SCO's Darl and his other brother Darl spread more FUD

Groklaw reports on SCO CEO's Darl McBride's Harvard talk. Highlights include:

The big news is that they say they will start to sue copyright end users by February 18....

Someone mentioned an article that had lessened his credibility on the other ABI files, that it had said it looked like they had distributed them under the GPL. And it was like he turned dark and stormy and paced and tried not to show his anger. But it showed. Then he said that the BSDi settlement was about those same header files, and they know what is in that sealed settlement and we don't, but there were three kinds of files addressed in that settlement: files that had to be removed, files that had to have copyright notices put on them, and files that were ok. They claim that the files they will be suing over lack the copyright notices, plus some files that were supposed to be removed, IIRC. And the DMCA says it's a violation to strip off copyright information, so I gather they intend to go after end users for "stripping off" copyright information on those header files.

Meanwhile, on the other coast, Darl's brother Kevin reverses spin to challenge Eben Moglin on mideval legal history (sent to me via email):

Another panel had Kevin McBride (SCO CEO Darl McBride's brother, and a lawyer for SCO) up against Eben Moglen. Eben was hilarious. After McBride explained why he thought the development of property rules in common law suggested a gradual evolution toward more kinds of things being property (like operating systems), Eben said something like "Lovely thing, medieval legal history. I took a PhD in it once."

Sounds like more legal smoke and mirrors to me. Announcing a line-in-the-sand deadline for suing end users on a DMCA copyright-stripping theory seems silly to me and hardly a threat to shut down Linux.

Section 1202 of the DMCA covers liability for removal of "Copyright Management Information" (CMI), which includes the copyright notice. It reads:

(a) No person shall knowingly and with the intent to induce, enable, facilitate, or conceal infringement -

(1) provide copyright management information that is false, or
(2) distribute or import for distribution copyright management information that is false.

(b) Removal or Alteration of Copyright Management Information. -

No person shall, without the authority of the copyright owner or the law (and knowing, or, with respect to civil remedies under section 1203, having reasonable grounds to know, that it will induce, enable, facilitate, or conceal an infringement of any right under this title)

(1) intentionally remove or alter any copyright management information,

(2) distribute or import for distribution copyright management information knowing that the copyright management information has been removed or altered without authority of the copyright owner or the law, or

(3) distribute, import for distribution, or publicly perform works, copies of works, or phonorecords, knowing that copyright management information has been removed or altered without authority of the copyright owner or the law.

Ok, so let's break this down. Subsection (a) requires that in order to be liable, you have to know the CMI is false and intend to induce or facilitate infringement by either providing false copyright information or distributing false copyright information. Subsection (b) requires that in order to be liable, you either intentionally remove CMI or distribute a work knowing CMI has been removed or altered without authority of the copyright owner and having a reasonable belief that your acts will induce or facilitate infringement.

These are both pretty high standards to meet. I mean, do any Linux end users know for a fact that any CMI was present that has been removed or altered or is false? I doubt it. And few of them are likely to have any intent to induce or facilitate infringement since they believe Linux to be properly licensed under the GPL. And SCO won't even say which specific files supposedly had CMI stripped out of them (let alone which ones infringe), so to claim that Linux users are knowingly distributing stripped files is a pretty good stretch. And this assumes that SCO owns the copyrights in those files to begin with. Once again, SCO's case is built on irony. If they identify the files and prove that SCO owns them, then new Linux distributions will simply change the CMI to reflect the correct copryight notice or simply remove the files all together and substitute in new ones that SCO doesn't own. But if they don't identify the files and prove they own them, there is no 1202 violation.

So, at this point, I can't see SCO making a case under 1202. We'll see what happens come February 18, but I wouldn't be suprised if it was a bit of a dud. If anyone here's of someone actually being sued, please let me know.