Linux Kernel Contributors Should Sue SCO

Posted 24 May 2003 at 22:20 UTC by bwtaylor Share This

SCO contends that it owns the "original" Unix source code, which I will call "A". SCO alleges that IBM licenced A from SCO and mixed it with the legitimate GPL'd code ("B") authored by kernel contributors to create code base "C" in violation of SCO's copyrights and non-disclosure agreements. If you contributed to B you should sue SCO for copyight infringement.

SCO obtained C = A + B and distributed it. The act of distributing C requires a licence on B, or else SCO is commiting copyight infringement. B is licenced under the terms of the GPL, and section 2b of this licence provides:

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.
SCO has publicly alleged that C violates it's copyright on B and that it believes that C is not properly licenced under the GPL. Yet SCO has distributed C which includes B whose licence requires SCO to licence C under the GPL per 2b above in order to distribute it. Thus SCO is commiting copyright infringement on B by distributing C. If you contributed to B, SCO has based its business upon piracy of your copyrighted work while deceiving everyone by telling the world C and thus any material SCO owned within C was licenced under the GPL.

SCO may claim that it's infringement was not willful, since it did not realize until recently that C contained A whose licence was incompatible with B. Setting aside the fact that it should inspect the code it is shipping, this claim is perhaps believable before it prepared to file suit against IBM, but not afterwards. Nevertheless, Copyright infringement exists even where it is done unwillfully and unknowingly. The willfulness of the infrigement is a factor in considering statutory, but not actual damages. For the several months after SCO executives first believed that C was improperly licenced and continued to distribute it, the conclusion that their infringement of B was willful is unavoidable.

For the period even before SCO formed this belief, its improper distrbibution of C still resulted in profits as a direct result of its infringement. The portion of these profits that is attributatble to improperly licenced distribution of B constitutes actual damages to the authors of B.

Moreover, SCO claims to have identified widespread infringement by innocent third parties who distrute C. Yet SCO, who is uniquely positioned to inform those unwitting third parties and thus prevent further infringement against B has conciously decided not to do so. Because SCO distributed C which, at face value, proclaims itself to be under the GPL, SCO has thus assisted and worsened the infringement and continues to do so after it has the knowledge needed to prevent and remedy such infringement. I believe this meets the defintion of contributory and vicarious infringement and makes SCO very similar to Napster in this regard.

I strongly urge kernel contributors to discuss this matter with their lawyers.


Update: LinuxTag starts the ball moving, posted 26 May 2003 at 19:12 UTC by bwtaylor » (Journeyer)

It appears that the German group LinuxTag has given SCO notice that it will take legal action if SCO doesn't either retract its claims or show its evidence. They are persuing an unfair competition tack. They also rely on the fact that SCO distributed the Linux Kernel.

LinuxTag Press Release

potty mouth, posted 28 May 2003 at 13:05 UTC by badvogato » (Master)

there's already an article about SCO in the front page . Why don't you join the discussion there? Your case is dismissed.

RE: potty mouth, posted 29 May 2003 at 00:19 UTC by bwtaylor » (Journeyer)

there's already an article about SCO in the front page.

No, there are now four. Expect more. If you don't like it, blame SCO.

Why don't you join the discussion there?

I don't feel the topic there is focussed on what I want to focus on. The "SCO declares total war on GNU/Linux" article is focussed on SCO's claims against the linux community. I want to discuss claims against SCO, which is a different topic.

Your case is dismissed.

Sorry, but it is not. As the newest thread reveals, SCO may sue Linux Torvalds for patent infringement. Inaction could prove disasterous. I know that many people want to ignore this issue or just hope that it will go away. Torvalds himself has up to now taken a wait-and-see attitude. I admire him for this, but it is becoming clear that SCO is going to press its attack. At some point, people who don't defend their rights lose those rights. SCO is not simply a troll.

This attack threatens the viability of the entire open source model and it should be taken seriously. Those who sit on their hands are helping it continue.

i suspect ..., posted 30 May 2003 at 20:19 UTC by sye » (Journeyer)

that this case should not be read as SCO vs. Linux but it is simply a manifesto about conflicts between Canadian trade vs. USian trade. Do more research in this vein, if you don't want me to throw out the case.

Gnu stands for GNU isn't UNIX, posted 30 May 2003 at 20:31 UTC by sye » (Journeyer)

But "People sometimes use the term GNU as Gnu is New UNIX. But Forth, when it provides OS services in Forth, is definately not UNIX." UNIX/C is no panacea in its ability to level the playground between small business and big corporations...

OK FInally, somebody is taking my advice!!, posted 15 Jun 2003 at 19:57 UTC by bwtaylor » (Journeyer)

It appears that at least one kernel contributor has sent SCO a cease and desist letter for it's infringement of his IP:

http://www.theinquirer.net/?article=10018

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