Irrevocability and intellectual property

On Tue, May 27, 2003 at 10:03:32AM -0400, Peter D. Ward wrote:
> I believe IBM and SCO are fighting about "irrevocability" just now ....

Indeed. While I think SCO's full of prunes, they do raise an interesting (in
the Chinese sense of the word) question.

> In the case of open source, someone's ability to affect its distribution
> after the fact might depend on their property interest in the thing being
> distributed.  Situation one, if they freely contributed their property to
> the mix, then I would agree with your statement.  Situation two, if they
> had no property contributed at all, then I would agree with your
> statement.  I'm not sure which of those two you are asserting in this
> case.

My position is as is has always been: Hercules was implemented using only
information that was obtained in legal ways that do not violate trade secret
or copyright protections. (Trademarks are not at issue; if they were, I'd
have heard about it, and made appropriate changes already.) Therefore, there
are no intellectual property issues, with the possible exception of patent
infringement - and that issue is solely IBM's to raise. They have not done
so.

> If its not either of these situations,  rather its for example some
> unauthorized "contribution" of someone else's property, then I assume you
> will agree the open-source-ness of the effort is irrelevant to the
> question of the property holder's rights in the matter.

Yes and no. In the case of SCO vs. Linux (yes, I know it's officially IBM at
the moment, but that will change if they prevail in the first attempt),
while SCO's rights in its intellectual property would in fact continue
unabated, the practical effect would be considerably muted. I strongly doubt
they could do more than force Linus to incorporate changes in his official
kernel to remove the violation. That doesn't have even the tiniest effect on
people who have versions without those changes: as a practical matter, SCO
could do nothing to stop them from distributing it, samizdat-style. Yes,
they could force Red Hat and friends to distribute the modified kernel, but
that's about it.

There's an article on ZDNet's web site today that asks "What if SCO wins?",
at http://zdnet.com.com/2100-1107_2-1010007.html . John Carroll raises an
interesting argument, but I think he has too inflated an opinion of the
efffects of the GPL on the subject. I believe that that's one violation of
the GPL that neither the Free Software Foundation nor Linus Torvalds will
have any interest in pursuing.

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