[CLUE-Talk] More on SCO/Copyrights

[Randy Arabie]

On Sunday, 10 August 2003 at 22:45:13 -0600, Matthew Porter <mfporter at c-creature.com> wrote:
> 
> 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.

<IANAL>
Knowing that Linux *is* distributed under the GPL, then
users *should* be protected because any copyright
infringment would have been "innocent"...that is until SCO
made announced their allegations public and filed suite in
court.  I suppose any further copyright infringments after
that could potentially be viewed as  "knowing" and/or
"willful".  This gets to the heart of SCO's abiguity WRT
their allegations.  No one has enough information to make an
informed decision about the legitimacy of SCO's claims.
</IANAL>
-- 

Allons Rouler!

Randy
http://www.arabie.org/