Re: [tlug] Re: is there a real possibility that Sco get what itclaims?

["Stephen J. Turnbull" <stephen@example.com>]

>>>>> "jb" == Jonathan Byrne <jq@example.com> writes:

    jb> On Wednesday 04 February 2004 01:03 am, Stephen J. Turnbull
    jb> wrote:

    >> property are extremely high.  A person's whose hearsay I trust
    >> (as far as I can imagine trusting hearsay) says he knows
    >> someone who has seen code which is licensed from SCO in Linux.

    jb> Even if we take it as true

Right.  My point is that (if I were worried about the implications if
SCO's claims are not dismissed out of hand) there is reason to believe
that SCO can find something if they dig hard enough.  So we need to
show either that the something doesn't hurt Linux legally, or that it
doesn't hurt Linux economically even if there is a legal issue.

Although I do know something about the law, I also know enough to know
IANAL and prefer the more stable[sic] foundations of social systems
for assessing the risk here.  I think there is substantial risk that
the particular case I heard about could impact Linux legally;
"fortunately" I think it only hurts Linux vendors, not the kernel
project itself.

    jb> it raises the question, "Who put it into the kernel?"

[...]
    jb> 1) The hardware vendor (if said vendor had access to the
    jb> source code in question);

Almost.  As I said, the hardware is obsolete---but still in service.
As we know "obsolete" means very different things when you're talking
about current versions of proprietary OSes, vs. the "appropriate" free
OS (which in some cases might be Linux 0.99.14!)

So, here's how the fact came to light.  The vendor has a habit of
shredding "old" docs, and some people with source (I assume in the
company) would like to preserve the usefulness of the system.  So they
"donated" source to a group with a reputation for doing "Kriegspeil"
development (ie, the people with the copyrighted material don't see
the new source, and the people writing the source don't see the
copyrighted material).  The same group is (of course) looking at the
working Linux driver (under the same conditions, since they don't want
to be bound by GPL ;-) and Lookie Thar! it's the same.

Now I suspect that the vendor did actually contribute the source code
to Linux, but it's possible that a similar thing happened for Linux
somewhat earlier.  The vendor does have a license from SCO.

    jb> However, this raises the question "If the vendor infringed
    jb> copyright X number of years ago and no one noticed or
    jb> objected, is IBM (or anyone else) in any way liable?"

Anybody distributing Linux is liable to the extent that they must get
a license or stop distributing that driver.  Anybody using Linux must
get a license or stop using the driver; this may create contingent
liability for Linux vendors, depending on their contract.  Somebody is
liable for damages, but I don't know offhand know who (probably any
distributor, but not customers), or on what basis they would be
calculated.

    jb> I'm also curious, does the hearsay source say whether the
    jb> alleged infringing code comes from a historical UNIX source,
    jb> or from a Unixware source?

The latter.  If it's from BSD, of course they're scot-free.  However,
if it was System V, I'm sorry, if it was distributed under a free
license by anyone but the owner of the copyright on the ATT sources
and their descendents, that distribution was illegal.  Copyright is
not a matter of "use it or lose it" the way trademark and trade names
are.  You can ignore violations as long as you like, and then change
your mind.

I don't know if the code in question was part of any SCO distribution
of Linux; I doubt my informant does, either.

    jb> they will still face an uphill fight to come away with much
    jb> more than a court order to remove said device driver.

Nope.  There are statutory damages, which theoretically everyone from
Green Frog Linux to Red Hat Enterprise Edition would be liable for.
Copyright is not a matter of "no blood, no foul" any more.

Of course statutory damages won't even pay for SCO's legal fees, but
they would certainly chill the atmosphere for existing Linux vendors.

Steve

-- 
Institute of Policy and Planning Sciences     http://turnbull.sk.tsukuba.ac.jp
University of Tsukuba                    Tennodai 1-1-1 Tsukuba 305-8573 JAPAN
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