Bad Analysis?

Story: Denying SCO's right to redistribute GPL'ed code opens questions of Open Source complianceTotal Replies: 5
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Feb 27, 2004
9:05 AM EDT
A couple of points:

1. Actually, legally SCO would probably be found to be a "person" as opposed to a group of persons. That's normally the way business entities are categorized.

2. Is Dave arguing that enforcing your rights under a license that provides the enforcement mechanism chosen by Nmap constitutes "discrimination" pursuant to the Open Source definition? If so, wouldn't it stand to reason then that the GPL cannot be used as a license for Open Source software?

3. In law, language is seldom "plain" as Dave claims. A more reasoned approach would be to first ascertain whether or not the GPL allows Nmap to withdraw permission for use of their software under the facts of the SCO "situation." If the answer to that question was positive for Nmap, this would be followed by an _analysis_ of whether or not this would be considered "discrimination" under the Open Source Definition. For example, under US civil rights laws a business cannot discriminate against persons based upon their race. But, if a person of color enters a business and begins damaging the property, would ejecting that person of color be considered discrimination?

Feb 27, 2004
9:27 AM EDT
I think that your points are valid, but you have completely missed the point of my editorial.

Nmap is certainly able to discriminate against any person (or group) on whatever basis they choose. I think to infringe on that right would be a terrible mistake and I hope it never comes down to that. We should be free to say that "so-and-so can't use my software".

But, Eric Raymond's group OWNS "Open Source" and if you want to call yourself "Open Source(tm)" then you need to comply with Eric's rules. If you don't comply, then you can't use the term.

So, if software developers start following Nmap's lead (which, by the way, I like) then they will either need to stop using the term Open Source, or Eric needs to clarify the position of OSI.


Feb 27, 2004
10:25 AM EDT
Actually, Open Source is not trademarked. The application was rejected.

If you search for it on the USPTO, it's listed as "DEAD":

You can see it there twice, on the details, it's listed as "abandoned" in both cases.

I really wish ESR would bother announcing this, to avoid this common mistake. Anyone can call anything Open Source, no trademark to protect the term.


Feb 27, 2004
10:28 AM EDT
Interesting!! And all this time I've been thinking that the application was approved and Eric could come in and control it with an iron fist at his whim.

Well, I'm going to have to think on this for a while. Very interesting, indeed. Thanks, ralsina.


Feb 27, 2004
10:37 AM EDT
I disagree with your conclusion that Nmap's action violates the terms outlined in the Open Source Definition. My point is that if your conclusion is correct, then the GPL cannot be used as a license for Open Source software because, by its terms, it would allow, in fact demand, discriminatory actions as part of its enforcement mechanism.

Perhaps the question you are putting forth, in the Nmap case, is whether or not SCO has violated the GPL by their actions. I.e., if I publish a work under the terms of the GPL and you inform me that you do not believe the GPL is enforceable, but don't otherwise violate its terms, can I still treat you as though you have infringed? My opinion in this case is that one cannot say that Nmap has acted in a discriminatory manner until and unless it is first decided that SCO has not violated the terms of the GPL. I base this opinion on the fact that the GPL and copyright law provide for the actions taken by Nmap.

What if Eric Raymond's group declares, at this point, that Nmap can no longer be identified as Open Source software, but Nmap's claims that SCO's actions have violated the GPL are later upheld in court?

Absent a re-write of the Open Source Definition, I would have to argue that the standard under which one would decide whether or not an action was discriminatory would be whether that action is reasonable. Is Nmap's interpretation of the GPL reasonable? Furthermore, there is a huge body of legal precedent on just what "reasonable" means, which, at least, provides an analytical starting point.

Feb 27, 2004
10:53 AM EDT
I think Nmap could still be open source, if Fyodor is willing to allow SCO to disavow its public statements, and clarify that it believes The GPL is a valid License.

If The SCO Group continues to publicly state that it believes the GPL is an invalid unconstitutional license, then copyright holders of works licensed under the GPL, and distributed by The SCO Group, do have the right to demand that The SCO Group stop re-distributing their works.

Section 5 of the GPL says: "You are not required to accept this License, since you have not signed it. However, nothing else grants you permission to modify or distribute the Program or its derivative works. These actions are prohibited by law if you do not accept this License. Therefore, by modifying or distributing the Program (or any work based on the Program), you indicate your acceptance of this License to do so, and all its terms and conditions for copying, distributing or modifying the Program or works based on it."

To Get The SCO Group to stop distributing his copyrighted work Fyodor will have to threaten them with copyright infringement charges. I believe that under copyright law Fyodor and The SCO Group must act to mitigate the damage, but IANAL.

He should really have his lawyer send a letter asking the SCO group to clarify their position on the GPL. Their distribution of his copyrighted works signifies a complete acceptance of the GPL as valid, but their statement in public and in court contradict this. He could say that a clear and unambiguous statement accepting the validity of the GPL would work.

The only alternative would be for The SCO Group to stop its infringement of his copyrighted works immediately and make a sizeable donation to the FSS to compensate for any monetary damages caused.

Personally I don't believe The SCO Group is capable of making a clear unambiguous statement. But it would be nice to see some copyright holders hauling The SCO Group into court on charges of copyright infringement.

-Sean _____________________________________________________________

Oh, Fyodor is just his online handle:

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