If you follow me on Twitter or elsewhere, you'll have noticed that I've been tweeting rather extensively about the NSA's spying, the most recent attacks on Glenn Greenwald and now the Guardian. If you were still wondering what any of this has to do with open source, this latest news might clarify things a little:
One of the amazing things about free software is how it has managed to succeed against all the odds - and against the combined might of some of the world's biggest and most wealthy companies. That shows two things, I think: the power of a simple idea like open collaboration, and how individuals, weak on their own, collectively can achieve miracles.
I'm struck by the almost unanimous chorus of indifference that has greeted the news that a court has reversed one part of an ealier ruling regarding who owns the Unix copyright:For the foregoing reasons, we AFFIRM the district court’s judgment with regards to the royalties due Novell under the 2003 Sun-SCO Agreement, but REVERSE the district court’s entry of summary judgment on (1) the ownership of the UNIX and UnixWare copyrights; (2) SCO’s claim seeking specific performance; (3) the scope of Novell’s rights under Section 4.16 of the APA; (4) the application of the covenant of good faith and fair dealing to Novell’s rights under Section 4.16 of the APA. On these issues, we REMAND for trial.
As well as Groklaw, others that are distinctly unimpressed are Steven J. Vaughan-Nichols, Roy Schestowitz and Eric Bangemann.
And me to that list: SCO still has everything to prove, and very little money to prove it with. And even if it *did* prove anything, all it would gain would be the right to be ground into very fine particles of dust by IBM's legal department....
Regular readers will know that I have a bee in my bonnet about the non-patentability of software, largely because of the fact that software is made up of algorithms, algorithms are maths, and maths is not patentable: QED. So, as you might expect, the following, from a patent attorney, makes me go a funny colour:Software is not a mathematical equation, nor is it a mathematical language. How anyone who writes software or professes to understand software could argue to the contrary is beyond me. Do people who write software actually think they are sitting down and writing mathematical equations and stringing them together? It is absurd to have such a narrow view of software.
The good news is that I do not intend to rebut this (and the rest of the post) here, because the comments to it, and those on Groklaw discussing it, are so good, and so varied, that it would be superfluous. If you ever come across people who have doubts about the non-patentablility of software, just point them towards those comments.
One of the mysteries concerning Microsoft's attempts to deal with the threat ODF poses to its stranglehold on the office suite sector is why some of its employees are making statements like that quoted here....
On Open Enterprise blog.
Pamela Jones has been digging through SCO stuff again, and doesn't like what she finds:
We learn two primary things from Jones' testimony: first, what a cynical role Sun played in the SCO saga, and second, that all the time SCO was calling on the world, the courts, the Congress -- nay heaven itself, if I may say so -- to sympathize with it over the ruination of its Most Holy Intellectual Property by it being improperly open sourced into Linux, not that it turned out to be true, it had already secretly given Sun the right to open source it in OpenSolaris. Remember all that falderol about SCO being contractually unable to show us the code, much as it so desired to do so, because of being bound to confidentiality requirements? What a farce. SCO had already secretly given Sun the right to open source Solaris, with all the UNIX System V you can eat right in there.
The simple fact is, I gather from Jones' testimony, Sun could have prevented the harm SCO sought to cause by simply telling us what rights it had negotiated and received from SCO prior to SCO launching its assault on Linux. Yet it remained silent. When I consider all folks were put through, all the unnecessary litigation, and all the fear and the threats and the harmful smears, including of me at the hands of SCO and all the dark little helper dwarves in SCO's workshop, I feel an intense indignation like a tsunami toward Sun for remaining silent.
Extraordinary to think that the SCO circus is still running; even more extraordinary if, as PJ suggests, Sun could have stopped all the FUD directed at Linux with a word.
Ha!Right now Becta ( [the UK agency that snubbed the free software community] http://www.freesoftwaremagazine.com/community_posts/uk_agency_snubs_free_software_community) ) is in the process of being Groklawed by the free software community. A source close to the events right now told me quite clearly that Freedom Of Information Act requests are hitting Becta in flurries.
I know by now you've seen the notice by the guy claiming to "revoke" the GPL license on his code, because I'm getting email about it.
Here's the answer to your question:
No. One can't retroactively revoke licenses previously granted, unless the license terms allow you to do so. The most you can do is stop granting new licenses.
Obvious, innit?
For those following the iPlayer debate, Groklaw has put up perhaps the best interview with Ashley Highfield so far:the long-term alternative solution is a world beyond DRM and how we can work together, particularly with our rights holders, to get to a world beyond DRM.
A couple of days ago I mentioned two key players in the fight to get the BBC to do the right thing over its downloads service. Groklaw has put up an extremely detailed discussion with one of them, Becky Hogge, capo dei capi at the Open Rights Group, about what's a stake. Well worth a read if you want to understand the issues.
Groklaw's Pamela Jones is a true eminence grise of the area in the intellectual Venn diagram where computer technology and law intersect. And yet, as befits her eminent greyness, she's a shadowy figure - some have even gone so far as to claim that she does not exist.
Against that background, this interview is all-the-more welcome, not least because it contains insights from PJ such as the following:What is so unique about IP and FOSS is that computers are a relatively recent thing. So is FOSS. So there are people still alive who remember very well the early days, the beginnings. That has implications for prior art searching, for example. It had implications in the SCO litigation, because when SCO made broad claims in the media, there were people saying, "That's not so. I was there. It was like this..."
Oh yeah: now, why didn't I think of that?
I've written pretty extensively about the scandal that is the BBC iPlayer. The main man fighting the good fight here is the indispensable Mark Taylor, and it's good to see that Groklaw has caught up with him and the iPlayer saga in this interview. Do read it to learn the terrifying twists and turns in this sorry tale.
Well, we all knew it would happen, and, finally, it has:Judge Dale Kimball has issued a 102-page ruling [PDF] on the numerous summary judgment motions in SCO v. Novell. Here it is as text. Here is what matters most:
[T]he court concludes that Novell is the owner of the UNIX and UnixWare Copyrights.
That's Aaaaall, Folks! The court also ruled that "SCO is obligated to recognize Novell's waiver of SCO's claims against IBM and Sequent". That's the ball game. There are a couple of loose ends, but the big picture is, SCO lost. Oh, and it owes Novell a lot of money from the Microsoft and Sun licenses.
But there's another interesting aspect to this: SCO lost, and Novell won:But we must say thank you to Novell and especially to its legal team for the incredible work they have done. I know it's not technically over and there will be more to slog through, but they won what matters most, and it's been a plum pleasin' pleasure watching you work. The entire FOSS community thanks you for your skill and all the hard work and thanks go to Novell for being willing to see this through.
As I've written elsewhere, we really can't let Novell fail, whatever silliness it gets up to with Microsoft: it is simply too important for these kinds of historical reasons.
Update: Here's some nice analysis of the implications.
...and pathetic.
When a company starts harassing someone in this way, you can tell they've given up hope. On the basis of what's happened so far, I don't expect the management of SCO to be ashamed, but I do wonder what the lawyers involved see when they look in the mirror.
The publication of the first Halloween memo in 1998 was a pivotal moment in the history of free software. For the first time, it was clear that internally Microsoft was worried by this new threat, despite its outward-facing bravado and rhetoric.
Of course, there was no confirmation from the company that the memo was genuine, so there was always a theoretical possibility that they were faked in some way, although the internal evidence seemed overwhelming. But now, Groklaw reports, we have official proof of their genuine nature. The posting also offers an interesting meditation on how all this feeds into Microsoft's current attempts to "go legit" with the ECMA standardisation of its Office XML formats.
This is a characteristically brilliant post from Pam over at Groklaw, particularly in the way it uses the Wayback machine to skewer Novell as it twists in the wind. It concludes:So, here's the question I have for Novell: what happened to that promise to protect FOSS with its patent portfolio? Novell did say it. We relied upon it, and OIN is totally separate from the above promise. I mention that because some Novell guys have been saying that Novell never made any such promise or that the OIN patents fulfill the promise. Read the promise again. Novell clearly promised to use its patent portfolio, not OIN's, and Novell appears to have just bargained that patent portfolio away, giving Microsoft a clear path to now bring patent infringement claims against everyone else. Novell's character and honor is on the line. And we await your statement with interest.
But arising from this, I too have a couple of questions that are starting to loom large in my mind:
Is this the beginning of the end for Mono? If Novell continues along its current path surely everything it touches will be regarded as tainted by the free software community, and Mono is sponsored by Novell. And now that Sun has done the decent thing with Java, there is a nice little programming language just waiting for all those disappointed hackers.
The other question is even bigger: is this the end for Novell? It seems to me that there is a broad-based and massive movement growing within the free software world to ostracise Novell utterly - something that will simply kill the company. As far as I know, this has never been done before - perhaps because the free software world simply wasn't strong enough. Now it is: are we about to see it claim its first victim? (Via AC/OS.)
One thing I could never understand about the whole SCO affair is how the people at Caldera, which took over SCO, could be in any way part of the mess. And now comes this from the ever-diligent Groklaw:Here's Ransom Love's Declaration [PDF] as text, which he has provided to IBM, another of the 597 exhibits IBM has offered in support of its summary judgment motions. I want to thank Laomedon for doing the work.
Love was the CEO of Caldera prior to Darl McBride. And he tells the court about Caldera when it was a Linux company, about the Santa Cruz assets acquisition, a bit about Novell, where he worked before starting Caldera and worked on the Corsair project, and about his view of SCO's claims regarding header files. He didn't have to do this declaration. It's voluntary, unlike a deposition, and that speaks volumes right there.
He thrusts a dagger right into the heart of SCO's claims. I see no way to recover from his declaration, because there is no one who can convincingly contradict. He was the CEO, the co-founder of the company to boot. Who can possibly know more than he does about the history of the company, what it did with Linux, its striving for POSIX compliance, and particularly whether the company knew about the header files being in its own distribution of Linux that SCO claims are infringed? Even if SCO were able to trot out Bryan Sparks, the other co-founder, Sparks was not CEO at the time of the Santa Cruz acquisition. There is no one but Love to testify at this level. Love has done the honorable thing and told the truth. I take my hat off to him.
Me too. When I interviewed him for Rebel Code, he seemed a very decent chap. This latest twist in the sorry SCO saga confirms that view.
When I wrote about Microsoft's announcement that it would be sponsoring a project to create an ODF plugin for its Office product, I said the story was big. But I was wrong: it's actually really big, because of a deeply ironic twist to the story, detailed on Groklaw:
It seems that when Microsoft was looking to build its new ODF plugin, it took a short cut. It seems to have grabbed some code from the OpenDocument Fellowship's program that converts ODF to HTML, written by J. David Eisenberg. His code is released under a dual license, the LGPL and the Apache 2.0 license. Microsoft has put it into its ODF plugin, which is licensed under the BSD license.
Is that allowed? It's nice Microsoft endorses the value of the ODF Fellowship code, since they are forever telling us their own code is better. But we're trying to parse out which license Microsoft thinks it is complying with. Not the LGPL, I trust. My question, and I'm no Apache guru, is what about Apache sections 4.1, 4.2, 4.3, and maybe 4.4, plus the required form of notice in the Appendix? It's certainly possible I'm missing something. But it seems it may be Microsoft that neglected to notice some requirements.
A stunningly good - and staggeringly depressing - article on Groklaw examines how the British Library has sold its intellectual soul for a mess of DRM'ed pottage.
Groklaw explains in appalling detail how it is now a waste of time trying to get anything digital from the BL, since it will be locked down with idiotic DRM, will require you to sign away all rights past, present and future (and those of your family, dog and local hairdresser) and probably won't work on any system not identical to the one that sits on Bill Gates' desk.
Somebody should have told the BL that you need a long spoon when you sup with the devil, but having chosen Microsoft as its "partner" (i.e. the brain surgeon carrying out the frontal lobotomy), it now cannot think straight. Worse, it wants to spread its spongiform encephalopathy to the nascent European Digital Libary.
The so-called British "Library", as we must now call it, is a total and utter disgrace to the country.
There was an amusing story in Groklaw yesterday, detailing the sorry end of utterly pointless legal action taken against the Free Software Foundation (FSF) on the grounds that FSF has conspired with International Business Machines Corporation, Red Hat Inc., Novell Inc. and other individuals to “pool and cross license their copyrighted intellectual property in a predatory price fixing scheme.”
It sounded serious, didn't it? Maybe a real threat to free software and hence Civilisation As We Know It? Luckily, as the Groklaw story explains, the judge threw it out in just about every way possible.
However, welcome as this news is, it is important to note that the decision does not provide the long-awaited legal test of the GPL in the US (a court has already ruled favourably on one in Germany). Some people seem to feel that such a test case is needed to establish the legal foundation of the GPL - and with it, most of the free software world. But one person who disagrees, is Eben Moglen, General Counsel for the FSF, and somebody who should know.
As he explained to me a few weeks ago:The stuff that people do with GPL code – like they modify it, they copy it, they give it to other people – is stuff that under the copyright law you can't do unless you have permission. So if they've got permission, or think they have permission, then the permission they have is the GPL. If they don't have that permission, they have no permission.
So the defendant in a GPL violation situation has always been in an awkward place. I go to him and I say basically, Mr So and So, you're using my client's copyrighted works, without permission, in ways that the copyright law says that you can't do. And if you don't stop, I'm going to go to a judge, and I'm going to say, judge, my copyrighted works, their infringing activity, give me an injunction, give me damages.
At this point, there are two things the defendant can do. He can stand up and say, your honour, he's right, I have no permission at all. But that's not going to lead to a good outcome. Or he can stand up and say, but your honour, I do have permission. My permission is the GPL. At which point, I'm going to say back, well, your honour, that's a nice story, but he's not following the instructions of the GPL, so he doesn't really have the shelter he claims to have.
But note that either way, the one thing he can't say is, your honour, I have this wonderful permission and it's worthless. I have this wonderful permission, and it's invalid, I have this wonderful permission and it's broken.
In other words, there is no situation in which the brokenness or otherwise of the GPL is ever an issue: whichever is true, violators are well and truly stuffed.
(If you're interested in how, against this background, the GPL is enforced in practice, Moglen has written his own lucid explanations.)
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