The SCO lawsuit, 20 years later

Posted Mar 7, 2023 16:33 UTC (Tue) by paulj (subscriber, #341)
In reply to: The SCO lawsuit, 20 years later by farnz
Parent article: The SCO lawsuit, 20 years later

I can hang whatever presumption I want of some implicit understanding you might have, of a behaviour you are likely to exhibit just by copying others doing some unrelated (at face value) thing.

I would not place value in this being meaningful in any legal action, where it would benefit me to show you had that understanding - especially if it does not benefit you.

But that's me.

I do find it fascinating how invested people are in ascribing this supposed understanding to some completely disconnected action. See my other comment on sops.

The SCO lawsuit, 20 years later

Posted Mar 7, 2023 16:46 UTC (Tue) by farnz (subscriber, #17727) [Link] (5 responses)

And I find it fascinating how determined you are to attack a system that has well-known legal properties, and to suggest replacing it with one that's considerably weaker in the face of standard court process (e.g. ruling all commits outside a date range as inadmissible, and ruling all commits that do not touch files under consideration as inadmissible).

You are basically creating a lot of work for your legal team to get a small amount of certainty that is almost certainly not relevant (it would not have been relevant in the SCO case, for example, since it would have shown that the code under consideration was contributed by SGI, not IBM, and SGI had no incentive to help SCO).

The only time the extra certainty even matters is when SCO can be shown to have contributed the code that SCO claims is infringing SCO's rights. And even then, it only matters in as far as the court is willing to take SCO's word for the idea that SCO contributed this code in error, and didn't mean it to be merged when they sent it to you. The rest of the time, the value of the SoB line is to show that the code under consideration was deliberately contributed by a third party, and therefore that that third party ought to be a co-defendant (making the plaintiff's life harder, since they now need to bring in that third party, and get them to tell the court that they didn't mean it to be merged).

The rebuttable presumption that you read and followed the DCO when you put the SoB tag on is a commonly used legal device - it's how terms and conditions are normally applied, for example, where the fact that you did something that's otherwise unnecessary (e.g. ticked a box on a web form) is enough to demonstrate that you really did read the T&Cs, even though that's also something you might be doing just by copying others.

Courts are very wary of getting rid of this presumption, precisely because there are so many cases outside the digital world where it's used - signs in car parks or above the entrance to something, for example.

The SCO lawsuit, 20 years later

Posted Mar 7, 2023 16:54 UTC (Tue) by paulj (subscriber, #341) [Link] (4 responses)

Where are these well-known properties of the SoB tag and the DCO? Or, more generally, the legal properties of any mechanism where someone adds some short tag/text and a signature to one message, and this indicates knowledge of and agreement to another, completely unreferenced, document?

Adding a signature to an agreement, on the other hand, is a mechanism with a plethora of precedence and reasoning in the literature, going back many hundreds of years.

The SCO lawsuit, 20 years later

Posted Mar 7, 2023 17:01 UTC (Tue) by paulj (subscriber, #341) [Link] (3 responses)

Also, digital additional of signatures to documents is also something that is recognised in legal systems today. Indeed, there are laws explicitly making them equivalent, in a number of jurisdictions. IANAL, so no doubt there are nuances, but some technical procedure that results in your signature being explicitly added to a declaration very arguably is equivalent - so far as legal systems allow the equivalence - to the physical signing of a declaration.

Signing of declarations is legally well understood (even if I, not being a lawyer, can not detail that understanding, I know it is).

Your claim that signing a declaration or agreement can then easily be forgotten is something I find dubious in legal terms too. To the extent that is true, it applies to "forgetting" the DCO generally. (Again, you can't show SoB shows any knowledge or memory of the DCO by the submitter - it is in /your/ head this presumption exists, not the submitter).

The SCO lawsuit, 20 years later

Posted Mar 7, 2023 17:11 UTC (Tue) by paulj (subscriber, #341) [Link] (2 responses)

Also, I do have a feeling the legal system requires fairly explicit, affirmative actions to indicate agreements.

Even click-through agreements, where a user clicked "I agree" have been ruled invalid, because the wall of legalese and other context made the click performative and not indicative of understanding by the user.

"Signed-off-by: Me" - with no context showing I had any reason to be aware of some legalese on a web page somewhere, or buried in a file in a folder full of files - doesn't indicate much.

But... you consult your legal adviser, I'll consult mine - when it matters.

A suggestion

Posted Mar 7, 2023 17:14 UTC (Tue) by corbet (editor, #1) [Link]

I think it is reasonable to conclude at this point that you are not going to resolve this issue in this forum. Perhaps we can wind down this discussion here?

Thank you.

The SCO lawsuit, 20 years later

Posted Mar 7, 2023 18:40 UTC (Tue) by farnz (subscriber, #17727) [Link]

It varies by type of agreement, and by what the agreement claims to show. To enforce the agreement against the party that agreed needs bigger actions than to enforce it against a third party who's claiming their rights were infringed.

And that's what the DCO is there to protect against - the next SCO will face us being able to show that (e.g.) the infringing code was contributed by SGI, and therefore SCO has to bring SGI (and others) into the case. This expansion means that the defence side has many more lawyers involved than the plaintiff, and thus that it's harder for them to show that their chosen target is liable.