SCO bits again

Luis Villa louie at
Sat Aug 23 17:13:54 PDT 2003

On Fri, 2003-08-22 at 21:42, bitbitch at wrote:
> So I read through the article (Thanks for the bits!)
> Two things:
> 	1) Mr. Heise brings up (what at least appears to me) to be a fairly 
> credible idea:  That copyright law _could_ (he thinks should) preempt 
> the GPL. I could be off at la-la-lawschool land, but I've not yet heard 
> a case dealing with the idea of preemption vis a vis the GPL.  If that's 
> the case, then I understsand Mr. Moglen's position a little better -- I 
> don't think he's right however.  If its a previously unheard of issue 
> (at least court-wise) why would Mr. Heise be committing misconduct to 
> postulate on it?  I'd actually argue its misconduct to say the reverse.

I'm afraid I can't find a link at the moment, but Heise mentioned the
specific clause he feels is pre-emptive, and Moglen has refuted with
more context from the same section of the copyright code. So... if you
want to poke around, I'm sure you could find the actual relevant law and
form your own opinion. And then tell your opinion to those of us who
have not yet actually taken the dive and gone back to school ;)

> 	2) [I snipped this from the article -- I thought some of it was relevant ]
> What if, during the course of discovery or another time, you find that 
> the code was originally under the GPL?
> SCO is not the one that put its copyrighted System 5 source code into 
> the GPL. It was another Unix licensee that violated the terms of their 
> licensing agreement.
> *** Using that hypothetical, if Caldera (International) put something 
> into the GPL, with copyright attribution, the whole nine yards, they 
> can't make the claim about what that thing is that they put in there. 
> But that doesn't mean that--well, let's use an example. __Let's say you 
> have a hundred files, and you put one of your hundred files under the 
> GPL. That doesn't mean you've lost the rights to your other 99 files.__ 
> So I don't think it's going to have an impact.

FWIW, it's not that they've put it under GPL- they've released it under
the even less restrictive BSD license.

> Now see, that to me is BIG.  Huge even.   And fairly reasonable, 
> something which (some of) the others discussing this mess haven't 
> bothered to grok.

I think people have grokked it, but most are operating under the
assumption Bruce Perens made explicit in his analysis- that the code
they've shown in the slides are their strongest examples, not their
weakest. We'll see, of course.

> *shrug*  Its going to be ugly.  Its going to be brutal, but I think 
> there are some valid bits on both sides.  SCO is hosed:  They won't be 
> able to claim any piece of code that was voluntarily or otherwise 
> released into the GPL -- it'd be a mess no judge would EVER want to 
> handle.  But they may have had code that wasn't released into the GPL, 
> and therefore copyright infringement can still occur.

It's possible that their strongest claim may be that the UNIX license
granted to IBM may have 'tainted' anything IBM added to that kernel,
making it impossible to GPL it later. I've not seen anyone really
addressing that issue 

> Maybe I should email Mr. Moglen and figure out exactly what the hell he 
> was implying :)

He's a very accesible guy in general, so it probably can't hurt. But he
is an IBM lawyer in this case, which might limit what he can say to
'unknown' parties.


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