Asymmetrical Information

The RIAA is a much larger organization with a much larger volume of IP to protect the SCO or any software company of similar size. It is procecuting end users which don't even argue the fact that they are indeed infrining on copyright. They are not going after bands that play the same 3 chord sequence as one of their artists does and trying to collect money from all the people who had the pleasure of listening to that band perform the hijacked 3 chords. And look at the problems they are having. Have the P2P users stopped infringing? 95% of them haven't even in the face of obvious infringement and prosecution. Balance this with a company that ask for licensing fees prior to any legal action which would prove or disprove rights to the claimed IP and which won't even reveal the code that is allegedly infringing so that it can be replaced with clean code and you'll see your "even though the RIAA pretty much just did." becomes "pretty much" an invalid claim/comparison. I love OSS not because I think it will replace the established software model but because as readily available alternative it will keep software corporations honest by not letting them get away with an 80% return on investment for selling customers defective products which they must purchase upgrades to fix.

James, couple things:

First of all, you're arguing the merits of the case, which as I say, I'm not particularly interested in, though I'm pretty sure that the code involved, if it was copied (and copyrighted), doesn't fall within fair use.

Second of all, the reason the RIAA isn't going after individuals isn't that they can't, but that it's not cost effective. Going after large corporations that use a lot of software is much more cost-effective, and thus much more likely. particularly as corporations like to settle rather than litigate.

Again, I don't want to defend SCO. The lawsuit may well be unjust, but that doesn't mean it's also ineffective.

Darl is trying to run out the game clock. For him, there are 3 more quarter to go. His contract grant him a large option to excercise if he managed to get 4 straight quarters of profit. He's done 2 already with Unix license from Microsoft, Sun and HP. If he eeks out another 2 quarters, and one more quarter to excercise the option, he would've pocket the money. However, if by then SCO became a court awarded entity under IBM, that won't be his problem anymore.

"Going after large corporations that use a lot of software is much more cost-effective."...

Yes, but as soon as they hit the first company their hand is revealed and the linux kernel is cleansed before they can hit the next company. They may get $$$ out of the one suit but it pretty much closes the potential for going after any other infringers unless there is someway to go after infringers for infringments that were 1. not a concience infringment on the part of the company and 2. not a continuing infringment once the infringment was revealed.

I don't want to go into the validity of their case here as you've stated that's not your intent but you are referring to why it is an effective approach and I think unless there is some sort of reverse class action suit SCO's approach is not in any way potentially cost effective except for it's postive influence on it's stock price.

"Jane":

Your techcentralstation article was sloppily-written, poorly-researched drivel that would probably not even make the cut at zdnet. I sincerely hope nobody paid you to write it.

You've got one glaring factual error sitting right there in the second paragraph - the simple fact is that SCO has not sued anyone for copyright infringement, and you claim flat-out that they have. This is wrong, period. Blathering about "nit-picking" details and "missing the point" changes nothing - you have a flat-out falsehood published under your name, for all to read. Congratulations.

Additional flat-out factual falsehoods are tough to find in the article, but that's probably because the entire article is very thin on facts and very long on hypotheticals. Now you're entitled to hypothesize however you like, but if you really believe anything will stop Linux from eating "SCO Unix's" lunch, you just look like someone who hasn't had much contact with the IT world in a looong time. Replace "SCO Unix" with "Windows" or "Solaris" and maybe you wouldn't look like a complete buffoon, but SCO Unix's lunch was eaten a long time ago. Check SCO's financials going back several years if you don't believe me. Or ask any IT manager. No one thinks that either of SCO's crappy OS's has a future, least of all SCO.

With regard to the rest of your tired pontifications, how about putting your money where your mouth is? Make some concrete predictions about where LInux market share will be in a few months or a year, relative to now. If you turn out to be right, feel free to crow about it on your blog. If wrong, how about eating some crow?

Why would Open Source software should be any more suceptable to this sort of thing than proprietary software, other than that people have some sort of vague idea that Open Source has to do with socialism or IP theft (and why does the "Open Source" articles link off your front page point to articles on music theft, anyway, Jane?)

It's pretty clear that SCOs case has no merit - indeed, borders on barratry - unless possibly the court buys into their ridiculously broad 'derivative works' theory. IBM's lawyers *did* sign off on the code transfers, and SCOs 'examples' to date have been laughable. What's disturbing is that it takes as long to settle as it has; at this point it will likely drag on another year, at least as long as SUN and MS keep paying SCO for 'licenses' (that being where most of SCO's revenue comes now).

Admit it, Jane - you're just trolling for a Slashdot link to up your hits, aren't you?

It looks like SCO's case rests on 200 lines out of many tens of thousands of lines of code -- that have been deleted from the source tree for months.

http://www.itworld.com/Man/2685/031006sgisco/

I dunno. Maybe I'm just a dumb hippie singing at the moon. But if *this* is what the mighty engine of closed-source capitalism expects to conclusively demonstrate its glorious competitive superiority to evil socialist Linux, I'll puff a big fattie and relax.

I don't have any ad-hominem to toss at you personally for raising fair criticisms of open source, but I think the closed source corporate world is truly pathetic. It's not even pretending any more that it has any superiority to Linux *except* the ability to sic lawyers on the genuinely competent. Watching this, I'm reminded of nothing so much as I am of French foreign policy. Much strutting about, but ultimately nothing but primate dominance games and hot air.

"It's not even pretending any more that it has any superiority to Linux *except* the ability to sic lawyers on the genuinely competent."

I am very glad that Linux helps to keep major companies like Microsoft on their toes. It most certainly has done so in the sever market. Still, when will there be an open source office software suite equal to that of Microsoft's?

In keeping with the theory that there's no such thing as a free lunch, I suggest that the price paid for open source software is having to listen to the crazy linux people rabidly defend it.

Erich: Is "the closed source capitalist world" actually represented by SCO?

I work for a software company. Our product is closed-source (and it's never going to be open source, either, since that would be corporate suicide), but, er, I think you're throwing terms around in a very un-careful manner, given that the vast majority of "the closed-source capitalist world" doesn't care about SCO-vs-Linux or the existence of Open Source. (In fact, I suspect quite a few companies are happy as not to write closed-source programs that run on open-source platforms... Why should they care about the license of the underlying OS?)

Ron: Bravo, you beat me to the same statement. The reaction to SCO case is proof positive the Linux Jihad is alive and well. Love the software, hate the advocates...

Jane, in her TechCentralStation article, says:

Or possibly I'm just too thick to understand how cutting off a multi-billion dollar revenue stream from software sales, without putting anything else in its place, could be good for the software business.

Jane,

There's one critical fact that is not generally appreciated by outsiders: SCO's source code is the most promiscuous, poorly-documented work in existence. It was written over a period of three-plus decades. Much of it was written before it was properly established (by statute, not just precedent) that copyright applied to software. Ignore whether there are the proper copyright registrations, assignments, and licenses: nobody knows who the hell wrote a lot of the code.

If SCO breaks Linux, all the unsung Unix contributors are going to come out of the woodwork and break SCO a thousand times more. If they make end-users liable for "ill gotten gains", their own settlement is also ill gotten gains. SCO can't win: whoever they put over a barrel, somebody else has them over a bigger barrel.

It's just a game to pump up stock prices long enough for options to vest and be liquidated.

Copyright is strict liability - it doesn't matter whether you thought you were buying legal code, how you got it, or what due diligence you did to ensure you weren't infringing somebody else's rights. If some random Microsoft employee wrongfully includes code stolen from a previous employer or copied off the web then you, the end user, are liable. There's nothing special about Open Source software here.

The only resolution is to get some sort of indemnification from whatever vendor you're working with: IBM or MS have enough lawyers and deep enough pockets to credibly assume the inherent risk. That's the issue, not Linux vs. Windows.

You might argue that Open Source, with it hoards of unaccountable contributors, makes it more likely this sort of problem will crop up. That might be true, but I think there's just as good a case that the lack of transparency, along with the much greater pressure on its developers, provide greater incentive for cheating in proprietary software.

Anyway, your level of glee here is unseemly. Just admit you dislike Open Source for ideological reasons.

If some random Microsoft employee wrongfully includes code stolen from a previous employer or copied off the web then you, the end user, are liable. There's nothing special about Open Source software here.

Are you sure about that? Am I liable if I buy a CD of a musical work that contains an unlicensed sample of another work?

Remember the code snippet that turned out to be from BSD?

They didn't have the Regents of the University of California copyright notice on 'em as displayed (and presumably didn't in the source, because then they'd have known this wasn't stolen code). That means SCO is in violation of the BSD license. Which means the presence of the snippet in SCO Unix is a copyright violation on the part of SCO.

So, we have two operating systems here -- Linux and SCO Unix. And the only one we know is committing a copyright violation is SCO Unix. And we're supposed to think open-source software is more vulnerable to these lawsuits than closed-source software?

It's not like any of the companies that sell software indemnify you against their coders having violated copyright, and none of them check each programmers' code to make sure they didn't borrow it.

So, the only special risk to Linux is less-than-knowledgeable claims that this is a uniquely open-source vulnerablility. Other than that bit of PR concern, there is no risk to a company using open-source that doesn't alrerady exist for a company closed-source software.

Ron,

I'm not going to pretend I'm a lawyer but, yes, that's my understanding. To show direct infringement you just need to show copying. There is no state of mind requirement. (Same deal as statutory rape.)

In the example you mention it's not clear to me you've made a copy, so it's not clear that infringement on your part is relevant.

"In the example [unknowingly buying a CD with an unlicensed sample of other music] it's not clear to me you've made a copy, so it's not clear that infringement on your part is relevant."

But with software, any use involves making a copy. Installation copies it from the CD to the hard drive. Running the program requires copying it from the hard drive to RAM. Even if you run the program from the CD only, the code is still copied to RAM before it can actually run. So Microsoft and other software vendors claim you cannot legally use the program you purchased from them other than according to their license to copy. And through this, they claim to have effectively negated the "first sale" doctrine.

I sincerely hope that at some point Congress will apply a common-sense (even if technically incorrect) view to this and legislate that it's only "copying" for purposes of copyright when it enables running the program simultaneously on two machines without buying two copies. And that therefore "first sale" does apply, the vendor has nothing to say about what you can do with your property as long as you aren't running more than one copy, and when a program has been removed from one machine (intentionally or through failures) you can set it up on another machine or sell it to someone else without going back to the vendor for authorization codes - even if this requires hacking the copy protection. But it's going to be a tough battle to get this into the law...

However, if the Microsoft view of software licenses stands, where will it stop? Music CD players copy little snippets of encoded data to memory to decode and play them - does this mean that playing your CD is an infringement without also buying a license from the RIAA? A pretty clear copy of The Lord of the Rings is still in my memory even though I haven't seen those books in 15 years - if I cannot find the box containing them, do I have to submit to memory erasure?

"In the example [unknowingly buying a CD with an unlicensed sample of other music] it's not clear to me you've made a copy, so it's not clear that infringement on your part is relevant."

But with software, any use involves making a copy. Installation copies it from the CD to the hard drive. Running the program requires copying it from the hard drive to RAM. Even if you run the program from the CD only, the code is still copied to RAM before it can actually run. So Microsoft and other software vendors claim you cannot legally use the program you purchased from them other than according to their license to copy. And through this, they claim to have effectively negated the "first sale" doctrine.

I sincerely hope that at some point Congress will apply a common-sense (even if technically incorrect) view to this and legislate that it's only "copying" for purposes of copyright when it enables running the program simultaneously on two machines without buying two copies. And that therefore "first sale" does apply, the vendor has nothing to say about what you can do with your property as long as you aren't running more than one copy, and when a program has been removed from one machine (intentionally or through failures) you can set it up on another machine or sell it to someone else without going back to the vendor for authorization codes - even if this requires hacking the copy protection. But it's going to be a tough battle to get this into the law...

However, if the Microsoft view of software licenses stands, where will it stop? Music CD players copy little snippets of encoded data to memory to decode and play them - does this mean that playing your CD is an infringement without also buying a license from the RIAA? A pretty clear copy of The Lord of the Rings is still in my memory even though I haven't seen those books in 15 years - if I cannot find the box containing them, do I have to submit to memory erasure?

Darn, sorry about the double post.

"Is 'the closed source capitalist world' actually represented by SCO?"

I'd be delighted if it weren't. I'd be delighted if that were proven to me by SCO's behavior turning out to be an aberration.

I don't really have ideological problems with closed-source. I just want to not have to deal with some nimrod attorney trying to sue my OS out of existence because it's too good and thus a threat to some CEO who needs his stock prices to go up until he can offload his holdings. I work in bioinformatics; I use Linux because it just works, in a way that Windows seems unable to.

If we're going to allow frivolous lawsuits, can we have a class-action lawsuit by pro-capitalist advocates of open-source software against supposed allies who defend frivolous lawsuits in other fields?

Mark M --

Under U.S. Code Title 17, Chapter 1, Sec. 117(a)(1) loading a program into RAM to run it is explicitly permitted, and explicitly requires no permissions or licenses from the copyright holder.

This is current U.S. law, and has been U.S. law since the Computer Software Copyright Act of 1980 passed twenty-three years ago.

Joseph Hertzlinger:

Take a look at this Bugzilla bug.

I have yet to be convinced that woman is any sort of ally to Open Source.

Thing is, I don't understand why you think open source software is at particular risk from lawsuits like SCO's. It's true that Linux is getting contributions of code from people all over, and at some point Torvalds has to take their word that they own the copyrights of their submissions. In theory, this is a risk that closed source companies don't have. In practice however, the potential benefits of releasing code without permission are few (especially for people whose day job isn't working on Linux development) and the risk of getting caught is very high. If accepted, the code would be out there naked -- anyone who wants to check its provenance can easily do so. Notice that in the months since SCO started this nobody else has claimed that their code has been taken.

By contrast, it's Microsoft, that paragon of closed source, that keeps losing lawsuits for stealing other companies' intellectual property.

There are several legal cases winding up right now that involve Microsoft. Last week, a jury in Chicago granted Eolas $520 million in damages from Microsoft for violations of its patent on certain types of web links. ... While $520 million is a lot of money even at Bill Gates' house, the Eolas award is actually larger than that. It has been accumulating interest since 1998, and now stands at $600+ million. By the time Microsoft appeals (and presumably loses), according to Eolas CEO Mike Doyle, the deferred award will be up around $1.3 billion.

I had no idea when I wrote in last week's column about the lawsuit between Burst.com and Microsoft that there would be a public hearing on the case this week in Federal Court in Baltimore. ... You see, Microsoft did not come through the hearing very well as whole new levels of anti-competitive behavior were claimed by Burst AND ACKNOWLEDGED BY MICROSOFT -- levels that will likely haunt Redmond in many legal cases to come.

There seems to be a general misunderstanding of U.S. Copyright law here.

End users can not be sued for copyright infringement. This is not difficult to understand if you remember one key point. To infringe copyright, you must make a copy of what you are infringing. If you buy a copy, you are not the infringer; the person who made the copy is the infringer. I haven't heard anyone claim that distributors can not be sued for infringement, but in case there is any doubt, they definitely can be sued. However, although the mind set of the offender and whether he took reasonable steps to ensure that he was not infringing copyright is not relevant to whether you are guilty of infringement, it is relevant to the extent of the damages owed. Also willful infringement can involve fines and prison time, while innocent infringement can not.

Jane, you say that all the lawyers you've seen quoted say that end-users could be liable because the software is sold "as is." The only lawyers I've seen try to claim this were retained by SCO. Can you find one who claimed this that was not? It is not correct in any case. The RIAA actually went after people who were "distributing" (posting for download) music over the Internet rather than those who downloaded it. However, in this case, the downloaders could also be partially responsible (this is unclear) since they participated in the making of a copy, but only one or the other can be sued, not both. Perhaps, if there really was infringing code in Linux, and a corporation ran a lot of Linux boxes from a downloaded copy or ran a great number of boxes from one purchased copy, then they could be found to be infringing copyright. This would still be innocent infringement, and damages would be mitigated by this. Damages are also dependent on whether the infringement is serious or trivial, so this would factor in.

Finally, to address those saying that using software involves copying it, this claim, while technically correct, is legally incorrect. U.S. Copyright Law (Title 17), Chapter 1, Section 117, Subsection (a) states:

(a) Making of Additional Copy or Adaptation by Owner of Copy. -

Notwithstanding the provisions of section 106, it is not an infringement for the owner of a copy of a computer program to make or authorize the making of another copy or adaptation of that computer program provided:

(1) that such a new copy or adaptation is created as an essential step in the utilization of the computer program in conjunction with a machine and that it is used in no other manner, or

(2) that such new copy or adaptation is for archival purposes only and that all archival copies are destroyed in the event that continued possession of the computer program should cease to be rightful.

So, according to U.S. copyright law, you can compile, install, load into RAM, use, and even make a backup copy of software without infringing copyright. You just cannot put it on more than one computer at a time, or keep one copy of it while transferring ownership of another copy to someone else.

I believe you're incorrect, Mr Whitman, on two counts. First, people who knowingly receives goods that might be stolen do have some legal liability, though it's rarely enforced beyond repatriation of the product. Second of all, the corporate users of whom I am speaking generally copy their software onto far more than one machine, making them active infringers in your model. I think it vastly unlikely in any event that small businesses or end users will end up in trouble, other than the random events you see every so often when some company with a disgruntled employee has to pay Microsoft for their unlicensed software, because the transaction costs of recovery are too high. But big corporations, who drive a lot of adoption, are a whole different ballgame.

The first count you mention about receiving stolen goods is really irrelevant to whether the end users are liable. Receiving copyrighted materials is not covered by laws against receiving stolen goods because copyright infringement is copyright infringement and not theft (be careful not to confuse the two). However, even if there were a statute that prohibited the reception of infringing materials (there is one that prohibits the importation of them), it would only cover those parties who had sufficient reason to believe they were receiving such materials, and in absence of a court decision saying that the Linux kernel is infringing or a court case in existence that claims Linux is infringing, there is no such sufficient reason.

The second count on which you claim I am incorrect does not contradict anything I wrote in any way. However, corporate users could, and sometimes do, buy a copy of Linux for every computer they wish to install it upon. This is why indemnification is another false issue brought up by SCO. All a company would need to do is buy a copy of Linux for every machine they run the kernel on and they would be as indemnified over this issue as they could possibly be.

"Even if you run the program from the CD only, the code is still copied to RAM before it can actually run. So Microsoft and other software vendors claim you cannot legally use the program you purchased from them other than according to their license to copy. And through this, they claim to have effectively negated the "first sale" doctrine."

The vendor's advertising and salesmanship create a warranty of fitness for a particular purpose, namely the creation of transient copies to achieve the promised use of the work. If the vendor wished for additional unusual contractual agreements, they would have to put them in all the advertising. (Which is why car commercials always say things like "Professional driver on closed course. Do not attempt yourself." and spell out the financing terms in complete detail.)

Yes, if...

If there's a non-negligible amount of SCO code in Linux, and SCO have not given up their rights to it, then we might have a problem.

When this first came out, I thought they might be talking about a few hundred or thousand lines, which might well have happened by somebody bending the rules. It happens all the time in proprietary development; it can happen more rarely in open development.

Darl is now saying "more than a million lines". That's extremely hard to believe. There are not a million lines of common functionality that *could* be copied, even assuming that nobody would notice it happening.

As the IBM lawsuit makes fairly clear, SCO have given up their rights by distributing that code under the GPL long after they should have been aware of any infringement. I recommend you read the IBM filings; they're very lucid and readable and make a stronger case than SCO does.

I'm sure SCO can drag this out for a while and cause a certain amount of damage. But when we come right down to it, it's extremely unlikely there is any infringement even one hundredth the size of what SCO claims. Eventually, the courts will grind around to that conclusion.

There will probably be more lawsuits. Open source is big enough now to attract them, like any other industry. There have been a number of frivolous lawsuits against internet publishers, but it has not made a big dent in the overall phenomenon.

These claims have been widely referred to in the press as copyright claims; I followed common usage.

This is very slack. Do you really want to repeat every mistake and inaccuracy that happens to get into the press groupmind?

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