[linux-elitists] [jv@zork.net: [pigdog] SCO goes public with news, private with evidence]

Martin Pool mbp@sourcefrog.net
Fri Aug 8 17:19:01 PDT 2003


On  7 Aug 2003, Rick Moen <rick@linuxmafia.com> wrote:
> Quoting Martin Pool (mbp@samba.org):
> 
> > Is there an equity principle in US law or in the copyright code that
> > parties should act in good faith and promptly?  
> 
> It puts me in mind, at least, of the civil-law doctrine of "laches"
> (derived from the French word for negligence).  

Yes, (I should have said) I have a slight understanding of laches.

Now SCO probably have contravened that by continuing to distribute
Linux over the last 3 (?) years, when they *should have* known what
was in it.  IBM, as groklaw points out, mentions this in their
response.  But leaving that aside: are SCO in trouble for not just
asking up front for the code to be removed?

SCO are no longer neglecting their rights, but on the other hand they
are acting as if they positively *want* to continue to be hurt.

> In general, a party whose rights have allegedly been infringed is
> expected to be vigilant in acting to minimise or curtail that damage.
> Laches is an affirmative defence that can be raised by the defending
> party:  Neglecting to do what should or could have been done to assert a
> claim or right, or neglecting to act to minimse alleged damage, prejudices 
> one ability to assert that claim or right.

> The law outlines what one is supposed to do with copyright
> infringers:  

Is this really what the copyright law says, or just how it normally is
used?  If the former, if it gets that far, perhaps a judge will ask
why they didn't take the usual course.

> You notify them of the infringing action, and get them to stop.  In some
> cases, especially willful infringement, you might also be able to
> extract damages.  But failure to substantively give notice, it seems to
> me, shows exactly the sort negligence the doctrine of laches entails.
> Saying "I'm sorry, J.K. Rowling, you've wrongfully parts of _Gone with
> the Wind_ into your novels and now owe damages to the Margaret Mitchell
> estate -- but we won't show you where because you might fix it" means
> you're _not_ seeking to end the alleged infringement at all, but rather
> aim to use copyright law as a protection racket.

--
Martin



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