SCO can not win "SCO vs Linux" case. Seriously. [LWN.net]

From:		Khimenko Victor <khim@sch57.msk.ru>
To:		lwn@lwn.net
Subject:		SCO can not win "SCO vs Linux" case. Seriously.
Date:		Sun, 29 Jun 2003 18:32:12 +0400 (MSD)


I'm looking on "SCO vs IBM" case for some time and every time "SCO vs IBM" 
case is discussed like it's "SCO vs Linux" case. But it's not! Even more: 
even if SCO will win "SCO vs IBM" case SCO can not do ANYTHING to Linux 
(except may be make it illegal to distribute for some time).

How so ? Ok, SCO would like to get license fees from Linux vendors, right ?
SCO is not interested in removing offending code from Linux - they only 
want money, right ? Oops. Thay can not have it. No matter what Linus and 
IBM done. Even if they own rights for half of Linux's code.

Why so ? Linux's license is GPL. Reread this part of GPL once more, please:
-- cut --
7. If, as a consequence of a court judgment or allegation of patent 
infringement or for any other reason (not limited to patent issues), 
conditions are imposed on you (whether by court order, agreement or 
otherwise) that contradict the conditions of this License, they do not 
excuse you from the conditions of this License. If you cannot distribute 
so as to satisfy simultaneously your obligations under this License and 
any other pertinent obligations, then as a consequence you may not 
distribute the Program at all. For example, if a patent license would not 
permit royalty-free redistribution of the Program by all those who receive 
copies directly or indirectly through you, then the only way you could 
satisfy both it and this License would be to refrain entirely from 
distribution of the Program. 
-- cut --

What this means ? This means that even if SCO has some rights for Linux 
code (all or some parts of it) then there are ONLY TWO CHOICES:
  1. SCO grants everyone rights to redistribute Linux for free (like IBM 
     done with RCU patents)
  2. SCO forbids everyone to distribute linux without SCO's license and 
     thus makes linux UNDISTRIBUTABLE IS US FOR ALL INCLUDING SCO ITSELF!

There are NO other choices. Even if RedHat or IBM will buy license from 
SCO they can not redistribute Linux ! If they'll try then EVERYONE who 
EVER contributed to Linux can sue them. IBM, Intel, HP, SGI ...

Oh, of course all those companies can sue SCO for illegal redistribution 
once SCO claims are proven :-) Since SCO obviously redistributed Linux 
while agreements with other parties made it impossible for SCO to even 
show code (or so SCO claims).

Why this side of the issue never discussed ? Why every columnist is 
writing about how "Linux community doing nothing" when THE ONLY THING 
Linux community CAN DO is to remove offending code and it's not possible 
till SCO shows what code should be removed ?

(Log in to post comments)

GPL In Court

Posted Jul 3, 2003 5:53 UTC (Thu) by spitzak (guest, #4593) [Link]

No, he describes the results accurately. If the GPL "fails" then the code
is protected by copyrights belonging to the original authors. The GPL is
simply an "exception" telling you a special way that you can violate the
copyrights, and if it is removed you have no legal way to violate the
copyrights.

<p>The results would be exactly the same as he stated. SCO and everybody
else would not be allowed to distribute Linux. Only by getting permission
from all the original authors could anybody distribute Linux. SCO would
probably be the last place to get such permission!

Why not to ask IBM..?

Posted Jul 3, 2003 3:16 UTC (Thu) by jukkamy (guest, #11973) [Link]

Doesn't IBM has the possibility of check how much there is (or is there)copied code in linux kernel? As far that I have undersood, they do have both "system V"- and linux-sources? Or is there some legal aspects that prevents them to do it? I don't think so. At least they should point out where in linux are the parts that may be in question.

Jukka

Why not to ask IBM..?

Posted Jul 3, 2003 8:05 UTC (Thu) by MathFox (guest, #6104) [Link]

I am pretty sure they allready did the check... there has been much discussion on the topic allready, just a few points:
- similarities don't show the direction of copying
- for SysV code to work with Linux it has to be rewritten
- IBM has a contractual obligation to protect AT&T's trade secrets, so they can't tell
- there is the USL vs. BSDI lawsuit that freed BSD; what does that mean for Linux?
If you want to know more of the details of the case (and algorithms that show similarities without revealing the code); check the archives here or the GROKLAW (http://radio.weblogs.com/0120124/) weblog.

Why not to ask IBM..?

Posted Jul 18, 2003 6:18 UTC (Fri) by jukkamy (guest, #11973) [Link]

(I kind of missed to look back for comments until now..)
-Your GROKLAW -weblog is very good. I think these kind of details are something that everybody should know before reading/writing any "news" (thought some may still ignore the facts hoping that in legal processes money/smart lawyers "weights more"). Hopefully this kind of evidence will make it more difficult to make false judgements in courts.

Thanks

SCO can not win "SCO vs Linux" case. Seriously.

Posted Jul 3, 2003 8:55 UTC (Thu) by beejaybee (guest, #1581) [Link]

Nice points.

But, does anyone _seriously_ think that a court injunction prohibiting distribution of linux would have any real effect? There are lots of court injunctions invoking copyright legislation & intended to prevent copyrighted music, videos etc. from circulation across the 'Net, but they don't seem to be especially effective.

A distribution ban would, however, force development underground & would obviously have serious effects on the shrinkwrap box market. The obvious pre-emptive solution is to switch to Debian, which is least likely to be affected least by court action.

SCO can not win "SCO vs Linux" case. Seriously.

Posted Jul 4, 2003 15:52 UTC (Fri) by tjc (subscriber, #137) [Link]

The obvious pre-emptive solution is to switch to Debian, which is least likely to be affected least by court action.

Debian would be adversely affected as well, albeit in an indirect way.

A majority of Linux development is done by individuals who are employeed full time by companies such as Red Hat, SuSE, IBM, etc. In a senerio where it becomes illegal to distribute Linux, the most likely outcome is IBM would cease Linux development and Red Hat and SuSE would go out of business.

I agree that Debian would be the least affected in this senario (and I wouldn't even have to switch, since I'm already using it ;-), but the pace of development would slow down significantly. And of course Linux would become a non-player in the "enterprise" market overnight, which would adversely affect it's image as a "real" OS.

On the other hand, Linux is getting close to Solaris in sophistication (and in many cases passed Solaris, if you consider simplicity to be a virtue), so there isn't that far to go anyway.

First things first!

Posted Jul 3, 2003 15:00 UTC (Thu) by southey (subscriber, #9466) [Link]

The key and overlooked point for Linux is that SCO is essentially claiming that IBM put SCO code into Linux. You points are only relevant if this claim is true - if they can not prove this then the Linux part fails. So far the code in question doesn't appear to be part of an exclusive license between IBM and SCO. Note that if SCO code is present but not due to IBM then SCO needs a different suit. Of course if GPL code is in Unix then Unix is then GPL...

What about royalties for past infringement?

Posted Jul 4, 2003 0:53 UTC (Fri) by giraffedata (subscriber, #1954) [Link]

What about royalties for past infringement? If people have been using SCO copyright code without a license from SCO, they owe SCO for that past use, whichever of those two options SCO chooses.

SCO has already sent letters to many of those potential users. Those letters could only serve to strengthen a claim for royalties for past use some day.

SCO CAN win "SCO vs Linux" case. Seriously.

Posted Jul 4, 2003 20:24 UTC (Fri) by dwalters (subscriber, #4207) [Link]

If this nightmare scenario (a court judgement prohibiting Linux distribution) were to come to pass (a big if, IMHO), then SCO CAN win "SCO vs Linux" case. Seriously.

Quoting from the letter:

"2. SCO forbids everyone to distribute linux without SCO's license and
thus makes linux UNDISTRIBUTABLE IS US FOR ALL INCLUDING SCO ITSELF!"

How is this NOT a win for SCO? SCO is already out of the Linux business for good (who's going to want to buy Linux from them in future, even if they could?). If Linux becomes undistributable, then they've removed a competitor overnight (perhaps AIX too, another big competitor), leaving enterprises with a choice of Solaris or SCO Unix (or Windows on Intel).