[oclug] Canadian LUGs and SCO

[Brad Barnett]

On 26 Jul 2003 11:26:46 -0400
Rod Giffin <rod at giffinscientific.com> wrote:

> On Fri, 2003-07-25 at 22:16, Brad Barnett wrote:
> > On 25 Jul 2003 21:18:58 -0400
> > Rod Giffin <rod at giffinscientific.com> wrote:
> > > Brad, that's not what I said.  I said they would become the
> > > effective owner of the current Linux kernel.  All that has to happen
> > > for that to occur is they levy and collect a license fee from users
> > > of the SCO copyrighted material - if it exists in the Linux kernel. 
> > > This is exactly what they intend.
> > 
> > You did say effective owner, but they won't become the effective
> > owner.  For example, if Linux is found to have copyrighted SCO code,
> > the kernel can be purged of this tiny bit of code (yes tiny, see
> > below).  Once purged, there is nothing SCO can "claim".  They do not
> > own the kernel, effectively or otherwise, since they won't have
> > anything in that kernel to hassle people over.
> 
> I know what you mean, and that is obviously correct, but still that's
> not what I meant.
> 
> I said the effective owner of the current kernel.  If the kernel is
> purged of code, it won't be the current kernel any longer.  The issue is
> not with us, and it is not with the sources sitting at kernel.org.  They
> can all be fixed fairly quickly. 
> 
> The issue is with the few million 2.4 based enterprise class (eg SMP
> based) Linux servers that have been shipped in the past 3 years.  These
> systems will suddenly become sources of short term revenue for SCO. 

Only if these people continue to use that SCO tainted kernel, without
changing in a reasonable period of time.  For example, people will not be
expected to change the second they hear a court decision in SCO's favour.

Instead, as long as they take reasonable steps to rectify the situation,
they won't be paying or owing SCO at all.  Now sure, you elude to the fact
that some may pay for a while, instead of having to find another stop-gap
solution (such as a purged and SCO free kernel), and that may indeed be
the case.

> Under 17 USC 1323, SCO can recover damages for *3 previous years* from
> the date they first made their complaint - so from about March of 2000.

Yes, they can claim those damages from *IBM* if it is indeed IBM that
caused them lost revenue. 

> 
> What I mean is quite simply that people in the US, and perhaps other
> countries (maybe even Canada) who are using SMP kernels right now,
> enterprise users for example, may find themselves liable to either pay
> the royalty or face being sued even if the kernel is fixed tomorrow.  If
> SCO wins the case, they have been using tainted code for up to 3 years,
> and could be liable under US copyright law to pay the royalties.

No, I completely disagree here.  

People using current Linux kernels are liable for *nothing*.  IBM,
however, would be.

Let's look at another example.

Let's say that you buy a VCR from Sony.  Sony, however, is infringing on
someone else's copyright with some component in the VCR, and are currently
engaged in a court case.  You buy the VCR, not even knowing about this
case of course, Sony loses, and you end up owning the winner (as well as 2
million other VCR owners) $10 each.

Sorry, it's not going to happen.  That's not how courts hand out
justice.  That's not how liability works.  Sony will be sued for that, not
the end user. They breached those patents or copyrights, not you.  They
will owe said winner for lost revenue. 

Likewise, the people that contributed tainted code to the kernel are the
ones that are liable here, and they are liable to SCO for lost revenue and
earnings based upon that tainted code.  Not the end user.  In a case such
as this, IBM will owe SCO money.  That's what the whole $1 billion is
about.  SCO can _not_ sue IBM for 1 billion, get that money as
*compensation* for lost revenue, and then strive to recapture that money
again!  Sorry, that bill has been paid!

> 
> For what it's worth, US copyright law doesn't define the amount of
> infringement, leaving that up to the court to decide depending on the
> circumstances of the case.  80 lines, 1 million lines.  It might not
> make any difference, depending on the interpretation of the court.
> 

What is really important here is just how much business SCO has lost, *IF*
this code is in the Linux kernel.  The big ticket will be "Would Linux
have eventually had the same quality of code".  If the court believes that
yes, Linux would have, then SCO has little to be compensated for.  They
have no lost revenue stream, and that's what this is all about. 
Compensation for lost revenue.

However, if the court believes that Linux would not be competing against
SCO right now without that code, then sure, I agree, lookout.