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Step Away from the Crack Pipe

Last week, one of SCO's lawyers claimed, astonishingly, that the GPL is invalid:

Now, SCO is preparing to wheel out the software-industry equivalent of a nuclear bomb: It will argue that the GPL itself is invalid, says SCO's lead attorney, Mark Heise of Boies Schiller & Flexner LLP. Mr. Heise says the GPL, by allowing unlimited copying and modification, conflicts with federal copyright law, which allows software buyers to make only a single backup copy. The GPL "is pre-empted by copyright law," he says.
Now the FSF has responded to this argument. If you don't have time to read it, it boils down to this: step away from the crack pipe.
This argument is frivolous, by which I mean that it would be a violation of professional obligation for Mr Heise or any other lawyer to submit it to a court. If it were true, no copyright license could permit the licensee to make multiple copies of the licensed program. That would make not just the GPL "illegal." Mr Heise's supposed theory would also invalidate the BSD, Apache, AFL, OSL, MIT/X11, and all other free software licenses. It would invalidate the Microsoft Shared Source license. It would also eliminate Microsoft's method for the distribution of the Windows operating system, which is pre-loaded by hard drive manufacturers onto disk drives they deliver by the hundreds of thousands to PC manufacturers. The licenses under which the disk drive and PC manufacturers make multiple copies of Microsoft's OS would also, according to Mr Heise, violate the law. Redmond will be surprised.

Of course, Mr Heise's statement is nothing but moonshine, based on an intentional misreading of the Copyright Act that would fail on any law school copyright examination. Mr Heise is referring to section 117 of the US Copyright Act, which is entitled "Limitation on exclusive rights: computer programs," and which provides that:

(a) Notwithstanding the provisions of section 106, it is not an infringement for the owner of a copy of a computer program to make or authorize the making of another copy or adaptation of that computer program provided:

(1) that such a new copy or adaptation is created as an essential step in the utilization of the computer program in conjunction with a machine and that it is used in no other manner, or

(2) that such new copy or adaptation is for archival purposes only and that all archival copies are destroyed in the event that continued possession of the computer program should cease to be rightful.

As the language makes absolutely clear, section 117 says that although the Act generally prohibits making any copy of a copyrighted work without license, in the case of computer programs one can both make and even alter the work for certain purposes without any license at all. The claim that this provision sets a limit on what copyright owners may permit through licensing their exclusive right is utterly bogus. It has no support in statutory language, legislative history, case law, or the constitutional policy that lies behind the copyright system. Were this argument actually presented to a court it would certainly fail.

I especially liked the "it would be a violation of professional obligation for Mr Heise or any other lawyer to submit [this argument] to a court" bit. Nice.

Between their frivolous lawsuits, their stock sales, and now this, it seems like SCO is digging their grave deeper and deeper. What are they thinking?

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Comments

Don't know if you've seen this or not, but Bruce Perens has an interesting analysis of some linux code that SCO is claiming violates their copyright. Very interesting.

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