Two articles on the continuing battle of SCO v. IBM
Stephen Shankland writes that it may not make a difference whether SCO released Unix code, and SCO may have the advantage legally. Here's where the cow steps in. Rose was sold on the presumption she was a barren cow, but was later discovered to be pregnant. Had her fertility been known the sale would not have taken place; so the buyer and seller went to court. The ensuing case established the so-called doctrine of mutual mistake, under which a contract can be nullified if two parties—in this case SCO and a company using Linux—misapprehended the true nature of what was in the contract.
If so, SCO would have a claim, unless it knowingly released once-proprietary Unix code in its Caldera Linux.
A statement about the Unix trademark from the Open Source Group.
Posted at June 12, 2003 12:03 PM | TrackBackOn SCO and licensing linux: how bilateral contracts and the doctrine of mutual mistake (pregnant cows) are confused with the GPL (a unilateral contract). When Prof. Eben Moglen drafted the GPL it was written as a unilateral (contract) license.
"[A] unilateral contract results from an exchange of a promise for an act; a bilateral contract results from an exchange of promises." Mark Pettit, Jr., Modern Unilateral Contracts, 63 B.U. L. Rev. 551, 553 (1983). Thus, "in a unilateral contract, there is no bargaining process or exchange of promises by parties as in a bilateral contract." Orr v. Westminster Village North, Inc., 689 N.E.2d 712, 720 n. 11 (Ind. 1997). "[O]nly one party makes an offer (or promise) which invites performance by another, and performance constitutes both acceptance of that offer and consideration." Id. Because "a 'unilateral contract' is one in which no promisor receives promise as consideration for his promise," only one party is bound. Johns v. Thomas H. Vaughn & Co., 34 Ala. App. 99, 101, 38 So. 2d 19, 20 (1948).
" Owen v. MBPXL Corporation, 173 F. Supp. 2d 905 (N.D. Iowa 2001)
Here we have:
1) "[O]nly one party makes an offer (or promise)"
=> GPL section (1) "You may copy and distribute ..."
2) "which invites performance by another,"
=> GPL section (5)"... Therefore by modifying or distributing ..."
3) "and performance constitutes both acceptance of that offer and consideration."
=> SCO GROUP distributes SCOLINUX...
Unilateral contracts are much more difficult to void than are pregnant cow contracts.
"A party to a unilateral contract mistake bears the risk if:
a) the risk is allocated to him by agreement of the parties, or
b) he is aware, at the time the contract is made, that he has only limited knowledge with respect to the facts to which the mistake relates but treats his limited knowledge as sufficient."
Restatement (Second) of Contracts.
SCO had been seeking facts (limited knowledge) concerning IP violations and linux for 2 months
after filing the IBM lawsuit. Yet they continued to distribute linux source code (treating that limited knowledge as sufficient to continue distribution).
IANAL but I do not think the SCO v GPL debate is as murky as many would have us believe.
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