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Ernest Miller Ernest Miller pursues research and writing on cyberlaw, intellectual property, and First Amendment issues. Mr. Miller attended the U.S. Naval Academy before attending Yale Law School, where he was president and co-founder of the Law and Technology Society, and founded the technology law and policy news site LawMeme. He is a fellow of the Information Society Project at Yale Law School. Ernest Miller's blog postings can also be found @

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March 04, 2004

Court Using Linux Hears Lawsuit Claiming Linux Infringes Copyright

Posted by Ernest Miller

I don't post much about the ongoing SCO v. Linux lawsuits, though heaven knows there is much to discuss in the case. For incredible, indepth, precedent-setting blog coverage of these lawsuits, see the justly famous Groklaw.

Most recently, SCO has begun suing not only distributors of Linux, but users as well. In the first case brought against an end-user, SCO has sued Autozone for using Linux and thus violating SCO's copyrights (It's Autozone). All well and good, but there is something unusual about the case.

Netcraft is not involved directly in the case, it is an English company that conducts research and analysis on the internet. According to their about page, since 1995 they have been,

a respected authority on the market share of web servers, operating systems, hosting providers, ISPs, encrypted transactions, electronic commerce, scripting languages and content technologies on the internet.

Thus, it is no surprise that they would check up on what systems the court involved is running. They report that some of the computer systems for the court in charge of the SCO v. Autozone lawsuit run on Linux (Court that will hear SCO v AutoZone lawsuit itself runs Linux). Indeed,

Plaintiffs filing lawsuits must enter copies of their legal documents in Adobe PDF format in the court's Linux-based Case Management/Electronic Case Filing (CM/ECF) system, which will provide electronic updates of case information for the litigants and their lawyers.

This, I think, is a first. I have no idea if there is a precedent for this sort of thing. Here you have a court that is engaged in precisely the same conduct the plaintiff complains of. If a judge did this it would not only be an appearance of a conflict of interest, it would be a conflict of interest and clear case for recusal. What do you do when the court administration is involved? Can an entire court recuse itself? Is there any rule or precedent for this?

In related news, SCO public relations people continue their so-far successful campaign to get the world to hate them by comparing themselves to the RIAA ('We're just like the RIAA,' says SCO).

Comments (5) + TrackBacks (0) | Category: Copyright | Oddities | Open Source


1. doogie on March 4, 2004 05:16 PM writes...

I don't think this is much of a conflict. Do you think Judge Jackson used Microsoft operating systems while hearing the Microsoft case? When BT claimed a patent on hyperlinks, do you think the court was conflicted because court personnel used web browsers.

I think the real distinction here is whether someone hearing a case has a financial or pecuniary interest in either the parties or the technology/property at issue. When someone is a mere end user of a common technology, I don't see how that becomes a conflict -- although I'm sure there are exceptions to even that rule.

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2. Ernest Miller on March 4, 2004 05:42 PM writes...

You're right, it is a question of financial and pecuniary interest. However, if Autozone (an end user) is guilty of copyright infringement, then so is the court. Being liable in a lawsuit is a pecuniary interest.

The BT and MS cases do not have a pecuniary interest with regard to court.

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3. Dan on March 5, 2004 12:04 AM writes...

I think there are a few cases of the U.S. Patent and Trademark Office granting silly Internet-related patents which the office itself was actually infringing via its own Web site.

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4. doogieh on March 5, 2004 03:35 AM writes...

(1) The U.S. Court of Claims (admittedly an Article I court) hears cases all the time that are seeking money from the U.S. government, and the Federal Circuit hears the appeals.

(2) When a federal court hears a case that the court itself might be infringing in its official capacity, injunctive relief is generally not available against the court. instead, the patentee or copyright holder has to go to court (probably in the court of claims) or in the case of patents under section 1491 to seek damages.

But my point, in either case, is that the judicial personnel in either of these scenarios does not have any personal pecuniary interest in the case being decided.

If a court could not decide a case because the U.S. government had an interest one way or another, they simply couldn't function. That's why the DOJ has a whole section for the FTCA, for Tucker Act (and Little Tucker Act) issues, and for court of claims requests for damages.

I think the real issue is when a patentee or copyright holder claims that the judicial personnel are infringing in their personal capacity rather than their professional one. If a judge uses P2P networks at home, that may improperly influence decision making. If a law clerk wrote GPL software to perform a patented processes, the law clerk may have some sort of conflict. Such personal conflicts are distinct from conflicts in official capcity.

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5. Ernest Miller on March 5, 2004 07:07 AM writes...

Thanks for the info. It still is pretty strange. I would like to know what happens if SCO decides to sue the court.

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