[clug] sec: unclassified - Samba Team, on SCO and sweet irony

Michael Still mikal at stillhq.com
Thu Aug 21 17:03:40 EST 2003

> On Thu, 2003-08-21 at 15:07, Michael Still wrote:
>> > If the GPL is invalid, then there is effectively no license attached
>> > to Samba, so SCO could do what they like with it.
>> No, try again. If the license is invalid on Samba (which it almost
>> certainly is not), then copyright law still applies. Samba's copyright
>> is registered in the US, and the Samba team will still own it. They'll
>> just have to find a new license.
> I thought it was the other way. That is, until the copyright owner
> initiates a new license, then the work is licensed under the terms of
> the GPL. The GPL contains no terms (becuase it is invalid), so there is
> effectively no license.

No. Think of it this way -- to use the code, you need permission from the
Copyright holder. That permission is the GPL. If that permission goes
away, then so does your right -- until the copyright holder gives you
permission again.

> Yes, copyright still applies, but I dont think your right to use the
> code goes away automatically. Your right will go away when the
> copyright owners explicitly take it away.

Or until the mechanism by which they gave it to you is destroyed by SCO.

> If some terms of the GPL are
> invalid, then the rest of the terms of the GPL are still in force.

That depends on if those terms which are invalid are severable from the
rest of the contract. That would depend on the law in your jurisdiction.
> If
> all of the terms of the GPL are invalid, then, my understanding is, the
> GPL as a whole is still the license under which you can use the code,
> and that license just happens to be empty and contain no terms.

But then the clause which gives you permission is also gone. That's like
saying that you have a contract for a house. The contract is invalid, but
you claim to still own the house?
If a contract is invalid, then the parties are returned to their starting
positions -- Tridge with his code, and you with an empty machine.
> The GPL also does not mention (I am pretty sure) the ability of the
> copyright holder to terminate the license without cause (but it will be
> terminated if you break the terms). So, I am not sure how the copyright
> holder could go about negotiating a new license if there is no easy way
> to revoke the old one.

The GPL commonly says "at your option any later version". GPL3 would come
out with new improved terms, but I still think this is a non-issue.
> Yeh, thats the scary bit. They seem to be arguing that there is no line
> to be drwan between the person who stole the code and the person who
> uses it. I gues they are banking on being right and arguing that the
> users knew it was stolen but kept using it anyway.

It's a common legal concept that a party will work to minimise their harm
incurred. By failling to identify the breaches of copyright (the harm),
SCO is making their case against your much harder to win. You can argue
that you couldn't be expected to rectify the breach if you don't know what
it is.
Anyways, their banking on scaring you -- I am yet to see a legal analysis
which thinks SCO is making a good case.

PS: IANAL, I'm more like 1/4 of one...

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