SCO: Without Fear and Without Research is Prof. Eben Moglen's November 24 statement on the state of the SCO litigation.

The Columbia Law School professor and GC of the FSF describes how SCO's Las Vegas presentation purporting to identify code from the Linux kernal copied from UNIX Sys V source code was promptly demonstrated to be untrue. The more interesting aspect is how IBM has painted SCO into a corner with its counterclaims.

SCO's legal situation contains an inherent contradiction. SCO claims, in the letters it has sent to large corporate users of free software and in public statements demanding that the users of recent versions of the kernel take licenses, that the Linux program contains material over which SCO holds copyright. It also has brought trade secret claims against IBM, alleging that IBM contributed material covered by non-disclosure licenses or agreements to the Linux kernel. But it has distributed and continues to distribute Linux under GPL. It has therefore published its supposed trade secrets and copyrighted material, under a license that gives everyone permission to copy, modify, and redistribute. If the GPL means what it says, SCO loses its trade secret lawsuit against IBM, and cannot carry out its threats against users of the Linux kernel.

But if the GPL is not a valid and effective copyright permission, by what right is SCO distributing the copyrighted works of Linux's contributors, and the authors of all the other copyrighted software it currently purports to distribute under GPL? IBM's counterclaim against SCO raises that question with respect to IBM's contributions to the Linux kernel. Under GPL section 6, no redistributor of GPL'd code can add any terms to the license; SCO has demanded that parties using the Linux kernel buy an additional license from it, and conform to additional terms. Under GPL section 4, anyone who violates GPL automatically loses the right to distribute the work as to which it is violating. IBM therefore rightly claims that SCO has no permission to distribute the kernel, and is infringing not only its copyrights, but those of all kernel contributors. Unless SCO can show that the GPL is a valid form of permission, and that it has never violated that permission's terms, it loses the counterclaim, and should be answerable in damages not only to IBM but to all kernel contributors.

SCO and its predecessor, Caldera, have benefited enormously from the protections of the GPL. Thanks to the GPL, SCO has been able, for example, to use the invaluable work of compiler designers and implementers around the world who have made GCC the premier cross-platform C compiler. Customer applications run on SCO's Sys V Unix because of GCC, to which SCO contributed modifications particular to its system, and for which it assigned copyright to the Free Software Foundation. Caldera and SCO could not have marketed a usable operating system product without the contributions of the free software community. SCO was happy to take the benefits, but it has unethically sought to avoid its responsibilities.

Vetting SCO's Linux Lawsuits

A solid overview of the litigation as of September 22, 2003.

SCO says that its Unix code is a trade secret and that it will show samples of the infringing code only to those willing to sign a nondisclosure agreement.

However, two such samples were recently leaked to the public after appearing as part of a presentation at the SCO Forum in Las Vegas, and the non-infringing lineage of both were promptly established by the open-source community. Bruce Perens, an open-source-code lobbyist, has posted an analysis of the samples at www.perens.com/Articles/SCO/SCOSlideShow.html, in which he points out that both pieces of code had been released under the open-source BSD license.

In any case, a much bigger problem for SCO in its quest to establish ownership of Linux is that it has distributed the code in question under the GNU GPL (General Public License)—in other words, it has given it away. SCO says it was not aware that its intellectual property was included in Linux when it distributed it, but there are reasons to question this.

SCO is claiming ownership of such a large portion of Linux that it's difficult to imagine how the company could have marketed and developed Linux distributions for years without realizing that it was giving its property away. For example, SCO asserts that more than 829,000 lines of its proprietary symmetric multiprocessing code has been duplicated in Linux.

Most recently, SCO has taken to challenging the legality of the GPL, asserting that it is pre-empted by federal copyright law. It's an argument that Columbia Law School Professor Eben Moglen has characterized as frivolous and based on an interpretation of copyright law that would invalidate not only the GPL but many other proprietary software licenses as well.

Here's a Q & A from the GC of the Open Source Initiative to Linux users about the SCO lawsuit.

Constitution and Copyright

The primary objective of copyright is not to reward the labor of authors, but "[t]o promote the Progress of Science and useful Arts." Art. I, 8, cl. 8. Accord, Twentieth Century Music Corp. v. Aiken, 422 U.S. 151, 156 (1975). To this end, copyright assures authors the right to their original expression, but encourages others to build freely upon the ideas and information conveyed by a work. This principle, known as the idea/expression or fact/expression dichotomy, applies to all works of authorship. As applied to a factual compilation, assuming the absence of original written expression, only the compiler's selection and arrangement may be protected; the raw facts may be copied at will. This result is neither unfair or unfortunate. It is the means by which copyright advances the progress of science and art.

Feist Publications, Inc. v. Rural Tel. Service Co., 499 U.S. 340 (1991).

The Old Firm too hot for Scottish referees? Weak.

Gazza apparently does believe in tears.

This could, of course, be perceived as so much whining self-pity, especially when he blubs "I just wanna be happy, like". But that probably just comes with the confessional territory. Breaking down in sobs at least once may well be a contractual obligation of this type of programme.

Vinnie, Vinnie. Simmer down, my son.

The 38-year-old former Wimbledon midfielder became angry when fellow passenger Stephen Driscoll told him he was being "annoying", sparking a tirade of "frightening" threats from the soccer player turned film actor. . . . When air crew tried to intervene Jones said: "I can get you murdered. I can get the whole crew murdered for £3,000", having already shouted at one of them "Go and do what you are paid to do and make the coffee."

Gore's tapping Dean inevitable? From Dan Gillmor's eJournal on SiliconValley.com.

According to an editorial in today's NY Times:

Given the choice of seeing the law as a restriction on speech or as a needed corrective to corruption in politics, the court came down firmly on the side of considering it a corrective. It made clear that the free-speech test that applies to campaign contributions is a more forgiving one than is generally used for laws that prohibit speech itself. And it underscored that Congress had important interests in preventing both political corruption and the appearance of corruption.

Link: A Campaign Finance Triumph

No, I have not yet read the Supreme Court's opinion upholding key portions of McCain-Feingold, but the news reports sound positive. Anything that erodes Buckley v. Valeo's strict equating of free speech and spending money would be a good thing in my book.

Heartbreak and treachery in Lyon.

Last Friday, the Berkman Center for Internet & Society (at HLS) hosted a meeting on alternative compensation systems for digital media.

This past July, Prof. William Fisher (also HLS) presented one such alternative in an op-ed piece on CNET. This mandatory, state-run system would involve a govt. agency taxing ISP access and, to a lesser degree, CD burners, blank CDS, MP3 players, and distributing that revenue to copyright holders based on public usage of the works (determined by tracking Internet transmissions).

More information at the Berkman Center's Digital Media Project site.

Lessig's response to the "constitutional" arguments made against the GPL by SCO prexy McBride.

Update on the SCO Group's lawsuit against IBM regarding allegations that the Linux operating system incorporates proprietary elements of UNIX to which SCO purportedly owns rights. After months of threats, SCO (represented by Bois Schiller) has annonced it intends to file a complaint against a large Linux user for copyright infringement.

The article cautions enterprise Linux users against undue concern:

This indicates that SCO has more than one point to prove with regards to code it believes has been copied into Linux. The first is that Unix code is there in the first place, and the second is that SCO has any rights to it. This is especially relevant given the complexity of deciding whether Unix code developed by Unix licensees (such as IBM and SGI) should be considered a derivative work of the Unix System V code that SCO owns and has licensed to all Unix vendors (including also Sun and HP).

Whether this code is considered a derivative work depends on the contracts SCO has with its licensees, and this is another good reason for delaying paying any invoice. SCO has recently stated that its legal case against Linux has two strands: a contract dispute with IBM, and a copyright dispute with Linux users.

This is an accurate description of its cases, which helps in the understanding of its claims, but does not take into account the fact that the latter must surely depend on the former. Linux users should not pay SCO a penny for copyright infringement claims until it has proved that its copyright has been infringed.

That will involve the long and complex task of identifying "Unix" code, tracing where it originated and how it got into Linux, and deciding which company has the right to it. This is precisely what SCO's case against IBM will cover (among other things), but not until at least 2005, when it is expected to enter court.

Link: Linux Users Play the Waiting Game

Essay on IP and electronic games from some dude at Yale law school. LawMeme - Free As In Gaming?

I am so utterly clueless when it comes to programming or even thinking theoretically about computers or networks like the Internet. I wish this were not the case. So, at the ripe old age of 37 I am going to try to learn a few things that the average junior high school kid probably learned years ago. The fine folks at The Web Design Group are going to help me. WDG claims to be "making the Web accessible to all." Seems like a bit of puffery, but I will give them the benefit of the doubt. Anyway, I don't think accessing the Web is really the concern for me. I can point and click in my browser with the best of them. I want to learn (if possible) how to understand and use the Web to gather, create and (potentially) disseminate information from a problem-solving, inquisitive mind perspective. That sounds ridiculous.

Basic questions about the web answered here from boutell.com

On the forefathers and religion from some Illinois conservative newspaper

Its all quite exciting.

Welcome to the first day of December 2003.