[d@DCC] Your Visit to SCO, the GPL, and FLOSS law/public policy.

From: Russell McOrmond <russell _-at-_ flora.ca>
To: General Copyright Discussions <discuss (at) digital-copyright.ca>
Date: Thu, 26 Jun 2003 11:42:14 -0400 (EDT)

(This message may be forwarded to others..)

Re: http://www.linuxjournal.com/article.php?sid=6956&mode=thread&order=0

  "Derivative Works

  The key to SCO's case against IBM appears to be an expansive notion of 
  derivative works. SCO basically is arguing that any code developed on 
  top of Unix is a derivative work of Unix. It is arguing that the
  contract with IBM, which SCO now owns, makes clear that any work
  derivative of Unix must remain confidential.

  SCO is using a very extensive notion of derivative work. When I made 
  that objection, SCO said it was for the court to decide."


Ian,

  The question of what constitutes a derivative work also has considerable
implications on the GPL and other copyleft licenses which requires that
derivative works offer the same freedoms via the same copyright license
(Section 2 of the GPL).

  Since SCO has nothing to loose given they were/are likely to go bankrupt
anyway, I wonder if they are simply setting themselves up as a
sinking-ship legal test case for a number of uncertainties in software
law.  They are touching on the limits of copyright licenses, what is a
derivative work, software patents, trade secrets, damages for making
knowledge public, enforceability of clauses of the GPL (given Caldera
distributed Linux, who gets damages for their illegal distribution given
they now claim proprietary rights against GPL'd code), and so-on.

  While SCO/Caldera can no longer be taken seriously as a software
company, I do believe we should all be taking the legal and public policy
implications of this case very seriously.  This case may cause many
unanswered questions to get answered, and if we are not proactive they may
not be answered in what we would consider a reasonable/logical way.


Software copyright:

  If the definition of a derivative work gets tested in court and becomes
to narrow, there would then be no way to enforce the copyleft aspects of
the GPL, turning all copyleft free software copyright licenses into
non-copyleft free software copyright licenses.

  We need to be careful in over-generalizing things as we may get what we
ask for, not what we need.  I am skeptical of the allegations that
non-free software was just copied-and-pasted into the Linux or other
kernel, but if this did happen then we should have the properly identified 
code replaced.  Having SCO take this infringement claim to the court of 
public opinion first rather than legitimately to the maintainers of the 
code in question is part of why I have doubts that any real copyright 
infringement exists.


Software patent:

  You'll note that this battle is happening on many fronts.

  While the ideal is that software not embedded within a manufacturing
process receive no patent protection at all (including if the identical
method is used outside of the manufacturing process), there are other
paths we should be pursuing.  As a bare minimum I believe that Free
Software should have a fair use exception given it is impossible to honor
both the requirements of being Free Software while at the same time
honoring a software patent, except in the case of specific forms of
royalty-free licenses.
  With this fair use exception then the incompatibility of the legal,
economic and public policy aspects of Free Software and software patents
would be removed, and we could then allow individual software creators to 
choose which model they wish to work under.


Trade secrets/liability for disclosure:

  Just as the software patent question required additions to definitions
and licenses, there may need to be some legal work done here as well.  
Contributors of software should be the ones to determine if the software
represents any trade secret violations as it is impossible for the
community as a whole to determine this.  The community as a whole cannot
be held liable, nor can a secret -- once released to the public (and Free
Software is about as public as you can get with software) -- be returned
to being a secret.

  While I strongly believe it to be the case that non-free software
probably has more lax treatment of intellectual property issues than our
community does, it should be understood that we should be expected to be
more careful.  We are releasing knowledge fully to the public to be
available for all of society now and into the future.  Once knowledge is
made this public, it is impossible to take things back no matter what any
court has to say.
  While we can question and even ridicule the practices of non-free
software companies who try to point fingers at us for our fully public and
accountable practices (while their practices are unknown, unaccountable,
and most likely extremely lax), we need to at the same time recognize our
additional responsibility.


  I guess what I am asking is that people become more active in the legal
and policy questions that these cases are bringing forward. Don't
underestimate the lack of knowledge that courts and policy makers have
about Free Software and all the positive implications of what we are
doing!   We have something very important we are protecting, and should 
take every avenue we have available to us to protect it.


BTW: Continuing working this week on the new draft of my patent report.  
Any feedback greatly appreciated:
  http://www.flora.ca/russell/drafts/software-patent2003a.shtml
  (Note the 'a' -- without the 'a' it goes to the March 31 version which
was vetted by the customer).

---
 Russell McOrmond, Internet Consultant: <http://www.flora.ca/> 
 Governance software that controls ICT, automates government policy, or
 electronically counts votes, shouldn't be bought any more than 
 politicians should be bought.  -- http://www.flora.ca/russell/

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