SCO-duggery (code comparison)

Gordon Mohr gojomo at
Fri Aug 22 12:23:24 PDT 2003

Luis Villa writes:

> > Here's the other bit that bothered me from the article:

    [Eben Moglen wrote:]
> > "You don't need permission to use copyrighted work - there is no 
> > exclusive right to use, unlike in Patent law which involves the rights 
> > to 'make, use or sell'," he says. SCO could argue that users themselves 
> > are infringing (copying) but in the US the copies are exemptions from 
> > the inclusive right. And furthermore, most don't even install the source 
> > code. So no infringement there.
> > 
> > -----
> > 
> > Sure, there isn't an issue with use, but there are issues with 
> > reproduction, derivation and distribution.  Isn't that part of the Linux 
> > bit too?
> I think the comment was made in the context of SCO demanding fees from
> Linux end-users based on their use of the software, not based on their
> reproduction, derivation, and distribution. I don't think that Eben or
> anyone else would claim that this distinction protects RH or IBM, should
> the code claims prove true.

But the very use of any software necessarily requires a lot of copying: 
from the disk to working memory, for example. This is forgiven legal 
possessors of the works -- either because permission to do so was implied
in the initial transfer or software design, or because such ephemeral copies 
are inherently fair use. 

However, if you received your copy illegally, as SCO asserts, it's 
possible that some legal theory could be concocted that no implicit
permission to make these necessary local for-the-purpose-of-use
copies exists. 

To shift over to the domain of, for example, audio CDs: you have
an clear right as the legal owner of an audio CD to space-shift
and format-shift its contents. If it then turns out that CD was
an illegal counterfeit, then you are not the legal owner of 
anything, so might not your regular fair-use rights be moot?
That formerly innocent space-shifting could become a hook on which 
an aggressive enforcer could hand a prosecution -- esp. if that 
convenience shifting continues after you've been notified your copy
is illegal. 

Similarly, drawing analogies from other real property, just because 
you  had a good faith belief that some "hot" item like a car you 
received was legitimate doesn't mean you get to keep it once the 
chain of actions which delivered the car to you is proven illegal. 

Thus if SCO were to prove its case (which I find vanishingly unlikely)
there *could* be a requirement for end-users to pay up to continue
with the ephemeral copying done every day as part of software use. 
IANAL but it seems to me that stranger rulings have happened, esp. in
copyright law. 

- Gordon

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