No SCO end-user lawsuit today

It is a criminal offense to claim, with fraudulent intent, that you have a copyright if you do not. The SCO Group does *NOT* hold the copyrights to the UNIX source code. Novell has *NOT* transfered the title for the works that the SCO Group fraudulently filed for copyright in 2003. The SCO Group do not have the right to sue anybody for violation of copyright works without the assent of the title holder.

The SCO Group claims the right to sue for work in standard UNIX and POSIX interfaces that AT&T and Novell granted full rights to use royalty free in perpetuity for the ISO, ANSI and FIPS federal standards.

The SCO Group's contract claims against IBM and others based upon the AT&T license in respect to rights of so called derivative works is in direct contradiction to evidence presented to the SCO Group by Novell.

The SCO Group though the press and SEC filings, has bolstered the share price of the SCO Group based upon demonstrably false claims to the contrary of above points 1,2 and 3. The SCO Group CEOs and legal agents were notified by Novell and IBM *before* making these false claims and presenting them as fact. The actions of the SCO Group must be in violation of several SEC regulations.

So how is the lawsuit going to go if it gets to court?
Eben Moglen's Harvard Speech
http://jolt.law.harvard.edu/p.cgi/speakers.html [harvard.edu]

The Transcript
http://web.archive.org/web/20191130082436/http://www.groklaw.net/article.php?story=20040226003735733

The McBrides, jointly -- I feel sometimes as though I'm in a Quentin Tarantino movie of some sort with them [laughter] -- the McBrides have failed to distinguish adequately between dicta and holding.

I do not like Eldred against Ashcroft. I think it was wrongly decided. I filed a brief in it, amicus curiae, and I assisted my friend and colleague Larry Lessig in the presentation of the main arguments which did not, regrettably, succeed.

Oddly enough, and I will take you through this just enough to show, oddly enough, it is the position that we were taking in Eldred against Ashcroft, which if you stick to holding rather than dicta, would be favorable to the position now being urged by Mr. McBride. What happened in Eldred against Ashcroft, as opposed to the window dressing of it, is actually bad for the argument that Mr. McBride has been presenting, whichever Mr. McBride it is. But they have not thought this through enough.

Let me show you why. The grave difficulty that SCO has with free software isn't their attack; it's the inadequacy of their defense. In order to defend yourself in a case in which you are infringing the freedom of free software, you have to be prepared to meet a call that I make reasonably often with my colleagues at the Foundation who are here tonight. That telephone call goes like this. "Mr. Potential Defendant, you are distributing my client's copyrighted work without permission. Please stop. And if you want to continue to distribute it, we'll help you to get back your distribution rights, which have terminated by your infringement, but you are going to have to do it the right way."

At the moment that I make that call, the potential defendant's lawyer now has a choice. He can cooperate with us, or he can fight with us. And if he goes to court and fights with us, he will have a second choice before him. We will say to the judge, "Judge, Mr. Defendant has used our copyrighted work, copied it, modified it and distributed it without permission. Please make him stop."

One thing that the defendant can say is, "You're right. I have no license." Defendants do not want to say that, because if they say that they lose. So defendants, when they envision to themselves what they will say in court, realize that what they will say is, "But Judge, I do have a license. It's this here document, the GNU GPL. General Public License," at which point, because I know the license reasonably well, and I'm aware in what respect he is breaking it, I will say, "Well, Judge, he had that license but he violated its terms and under Section 4 of it, when he violated its terms, it stopped working for him."

But notice that in order to survive moment one in a lawsuit over free software, it is the defendant who must wave the GPL. It is his permission, his master key to a lawsuit that lasts longer than a nanosecond. This, quite simply, is the reason that lies behind the statement you have heard -- Mr. McBride made it here some weeks ago -- that there has never been a court test of the GPL.

To those who like to say there has never been a court test of the GPL, I have one simple thing to say: Don't blame me. I was perfectly happy to roll any time. It was the defendants who didn't want to do it. And when for ten solid years, people have turned down an opportunity to make a legal argument, guess what? It isn't any good.

The GPL has succeeded for the last decade, while I have been tending it, because it worked, not because it failed or was in doubt. Mr. McBride and his colleagues now face that very same difficulty, and the fellow on the other side is IBM. A big, rich, powerful company that has no intention of letting go.

[30:02]

They have distributed the operating system kernel program called Linux. That is, SCO has. They continue to do so to their existing customers because they have a contractual responsibility to provide maintenance.

When they distribute that program called Linux, they are distributing the work of thousands of people, and they are doing so without a license, because they burned their license down when they tried to add terms to it, by charging additional license fees in violation of Sections 2 and 6 of the GPL.

Under Section 4 of the GPL, when they violated it, they lost their right to distribute, and IBM has said as a counterclaim in its lawsuit, "Judge, they're distributing our copyrighted work, and they don't have any permission. Make them stop."

If SCO played smart, they would have said, "But your Honor, we do have a license. It's the GNU GPL." Now for reasons that we could get into but needn't, they didn't want to do that, possibly because it would have affected adversely their other claims in their lawsuit, or possibly because they had taken a 10 million dollar investment from Microsoft, but we'll talk about that a little further, I'm sure, in the question period.

At any rate, they didn't say that. What they said back is, "But Judge, the GNU GPL is a violation of the United States Constitution, the Copyright Law, the Export Control Law", and I have now forgotten whether or not they also said the United Nations Charter of the Rights of Man. [laughter]

At the moment, we confine ourselves solely to the question whether the GPL violates the United States Constitution. I am coming back to Eldred against Ashcroft along the way.

In Eldred against Ashcroft, 435 Congressmen and a hundred Senators had been bribed to make copyright eternal in a tricky way. The bribe, which of course was perfectly legal and went by the name of campaign contributions, was presented to the Congress for a copyright term extension.

In 1929, "Steamboat Willy" first brought before the public a creature called Mickey Mouse. The corporate authorship term under copyright being then, as almost now, 75 years, had it not been for action by Congress in the year 2004, Mickey Mouse would have escaped control of ownership, at least under the Copyright Law. This, of course, necessitated major legal reform to prevent the escape of Mickey Mouse into the public domain.

Copyright term extension now provides that, whether or not a Sonny Bono skis into a tree again in the next ten years or so, every once in a while Congress will extend the term of copyrights a little while longer. And then, as the ball approaches midnight in Times Square, they'll extend it a little longer. And so on and so on. Nothing need ever escape into the public domain again, least of all Mickey Mouse.

Professor Lessig, Eric Eldred, I and lots of other otherwise sensible people in the United States thought that this did not actually conform to the grand idea of the perfectability of human beings through the sharing of information. We doubted that securing perpetual ownership a slice at a time was actually a form of encouraging the diffusion of science and the useful arts, and we suggested to the Supreme Court that on this basis alone, the Copyright Term Extension Act should fall. We were, as Mr. McBride rightly points out, soundly repudiated.

It turns out that there's no such thing as an unconstitutional copyright rule, if Congress passes it, and if it observes the distinction between expression and idea, which the Supreme Court says is the constitutional guarantee that copyright does not violate the freedom of expression, and provided that fair use rights are adequately maintained.

In short, the actual holding of Eldred against Ashcroft is, Congress can make such copyright law as it wants, and all licenses issued under the presumptively constitutional copyright law are beyond constitutional challenge.

I have news for Mr. McBride. The existing copyright law is constitutional and our license, which fully observes all the requirements that the copyright law places upon it, are also presumptively constitutional. Only in the world in which we succeeded in Eldred against Ashcroft, in which if you like there would be substantive due process review of copyright licenses to see whether they met the form of copyright called for in Article 1 Section 8, could Mr. McBride and friends even stand in a United States courtroom and argue that a copyrights license is unconstitutional.

[35:17]

Regrettably for Mr. McBride, in other words, we lost Eldred against Ashcroft, and the very claim he now wishes to make perished, along with some more worthwhile claims, at that moment, at least until such time as the Supreme Court changes the holding in Eldred against Ashcroft.

Mr. McBride takes a great deal of cold comfort from the pro-capitalist rhetoric in which Justice Ginsberg announced the decision of the Supreme Court. And, as yet another disgruntled observer of Eldred against Ashcroft, I wish him luck with his cold comfort, but he and I were on the same side of that case, little as he knows it, and the legal arguments that he would now like to present unfortunately failed. Mind you, even if he were allowed to present to the court the idea that copyright licenses should be judged for their squareness with constitutional policy, we would triumphantly prevail.

There is no copyright license in the United States today, I will lay this down without further demonstration but we can talk about it if you like, there is no copyright license in the United States today more fitting to Thomas Jefferson's idea of copyright or indeed to the conception of copyright contained in Article 1 Section 8, than ours. For we are pursuing an attempt at the diffusion of knowledge and the useful arts which is already proving far more effective at diffusing knowledge than all of the profit-motivated proprietary software distribution being conducted by the grandest and best funded monopoly in the history of the world.

But, sorrily for us all, Mr. McBride will not get us to the stage where we are allowed to tell that to the United States Supreme Court, where we would prevail gloriously, because the United States Supreme Court's already decided that copyright law is presumptively constitutional as soon as Congressmen have taken the campaign contributions, held the vote, and passed the resulting gumball-like statute to the White House for the obligatory stamping. But I welcome Mr. McBride to the campaign for a less restrictive copyright in the United States, as soon as he actually figures out, from the legal point of view, which side his bread is buttered. Unfortunately, as you all realize, we cannot hold our breaths waiting for enlightenment to strike. If only Mr. McBride attended Harvard Law School.

That's, I think, enough about SCO, truly, though I am delighted to answer your questions in due course about it. It's actually a copyright lawsuit desert. There aren't any copyright claims in it. There are some contract claims between IBM and SCO, and those will, in due course, be adjusted by the courts, and I look forward with a moderate degree of interest to the outcome. A threat to the freedom of free software, it ain't. One hell of a nuisance it most certainly is. And I, unfortunately, expect to continue to spend a good deal of my time abating the nuisance, but without much sense of the presence of a hovering threat to the things I really care about, of which this is not a very good one.

Check with your local "Better Business Bureau" if this is in violation of local Fair Trade Acts, Enterprise Acts and Unfair Practices Acts.