[NTLUG:Discuss] SCO, IBM, MS, Linux

[David]

On Wed, May 28, 2003 at 09:36:15AM -0500, terry wrote:
> BUT, anyone can use any of our open source code on any other application 
> they want.  Once it's open source, it's free for all, it's public 
> domain. Right?

Please don't confuse open source with public domain.  Doing so erodes
the protections that our open source licenses provide to the community.

Public domain is that which is not covered by _any_ IP claim.  Anyone
is free to take whatever they like from the public domain, and use it
in any fashion they wish.

That is not true of open source.  Open Source is covered by copyright,
and its use is governed by a license.  Persons wishing to reproduce
and distribute Linux can do so only by accepting the restrictions of
the GPL.  Absent the GPL's permissions (which are granted only along
with the restrictions), it is just as illegal to distribute Linux as
proprietary work.  The key difference is just that the GPL is very
liberal in granting permission, while Microsoft and SCO are not.

> If just one or two lines of code shows up somewhere in the thousands of 
> lines of code in some open source program or library, who's to say, [or 
> how can they prove], that it wasn't produced coincidentally via some 
> sort of process other than thievery, i.e. reverse engineering, or..?? , 
> well, I dono, cuz I'm not a programmer, but really curious as to how 
> something like this can be proven "beyond the shadow of a doubt."

This is a civil case, so the standard is proof by preponderance of
the evidence.  "Beyond reaonsable doubt" is the standard for criminal
actions.  The law never uses "beyond the shadow of a doubt."

In a copyright action, copying is shown by the combination of access
to the copyrighted original, and similarity of the alleged infringing
work.  SCO would need to show that IBM's programmers had access to
SCO's proprietary code, and also show particular Linux code with a
high degree of similarity.  SCO will also have to show that they do in
fact own what they allege to be their code, which makes the Novell
press release a very interesting twist.

IBM could negate the SCO argument by showing that their Linux
developers had no access to the SCO code.  This is one of the reasons
manufacturers sometimes employ "clean-room" tactics for development
teams.

IBM could also defeat SCO by showing that the Linux code derived from
some other source than the SCO proprietary code.  Independent
development is permitted under copyright law, though not under patent
law.

I am not your lawyer, and this has not been legal advice.  If you have
a specific legal question, you should consult an attorney.

-- 
David Hayes
david at hayes-family.org