Linux's lucky lawsuit (National Post)

Posted Aug 9, 2003 16:23 UTC (Sat) by chel (guest, #11544) [Link]

First they ignore you,
then they laugh at you,
then they fight you, <--- We are here.
then you win.
-Ghandi

Posted Aug 9, 2003 17:15 UTC (Sat) by jdthood (subscriber, #4157) [Link]

Good article. The inoculation metaphor is apt. (I hope that
the one of the toad and the steamroller will prove to be so,
too.) However, the author gives no detail about how GNU/Linux
can build up defenses against patent assaults.

> So far the Linux community has taken a passive stance
> toward patent rights. It is relying on the legal firepower
> of its corporate friends to shield it from attack. The more
> expensive alternative is to set up a stand-alone body that
> actively pursues patent protection for Linux. This has the
> advantage of helping Linux maintain a certain independence.

Where is this stand-alone body going to come from and what
form will it take?

Posted Aug 9, 2003 17:32 UTC (Sat) by lees (subscriber, #13854) [Link]

I have to admit, I mostly agree with this article and have been waiting a while to read something like it. The SCO lawsuit is like a flu-shot or other innoculation, it hurts, and you might get a bit of a cold, but in the end it leaves you stronger and better protected.

So far, there has been a great gnashing of teeth but development hasn't been impeded, nor have deployments and sales been hurt. (Apparently, though I don't think we have heard much from SuSE or Red Hat about sales, and considering they have both started legal action against SCO, they must be a bit worried. Or, at least feel the need to be able to point out to their customers that they are fighting back against SCO in some way.)

How will this leave Linux stronger? I think it will create a nice precedent (if not legal, than cultural) that will answer a lot of doubts that people have about free software. There is a too-good-to-be-true aspect to free software, and once this lawsuit is settled (in Linux's favor, whatever that means) Linux evangelizers and Linux company sales-forces will be able to say to prospective customers: "You don't have to take our word for it, you really do have all these rights, SCO tried to take them away, and look what happened."

And I have no doubt that when push comes to shove SCO is going to have the shit slapped out of it in a court room. All of their claims are confusing, cannot be publicly shown, and their story keeps changing, always signs of a weak, desperate case. Think about how quickly the record companies get injunctions against people when they detect copyright violations. If SCO had anything the least bit meaningful they would immediately ask the courts to stop kernel.org from allowing free, unrestricted downloads of its intellectual property, and I'm sure court would oblige SCO, especially in today's atmosphere. The mere fact that this has never happened is enough to convince me that SCO is just playing a game, hoping to parlay this lawsuit into some money before it is laughed out of court.

That said, and as long as I am in wild-speculation-about-stuff-I-hardly-know-about mode, it seems like the worst thing that could happen at this point is for IBM to buy SCO and make all this go away. That won't make anything go away. That would just suggest that SCO's claims have merit, and moreover leave the Linux community (and the rest of the free software community as well, because at the moment it seems that whither goeth Linux, whither goeth free software, at least in much of the public's eye) tremendously in IBM's debt and somewhat at its mercy.

What would you rather be fighting: a floundering SCO with fluffed up, bogus IP claims, or a few years down the road, an arrogant and powerful IBM, looking to lock up Linux? I know we think now that IBM "gets it", but all that has to happen for that to change is a few quarters of declining revenues. No thanks. IBM might be a good friend to have, but I wouldn't want it to be anything more than that.

Posted Aug 9, 2003 17:36 UTC (Sat) by sandy_pond (guest, #9734) [Link]

"Tighter copyright control is needed on Linux software."

Although I disagree with the need for customer indemnification I do think that the copyright situation needs to be cleaned up or at least organized. Maybe OSDL should put a together website of the existing Linux copyright holders and what code they hold the copyright to. Then get everyone listed to claim their copyright or sign over their copyright to one of the active maintainers.

Then if licensing issues arise at least we have a chance of getting a consensus for license modification.

Posted Aug 9, 2003 18:32 UTC (Sat) by rjamestaylor (guest, #339) [Link]

Saw this article on news.google.com this morning. Good to see this take outside the pro-open-source, non-technical media. I'd say "mainstream" but it is a Canadian outlet.

:)

Posted Aug 9, 2003 20:15 UTC (Sat) by josh_stern (guest, #4868) [Link]

The National Post column is deficient in a number of areas:

1) It makes too many assumptions about the factual basis of
SCO's case. For instance, it assumes there really is SCO
proprietary code that IBM "copied" into the kernel. In fact,
all we know is that a) SCO claims this, b) under a strict NDA
they showed some mysterious small amount of code ("80 lines")
that was near identical, c) they claim the "80 lines" originated
in their codebase, and d) they told some NDA participants,
including a Deutsche Bank analyst, that IBM did not contribute
the "80 line" code to Linux, and that IBM's violations were
contributing the general technologies of RCU, NUMA, etc.
http://asia.internet.com/asia-news/article/0,3916,161_2245911,00.html
Previous lwn stories have discussed this issue and found it
unlikely that SCO is the owner of any patents or trade secrets
related to RCU, NUMA, etc., and as Linus Torvalds and others have
correctly observed, whether or not they can make a contract case
against IBM for helping Linux with these technologies depends
mainly on the details of the non-public contract between SCO
and IBM and has no legal import for Linux distributors or end-users.
As someone who has followed most all of the stories and legal
filings on this case (typical LWN reader :), I find SCO repeatedly
contradicting itself and making claims that don't sound plausible
on either factual or legal grounds, and generally acting in a
way that seems illegitimate and intended to deceive. Therefore
I am not willing to suppose, until proven otherwise, that *any*
of their claims are true. I regard an article that does so, like
the National Post column, as very speculative (even though
they believe SCO doesn't have a winnable case anyway).

2) The column says that Linux distributors should "indemnify their
customers from any intellectual property issues". This is
probably a bad and impractical suggestion. It means, for instance,
that if any portion of "Linux" were found to violate some patent
claim or copyright claim, and, as a result, some functionality
was no longer available to Linux users, then the distributor
would be liable for any resulting business loss. The related
possibilities are so open-ended, and the due-diligence so hard
to do, that no Linux distributor would likely be able to afford
the premiums on the reinsurance policy that would make this
possible. And it would be very hard to find a company willing to
sell such a reinsurance policy. Moreover, it is not a known
practice among proprietary software vendors to offer anything
like this, for the same reasons. I couldn't assign any tangible
meaning to the later remarks in the column that suggests a
"stand alone body that actively pursues patent protection for
Linux". Does it mean that perhaps a big gang of IP lawyers
would volunteer non-billable time to search for potential
patent violations?

Posted Aug 10, 2003 4:29 UTC (Sun) by neoprene (guest, #8520) [Link]

The statement: "For a start, the Linux community should move quickly on the following issues:- Anyone who packages Linux in their products should indemnify their customers from any intellectual property issues. "

forgets:

1.) that Linux is the _kernel_, which can be downloaded free from www.kernel.org, regardless of any association with a "package" and "product". It can be separated from a distribution, and installed by the "customer" through ftp via script whatever. [..from servers outside the US borders and treaties]

2.) "Linux" is not a commercial product.

3.) when you did not pay for something you are not a customer.

4.) again, the "Linux community" is not a corporation, they have no commercial agenda, no board meetings, no quaterly reports, no pension plan, no production and sales quotas. Use Linux "as is" or f**ck off.

These journalists, and most of the "suits", keep forgetting that Linux is not a commercial enterprise. The GPL is not just another EULA. If there was a chink in the GPL, M$, SUNX et al would have pierced it long time ago. All they can do now is lie about the GPL and promulgate idiotic "what-if" schemes.

The very idea of "indeminfication for customers" "from any intellectual property issues" is some stupid ass mantra being fathered at Redmond and is the buzz all over the web. With $45 Billion in cash M$ could afford to not only indemnify anything and everybody, three times a day, but also purchase several medium sized countries. Get off it.

I read in the XPee EULA that M$ gives your purchase price, or $5.00, back, whatever is more, if their stuff makes you unhappy.

If you don't like Linux and Open Source software, no problem, just plunk down the dough, buy that wonderful closed source OS, and be happy.

GNU/Linux is just the operating system, there's tons more money to be made from applications, support, and associated hardware sales. But if all you can do is an OS and a few chicken-shit webbrowsers, "office" packages et cetera, I'm sure you would be whining.
People and corporations ARE willing to spend big bucks on accounting-, plant management-, engineering-, CAD-, and graphics-software and associated support.
M$ has made too much money on low end commodity junk.

Posted Aug 11, 2003 10:27 UTC (Mon) by Duncan (guest, #6647) [Link]

As it now stands, perhaps the biggest thing holding up even faster adoption of
Software Libre (including Linux) is the lack of court case history. The GPL
remains unproven in court, and some corporations understandably have jitters
about putting their mission critical applications on something that could
conceivably be putting them in as sure a locked situation as proprietary-ware
does, when the company that developed and supported it goes belly up.

Thus, while the National Post article has some problems, already mentioned by
others, I too have been saying this SCO stuff is a good thing and can only
indicate the healthy maturing of the whole idea behind Software Libre. Even if we
lose the SCO court cases, unless it overturns the GPL entirely, it can't BUT be a
good thing, big picture, because it establishes some badly needed case history
where there is now none. Even if there are damages to pay, Software Libre in
general and Linux specifically will be better off, because it will now be a far more
legally defined quantity. If we win, as it looks like we have a good chance of
doing, so much the better! As they point out, it could have been worse. We are
lucky we got the case we did as a first one. It looks to be an easy one, not even
directly putting Linux and Software Libre in danger at this point, and the
precidents it sets will quite likely end up being very useful with the bigger ones
ahead. If it goes REALLY well, it might even cause many of those potential
bigger ones to disappear, and set us up well for the inevitable one or two
remaining. That setup may help them go good, leaving few willing to make the
challenge.

As for the further problems they suggest and actions they propose, not so good.

1) Indemnification. As others have pointed out, proprietary-ware doesn't even
attempt this, and asking open source to do it is not only foolish, but COULD easily
be deliberately setting us up to fall, which it seems SCO is now attempting to do.
(If it can't join the party, and is looking likely to be past history, it's going to take
what it can that it sees as doing it in down with it!)

As was pointed out in comments on another article, should some company be
stupid enough to actually fall for the indemnity suggestion and NOT go buy the
SCO license in ordered to do so, SCO will quite likely concentrate action on it,
forcing it to do so as the lower cost of that or fighting a court battle. The article
seems to think this should be a costless thing to do, as SCO doesn't have much
of a legal case anyway. That's NOT the case, as anyone foolish enough to do so
will likely end up either purchasing SCO licenses, or paying far more in court costs
than they'd cost to defend itself. Further, it would seem the licenses are
incompatible with the GPL anyway, for a distributor (not so for the end user, since
the GPL doesn't limit use rights, only copy and distribute rights), so any that buy
into that plan weaken the GPL in additon to directly supporting its enemy, even if
no one directly enforces the GPL on them forcing them to stop distributing.

2) A patent action team. Impractical. These cost big $$ (or big favors, if done
pro bono on the scale they seem to suggest), something in short supply when the
product at issue itself is available at no cost. The developers themselves can't do
it or they end up being tainted due to the research they've done, and therefore
less able to create totally "clean room" implementations, since it could be argued
that since they've seen the code, it's now a derivative work. That's in addition to
the time devoted to that that therefore isn't available for further open source
development. Few others are going to directly understand the issues involved
either on the legal or technical side without some serious study, and if they are
interested in the issue already, they are probably already on their way in either law
or open source development. If the former, costs, again, on the scale suggested,
if the latter, taking them away from the development they otherwise WOULD
have done in the software libre community. Thus, either case has its serious
costs.

Far better to take the issues as the come, since coding around them is likely to be
an option anyway, and that will again be far easier if the folks doing so don't have
inside knowledge of the code they are supposed to be developing an alternative
for.

OTOH, there's the approach of Red Hat, and possibly IBM (tho that remains to
be seen, ultimately, and even RH could pull a Caldara/SCO Jeckle/Hide switch).
Red Hat has been filing its own patents recently. It *CLAIMS* it will only use
these defensively, and those in the free source community remain free to use
them as desired without fear. Many IP infringment cases in the proprietary world
end up being settled with a cross-licensing agreement, since both sides often
have technology the other side wants to use. RH will be able to do the same with
its patents and in that way it's a good move for them AND free source.
Unfortunately, that leaves us simply trusting that they won't go the way of
Caldera and become another SCO.. Thus, this is a very controversial approach
as well and not without serious risks. Whether they are worth it depends on
whether you trust RH and fate, and we will have to wait on time to find out.

Duncan