The License, Should You Choose to Accept It

Wednesday, August 06 2003 @ 11:25 PM EDT

Contributed by: PJ



LWN has it posted.They say SCO sent it to them upon request.

The part that is surprising is the warranty. Or should I say the lack of much of one. What happened to all that trash talk about Linux not indemnifying its customers? This warranty, as far as I can see, and assuming that it's authentic, has a warranty for SCO's code only, and only up to a point. There doesn't seem to be any warranty for any GNU/Linux code or any warranty regarding infringement of any third party IP either. Remember yesterday, when McBride taunted Red Hat for saying essentially the same thing in its SEC filing? Am I missing something?

I guess they don't feel they can indemnify beyond their own code, under current circumstances, but they don't seem to be doing that altogether either, so it does mean that the indemnification is narrowly defined, at least compared with what I was expecting after all the lyrical poetry about indemnification. On first, quick reading, I see that they are letting you run their stuff and they won't sue you over doing that, if you meet all the other conditions. Wherever you see "Company", that would be you:

"7.0 LIMITATION OF WARRANTY

SCO MAKES NO WARRANTIES OF ANY KIND EXPRESSED OR IMPLIED WITH RESPECT TO ANY SOFTWARE OTHER THAN THE SCO INTELLECTUAL PROPERTY DEFINED BY THIS AGREEMENT. SCO WARRANTS THAT IT IS EMPOWERED TO GRANT THE RIGHTS GRANTED HEREIN.SCO DOES NOT WARRANT THAT THE FUNCTION CONTAINED IN SCO PRODUCT WILL MEET YOUR REQUIREMENTS OR THAT ITS OPERATION WILL BE UNINTERRUPTED OR ERROR FREE. ALL WARRANTIES, TERMS, CONDITIONS, REPRESENTATIONS, INDEMNITIES AND GUARANTEES WITH RESPECT TO THE SOFTWARE, WHETHER EXPRESS OR IMPLIED, ARISING BY LAW, CUSTOM, PRIOR ORAL OR WRITTEN STATEMENTS BY ANY PARTY OR OTHERWISE (INCLUDING, BUT NOT LIMITED TO ANY WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE OR ANY IMPLIED WARRANTY OF NON-INFRINGEMENT OF THIRD PARTY INTELLECTUAL PROPERTY RIGHTS) ARE HEREBY OVERRIDDEN, EXCLUDED AND DISCLAIMED. SOME STATES OR COUNTRIES DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES, SO THE ABOVE EXCLUSION MAY NOT APPLY TO YOU. THIS WARRANTY GIVES YOU SPECIFIC LEGAL RIGHTS AND YOU MAY ALSO HAVE OTHER RIGHTS WHICH VARY FROM STATE TO STATE OR COUNTRY TO COUNTRY.

"8.0 LIMITATION OF LIABILITY

"UNDER NO CIRCUMSTANCES WILL SCO OR ITS REPRESENTATIVES BE LIABLE FOR ANY CONSEQUENTIAL, INDIRECT, SPECIAL, PUNITIVE, OR INCIDENTAL DAMAGES, WHETHER FORESEEABLE OR UNFORESEEABLE, BASED ON YOUR CLAIMS OR THOSE OF YOUR CUSTOMERS (INCLUDING BUT NOT LIMITED TO, CLAIMS FOR LOSS OF DATA, GOODWILL, PROFITS, USE OF MONEY OR USE OF THE SCO PRODUCTS, INTERRUPTION IN USE OR AVAILABILITY OF DATA, STOPPAGE OF OTHER WORK OR IMPAIRMENT OF OTHER ASSETS), ARISING OUT OF BREACH OR FAILURE OF EXPRESS OR IMPLIED WARRANTY, BREACH OF CONTRACT, MISREPRESENTATION, NEGLIGENCE, STRICT LIABILITY IN TORT OR OTHERWISE, EXCEPT ONLY IN THE CASE OF PERSONAL INJURY WHERE AND TO THE EXTENT THAT APPLICABLE LAW REQUIRES SUCH LIABILITY. IN NO EVENT WILL THE AGGREGATE LIABILITY WHICH SCO MAY INCUR IN ANY ACTION OR PROCEEDING EXCEED THE TOTAL AMOUNT ACTUALLY PAID BY YOU TO SCO FOR THE LICENSE OF THE SCO PRODUCT THAT DIRECTLY CAUSED THE DAMAGE. SOME JURISDICTIONS DO NOT ALLOW THE LIMITATION OF EXCLUSION OF LIABILITY FOR INDIRECT, SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES SO THE ABOVE LIMITATION MAY NOT APPLY TO YOU."

[emphasis added]

Sorry for their screaming, but that's typical in warranty sections of legal docs. Look what you can't do if you get the license for a desktop:

""1.4 'Linux Desktop System' means a single user computer workstation controlled by a single instance of the Linux Operating System. It may provide personal productivity applications, web browsers and other client interfaces (e.g., mail, calendering, instant messaging, etc). It may not host services for clients on other systems."

Here's an interesting bit:

"2.3 Provided Company provides the Linux System information and pays SCO the applicable right-to-use license fees required as included Section 1 of Exhibit A to this Agreement, SCO grants Company the right to use all, or portions of, the SCO Product only as necessary to use the Linux Operating System on each Linux System for which the appropriate CPUs have been licensed from SCO. Company must take reasonable means to assure that the number of CPUs does not exceed the permitted number of CPUs. Such right is granted to use the SCO Product in conjunction with the Linux Operating System solely in Object Code format."

Oh, they get to audit you too, and if you didn't do your proper bookwork, well, it's out with the wallet. Naturally. If you underpaid by a certain threshold, you pay for the audit yourself, you thief. Thou also shalt not "reverse engineer or decompile, translate, create derivative works or modify any of the SCO Product", without writing to them first, just in case any of you were thinking of getting cute:

"If Company wishes to exercise any rights under Article 6.1b of the EC Directive on the Legal Protection of Computer Software (Directive 91/250), Company shall, in the first instance, write to SCO's Legal Department at the address above."

If you are unhappy with them, go to Utah courts only to sort it out. You agree it's Utah or nowhere:

"9.5 This Agreement shall be governed by, and construed and enforced in accordance with, the laws of the State of Utah and the United States of America, specifically excluding the United Nations Convention on Contracts for the International Sale of Goods, and without giving effect to conflict of laws. Any litigation or arbitration between the Parties shall be conducted exclusively in the State of Utah."

And they don't have to actually serve you in person. You must agree that they can serve you by mail, certified or registered.

Far be it from me to tell anyone what to do, either SCO with its business, or anyone out there wanting to get one of these things. No doubt you have your attorney you can ask to advise you.

But, as long as we're getting misty eyed about rights, does anyone really want to be treated like this? SCO has brought that question to the fore, and speaking only for myself, I can't see how anything could highlight more plainly the difference between proprietary and free software than this case and this license do. Does it sound like both sides have rights, in an equitable arrangement of benefit to both parties, or does it read like a plea bargain deal?

According to this article, now SCO wants us to pay them $32 per device using embedded Linux. Eek. I guess that means your Zaurus is now contraband. There's just one thing. Maybe SCO's never used a Zaurus or a Tivo, which is another device us pirates need to pay them $32 to run, but, as cool as your Zaurus and your Tivo are, unless they have a secret life when you aren't looking, do they need NUMA or RCU? Mwuahahahahaha. Which reminds me: did you note in the transcript of the teleconference that McBride only mentioned these two, not the complete foursome? . . .uh oh. Hide the Linux watch. No. Do the right thing and turn yourself in and get your lawyer to work out the best deal possible.

Favorite quotation from the article is from, believe it or not, an analyst, who says:

"This situation is rather odd in a lot of ways," said Gordon Haff, a senior analyst at Illuminata."

Sounds like Onion. This analyst, to quit horsing around for a minute, seems to actually get it.

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