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

Pearl Louis pearl.louis at anu.edu.au
Fri Aug 22 12:33:40 EST 2003

On Thu, 21 Aug 2003 09:47 pm, Mark Harrison wrote:
> On Thu, 2003-08-21 at 18:46, Pearl Louis wrote:
> > No, as far as I know about the law, everything is *implicitly*
> > copyrighted.
> Yes, everything has an implicit copyright. But when you make an explicit
> licesing arrangement, I thought that such an arrangement was instead of
> and not in addition to the implicit and default copyright licensing
> terms.

Yes, but *only* as long as the contract is valid and in force.  If I sign a 
contract with you to allow you to publish copies of my book for one year in 
exchange for $400 000, then for that one year you are allowed to publish 
 copies of my book.   At that one year, the contract no longer exists and you 
no longer have any legal right to publish any more copies of my book. 

I think you're getting confused about this.  Samba are the copyright holders.  
They can do with their copyrighted works what they want.  They can sell it to 
Microsoft.  They can put it into the public domain.   If you are not a 
copyright holder you will have to come to an agreement with the copyright 
holder to use the program.  This agreement is a contract or license.  They 
can put whatever conditions they like on a license (though there's no 
guarantee that anyone will agree to it and probably you 
can't break the law with the condiitons).  

Without a contract between the copyright holder and a user, the user has no 
legal right to use the program in any way, shape or form.  No contract means 
no permission.  No permission means that you can't do anything with it.  

The GPL is the contract between the copyright holders of Samba and SCO.  What 
SCO is saying is that the contract they agreed to that gave SCO permission to 
use the intellectual property of the Samba people (under the conditions 
outlined by the contract ie. the GPL) has no real legal status.   Let us 
assume that SCO wins the case and the GPL is struck down.  Then the Samba 
people still hold the copyrights to Samba.    But any contracts they agreed 
to with other people such as SCO in order to use the program under the GPL 
are null and void.  No contract now exists between SCO and Samba.  Therefore 
what rights do the SCO people have now to use Samba which is still the 
exclusive copyright property of the Samba people?  They will now have the same 
legal right to use and distribute Samba as I have to sell pirated music CDs 
at the University on Thursdays.  Neither of us have a contract with the 
relevant copyright holders.

What you are saying really is that if the contract between a copyright holder 
and a licensee is declared null and void for legal reasons eg. the conditions 
in the contract are illegal, then a *new* implicit contract comes up between 
the copyright holder and the licensee which basically gives all the 
copyrights of the copyright holder to the licensee ("no conditions in the 
license" means that really).  Basically if any copyright holder signs a 
contract to license his/her work, the licensee could pull out of the contract 
and as long as they had any sort of contract to license the work, by  pulling 
out of the contract (even if there is a penalty) the licensee gains all 
rights to the work.  Now Dell has a license from MS to mass-load Windows XP 
on new PCs.   So they are effectively licensing copyright from MS to allow 
them to copy and distribute Windows XP under certain conditions and in 
certain ways.  Now by your reasoning, if Dell pulls out of the contract eg. 
saying that the conditions you made us sign violates the anti-trust 
agreement, then all of the copyrights of Windows XP automatically goes to 
Dell as they suddenly obtain a license to do whatever they like with Windows 
XP ie. your "license with no conditions".  Of course MS still retain their 
copyrights to Dell, but your "implicit new license with no conditions" means 
that any copyrights that MS had also now belong to Dell because Dell pulled 
out of the contract it signed with MS.

Your reasoning simply doesn't make sense.  If the law worked like this,  no 
author, musician or anyone with any copyrights would ever sign a license 
agreement with anyone because all the licensee has to do is break the 
contract for whatever reason no matter how trivial or make sure there are 
some trivial clerical errors that make the contract illegal and they get all 
the copyrights to the work (even if the original author still maintains their 
own copyright).  

If the law worked the way that you say it does, there would be utter and total 
chaos and the whole intellectual property system of licensing and contracts 
would fall down into total disarray.


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