[linux-elitists] The breadth of SCO's claims

Karsten M. Self kmself@ix.netcom.com
Thu Jun 26 09:58:55 PDT 2003

on Thu, Jun 26, 2003 at 09:55:19AM -0400, Aaron Sherman (ajs@ajs.com) wrote:
> On Tue, 2003-06-24 at 11:25, Karsten M. Self wrote:
> > The stated goal of several projects (OpenBSD comes to mind) is to use 
> > licensing terms which don't restrict use within proprietary products, if
> > that is the intent of the user.
> I've always had a bit of an itch in the back of my head over this one...
> It's not that I'm a rabid GPL guy (though I think the GPL was a
> brilliant bit of legal hackery), it's just that the BSD license has
> always seemed to me to be ambiguous in an odd way....

Doubtful, at least in the sense you're going after here.

> For example, if you wrote a chunk of code (let's say part of BSD) and
> released it. Then MS incorporated that code and released it as their own
> software.
> That's allowed under the terms of the license, and they're not doing
> anything wrong. BUT... what does that DO to the software that it's
> incorporated into? You still retain ownership of your code, that cannot
> change unless you sign it away or make the code public domain. So, the
> derived work is partly yours and partly theirs under a joint copyright.

In a layman's understanding:

  - Your original work is 'A'.  You have copyright in 'A'.
  - Microsoft's work is 'B'.  Microsoft (and any other co-authors) have
    copyright in 'B' or portions thereof.
  - The combined work is 'A' + 'B'.  It's a work in joint authorship
    (I'm assuming the work can't be considered to be a compilation work,
    that is, the components aren't merely aggregated, but are combined).

Your copyright license interest in the combined work, under the BSD
license, is 'A', because your terms of licensing state that you have no
further interest in a combined work.

Arguably, 'A' + 'B' is a work in joint copyright, for which you are a
part copyright holder.  This doesn't give you much interest in 'A' +
'B', per se, because of your licensing terms.

Effect on the copyrightholder of 'A' might be of interest though.  As
Mikael Pawlo indicated elsewhere on this list, copyright infringement
defense of jointly authored works becomes...interesting.  Which often
translates into plain English as:  not possible, at least if financial
damages are to be awarded.

This might explain why Caldera/SCO, even with at least partial copyright
assignment from Novell, are holding themselves to contract, and not
copyright claims, in their suit against IBM.

> Ok, so far so good. Now the question becomes this... how much control do
> you retain?
> Let's look at the license (FreeBSD
> http://www.freebsd.org/copyright/freebsd-license.html):
>         "Redistribution and use in source and binary forms, with or
>         without modification, are permitted..."

Little, IMNLO.

> Ok, so Redmondco gets to redistribute XP in source and binary form with
> or without modification (they inherit that right from the license under
> which they got BSD).
>         "Redistributions of source code must retain the above copyright
>         notice [...] in binary form must reproduce the above copyright
>         notice, this list of conditions and the following disclaimer in
>         the documentation"
> Here's the part that grabs me! This is a clear assertion of
> co-ownership of the code, and nothing in the license disclaims any
> other rights (as the GPL does explicitly, for example). So, what
> rights do you have over YOUR code? Well, let's see. You can certainly
> use your code, no? So Micosoft has no power to enforce licensing terms
> over you, do they? I cannot imagine how they would.

Owners in copyright don't need to seek rights from others for
excercising exclusive rights in authorship, _for the work to which
rights are held_.

Given that 'A' was licensed, but copyright not transferred, to
Microsoft, in this case, you retain full rights to 'A'.  You aren't
bound by your license, because your people don't need to call your
people, do lunch, etc.  You own the rights.  Period.

> Can you also re-distribute? Hmm, that's a tough one. Probably not. 

Aaron:  you're thinking too hard.  For 'A', the answer is simple:  Yes.

> You do not have the right to redistribute THEIR code, unless of course
> you read the BSD license VERY broadly and say that because the
> licensing terms must be replicated in source and binary releases, that
> the terms apply to derived works. 

You didn't grant rights to distribute a combined work.  You granted
rights to your work.  The attached conditions (copyright,
liability/warranty waiver), apply to your work.

> That's clearly not the INTENT of the BSD license, but I'm not sure how
> it would play in court.

Snowball.  Hell.

> The other question is this: who are the parties to sub-licenses? If,
> as co-copyright holder, you are a party to all licenses then you've
> already given up (I think) your right to set any terms, by allowing
> redistribution in the BSD license, 

The BSD license sets terms.  They are transmitted with the work.

Copyright notice and waiver of liability/warranty.

> however you have not given up the
> right to enforce licensing terms to which you are a party. Shouldn't
> you be able to go to, say, SCO and audit their use of Microsoft
> Windows as a co-copyright holder and party to the license? Shouldn't
> you be able to force them to pay Microsoft for any licenses that
> they're not current on?
> For that matter, should you not be able to go to SCO's customers and
> audit their licensing for UnixWare (also a beneficiary of BSD code)?
> After all, it's your code too!

In this case, sure.

But your interest is limited to copyright notice and liability
disclaimer.  If Caldera/SCO has failed to adhere to these terms, you
have an interest, but see comments on joint authorship infringement
actions above.

> Ah the PR nightmare THAT would cause....

In Calera/SCO's case, that would appear to be a non-op.



Karsten M. Self <kmself@ix.netcom.com>        http://kmself.home.netcom.com/
 What Part of "Gestalt" don't you understand?
   We freed Dmitry!        Boycott Adobe!         Repeal the DMCA!
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