WinInfo Daily UPDATE, December 9, 2003

Antispam Legislation Passes Muster with Congress Heads to President

Yesterday, the US Congress gave its approval to the first federal law to regulate spam legislation that President George W. Bush has said he'll sign into law by the end of the year. The US House of Representatives unanimously passed an antispam law after its earlier and similarly unanimous passage through the US Senat.e And although years of infighting and several competing bills marred the process, the final version the Controlling the Assault of Non-Solicited Pornography and Marketing (CAN SPAM) Act is a classic compromise that should eliminate some of the most egregious forms of spam. Specifically, CAN SPAM makes it illegal to forge email headers and send unsolicited pornographic advertisements. CAN SPAM also requires spammers to include a functional return address or Web link in their mailings so that users can unsubscribe.

"It's been a long time coming and it was a lot of work to get it there," said a spokesperson for Oregon Senator, Ron Wyden. "But this is the first national law to crack down on kingpin spammers and to help protect Americans from unwanted and often offensive email. It's a tremendous opportunity for us to crack down on some of the worst offenders who send thousands and thousands of emails a day and have no relationship with the consumers they're emailing and fill people's email inboxes with offensive spam. I think this bill is going to have a real effect in reducing spam."

Critics note that CAN SPAM won't stop the majority of spam because most unwanted email is generated overseas. "What Congress is effectively doing is ignoring these laws that haven't worked everywhere else they've tried," said a spokesperson for the Coalition Against Unsolicited Commercial Email (CAUCE), which wanted further reaching antispam legislation. "This bill fails the most basic tests for antispam legislation; it doesn't tell anybody not to spam." Indeed, as a compromise with earlier competing bills, CAN SPAM isn't as aggressive as it could be. The law will use an opt out approach instead of banning unsolicited email outright. And for states such as California that already had strict antispam laws, CAN SPAM, which overrides those state based efforts, is a step back in many ways.

But backers note that the law is a positive first step and will likely have some effect. The Federal Trade Commission (FTC) will also create a "do not spam" list to which consumers can subscribe and will punish spammers with as many as 5 years in prison. More important perhaps is an upcoming United Nations (UN) summit in Geneva in which representatives of many countries will discuss measures for eliminating spam internationally.

IBM Gets Early Court Victory in SCO Lawsuit 

The SCO Group revealed this week that a Utah District Court judge ruled in favor of IBM in SCO's trade secret violation lawsuit against the computing giant. Earlier this year, SCO sued IBM for $1 billion, alleging that the Linux OS that IBM now supports contains software code stolen from UNIX, the rights to which SCO largely owns. SCO also revoked IBM's UNIX license. However, late last week the court handed IBM a stunning legal victory that resulted in an interesting reversal of fortunes. SCO had been pressuring the courts to force IBM to reveal its Linux and UNIX source code so that SCO could prove that IBM was using stolen code. But the judge ruled that SCO would have to first present its UNIX source code and identify which software code had been stolen for Linux.

"IBM has said all along that SCO has failed to show evidence to back its claims," an IBM spokesperson said. "We are very pleased that the court has indicated it will compel SCO to finally back up its claims instead of relying on marketplace FUD fear uncertainty and doubt SCO's claims, although serious, have always seemed a bit spurious. The company has never publicly provided any meaningful proof that its claims about Linux are true and as IBM complained in court, SCO attempted to shift the burden of proof to the accused."

Now SCO has just 30 days to give IBM the information and source code that proves its allegations. Specifically, SCO must give IBM all source code and other material in Linux to which SCO has rights and the nature of plaintiff's rights. SCO must also provide a detailed description of how IBM allegedly infringed on SCO's rights and whether SCO previously distributed the source code in question If SCO had previously distributed that code IBM argues SCO has agreed to the terms of the GNU General Public License GPL through which Linux distributions are licensed and can't sue IBM for doing the same. The judge will revisit the case on January 23, 2004 to ensure that SCO has followed through on its obligations. On that date, SCO can also request additional materials from IBM including the source code to AIX, IBM's UNIX version.

But don't worry about SCO, the company has another legal bomb to drop on IBM. SCO said this week that it will add a copyright infringement lawsuit to the earlier charges. "SCO decided to notify the court they will be adding copyright infringement as part of the claims," an SCO spokesperson said yesterday. "There will be a new filing on that coming out in the near future." SCO says it would have filed copyright infringement claims in its original lawsuit against IBM but was thwarted when Novell claimed it still owned the UNIX copyright. However, legal documents unearthed in June proved that SCO owns the UNIX copyright the company says.

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