[CLUE-Talk] More on SCO/Copyrights

[Matthew Porter]

standard_disclaimer:  IAAL, but nothing I post here (and nothing
anyone says on any mailing list!) should be taken as specific
legal advice.  I'm just engaging in conversation and offering
some thoughts based upon experience, but not upon any immediate
research.

"Joe 'Zonker' Brockmeier" <jzb at dissociatedpress.net> wrote:

> I'm doing a little research on copyright law, just to see what
> kind of case SCO would have against end-users if they manage to
> convince a court that they have IP in the Linux kernel.
> 
> <obligatory>IANAL</obligatory> but, it seems they would have
> zero case against any company using, but not distributing,
> Linux. 
> 
> From "Law for Business" -- "A person will not succeed in a
> copyright infringement lawsuit unless she proves two things.
> First, she must establish ownership of valid copyright. Second,
> she must show that the defendant copied constituent elements of
> her protected works. If these two steps are met, the copyright
> owner will succeed in her infringement suit if she proves that
> the defendant exercised any of the ownership rights in the
> previous paragraph." 
> 
> The rights are:
> 
> 1. Reproduce copyrighted work.
> 2. Prepare adaptations based on the original copyrighted work. 
> 3. Sell or transfer copies of the copyrighted material.
> 4. Publically display the copyrighted material.
> 
> Now, unless the courts choose to interpret downloading as
> reproduction, I don't see where SCO would have a case against
> companies who are only using Linux -- not selling or
> distributing it. Therefore, their threats to sue companies
> using Linux can pretty safely be viewed as extortion, since
> their lawyers should damn well know that copyright law does not
> provide for suing recipients of copyrighted material -- only
> distributors. 

For one thing, I don't think it's at all far-fetched that a court
could consider downloading of copyrighted work to be "copying."
Where there was one copy -- on the server -- there are suddenly
two: one on the server and one on the client.

If I were researching legal precedent on this I'd try to find
warez cases in which downloaders, not just the warez archive
maintainers, were nailed for copyright infringement. I don't know
of any off-hand, but I wouldn't be surprised to find them.

Also, assuming that SCO can prove some valid copyright interest
(a pretty big leap to make at this point), companies that use
Linux could conceivably be tagged for copyright infringement if
they made additional copies of the software to distribute within
the company, for installation on different machines.  As someone
else on the list said, try to think of it as you would a printed
book: If your company buys one copy of an O'Reilly book, then
makes a dozen photocopies of that book so that everyone can have
one on his desk, that's copyright infringement.

Whether or not you sell or distribute unauthorized copies of a
protected work might have an impact on the damages the copyright
holder can collect, as can the question of whether the copying
was "knowing" and "willful" as opposed to "innocent," but simply
making the copies could be enough, technically, to  constitute
copyright infringement.

 --Matt.

--------------------
Matthew F. Porter
Golden, Colorado

mfporter at c-creature.com