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Monday, June 14, 2004

IP Memes: Not SCO Fast — And More

(My June contribution to IP Memes follows.)

Not SCO Fast — Court Says SCO May Not Own UNIX Copyright

In a recent ruling destined to resonate across the several jurisdictions hosting The SCO Group's intellectual property claims over the Linux operating system, Judge Dale Kimball of the Northern District of Utah found essentially that the Emperor may have no clothes. Or worse, in this particular situation: he may have no copyright. The ruling considered procedural motions in the slander of title case by SCO against Novell, Inc., concerning SCO's contended ownership of UNIX copyrights and patents. SCO's motion to remand to state court was premised on SCO's argument there was no question the UNIX copyrights were transferred from Novell to SCO. In denying the motion, the court rejected SCO's premise and found the would-be transfer language muddy at best. This is good for Novell, which is expected to test the contractual language on summary judgment, and perhaps even better for IBM and Linux users. It's tough to enforce copyrights you don't own; pesky little thing called "standing."


Who Rustled Who?

SCO's CEO Darl McBride and Linux founder Linus Torvalds exchanged colorful barbs in remarks to the Washington Post that predated the release of Judge Kimball's order:

McBride: "'We went out one day and our Unix cows were missing,' McBride said he told his father in trying to explain the case to him. 'We looked in the Linux pen, and there's a bunch of them in there that have our brand on them . . . in this case the copyright. Someone took our cows and we want 'em back — it's as simple as that.'"


"The GPL has this sucking effect of grabbing your IP, sucking it in and destroying your property rights."

Torvalds: "Having a hole in your head has this sucking effect....The GPL doesn't 'grab' any IP at all. The only thing that is desperately trying to grab other people's IP is Darl McBride and company."

If Novell is able to capitalize on the ambiguities identified by Judge Kimball, which it almost certainly will try to do, it won't be long until SCO's copyright claims are deemed officially "all hat, no cattle."


Munging Up The Copyright

Speaking of open source, a new file format called Monolith promises to "muddy[] the waters of the digital copyright debate." Available through ("The world's largest Open Source development website"), Monolith transforms ("munges together") two arbitrary binary files to create a Mono binary file, with a ".mono" extension. The resulting file is not statistically related to the files that went into its creation. "Things get interesting when you apply Monolith to copyrighted files. For example, munging two copyrighted files will produce a completely new file that, in most cases, contains no information from either file. In other words, the resulting Mono file is not 'owned' by the original copyright holders (if owned at all, it would be owned by the person who did the munging)."

According to Monolith's creator Jason Rohrer, users may thus be able to create files from copyrighted material that are not themselves subject to any copyright: "What does this mean? This means that Mono files can be freely distributed....[H]ow far away from direct and explicit representations do we have to go before copyright no longer applies? Mono files, given that they contain no information from the original Element files, are not explicit representations. The binary data in a Mono file cannot be directly interpreted to produce a presentation of the copyrighted content, so they cannot be seen as representational at all. Mono files take the data a step beyond any explicit representations, and I claim that this step goes far enough to leave copyright behind."

Rohrer is the first to acknowledge that his theory is untested: "[I]f you apply Monolith in the real world, your legal mileage may vary." But you can likely already find Mono files on a P2P network near you.


[Update:] Good commentary, links (including a brief history of this sort of effort), and comments on Monolith at Copyfight.

Let It Be...Downloaded

For those who'd rather buy their digital entertainment than test the limits of copyright laws, the surviving Beatles and the widows of those gone by may soon have some good news. The group reportedly is close to inking "an exclusive deal with a leading operator such as Microsoft's MSN, which plans an internet music store soon," that would for the first time enable listeners to legally download Beatles tunes. "One idea is for a Beatles-branded store, where the group's music, videos and other multi-media products could be bought." It remains to be seen who will win the rights to distribute the Beatles catalog online, and what sort of DRM keys you'll need to have on hand in order to "drive their car."


[Via IPKat]

"I just don't want to be bothered by the shitheads on the internet!" —Harlan Ellison

AOL recently settled claims by science fiction guru Harlan Ellison that AOL was responsible for the unauthorized appearance of his works on Usenet. Earlier in the case, the 9th Circuit reversed a summary judgment in AOL's favor, concluding that AOL, although an ISP, could have liability as a "passive conduit" under the DMCA. Though the terms of the settlement have not been disclosed, both parties "are pleased this case was able to draw the courts' and the public's attention to the issue of online piracy and advance the legal issues relating to copyrights in the digital world."


[Via Frank Field]

Nothing Rotten About NeimanCarcass

What would you expect to find at,, and No, not a 2 pound holiday catalog, but rather pictures of baby foxes with soulful eyes who want nothing to do with haute couture. According to the National Arbitration Forum the foxes are here to stay, despite arguments by the Neiman Marcus retail chain that the domain names were confusingly similar to its trademark. "It is unreasonable to believe that a reasonable consumer would be confused as to what the website is about or whether it is owned, sponsored or affiliated with" Neiman Marcus. People who find themselves at "would quickly understand that the disputed domain names or the web content to which they direct their audience are not affiliated or endorsed by Complainant and in fact are critical of Neiman Marcus insofar as it is involved in the sale of fur." This would become particularly apparent once they started looking in vain for the cookie recipe.


[Via Elizabeth Rader]

Patently Contestable

The EFF's Patent Busting Project, highlighted in prior IP Memes issues, has decided to make things competitive: "We're currently seeking nominations for ten patents that deserve to be revoked because they are invalid. Sadly, we don't have the resources to challenge every stupid patent out there. In order to qualify for our ten most-wanted list, a patent must be software or Internet-related and there must be a good reason to suspect that the patent claims are invalid." (Hmm, if the travel is booked online, perhaps the Doggie Luggage would qualify...?)


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