case backfired on SCO

IP = intellectual property

How to avoid falling in the same trap?

The SCO Group

• The great Satan
• was Caldera Systems, purchased Novell’s IP

AT&T

• now Novell
• original Unix IP owner

IBM

• Bought license from SCO for IP used for AIX

12 May 2003

• initial warning to users

11 April 2005

• the trial begins

Lots of time for uncertainty in the mean time

SCO is going to fail

• No evidence that code was copied
• Even if proprietary code exists, SCO was publishing it as GPL
• A mistake?
• Oops not a legal defence?
• …but it wasn’t authorised?

BSD code now a problem
other operating systems, Mac OS and Windows could be affected?
major Linux customer? Google?
Red Hat counter sued SCO.
IBM counter sued SCO.

5 December, IBM court order for SCO to produce code 11 January; will be made public 23 January.

can’t buy license from SCO in Australia yet.

complaints to ACCC, not yet resulted in formal investigation.

Claims

• SMP
• LVM
• 32 and 64 bit processing
• journalling filesystem JFS JFS originally from OS/2, which came from BSD
• clustering

Not part of the licensed code in AIX

SCO claims to have terminated license to IBM for AIX

Has IBM breached IP/Copyright laws?

• SCO says yes, but Novell disputes this
• does SCO own copyright rights or Novell?
• Only answer from court case will be “has IBM breached contract with IBM?”

IP law 101

• Copyright
  • similarity in code doesn’t mean breach of copyright
  • e.g. BSD header files are the same by coincidence
  • same code so simple not protected by copyright law
  • protects expression of ideas, not ideas themselves
  • e.g. copying book and changing names is not protected by copyright
  • how long? 50 years Australia, 70 years USA.
  • automatic in almost every country
• Patent
  • new and innovative
  • protect public at large from using information
  • 8 years in Australia, less red tape required
  • 20 years for full patent in Australia
  • can infringe accidentally
  • Need to take out in every country
• Trade Secrets
  • protect ideas as well as expression of ideas
  • must remain confidential to be protected
• Trade mark

Copyright law, copying is OK if:

• software public domain
• trivial works
  • only one way to do it
  • code or comments
• not a substantial part,
  • small but vital part might be protected; longer part might not be
  • grey area, know code, get legal advice
• re-engineering is OK
• copying for permitted purpose
  • interoperable product (only in Australia)
• only ideas copied

Accidental breach if:

• Trade secrets trump copyright law
  • IBM working on two projects at once
• Patents
  • Have to honour even if you haven’t heard of it
  • Linux has broken patents, but not being attacked (yet)
• Derivative work
  • May include plugins, libraries, etc.
  • What is a derivative work> Very unclear.
  • FSF, one extreme, simply linking it is derivative, even dynamic linking
  • BSD other extreme
  • opinion, static linking derivative work; simply using/dynamic linking isn’t
  • Linus, if-and-only-if module fiddles with internal Linux code it is a derivative work

How to protect?

• Chinese Walls
  • separate developers
  • protect each project from confidential information from other project
  • IBM claims to have done this
  • Ideally don’t work on both proprietary and open source software at same time in same field
• Developers have liability
  • leader of open source software, ensure all developers declare code is cleanliness
  • indemnity against liability?? Signing indemnity might be taking things too far
  • get clearance from employers
• choose right license
• MPL best one for patents
• GPL contains clause 7 for patents
• BSD license, Artistic license ignores patents
• read up on patents, ignorance not a defence
• royalty free license that is compatible with open source license
• contact lawyer, pay lots of money to search patents, if wrong sue them
• don’t derive, plug in, the more independent, the safer

lucky a case like the SCO case hasn’t happened before
won’t be such a friendly place
improve processes and procedures

US free trade agreement

• most significant impact on copyright rule
• difficult for Australia to avoid caving into what USA wants
• DCMA law puts a lot of people in danger of accidental breach
• Our law is better then USA’s law

but I didn’t know the license was revoked, so I can continue using it

Same developer working on multiple projects, need to get approval first, no way to prove no IP was copied.