Re: SCO Linux question

From: Bryan Taylor <bryan_w_taylor[_at_]yahoo.com>
Date: Thu, 07 Aug 2003 16:32:52 -0400

• vbel <swiver[_at_]cox.net> wrote:
  > SCO has recently threatened or instituted litigation against Linux
  > developers, distributers and end users (customers) because the Linux kernel
  > allegedly contains code that infringes on SCO's work.
  >
  > In response, Prof. Eben Moglen of Columbia has issued a position paper in
  > which he points out several flaws in the SCO case. One of the points he
  > makes is that copyright law does not support SCO's (future) case against
  > customers because copyright law does not prohibit "use;" that is, in essence
  > it generally only prohibits those things set forth in 17 usc 106.
  >
  > Granted that I am just going off news reports, and haven't read his paper,
  > my question is this. If the work at issue here were a book instead of
  > software, I can see that Moglen would be correct, because one need not make
  > a copy of a book in order to read it.
  >
  > But, given that end users must copy software onto a hard disk (usually) in
  > order to use it, and then load into RAM at boot time, aren't we in fact
  > talking about acutual (alleged) infringment versus just "use"?
  

Funny you mention this topic. I mailed off an post earlier today on it. For some reason, my posts are taking a long time to get through.

The relevent law is 17 USC 106 and 17 USC 117. http://www4.law.cornell.edu/uscode/17/106.html?DB=uscode http://www4.law.cornell.edu/uscode/17/117.html?DB=uscode

106 says copyright owners have exclusive right to authorize someone to copy, distribute, and modify their works. Conversely, 17 USC 117 says the "owner" of a copy may make a copy or adaptation for use in a machine and it is not an infringement.

Software companies don't like 117 and try to use contracts and a little bit of bluffing to get users to voluntarily give up their 117 first sale right. The law on the contract issues involved is muddled at best. A number of circuit courts have considered a number of different issues with badly fractured outcomes. Other isses having to do with contract formation requirements have been addressed in district courts and state courts with equally fractured outcomes.

However, in the Linux case, there is no such "shrinkwrap contract", so I believe 17 USC 117 is the final word. SCO's position seems very much like asking people who bought a CD to pay for the right to listen to it based on the allegation that the artist copied something (and SCO has never said what).

In fact, the licence Linux uses clearly authorizes copying, modification, and distribution under carefully controlled circumstances, and SCO itself distributed Linux, so their claims seem almost laughable to me. Taking them at their completely unsubstantiated word, Linux is 1% tops theirs and 99% validly licenced open source software. So how exactly did SCO distribute that 99% if they didn't comply with it's licence terms to re-licence the whole under open source terms. Even if IBM ripped them off and created an infringing mix, SCO has a wholely separate duty to each of the legitimate Linux copyright holders (400+ in number) to respect their licence when they distribute the result.

My personal take is that SCO is being intentionally thrown to lions. Red Hat's recent lawsuit against them points out the very fishy nature of their supposed IP claims. I suspect that what is really happening is that Sun and or Microsoft is using SCO to slow down Linux. At the end of this, SCO will probably no longer exist as we know it.

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