Posted on 05/04/2004 7:52:08 AM PDT by stainlessbanner
"Developers who believe 'software should be free' cannot prevail against the U.S. Congress and voices of seven U.S. Supreme Court justices who believe that 'the motive of profit is the engine that ensures the progress of science,'" McBride said in an open letter recently. "Our system of copyright laws is built on the foundation of the U.S. Constitution."
The SCO Group is amending its federal lawsuit against IBM (NYSE: IBM) , changing its legal tactics in the ongoing public drama over Linux software.
But contrary to some reports in the press, the company didn't claim earlier in a letter that the Linux General Public License (GPL) was "unconstitutional."
Rather, Darl McBride, the company's CEO and president, claimed the GPL violated the U.S. Constitution by undermining intellectual-property rights.
"Developers who believe 'software should be free' cannot prevail against the U.S. Congress and voices of seven U.S. Supreme Court justices who believe that 'the motive of profit is the engine that ensures the progress of science,'" McBride said in an open letter recently. "Our system of copyright laws is built on the foundation of the U.S. Constitution."
McBride expanded on that theme in another letter, this time to members of the U.S. Congress.
"By taking action, our company has become a target for sometimes vicious attacks -- including online attacks that have repeatedly shut down our company Web site," McBride wrote in his letter. "Despite this, we are determined to see these legal cases through to the end because we are firm in our belief that the unchecked spread of open-source software, under the GPL, is a much more serious threat to our capitalist system than U.S corporations realize."
Blake Stowell, spokesperson for Lindon, Utah-based SCO, did not return two phone messages -- and an e-mail query -- from LinuxInsider this morning, seeking additional comment.
Claims averring the unconstitutionality of an action are usually employed only against the government, as when someone's civil rights are violated. If the government were infringing upon a company's rights, it would have a valid claim of unconstitutional behavior. But reporters in the computer trades got this one wrong.
They should have stated simply that SCO alleged there were violations of the Constitution, not that the company claimed there was unconstitutional conduct. Perhaps the confusion generated by these ill-informed articles was one of the factors that motivated SCO to change its filing.
SCO's Tactical Maneuvers
The company latest U.S. District Court filing against IBM over Linux demonstrates it is no longer even claiming that the Linux GNU-GPL license violates the Constitution. Last week's filing, called SCO's Answer to IBM's Second Amended Counterclaims, does not state in court that "the GPL violates the U.S. Constitution."
The move is tactical, as it attempts to block IBM from fighting on that turf and to discredit Big Blue's overall argument. IBM is countersuing SCO in this matter, and SCO also is in court in a number of other venues against other technology organizations, according to news releases on its Web site.
AutoZone recently asked a court to put a hold on The SCO Group's Linux lawsuit against it -- a case that could have ramifications for any company using the open-source operating system. SCO litigated against AutoZone in March, claiming the auto-parts retailer infringed on SCO Unix copyrights through its use of Linux.
In its brief filed recently in U.S. District Court in Nevada, AutoZone argued the case should be "stayed" -- delayed indefinitely -- until there are results from three related SCO lawsuits that involve IBM, Red Hat (Nasdaq: RHAT) and Novell (Nasdaq: NOVL) .
"The resolution of each of these prior filed actions will significantly clarify, if not resolve, SCO's claims against AutoZone," the auto-parts retailer said in its motion. Legal issues -- including the issue of Constitutional protection for software -- have been heating up in the computing industry of late.
A recent speech by Eben Moglen, general counsel of the Free Software Foundation, indicates that those who favor open-source software are in favor of amending the Constitution.
"The copyrights clause in Article 1 Section 8 is only one of the many ways in which those rather-less-realistic-than-usually-pictured founding parents of ours participated in the great 18th-century belief in the perfectibility of the world and of human life," said Moglen during the speech before a Harvard University audience. "The copyrights clause is a particular legal embrace of the idea of perfectibility through access to and the sharing of knowledge."
Moglen, a law professor at Columbia University School of Law, said the 21st-century inheritors of that promise "live in a world in which there is some doubt as to whether property principles, strongly enforced, with their inevitable corollary of exclusion -- this is mine, you cannot have it unless you pay me -- whether property principles best further that shared goal of the perfectibility of human life and society based around access to knowledge."
At the Free Software Foundation, the position has been for 20 years that to the extent that "existing copyright rules encourage the diffusion of science and the useful arts, they were good. And to the extent that they discouraged the diffusion of knowledge and the useful arts, that they could be improved," he said.
Rather, Darl McBride, the company's CEO and president, claimed the GPL violated the U.S. Constitution by undermining intellectual-property rights.
Sure sounds to me like a "distinction without a difference".
Is the author of this article a known blowhard?
No, I don't think so. The constitution is just fine. That being said, I do think SCO, which now seems to be only in the litigation business, has little or no legal standing, and should eventually be dissolved.
Preferably in concentrated hydrochloric acid.
I still don't see what leg SCO is trying to stand on in attacking GPL. If I write a program using no prior sources, I can do any of the following:
1. Keep it secret so that no one can look at it
2. Release it publicly to allow anyone to use it however they want.
3. Sell it to someone and let him do what ever he wants with it.
4. License its use to someone under some terms I specify. I could license it and say they can do whatever they want with it, but they have to release their changes publicly for others to use under the same terms.
#4 is essentially what GPL is. If you don't like my terms about public release then don't use my program and develop your own. SCO is essentially saying that I can do what I want with a program I write except allow other people to modify it under terms that they release their changes. Huh?
GPL is a lot friendlier license that all of the stuff in Microsoft's licenses about first born children and fire raining from the sky.
Exactly, the bogus story was first reported on IBM mouthpiece Groklaw.net, and was later duplicated by a couple of open source advocates. Not surprising, in the least.
IBM was not allowed to transfer original or derivative Unix code into competing products…
Original OR derivative? IBM can't do Unix? Which Unix? Any Unix? Competing products? Please clarify what SCO's claim is.
like Linux
Are you sure Linux is part of SCO's current claim?
The questions about the "copyleft"…
I remember SCO saying they were going to bring copyrights violation their claim. What happened to that?
Either, obviously. To most, at least.
Are you sure Linux is part of SCO's current claim?
Of course, you think this suit isn't?
I remember SCO saying they were going to bring copyrights violation their claim. What happened to that?
Copyright violations are a part of the claims against IBM, so I guess "what happened" is they did what they said they would. Caught up, yet?
Actually, sorry, I think you're taking me backwards.
1) Of course [ Linux is part of SCO's current claim ].
2) Copyright violations are a part of the claims against IBM
Linux and copyrights are part of SCO's current claim in the IBM suit?
Are you sure?
Nope, they're not. SCO has amended the suit to basically only say that IBM is continuing to use SCO-licensed materials despite SCO cancelling the license. (IBM's defense comes from Novell, who states that SCO had no right to cancel the license.)
Yep. Read your own site, Groklaw. Can't trust much on there, but since they were supposedly quoting SCO's submission to the court it might be ok to sufficiently answer your question. Says right on their front page today that SCO has a copyright claim against IBM "for IBM's continuing use of AIX and Dynix after SCO terminated IBM's UNIX licenses." Let me guess what you're going to say now, "copyright" doesn't mean "copyright", or some other nonsense.
Say it ain't so, Eagle.
you're going to say now…
Not saying nothin'. Trying to figure out exactly what SCO's claiming. I've heard trade secrets, copyright infringement, violation of the U.S. Constitution, GPL is illegal/immoral/anti-American, Linux, Linux, Linux.
So, are you on-track with kevkrom?
Is the SCO claim now down to "IBM is continuing to use SCO-licensed materials despite SCO cancelling the license" ?
Actually no, I don't. They permanently blew their credibility with insane stories like how SCO was launching DDOS attacks on itself, I still LOL everytime I think about it. And here we are today, in this very thread talking about something Groklaw got completely wrong which messed up others as well.
No, I was just giving you a source that I thought you'd probably believe. Looks like it worked.
Is the SCO claim now down to "IBM is continuing to use SCO-licensed materials despite SCO cancelling the license" ?
No, it's not. Go back and read my first response to you again. Good luck getting it this time.
Okie doke:
that per contract, IBM was not allowed to transfer original or derivative Unix code into competing products like Linux, or to export it to countries on the US export control list.
But your view here – in your copyright/Linux inclusion – is contradicted by SCO's own statement in their latest amended complaint:
"The Second Amended Complaint, however, does not contain a claim against IBM for copyright infringement arising out of its use, reproduction or improvement of Linux."
That's true, I was referring to your assertions earlier, should have made that clearer. Here they are, hope this makes more sense:
[Linux and copyrights are part of SCO's current claim in the IBM suit?] Yep.
and:
Copyright violations are a part of the claims against IBM…
That (copyrights and Linux) is what I've been trying to ask and clarify in the discussion. You seemed very adamant that they were (see above).
Now, if I'm understanding your last post, you're not saying they are.
or you're just trying to start an argument.
It is an argument - about what exactly SCO's claim is – but I'm not trying to be argumentative. I am, however, trying to make a point, as you are.Whichever it is, I really couldn't care.
The only two times I've engaged you in discussion, it's about specifics of the case. And both times, the further we go into specifics the less you seem to care.
I think you have an ideological bone to gnaw on, but IMHO, it's not supported by the facts and specifics of this case.
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