Linux from the horse's
mouth as soon as it was released.
I also haven't heard of any imminent price hikes from Novell. As far as I can
tell, the price has remained pretty consistent for the last 2 years.
Are we using fortune tellers to come up with "possible future facts"
in an effort to support our position?[ Reply to This | # ]
|
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| Authored by: Yossarian on Tuesday, December 05 2006 @ 06:06 PM EST |
To scare people you have to sue, or at least threaten to
sue, them. To kill Linux you need successful lawsuits,
something like SCO tried to do with AZ and DC.
Yes, Novell decided to sell out cheap and save its legal
budget, but what about other companies? There are two
possible outcomes:
1) All Linux companies will crash under pressure and will
sign Novell like agreements.
2) Companies that have, together, more than 50% of the Linux
market will join together to defend against any patent lawsuit.
IMO the key is IBM. The fate of SCO shows willing to fight
and resources to fight. If IBM will refuse any such deal
with Microsoft, it will be in its interest to creat a grand
alliance to prevent more companies from joining Novell.
My bet is that IBM management understands the value of
good, not paid for, PR. The support we (Linux community
& Groklaw) showed to IBM in the fight against SCO will
make the fighting against MS an attractive business idea.[ Reply to This | # ]
|
| |
| Authored by: Anonymous on Tuesday, December 05 2006 @ 06:21 PM EST |
It seems to me they are saying something along the lines:
The GPL
prevents us from licensing the product we provide, but it doesn't prevent us
from licensing the product someone else provides.
Keep in mind,
that's just my interpretation. I love that line of thought
though:
Your honor, there's nothing in the license to prevent me
from selling the Brooklyn Bridge. Just because someone else owns it doesn't
really matter.
I wonder if they ever consider the end result of
anything they're trying to say.
RAS[ Reply to This | # ]
|
| |
| Authored by: mossc on Tuesday, December 05 2006 @ 06:39 PM EST |
5. Section 0 further states: "This License applies to any program .
. . which contains a notice placed by the copyright holder saying it may be
distributed under the terms of this General Public License." It is undisputed
that IBM placed such a notice with respect to the code it added to Linux,
and that SCO never placed such a notice on any code in
Linux.
I am almost certain that some of Caldera/TSG/SCO's
contributions included GPL notices. Have they lost their minds or are they
trying to use SCO to refer to the original SCO in this case? I have always felt
IBM and the judge should have forced them to use consistant and non overlapping
designations for Santa Cruz Operation and "The SCO Group"
Off to read
through IBMs filing to see if they disputed this "undisputed" fact[ Reply to This | # ]
|
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| Authored by: Anonymous on Tuesday, December 05 2006 @ 06:50 PM EST |
I still don't see why the MS deal should be viewed as bad.
Linux users are under no greater threat from Microsoft than before. Before
Microsoft could have chosen to sue anyone that they thought were using their
patents. After the deal this is still the same, except that they've promised
that they won't sue a certain class of people for a while.
If anything, it seems to me that Novell have simply found another way to add
value to Novell Suse Linux. If they had offered a general indemnity on purchase
there wouldn't have been any cry of foul. If they'd offered a time limited
indemnity on purchase, there wouldn't have been a cry of foul either. It seems
to me that it's only because it's a time-limited indemnity with regard to
Microsoft that there's upset.
THe only disadvantages I see are:
1. MS has suceeded in introducing a bit of FUD. Well, what's new? Of course they
muddy the water at every opportunity. It's not like they haven't got a patent
arsenal.
2. Mono has become more tainted. And that's nothing new - there have been fears
of MS patented techniques present in mono from the start. Now all there is more
of the same threat in 5 years time.
If you ask me, the deal is damaging to Microsoft, not Linux:
1. They've made it less likely that C# will be used on Linux which means that
they're limiting their future market.
2. They've poured a bit of fuel onto antitrust fires - their tactics could be
seen as a mechanism to damage a competitor.
3. They are making interoperation more difficult, and that's a no-no from the
point of view of customers and the EU. Having all the documentation for a
protocol is useless if there's a threat that if you use it you may find yourself
on the sharp end of a lawsuit. I don't really see the EU sitting by while
Microsoft circumvents them.
Jeff
[ Reply to This | # ]
|
- Added value - Authored by: gjleger on Tuesday, December 05 2006 @ 07:05 PM EST
- Added value - Authored by: dkpatrick on Tuesday, December 05 2006 @ 07:07 PM EST
- Added value - Authored by: Anonymous on Wednesday, December 06 2006 @ 04:38 AM EST
- Added value - Authored by: Jude on Tuesday, December 05 2006 @ 07:23 PM EST
- Added value - Authored by: FamilyManFirst on Tuesday, December 05 2006 @ 08:15 PM EST
- Added value - Authored by: raya on Tuesday, December 05 2006 @ 08:24 PM EST
- Added value - Authored by: Anonymous on Tuesday, December 05 2006 @ 10:47 PM EST
- Subtracted value - Authored by: Anonymous on Tuesday, December 05 2006 @ 10:13 PM EST
- Subtracted value - Authored by: Anonymous on Thursday, December 07 2006 @ 05:51 AM EST
- Added value - Authored by: Anonymous on Wednesday, December 06 2006 @ 12:57 AM EST
| |
| Authored by: Anonymous on Tuesday, December 05 2006 @ 07:06 PM EST |
I think this whole document could be summarized as:
(1) For every action we took, there is SOME clause of the GPL that action did
not breach.
(2) For every clause of the GPL, SCO has taken some action that did not breach
it.
That is, I slit his throat and emptied his wallet, but I am innocent of both
homicide and armed robbery. See, the state's definition of "murder"
doesn't mention anything at all about rifling through dead men's pockets; and I
put the knife away before I rifled his pockets, so no threat of bodily harm was
involved.[ Reply to This | # ]
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- I like it! n/t - Authored by: Anonymous on Tuesday, December 05 2006 @ 09:02 PM EST
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| Authored by: Anonymous on Tuesday, December 05 2006 @ 07:08 PM EST |
PJ's analysis is just downright silly:
1) False
2) False
3) Hmmm...won't the market take care of that? People will just go with a
cheaper distro. And because Linux is GPL code, a new one can spring up anytime
someone decides to. There's no such thing as a Microsoft buyout of all Linux
distros. And because of that, they can't effectively own a single one - because
the market can simply turn to another one. How hard is this to understand,
people??!!??
In short, quit the FUD, PJ. And all of y'all out there...quit whining how
you're looking for a new distro. That's an idiotic knee-jerk reaction to the
FUD. I'm beginning to think this site is mostly the blind being led by the
blind lately. Up until 2 weeks ago, I held it in entirely a different regard.
Sad, really.[ Reply to This | # ]
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| Authored by: Anonymous on Tuesday, December 05 2006 @ 07:36 PM EST |
I believe you are over-reacting a bit on this. Or at least focusing in the wrong
place.
Before I get called a shill, let me explain.
I believe Novell should now be classified as having crossed a clear line, and
now living on the wrong side of freedom and everything the OSS movement stands
for.
That, is a given. There's no excuse, and the greedy idiots should be ostracized.
Basically, everyone running Suse should bite the bullet and switch. Or better
yet, someone with a bit of money and more sense should simply rename it, build a
support structure and start selling it's own version starting with and upgrade
path from Suse to whatever they decide to name the replacement. Just kill the
distro. Period.
But it is pretty clear that Novell's agreement means nothing , has no legal
value, is just a lot of noise and movement, full of sound and fury signifying
absolutely nothing.
Novell has absolutely no power to represent anyone. I don't remember reading
about anyone granting Novell the right to negotiate a patent agreement in their
name in front of Microsoft. So how could Novell aquire exclusive rights ABOVE
the people who OWN the code? And having a license to use a patent, but only if
implemented in the exact same code as every other distro, copyrighted by the
same people, written and implemented in exactly the same way, but ONLY if you
bought it from ONE company makes NO legal sense (or any other kind of sense)
what-so-ever. It's pure legal bovine excrements. If I buy Suse I'm protected
from a patent lawsuit, fine. I'll buy the CD and use it as a shield if they want
to sue me for using redHat. Can't see how the could get around that. It's the
same code written by the same NOT Novell guy, running the same way.
So yes, it's a betrayal and it's very disappointing. But really, Novell should
just be treated like a gangrene infected member. Cut it off, transplant a
replacement, and throw it out like yesterday's bad news.
Let Micro&Soft try to bribe the next guy...
Just my 0,02$
And legally, I could be wrong about how they apply patent laws, but then that
just makes the law an unjust one.
And as someone great once said:"One who breaks an unjust law that
conscience tells him is unjust, and who willingly accepts the penalty of
imprisonment in order to arouse the conscience of the community over its
injustice, is in reality expressing the highest respect for law"
So come on Micro&soft...just sue me....I dare you.
[ Reply to This | # ]
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| Authored by: Anonymous on Tuesday, December 05 2006 @ 07:40 PM EST |
How long do you have to be under a buck before they delist you?
I guess SCO could reverse-split again. Say, 20 for 1 this time?[ Reply to This | # ]
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| Authored by: Simon G Best on Tuesday, December 05 2006 @ 07:47 PM EST |
When it comes to the Novell-Microsoft deal, I support The SCO Group. But
only in that The SCO Group, like many others who own copyrights in Linux, are
having their copyrights effectively infringed by the Novell-Microsoft
double-act. (This is assuming that The SCO Group still have (real) copyrights
in Linux (not to be confused with their bogus, claimed Unix
copyrights).)
As the MadScientist suggested
in a comment following another article, The SCO Group could, perhaps, sue
Novell for breach of the GPL and/or infringement of copyright. Perhaps The SCO
Group might like to consider suing both Novell and Microsoft together, as joint
infringers, as it's their double-act which really seems to be GPL breaching
and/or copyright infringing. Perhaps there are other ways in which The SCO
Group could take advantage of Novell's deal with Microsoft. Perhaps they might
bring it up in their current lawsuit, in some way?
If The SCO Group do
launch a genuine lawsuit against Novell, or Novell and Microsoft jointly, on the
basis of their GPL-defying double-act, I'll support them. That doesn't mean
I'll support The SCO Group in everything and anything, or even in its current
lawsuit against Novell, but I will support them in a genuine lawsuit against
Novell or both Novell and Microsoft on the basis of the Novell-Microsoft
deal.
I hope Novell read this, and realise how badly they've trashed
their reputation.
---
NO SOFTWARE PATENTS - AT ALL! [ Reply to This | # ]
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| Authored by: Anonymous on Tuesday, December 05 2006 @ 07:49 PM EST |
Are you getting "GNU" and "Linux" muddled up?
Linux will remain under the GPL2. It looks like the FSF are getting ready to
bail on GPL2 - Novell/Microsoft makes their argument about GPL3 for them - but
that leaves Linux developers to fight a rearguard without them. Do they
seriously think that we're going to move to, uh, GNU/Hurd?[ Reply to This | # ]
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| Authored by: TheBlueSkyRanger on Tuesday, December 05 2006 @ 08:06 PM EST |
Hey, everybody!
76 thousand geeks are cheesed at us!
With 110K more in their wake!
One question that occurs to me about all this is: can Novell cancel the deal,
even if they wanted to? I mean, I know M$ can suddenly drop their end and start
suing, but what about Novell? Are they sewn in?
I'm just wondering how bad Novell got snookered. If they can't get out of the
deal, it's worthless to lobby them to pull out. There's a difference between
"We aren't getting out of this" and "We can't get out of
this." Not that this excuses them getting into it in the first place, you
understand, just thinking a fix may be impossible.
By the way, anyone want to add more to my little song parody start at the top?
You can take it and do what you like. I just hope some of what's come up with
makes me laugh is all.
Dobre utka,
The Blue Sky Ranger[ Reply to This | # ]
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| Authored by: Anonymous on Tuesday, December 05 2006 @ 08:07 PM EST |
I am just a bit confused, if they did not breach the GPL then why do they
state:
"There can be no argument that SCO has violated Section 6 of the GPL by
imposing further restrictions on any party to who received Linux from
SCO."
Hello!!! Is this not an admission that they have in fact violated section 6 of
the GPL by imposing additional conditions to the license??
I would just love to hear the explanation to that one. If you violate any
section of the GPL, you have breached it and you are no longer covered by the
license. Hence you can no longer distribute the software product released under
that license.
Hmmmm, me thinks that SCO just proved IBM's PSJ for them.
Where I work the computers are so human
when they make a mistake they blame a computer.[ Reply to This | # ]
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| Authored by: Anonymous on Tuesday, December 05 2006 @ 08:43 PM EST |
When discussing copyright licensing there are two kinds of “breach” to
consider:
1) Exceeding the scope of permitted use (the grant of rights).
“You may make five copies of the work”. If you make six copies you have exceeded
the scope of permissible use for *copying* -- an exclusive right. This is
copyright infringement.
“You may distribute the work only in the state of California”. If you
distribute in Nevada you have exceeded the scope of permissible use for
*distribution* -- an exclusive right. This is copyright infringement.
These are examples that constitute a licensee’s “breach” of a license grant.
This is a “breach” of *copyright law* -- copyright infringement. You can’t agree
to stay within the bounds of permissible use – you are automatically commanded
by the force of copyright law.
2) Violating a term or condition.
“You may make copies of the work on the condition that you give the original
author full credit and attribution”. You make copies without giving credit and
attribution.
Giving the author full credit and attribution is not a restriction on the
exclusive right to copy – this is a “breach” of contract.
“You may distribute the work if you promise to support the United Way with a
contribution this year”. You contribute to the Red Cross instead.
Supporting a specific charitable organization is not a restriction on the
exclusive right to distribute – this is a “breach” of contract.
When discussing (or authoring) a copyright license, failure to clearly specify
whether a “breach” means violation of “scope of permissible use” (copyright
law) or violation of a “covenant” (common law) causes no end of confusion and
grief.
[ Reply to This | # ]
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- standing? - Authored by: Anonymous on Wednesday, December 06 2006 @ 04:54 PM EST
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| Authored by: Anonymous on Tuesday, December 05 2006 @ 09:19 PM EST |
| Hi, my name's Ron. I've come under a lot of criticism lately, and I think it's
unfair. My friend Steve and I have come to an agreement that we both think will
help our customers, but some people seem unhappy about it.
It's really
rather a simple deal. I promise not to beat up anyone who gives Steve some
money, and Steve promises not to beat up anyone who gives me some money. I give
Steve some money, and Steve gives me some money. Everybody benefits from this;
both the people who don't get beat up, as well as Steve and I.
We've had a
close look at our agreement, and we can't see that we're doing anything wrong.
It's not like I'm threatening to beat someone up if they don't give me any
money. No, it's Steve that's threatening them. I'm just saying that if you give
me some money that makes you my customer, and Steve has promised to not beat up
any of my customers. My lawyers have looked at the agreement, and they've said
there's nothing illegal about not beating someone up.
I know that some
people became upset when they heard about our deal, but I think they're just
over reacting. You've got to realise that it's just business, and that means
that it's really OK. People do things like this in business all the time, so
it's not fair to complain when I do it too.
I know that in the end, you'll
all get over this. I'm looking forward to you being my customer and in a way,
Steve is too.
Thanks. Your friend, Ron.
[ Reply to This | # ]
|
- Haha, nice joke - Authored by: Anonymous on Tuesday, December 05 2006 @ 10:29 PM EST
- Hi, My Name's Ron - Authored by: belzecue on Tuesday, December 05 2006 @ 11:43 PM EST
- Actually, Steve promises not to throw chairs at you. n/t - Authored by: Anonymous on Tuesday, December 05 2006 @ 11:54 PM EST
- No one is to throw chairs at anyone until I say so, and I want make this perfectly clear........ - Authored by: Anonymous on Wednesday, December 06 2006 @ 12:02 AM EST
- Echoes of Monty Python... - Authored by: Anonymous on Wednesday, December 06 2006 @ 12:11 AM EST
- Hi Ron, does this mean.... - Authored by: bigbert on Wednesday, December 06 2006 @ 07:03 PM EST
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| Authored by: Anonymous on Tuesday, December 05 2006 @ 09:40 PM EST |
5. Section 0 further states: "This License applies to any program . . .
which contains a notice placed by the copyright holder saying it may be
distributed under the terms of this General Public License." It is
undisputed that IBM placed such a notice with respect to the code it added
to Linux, and that SCO never placed such a notice on any code in
Linux.
As Caldera didn't SCO author lots of GPL licensed code?
Somewhere they had to have authored a new file in Linux and placed a GPL license
header in it. Time to find it. It could be in a device driver, or possibly in
some functionality improvement. [ Reply to This | # ]
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| Authored by: blacklight on Tuesday, December 05 2006 @ 09:53 PM EST |
"So there you have it, as I see it: two companies claiming to be Linux
companies that turned on the GPL and the rest of the community for money, and
the beneficiary is Microsoft. What a coincidence." PJ
And to think that some people used to complain that my sig was too cynical or
too brutal. We value and appreciate our friends, but we count first and foremost
on ourselves and our own abilities. Period.
In the meantime, let's get that GPL v3 out of the kitchen, where it seems to
have been cooking for ever. And we need to tech both the USPTO and the US Court
of Appeals an object lesson, natch.
---
Know your enemies well, because that's the only way you are going to defeat
them. And know your friends even better, just in case they become your enemies.[ Reply to This | # ]
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| Authored by: Anonymous on Tuesday, December 05 2006 @ 10:13 PM EST |
| . [ Reply to This | # ]
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| Authored by: Anonymous on Tuesday, December 05 2006 @ 10:25 PM EST |
Three companies all tried the same thing. To claim exclusive rights over a
public resource. All claimed to be linux supporters, all announced the same scam
right about the same they accepted big $$$ from msft.
Msft seems determined to have "owned" by one company.[ Reply to This | # ]
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| Authored by: whoever57 on Tuesday, December 05 2006 @ 10:28 PM EST |
SCO never modified any of IBM's contributions to Linux. (Sontag
Decl.
So, Caldera/SCO never compiled and delivered binary copies
of the kernel? [ Reply to This | # ]
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| Authored by: PJ on Tuesday, December 05 2006 @ 11:24 PM EST |
[PJ: this comment used language that violates our
comments policy, so I retrieved it and here it is
with the subject line fixed:]
I have heard and read a great deal about the upset surrounding the
Microsoft-Novell deal. The argument seems to invariably fall to that dealing
with Microsoft is akin to being a war-time collaborator with the enemy. Novell's
actions have been predicted to harm Linux, (F)OSS and bring doom to us all.
I am a Linux user. I am a rapid Linux supporter. I am also aware that freedom
allows for more than popular choices to be made. Novell exercised the freedom
that was perfectly allowed by its GPL obligations. In fact, the article PJ
links to has RMS admitting the then current draft of the GPL v3 would have
allowed it too.
It is unreasonable to expect anyone, much less a business, to do everything you
ideally want of them. Novell evidently had an opportunity to take/trade/share
money with Microsoft. It did so following the rules everyone else plays by with
the GPL. It is regrettable that didn't decide to play by the ideal you expected
from them.
It is also disappointing to see people draw references based on no real evidence
between Novell and SCO. What Novell did and what SCO did are different.
There is a lot of supposition that the Novell-Microsoft deal is bad for the rest
of us. There is a lot of hand waving around Mr. Ballmer's vague threats
regarding their IP being in Linux and companies that use it having an
undisclosed liability. There is a lot of stock being put in actions like Novell
exercising their freedom not to provide full-time staff for Hula any more.
I have a simple proposition: prove Novell's exercise in freedom did, in point of
actual and indisputable fact, harm or prevent anyone else enjoying the freedom
of GPL-licensed works (Novell or otherwise).
There are many reasons that something can or does happen. I try and not
attribute my worst fears or paranoia without considering the matter rationally
and gathering evidence. I take it from my perusal of Groklaw that the members
fancy themselves to be rational and bound to fact.
I will offer my personal opinion as to possibilities:
1) Microsoft sees a talking point in the deal to use against those desiring to
extort discounts from it by using the threat of defecting to Linux. Microsoft is
a business and it could show something like this as a step to shareholders to
increase profitability from large deals.
2) Microsoft is likely infringing on other people's IP. It has lost a number of
lawsuits and the nature of the system virtually ensures Microsoft could be in
trouble with someone. It is worse to have your customers face lawsuits due to
your products. This could have been an experiment to see what the reaction would
be if Microsoft struck a "customer protecting" deal with one of its
worst enemies. That could also extend that experiment to working with a
underdog to compete against other forces in the market.
XenSource works with Microsoft on virtualization. Does that make them pariahs as
well?
You are free not to license your works under, or choose to use any works
licensed by the GPL. You are no more entitled to deny Novell those rights than
they to you. You are no more obligated to provide any good will than they are.
The relationship is not bound by any moral imperative.
If Novell can't be proven to have caused any harm -- how do you justify claiming
to the contrary? Moreover, how do your (unproven?) claims differ from that of
SCO (Following the Novell == SCO theory)?
There is such a thing as a neutral act.
I think this deal qualifies.
[ Reply to This | # ]
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| Authored by: webster on Wednesday, December 06 2006 @ 12:48 AM EST |
.
Novell SuSe was just another distribution that was never going to make a great
splash. It is free code and others were ahead of them like Red Hat, and Ubuntu
is fixing to pass them. It is too competitive for what little M$ doesn't get.
With this deal Novell and M$ claim the only legitimate version of Linux. All
other versions violate M$ or Novell intellectual property. Any company with a
revenue stream will think twice before volunteering for a M$ patent suit. This
should give Novell a great marketing advantage over Red Hat and others. Every
M$ salesman can thrust Novel at any lost deal and tell the recalcitrant buyer
how to avoid a M$ patent lawsuit. They would only do this if the
interoperability didn't fly.
Novell must be concerned with too much success. If too many business opt for
Novell Linux, M$ will feel entitled to tax them more for their patent-bully
assistance, or switch horses in 5 years.
Novell SuSe and Linux will soon have to diverge or fork since few open
sourcerers will donate to M$. So it will be two against the Open Source world
in a race for quality. M$ will hold Novell back with lock-in and standards
obscurance. They will have to keep up or M$ will sign with a competititor.
If nothing else the deal is good for the balance sheet, including stock
options.
This is America. This deal is good. It is the best they can do in a nation and
world subject to a powerful Monopoly. No one is going to be permitted to do any
better. Novell is ready to be used as long as they are needed. No one can do
any better than that in M$'s world.
---
webster
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| Authored by: Anonymous on Wednesday, December 06 2006 @ 01:05 AM EST |
To the extent that the Novell/Microsoft "agreement" has any meaning at
all, Microsoft is acting as Novell's proxy to give rights to use some product of
Novell that falls under an open source license, which rights do not include the
right to pass those rights on to others.
Stallman's remarks about "letter of the law" notwithstanding, what is
done by proxy through contract is done by the parties to the contract.
(And the contract problem of "meeting of minds" remains. Two things
are clear, this as an attempt at establishing a loophole, and I can't see a
judge as accepting the argument that authors who publish under the GPL intended
to allow distribution rights to be taken away by proxy. Moreover, Microsoft's
attempt to become party to the contract of the GPL without meeting the
requirements has got to be breaking some principle of contract law.)
Thus:
Microsoft cannot distribute anything under the GPL under this agreement. (We
knew that, but it must be said.)
Novell cannot apply this agreement to anything under GPL. If the agreement is
attached to anything distributed under GPL, it is irrelevant at best. If the
agreement is mentioned in any advertising literature relative to anything
distributed under GPL, it is false advertising, at best. (README files are not
exactly excluded when we say advertising literature, I believe.)
If the license for Novell's fork of Open Office is compatible with the
agreement, we have proof of Stallman's prescience in the design of the GPL. I'm
not going to take the time to look again at that (those) license(s), but I
suspect the proxy issues will come to play in those as well.
It seems to me that the very lack of meaningful content in the published
elements of the agreement should mean something technically. Could this become
the subject, for instance, of a spoliation suit?
I'm thinking that the Novell "shareholders" recently having
"concerns" is part of what is behind this. When did Hovsepian come on
board?
joudanzuki[ Reply to This | # ]
|
- keyword is proxy - Authored by: gore on Wednesday, December 06 2006 @ 01:51 AM EST
- wait a minue - Authored by: Anonymous on Wednesday, December 06 2006 @ 08:08 AM EST
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| Authored by: Anonymous on Wednesday, December 06 2006 @ 01:06 AM EST |
As of this writing, i once more feel the connectedness 'the community' is well
known for and brings about a sense of trust and wellbeing. Wich are both
admireable. In fact, the verry spirit of 'the community' in itself is soothing.
Though one must not be naieve.
As such i feel asking to look into including a penalty system in any new release
of the GPL would be welcome. Not for individuals but to 'legal entities' wich
are bypassing the GPL license terms. Since it's a license i'm not sure if
including fines is legit but given the increasing pressure on the GPL and the
possiblity of even smaller companies running of with 'the goodies' this could be
a sensible discouragement.
Though rather illiterate when it concerns the finer details of the GPL i assumed
asking 'commercial/legal entities' for a small/year license-fee could infuriate
some of the GPL-knights. Still, this way there'd be a way of building a fund for
legal research etc. After all, you could offer a(ny) person a beer but you
couln't possibly offer a whole company a beer, no ?
Still, why not just mention it huh ?
Best of Regards,
J.L.[ Reply to This | # ]
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| Authored by: kbwojo on Wednesday, December 06 2006 @ 01:28 AM EST |
Novell may be clear on the GPL, but what about the UnitedLinux Agreements? I
don't know the answer myself, but this thought did come to mind and figured I
would throw this out for debate.
Just so everyone knows the following excerpt is what made me think about this
question.
"Declaration of Michael A. Jacobs in Support of Novell's motion to
Stay"
page 66
46. In particular, the UnitedLinux members agreed that each member would have an
irrevocable, perpetual, and worldwide license to use and unlimitedly exploit any
intellectual property rights of the other members in the UnitedLinux Software,
which would be transferred to the LLC for this very purpose. Thus, the MTA and
JDC contain identical provisions in Sections 3.2.2 and 8.2, respectively,
stating that:
47. REDACTED [ Reply to This | # ]
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| Authored by: fb on Wednesday, December 06 2006 @ 02:02 AM EST |
That's what they say. Here, though, the devil is functioning at all levels, most
likely.
The Novell-Microsoft deal smells fishy from the start. It *is* possible to
persuade yourself that the rotten smell is only superficial.
Nevertheless, consider the prior probabilities. Is there one single example
where Microsoft hasn't ultimately been trying to roll over anything they
consider competition and grind it into powder? One single example? I don't think
so.
If you think any differently, you're naive.
It's like Tony Soprano's story about the scorpion. Microsoft can't help it. It's
what they do.
[ Reply to This | # ]
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| Authored by: Anonymous on Wednesday, December 06 2006 @ 02:18 AM EST |
There's a reason why corporate interests are not enamored of the
GPL. It's also the reason why it it matters: it has proven effective in forcing
the greedy and unscrupulous to play fair with code they didn't write but would
love to get illegitimate money from somehow anyway. (It's fine to make money
from GPL code. IBM and Red Hat and many others do. But you have to respect the
license, which has as its goal freedom for the code, so you are allowed to use
GPL code as long as you let its authors (and everyone else) freely and without
restrictions outside the four corners of the GPL itself use/study/modify your
code that you write based on that code.)
I am surprised such a blatently
false statement is allowed to appear in Groklaw. First of all customers,
including corporate customers love GPL because it saves them money, and all but
a very tiny minority of corporations are IT customers rather than suppliers.
Second, Small and medium sized IT suppliers (also corporations) love Linux
(including Novell by the way), because it gives them a chance to compete with
the big monopolies. Third, big non-monopoly IT companies like IBM, HP, Dell and
Oracle love GPL, because it gives them a cheap reliable flexible platform on
which to build their IT infrastructure. Sun is secretly having an affair with
GPL, and deep inside probably is very much in love with GPL, but is afraid to
admit it - how else would one explain the GPLing of StarOffice, Java, and the
proposed GPLing of Solaris?
No, corporations, users, everyone loves Linux
apart from one rather nasty criminal monopoly - Microsoft, and it's paid agents
like SCO. There are others - thieves, extorsionists, fraudsters - who think
they can make a quick buck out of stealing/pirating/misappropriating (the legal
term is conversion) GPL intellectual proproperty, but do these people hate
Linux? Does a bank robber hate money? I don't think so.
As for Novell, I am
not sure which category they fall into.
[ Reply to This | # ]
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| Authored by: Anonymous on Wednesday, December 06 2006 @ 03:08 AM EST |
| PJ's article states that one of the effects of the Novell-Microsoft deal
is: makes Novell's Linux cost more, because it has agreed to
pay Microsoft royalties, whereas SCO asked for money for its
license
Why is this such a big problem? After all, none of
the other Linux distributors are a party to the deal, so its not going to have
any impact on them. Also if Microsoft did try to bring them to court, I'm sure
that the case will eventually be shot down in much the same way as SCO's
case. Really I see three possible effects:. Novell eventually realises
its mistake and quitely lets the agreement die. Life goes on.Novell's
Linux offering does become more expensive and effectively prices itself out of
the market. Eventually Novell will shut it down, but some people will fork SUSE
and keep it going, albeit with a different name.The Novell-Microsoft deal
has real bite, at which point the focus of Linux development moves to Europe
were Microsoft has no patents and relatively little influence. If Microsoft does
start to cause problems in Europe, the European Commission will probably start
looking at them again with to view to hitting them with really big
sanctions.BTW, I am a SUSE user who was very surprised when I heard about the
deal. However for the time I am willing to wait and see what effect it has,
although I must admit I have an exit strategy in place!
Alan [ Reply to This | # ]
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| Authored by: darkonc on Wednesday, December 06 2006 @ 04:09 AM EST |
End of first paragraph of section 7 of the GPL:
For example, if a
patent license would not permit royalty-free redistribution of the Program by
all those who receive copies directly or indirectly through you, then the
only way you could satisfy both it and this License would be to refrain entirely
from distribution of the Program.
In other words, if Novell
releases GPL software that they anticipate would not be distributable (including
under patent limitations) by their customers under the GPL, then they
don't have the right to distribute it. The fact that the patent agreement
doesn't (publicly) protect them doesn't protect them from the effects of the
GPL. Neither does the fact that MS is promising to do their dirty work for
them.
If Novell's customers can't distribute the software under the GPL then
neither can Novell. ---
Powerful, committed communication. Touching the
jewel within each person and bringing it to life.. [ Reply to This | # ]
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| Authored by: Anonymous on Wednesday, December 06 2006 @ 04:50 AM EST |
Oddly I don't seem to have noticed anyone point out the possible impact on IBM
vs SCO if IBM decided to pursue Microsoft's involvement. Seems like a good way
to claim good faith in taking out a "license" if when it becomes clear
that a 3rd party (Novell) actually owns the IP you "thought" you were
licensing, you go make a deal with them for those "IP rights."[ Reply to This | # ]
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| Authored by: Anonymous on Wednesday, December 06 2006 @ 05:44 AM EST |
"3. makes Novell's Linux cost more, because it has agreed to pay Microsoft
royalties, whereas SCO asked for money for its license;"
This is incorrect. Do your homework and read the text of the deal. I'm not happy
either with the MS-Novell deal, but stick to the fats.
MS pays Novell for not being sued for infringements and Novell pays MS. The
balance is 400 mil. in favor of Novell. Novell has more products that Suse and I
don't see how this will add to the costs of Suse.
But what is alarming, is that MS proposed this deal while knowing they would
lose a 400 Mil. You don't do that just for the fun.[ Reply to This | # ]
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| Authored by: Anonymous on Wednesday, December 06 2006 @ 06:42 AM EST |
Wow, looks like the guys who wrote the sco accusations are now working for
groklaw. So, I ask if you think Novell has violated one of the GPL terms please
demonstrate with lots of details how they have done so.
Usually around here documentation is the rule but that rule seems to have
disapeared.[ Reply to This | # ]
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| Authored by: MadScientist on Wednesday, December 06 2006 @ 07:23 AM EST |
BSF are fine 'tap dancers' but I think here they are going too far. This
document has internal contradictions. Making contradictory statements within a
single filing is not conducive to good court practice and IMHO verges on
perjury. This last sugegstion is up to the judge to decide.
+++++++++++
SCO:
'11. Section 3 of the GPL does not prohibit a licensee from charging
"royalty or licensing fees" on the licensed works. Section 3 does not
mention fees or royalties. (GPL § 3.)'
Section 3 does not mention fees. Section 2 does.
GPL:
"...if you distribute copies of such a program, whether gratis or for a
fee, you must give the recipients all the rights that you have."
If you give the recipients the rights you have there is no basis for
royalities.
GPL:
"4. You may not copy, modify, sublicense, or distribute the Program except
as expressly provided under this License."
This seems to contribute to the suggestion that royalties beyond the those
permitted by the GPL are illegal.
GPL:
"You may not impose any further restrictions on the recipients' exercise of
the rights granted herein."
This seems to wipe out any suggestion on royalities.
"... nothing else grants you permission to modify or distribute the Program
or its derivative works."
Requesting royalities => loss of right to distribute. Looks clear to me.
+++++++++
SCO:
'19. SCO has not attempted to sell a UNIX License to anyone who received a Linux
distribution from SCO.'
EV1 might beg to differ here. To ensure that there is no discernable difference
between the 'SCO Source' licence and this 'Unix licence' I quote
SCO:
'... it began selling the UNIX License in August of 2003.'
This coincides with the introduction of the SCO source licence. Word play
suggestion Unix lincence != SCOSource licence wont work. The SEC filings show
this.
+++++++++++++++
SCO:
'SCO's copying, distribution and sublicensing of Linux which activity ended in
May 2003.'
SCO:
'SCO provided customers who purchased SCO Linux Server 4.0 with a password to
enter at a log-in screen on SCO's download site so that only they would have
access.'
This is distribution as commonly understood. This distribution continued until
December 2003.
The statements contradict each other.
+++++++++++
SCO:
'... nothing in the GPL supports the concept of retroactive termination.'
Yes. But what has that to do with the instant case?
+++++++++++
SCO:
'Even if a license to SCO's UNIX intellectual property were necessary to the use
the of Linux, nothing in the GPL prohibits SCO from offering such a license.'
False. See above.
SCO:
'SCO has not offered a UNIX license to anyone who received Linux from SCO.'
False. See the testimony from EV1.
SCO:
'There can be no argument that SCO has violated Section 6 of the GPL by imposing
further restrictions on any party to who received Linux from SCO.'
False. See the comments on the Unix/SCOSource licence.
+++++++++++++++++++
'... nothing in the GPL supports IBM's claim of breach and retroactive
termination/infringement.'
IBM have not tried to retroactively terminate anything. The moment you are in
violation of the GPL you lose your rights.
GPL:
"... nothing else grants you permission to modify or distribute the Program
or its derivative works."
Clear as day. No compliance => instant loss of rights.
++++++++++++++++
SCO:
'In previously arguing that SCO breached the GPL by collecting "royalties
and licensing fees in excess the fees permitted by the GPL," IBM has sought
in essence an interpretation for the GPL fixes limits on the amounts that may be
charged for unmodified works, even though the parties to the agreement are
competitors.'
Nonsense. The GPL does not try to fix fees. The court of appeal noted this.
GPL:
"...if you distribute copies of such a program, whether gratis or for a
fee, you must give the recipients all the rights that you have."
GPL:
"You may not impose any further restrictions on the recipients' exercise of
the rights granted herein."
This is the bit that SCO are trying to work on.
IBM are merely exercising thier rights as it stands under the GPL.
GPL:
"b) You must cause any work that you distribute or publish, that in whole
or in part contains or is derived from the Program or any part thereof, to be
licensed as a whole at no charge to all third parties under the terms of this
License."
The US court of appeal has upheld this. The GPL is very clear on this point.
You dont have to use GPLed code as you can write your own. The GPL is incredibly
compeditive. Anti trust law exists to protect the consumer and not the producer.
This is a plead for special treatement much as Daniel Wallace tried to argue and
exactly what the court of appeal noted.
This is also the bit most feared by MS. The effect of the GPL on competion is
terrible. Once it reaches a critical mass - as IMHO Linux has - it is
extraordinarly difficult to compete with it.
The GPL has been upheld in Germany and in the US (twice) already. It is a truely
remarkable document and owes much of its power to the simplicity of the wording.
There is very little wriggle room for anyone.
++++++++++++++
A note on Novell which I think will bear repeating.
GPL:
"...if you distribute copies of such a program, whether gratis or for a
fee, you must give the recipients all the rights that you have."
...
"... you must show them these terms so they know their
rights."
Novell must show its customers and other users the terms it has recieved from
MS. If it refuses to do so it is in violation of the GPL. [ Reply to This | # ]
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| Authored by: Anonymous on Wednesday, December 06 2006 @ 07:27 AM EST |
1. Novell agrees to violate the clear intent and spirit of the GPL in an
attempt to comply literally with the words but not with the actual known purpose
of the license to make money off of code Novell didn't write and doesn't own. So
instead of trying to prove the GPL isn't binding, they just kick it to the curb
and step over it and dare the community to do something about it?
2.
puts a FUD legal cloud over Linux (this time a patent cloud) or in any case an
"IP" cloud, as per Steve Ballmer's vague wording -- and was Darl McBride's less
vague?;
3. makes Novell's Linux cost more, because it has agreed to pay
Microsoft royalties, whereas SCO asked for money for its
license;
My take on each point:
1. Novell did not
intentionallly voiolate the word or the spirit of the GPL. They have made
several public statements to that effect already. they have given access to the
agreement to Eban Moglen, and he has not said that there is any violation. They
made a deal that took advantage of the fears that were keeping enterprise
customers from implementing Linux in the first place. Yes, so they can make a
buck, but making a buck without violating te GPL is OK, like you stated earlier
in the same article, right?
2. Novell did not put the FUD cloud over
Linux, it was there all along. It did make it easier for MS to spread the cloud,
but they have been, and still are, working to get the public covenant from MS
changed to allay that FUD.
3. Novell has not announced any price
increase as a result of this agreement. Are you suggesting that if they had not
entered into this agreement that they would have lowered their prices? I think
not.
[ Reply to This | # ]
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- typos: - Authored by: Anonymous on Wednesday, December 06 2006 @ 08:26 AM EST
| |
| Authored by: Anonymous on Wednesday, December 06 2006 @ 08:27 AM EST |
YANKEE GROUP TCO REPORT
hrmmm
novells website suddenly using the
same people for what?
WOW YANKEE
GROUP LINK ON THIS PAGE
makes yah wonder if MS hasnt taken over novell
already after all that same pudgey group that said the TCO is cheaper for 2003
server is now saying what about linux?
[ Reply to This | # ]
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| Authored by: Anonymous on Wednesday, December 06 2006 @ 08:34 AM EST |
whoops, wrong reply first time
4th paragraph typos: it it [ Reply to This | # ]
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| Authored by: Steve Martin on Wednesday, December 06 2006 @ 08:55 AM EST |
"It is undisputed that IBM placed such a notice with respect to the code it
added to Linux, and that SCO never placed such a notice on any code in
Linux."
This is incorrect. Linux kernel 2.6.13, file drivers/net/tlan.c:
"Linux ThunderLAN Driver
tlan.c
by James Banks
(C) 1997-1998 Caldera, Inc.
(C) 1998 James Banks
(C) 1999-2001 Torben Mathiasen
(C) 2002 Samuel Chessman"
---
"When I say something, I put my name next to it." -- Isaac Jaffee, "Sports
Night"[ Reply to This | # ]
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| Authored by: Steve Martin on Wednesday, December 06 2006 @ 09:04 AM EST |
"11. Section 3 of the GPL does not prohibit a licensee from
charging "royalty or licensing fees" on the licensed works. Section 3 does not
mention fees or royalties. (GPL § 3.)"
GPL v2, Section
3:
"3. You may copy and distribute the Program (or a work based on
it,
under Section 2) in object code or executable form under the terms
of
Sections 1 and 2 above provided that you also do one of the following:
[...]"
GPL v2, Section 2(b):
"You must cause
any work that you distribute or publish, that in
whole or in part
contains or is derived from the Program or any
part thereof, to be
licensed as a whole at no charge to all third
parties under the terms
of this License."
(all emphasis added)
Section 3
therefore expressly incorporates the requirements of Section 2, so this argument
fails.
---
"When I say something, I put my name next to it." -- Isaac
Jaffee, "Sports Night" [ Reply to This | # ]
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| Authored by: Steve Martin on Wednesday, December 06 2006 @ 09:08 AM EST |
"15. SCO copied and distributed the Linux kernel and other
related Linux software for years prior to 2003, when SCO discovered that IBM and
others had misappropriated SCO's copyrighted UNIX code by contributing it to
Linux without SCO's approval."
And again, we're back to
claiming that IBM misappropriated TSG's "copyrighted" code. Since the only code
TSG has in this whole fracas on which they even allegedly hold any
copyrights is System V, we are left to draw the conclusion that they're alleging
misappropriation of actual System V code. And yet they did not identify a single
line of System V code as misused back in December. Even now, TSG cannot get
their story straight. Is this sloppy lawyering, or just grasping at
straws?
---
"When I say something, I put my name next to it." --
Isaac Jaffee, "Sports Night" [ Reply to This | # ]
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- Yabut - Authored by: Jude on Wednesday, December 06 2006 @ 09:48 AM EST
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| Authored by: Alan(UK) on Wednesday, December 06 2006 @ 09:26 AM EST |
This is the best thing to have happened to the GPL so far.
SCO's intepretation is bad, so bad it isn't even wrong.
Judge Kimball is not going to be able to dismiss it with some curt remark like:
"see snodgrass v snodgrass 1831". Rather he will have to explain the
whole thing as to a backward three year old dog.
SCO has really chosen the best time and place to dispute the meaning of the GPL.
I can think of several reasons:
1) Judge Kimball is very astute.
2) Judge Kimball is familiar with SCO's antics.
3) Judge Kimball can and will read the GPL.
4) IBM did not need to bring the counterclaim.
5) IBM cannot now afford to lose on this matter.
6) IBM has very astute lawyers.
On these grounds alone SCO and its entire legal team should be considering
entering a plea of insanity.
I am looking forward to Judge Kimball's ruling on this - I think the
comparatively minor matter of having a few non-claims thrown out will dwindle to
insignificance compared to the reaction to this Memo.
Item (3) above is of course fatal to SCO's case.[ Reply to This | # ]
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| Authored by: lordshipmayhem on Wednesday, December 06 2006 @ 09:45 AM EST |
"Does it matter that one did it maliciously and the other was merely a
dope?"
OK, which one is which? Novell's agreement with Microsoft is, while idiotic,
potentially malicious. SCOX's "sue world+dog" strategy is, while
malicious, definitely idiotic.
I throw the floor open for discussion. Watch your step - it's been freshly
waxed.[ Reply to This | # ]
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| Authored by: jesse on Wednesday, December 06 2006 @ 09:53 AM EST |
But does not enforce their IP ownership, will that prevent them from doing so in
the future?
It would appear that they are admitting knowlege of infringemnt, but are also
not protecting their ownership...
Wouldn't that prevent them from ever suing someone??[ Reply to This | # ]
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| Authored by: clark_kent on Wednesday, December 06 2006 @ 10:09 AM EST |
I think SCO has been a test case for Microsoft. If SCO goes down, Novell is
clearly the winner. Can Microsoft buy Novell, or rather, will the FTC allow
Microsoft to buy Novell? If this does happen, then think about what the U.S.
government stands for? That would be the allowing of one of the largest
monopolies ever to form. Imagine, the U.S government who broke up AT&T, and
threatened IBM would allow a large monopoly to form. Do they represent power of
the individual citizens, or a select few? Will the U.S. become the New
Communists? Is that why we won the Cold War under President Reagan, to defeat
the U.S.S.R. so the U.S. government could replace it and be the New Communist
Super Power? Computer technology is touching EVERYTHING. The owner of that
technology will become great in power. Will that power be distributed over
people, or over a select few?
Microsoft has been saying that Linux infrindges on many of it's software
patents. We have been saying, show us. They wait. If Microsoft never backs up
it's claim, so what. It stirred up some attitudes. But what if Microsoft buys
Novell? Then could it kill SuSE Linux, or better yet assimilate it into Windows.
Then you have a big Goliath saying to the Open Source developers, ok, prove I am
violoating the GPL. What are you little people going to do? Sue me? Then, if
they buy Novell, they have a larger patent portfolio, and Unix and they can
swing that IP bat at anyone they wish. Then how will Sun, IBM, Red Hat,
Linspire, Mandriva, Apple, and Ubuntu react? But hat does Apple care? They use
BSD. Yes, Microsoft has been saying that Linux infrindges on patents. They
haven't said a word about BSD, another Unix clone. Copyright law allows clone.
Software patents may not or aggresively limit cloning. This SCO thing has been
all about Copyright IP. Microsoft's next step is software patent IP.
Just a thought.[ Reply to This | # ]
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| Authored by: Anonymous on Wednesday, December 06 2006 @ 10:41 AM EST |
In SCO's intro, they say it is undisputed that they did not violate the GPL, but
then right after that, they talk about IBM's claims that they violated the GPL.
Does "usdisputed" mean something different in legal jargon?[ Reply to This | # ]
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| Authored by: Anonymous on Wednesday, December 06 2006 @ 10:52 AM EST |
Sorry PJ but I have to disagree with your bleak assessment. Understand that
businesses exist to make money and please shareholders, and if on the back of
that they can also pay people to contribute code to the community they should be
applauded. Remember Novell has done much more for FOSS than MS ever has.
The FOSS community should encourage companies to contribute code, encourage
companies to play fair and engage with the community. However, the last thing
we should be doing is to become like a rabid pack of zeolots who say "You
don't think like we do, go away".
That attitude helps no-one. I certainly wouldn't like to be associated with a
movement who behaves like Pro-Lifers and attempts to intimidate people into
their way of thinking.[ Reply to This | # ]
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| Authored by: hsmyers on Wednesday, December 06 2006 @ 10:57 AM EST |
| Will all of you who choose to disparage the capital of the state of Idaho please
understand that it is BOIES, not Boise!
--hsm [ Reply to This | # ]
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| Authored by: Anonymous on Wednesday, December 06 2006 @ 11:04 AM EST |
| Boycott Novell products and services. [ Reply to This | # ]
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| Authored by: Anonymous on Wednesday, December 06 2006 @ 11:15 AM EST |
I used to have a lot of respect for Groklaw, because its positions on the SCO
case were based on thoughtful analysis of the evidence presented in court. But
this vitriol against Novell seriously undermines the site's credibility in my
mind, and makes me rethink the SCO coverage as well.
I'll go through the 3
points individually.
1. Novell agrees to violate the clear intent
and spirit of the GPL in an attempt to comply literally with the words but not
with the actual known purpose of the license to make money off of code Novell
didn't write and doesn't own. So instead of trying to prove the GPL isn't
binding, they just kick it to the curb and step over it and dare the community
to do something about it?
(a) This implies that Novell itself
didn't write and doesn't own any code, which couldn't be further from the truth.
Novell (with SuSE and Ximian) have been substantial contributors to free
software. The glibc support for x86-64 was written by them. They continue to
make significant contributions to the Linux kernel, GNOME, KDE, OpenOffice,
Samba, etc. You can hate Mono on ideological grounds, but you can't doubt that
it's free software. While there's little question that the majority of
code Novell ships isn't owned by them, the implication that they are a leech
(like Caldera and SCO were even before they turned evil) is false.
(b)
At the core of the GPL are the 4 freedoms: the right to use the software, the
right to distribute the software, the right to modify the software, and the
right to distribute any modifications, all without restriction. This deal in
no way restricts those freedoms for you, me, Novell, or even Microsoft. And
any violation of that license prohibits them from distributing the software.
That is why the GPL is a great license. SCO tried to violate the license, and
then say it didn't exist. Novell hasn't done anything like that
here.
2. puts a FUD legal cloud over Linux (this time a patent
cloud) or in any case an "IP" cloud, as per Steve Ballmer's vague wording -- and
was Darl McBride's less vague?;
Have you been living under a rock
for the past ten years? Microsoft has been saying these things anyway,
both publicly and behind closed doors trying to scare potential customers out of
using Linux. While the press has jumped all over this as a complicit
acknowledgement, Novell to its credit has come out and said that they don't
believe this is the case. Yeah, I would have liked Hovesepian to show a little
spine and counter Ballmer's statements at the press conference, but this is not
as big a deal as everyone makes it out to be.
3. makes Novell's
Linux cost more, because it has agreed to pay Microsoft royalties, whereas SCO
asked for money for its license;
Huh? This doesn't make any
sense. First off, the "royalty" payments to Microsoft are capped at $40
million. And the payments from Microsoft to Novell are at least $138
million, which means that even in the worst case Novell makes
$90+ million on the deal. If anything, that would drop the price of their
Linux offering.
But that doesn't make any sense either, because Linux
companies can't compete on price. The software out there is free, and
people can always download and install Debian if they need it to cost nothing.
People pay for the value add: software integration, support, consulting
services, etc.
If you really want to be upset about licensing costs in
Novell's Linux, you should be more angry that they licensed the MP3 codec for
their SLED product, because that actually cost them money. In a product which
costs only $50 per seat retail. (And I can guarantee you none of their
customers pay that much for it.)
And while I'm on a roll, I thought
I'd address another thing I keep seeing about this deal. I don't think I've
ever seen it in a Groklaw post, but I do see it a bunch of different places: the
idea that Novell will now try to secretly "slip in" Microsoft IP
(a)
it's totally speculative, and assumes bad faith on Novell's part. There's no
evidence to suggest that Novell would try this. In fact, there is evidence that
contradicts it.
(b) Novell doesn't have permission to do this. Nothing
in the agreements that I've seen is there licensing of any IP (copyright,
patent, or trademark). This would probably cause MS to sue Novell (and nothing
in the agreement prevents that, either).
(c) it's hard to "slip in" secret
code into projects, because there are so many eyes on it. If the code is
obviously infringing, it won't go in.
(d) if they did manage to slip it
in and ship it, it would probably violate the GPL and that code would have to be
removed or the software couldn't be distributed. The owner of that code would
probably be able to sue for damages too if money changed hands.
(e) if
they did do this, and Microsoft went after someone like Red Hat, I sure as hell
hope that Red Hat would countersue Novell to negligence in doing this. But
that's an awful lot of "ifs" and it seems more likely that a shady individual
would purposefully or accidentally try this than a corporation like
Novell.
So let's try to dial down the rhetoric a little, ok? People
can reasonably disagree on whether or not this deal is good for Linux in
general, but all this ill-informed hatred is doing more damage to the community
than this deal ever could.[ Reply to This | # ]
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| Authored by: Anonymous on Wednesday, December 06 2006 @ 12:00 PM EST |
Call me parinoid but everybody seems to be missing a major point of the
MS_Novell deal.
MS does not want to destroy LINUX, it wants to TAX it. Yes, every copy, every
user, everywhere, about $100-200 each would meet their monopoly goal. Here is
how:
First MS is in real trouble. If Vista follows the usual MS strategy we will find
that over half the installed hardware base won't run Vista due to increased
hardware requirements, that MS will have a long list of software that won't run
on Vista, and, of course, there will be a constant and endless flow of critical
updates and bug fixes. In short, MS customers will find the upgrade yet another
nightmare to be avoided. The big question: is the recurring MS nightmare worse
than migrating to LINUX? It just might be.
Second, MS has only three handles available to extort money from LINUX
customers: trade secrets, copyrights, and patents. Funding SCO was the first
attack and it came up empty both on trade secrets and copyrights. So the last
gasp is patents. The EU settlement succeeded in part because MS could not hide
behind interpretability patents. They learned their lesson.
Third, an industry wide conversion to LINUX can't be done over a weekend so a
smooth transition will require interpretability with MS products until a
complete transition can be accomplished. Why would MS fund, design, develop, and
distribute such software?
The answer:
MS intends to get its patented technology to infect as many copies of LINUX as
possible and Novell is the carrier. Those patents will submitted to the USPTO
over the next few years as the end result of the MS-Novell cooperation
agreement.
And when that agreement expires?
You can bet that MS will exert it patent rights against each and every LINUX
user who was foolish enough to use LINUX infected with MS patented technology.
Of course, a couple hundred bucks per unit will settle things nicely.
[ Reply to This | # ]
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| Authored by: dodger on Wednesday, December 06 2006 @ 01:37 PM EST |
Is it possible, that when a convicted monopolist enters into an agreement with
Novell, Microsoft is again violating the Anti-Trust laws both in America and
Europe by entering into an agreement that increases the scope and size of the
Microsoft Market by getting into bed with Novell, where linux commands a huge
percentage of the server market???
If so, do we notify the SEC?
[ Reply to This | # ]
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| Authored by: GLJason on Wednesday, December 06 2006 @ 04:17 PM EST |
| If Microsoft claims that Linux infringes their patents, should not the community
change Linux so that it no longer infringes? I suggest writing a letter from
the open source community to Microsoft asking them to explain what patents they
believe that Linux infringes and in what way. I suggest asking them to comply
with source code version, file, and line within 30 days, or we will assume that
any patents that Linux might infringe are licensed for free use under the GPL
for anyone.
Couldn't this bring into play "Estoppel by acquiescence". If
Microsoft responds, we will be able to cure any alleged breach in Linux, or
contest the patents on whatever grounds we may find (prior art, obviousness,
etc) before they attempt to sue anyone. If Microsoft does not respond, anyone
that is sued may bring up Estoppel and claim that they relied on Microsoft's
silence on the issue believing that Linux did not infringe any patents. The letter
the community wrote to SCO seems like a powerful exhibit when used by
IBM.
http://en.
wikipedia.org/wiki/Estoppel#Estoppel_by_acquiescence
IANAL,
Wikipedia is not a legal site, blah blah
[ Reply to This | # ]
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| Authored by: Anonymous on Wednesday, December 06 2006 @ 09:59 PM EST |
" And until Novell fixes that agreement or pulls out, "
More specifically, assuming they wanted to, what could they do at this point?
Aren't they stuck, having signed an agreement??[ Reply to This | # ]
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| Authored by: garbage on Thursday, December 07 2006 @ 09:29 PM EST |
"everything SCO and its backers wanted from this litigation, but failed to
achieve, Novell just handed to Microsoft on a silver platter by signing that
patent agreement"
Many MANY folks feel the same way.
A lot of expreienced people said that Novell would destroy SuSE when they bought
it... they were right.
[ Reply to This | # ]
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| Authored by: Anonymous on Friday, December 08 2006 @ 04:12 PM EST |
Well I got to this discussion late, and will be at the tail end of a long list
of posts, so this might not get read.
But scanning SCO's arguments, as
to why they are not breaching the GPL, the following caught my
eye.
"15. SCO copied and distributed the Linux kernel and other
related Linux software for years prior to 2003, when SCO discovered that IBM and
others had misappropriated SCO's copyrighted UNIX code by contributing it to
Linux without SCO's approval. On May 14, 2003, SCO suspended all sales and
marketing of its entire Linux product line. (Hughes Decl. ¶ 3; Hughes Dep.
(3/2/06) at 179, 186 (Ex. F); Hughes Dep. (5/11/04) at 16, 37, 48,
51.)"
What's ironic to me, is they are still refering to SCO'S
copyrighted UNIX code. Now to the best of my knowledge, since SCO did *NOT* get
copyrights from Novell, the only Unix code SCO owns the copyright to is what
they wrote as the SCO Group, and whatever copyrights might have received
regarding code that might have been contributed to Unix by Santa Cruz
Operations, that was not contributed to Linux by either the Santa Cruz
Operation, or SCO.
But even so, all that is marking is the point in
time, when the SCO Group ceased marketing Linux. Point to consider here, they
just cut off a major potential source of income, presumably, what Caldera was
trying to do before they bought stuff from Santa Cruz Operation.
But
ceasing to market is not the same thing as ceasing to distribute. Point of fact
is they had stuff on their web sites months after they started this whole pile
of garbage.
[ Reply to This | # ]
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| Authored by: Anonymous on Sunday, December 10 2006 @ 10:48 AM EST |
It is in the nature of corporations to perform whatever actions are necessary or
thought necessary to advance their stock price on behalf of their stockholders.
To believe that any corporation, be it Novell or IBM, will forever hold the
interests of the Linux and open source community above corporate profits is
naive. While the community can hold these companies feet to the fire when it
comes to the GPL, the only thing which will work in the short term is for all of
these companies, Microsoft included, to give all relevant software patents to
the ODF, and in the long term for the patent office to make software patents
illegal.[ Reply to This | # ]
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