SCO Amends Suit, Clarifies "Violations", Triples Damages 1347
Bootsy Collins writes "This evening on C|Net contains three new items. First, they've upped the damages they're seeking to $3 billion. Second, they claim that by making SMP technology generally available through Linux, IBM violated federal export controls and thus breached their contract with SCO through committing an illegal act. Finally, they elaborate on one specific technology they claim rights to which IBM inserted into the 2.5 kernel series -- the
read-copy update memory management features which went in at 2.5.43.
Unclear is why SCO thinks they have the rights to RCU, since the technology was originally developed by Sequent in the early 1990s."
SCO does not own RCU! (Score:5, Informative)
Re:SMP? RCU? (Score:5, Informative)
I think they're complaining that SMP was a restricted technology, so by helping to add SMP to the Linux kernel, and making it freely available, IBM violated US export laws. By violating those laws, IBM is therefore in violation of the SCO / IBM license agreement (not sure how that connection was made), and therefore, all rights assigned to IBM are void, blah, blah, blah, blah.
They're asking a judge for an injunction now? Good. The sooner the judicial system gets a chance to take a formal look at this, the better.
Re:SMP? RCU? (Score:3, Informative)
I'm getting bored now, and $3Billion? Who are they kidding. Anyway, so far as I can tell, the arguement goes 'IBM wrote some code and put it into both UNIX and Linux'. So far as I can tell, there is no legal bar on them from doing so. Sure, they can't later take any modifications done to the Linux Kernel and put it into Unix, but as the originator of the code that is in Unix, they can do what the hell they like with it (and later putting it into Linux does NOT GPL the version of Unix, it just prevents them from later copying Linux changes back over)
Actually, $50 Billion (story inside) (Score:5, Informative)
BN 06/16 SCO Cancels IBM Contract, Seeks $50 Billion in Suit (Update4)
SCO Cancels IBM Contract, Seeks $50 Billion in Suit (Update4)
(Adds additional IBM comment in fourth paragraph.)
June 16 (Bloomberg) --- SCO Group Inc. canceled International
Business Machines Corp.'s contract for the AIX Unix operating
system and revised a lawsuit against IBM to seek as much as $50
billion.
The amended complaint also seeks an order forbidding the
sale of IBM's AIX operating system, SCO Chief Executive Darl
McBride said. SCO, which licenses Unix to thousands of companies,
sued IBM in March claiming it transferred Unix code into the
related Linux operating system in breach of IBM's contract. IBM,
the world's second-largest software maker, denies the claims.
``The meter is now ticking with respect to AIX and will be
ticking until we get conclusion to this,'' McBride said in an
interview. SCO is seeking from IBM ``any amount they get from the
AIX or related business lines'' while the case is pending, an
amount he said could run as high as $50 billion.
IBM's AIX license is irrevocable and there is nothing in
today's action that changes that, IBM spokeswoman Trink Guarino
said. IBM will continue to ship AIX and develop products, the
company said in a statement.
SCO shares fell 28 cents, or 2.5 percent, to $10.93 at 4
p.m. New York time in Nasdaq Stock Market trading after earlier
dropping 14 percent to $9.60. Shares of IBM, the world's largest
computer maker, rose $1.75 to $84.50 in New York Stock Exchange
Composite trading. They've gained 9 percent this year.
Impede Marketing
SCO's lawsuit might hamper IBM and dozens of other
companies' marketing of Linux, which Morgan Stanley and other
companies use to cut costs, analysts said. Today's move escalates
SCO's demands by expanding a previous demand of $1 billion in
damages and seeking an injunction against AIX, which SoundView
analyst John Jones said generated $2.8 billion in sales in 2002.
``For a fraction of that, IBM can buy SCO outright,'' said
Carl Hoagland, an analyst with State Street Corp., referring to
the demand for as much as $50 billion. ``Why bother to play these
games?'' State Street is IBM's largest shareholder.
Lindon, Utah-based SCO, worth about $134 million based on
today's closing stock price, bought Novell Inc.'s licensing
rights to Unix for $145 million in 1995. Novell, whose software
is used to manage computer networks, last month challenged SCO's
claims, saying Novell retains ownership of the Unix patents and
copyrights. SCO maintains it has legal entitlement to them.
SCO's suit was filed by attorney David Boies of Boies,
Schiller & Flexner LLP, who represented the U.S. Justice
Department in its antitrust lawsuit against Microsoft Corp. and
Vice President Al Gore in his dispute over the 2000 presidential
election results. Both Boies' firm and IBM are based in Armonk,
New York.
Linux, developed by Finnish developer Linus Torvalds, is
maintained and updated by a corps of volunteer programmers who
make it available for free over the Internet. Companies such as
IBM, Oracle Corp. and Red Hat Inc. make money from Linux by
selling computers, software and services related to the operating
system.
Unix was first developed in the late 1960s by AT&T Corp. Sun
Microsystems Inc., Hewlett-Packard Co., IBM and other companies
over the years derived their own operating systems based on Unix.
Linux is one of the most recent Unix offshoots to emerge.
Microsoft Corp. is the world's biggest software maker.
--Jonathan Berr in the Princeton newsroom (1) (609) 750-4516 or
jberr@Bloomberg.net. and Dan Goodin in San Francisco, (1) (415)
743-3548 or dgoodin@bloomberg.net. Editor: Todd.
Re:Greedier (Score:3, Informative)
Re:Hmm... (Score:2, Informative)
Re:Timeline of SCO events? (Score:4, Informative)
Re:SCO does not own RCU! (Score:5, Informative)
Most of us assumed that SCO's chest thumping about copyright infringement referred to literal copying of System V or Monterey code. Now, it seems, it is based on the more tenuous theory that any part of a System V-based O/S is derivative.
Fact : SCO is dying (Score:0, Informative)
You don't need to be a Kreskin to predict SCO's future. The hand writing is on the wall: SCO faces a bleak future. In fact there won't be any future at all for SCO because SCO is dying. Things are looking very bad for SCO. As many of us are already aware, SCO continues to lose market share. Red ink flows like a river of blood.
OpenServer is the most endangered of them all, having lost 93% of its core developers. The sudden and unpleasant departures of long time OpenServer developers Darl McBride only serve to underscore the point more clearly. There can no longer be any doubt: OpenServer is dying.
Let's keep to the facts and look at the numbers.
UnixWare leader Chris Sontag states that there are 7000 users of UnixWare. How many users of Open UNIX are there? Let's see. The number of UnixWare versus Open UNIX posts on Usenet is roughly in ratio of 5 to 1. Therefore there are about 7000/5 = 1400 Open UNIX users. Open Linux posts on Usenet are about half of the volume of Open UNIX posts. Therefore there are about 700 users of Open Linux. A recent article put OpenServer at about 80 percent of the SCO market. Therefore there are (7000+1400+700)*4 = 36400 OpenServer users. This is consistent with the number of OpenServer Usenet posts.
Due to the troubles of Caldera, abysmal sales and so on, OpenServer went out of business and was taken over by SCO who sell another troubled OS. Now SCO is also dead, its corpse turned over to yet another charnel house.
All major surveys show that SCO has steadily declined in market share. SCO is very sick and its long term survival prospects are very dim. If SCO is to survive at all it will be among OS dilettante dabblers. SCO continues to decay. Nothing short of a miracle could save it at this point in time. For all practical purposes, SCO is dead.
Fact: SCO is dying
Re:Highlights and changes in tactics (Score:3, Informative)
But there is no distro with RCLOCK yet (Score:3, Informative)
Well how could SCO target those companies when they didn't released distros with RCLOCK yet ?!? Providing they can prove that RCLOCK is really "derived" from SysV.
All this looks like South American soap opera with really bad script.
bb4now,
PMC
Re:They must really be scared now. (Score:3, Informative)
http://www.wallstreetandtech.com/story/itWire/INW
http://www.websofinnovation.com/mar03ukcolumn.htm
Re:/. pathetic response (Score:4, Informative)
* Is including controlled technologies in Linux the equivalent of violating US export laws? That could have implications far beyond SCO's suit.
It could, but mostly for US companies and developers. Let's not forget that GNU/Linux is an international effort.
Re:SCO drops some claims about linux (Score:2, Informative)
You have, perhaps, not heard of the speculative practice of shorting stock. [about.com]
IBM and Linux SMP (Score:5, Informative)
I hate to break it to SCO, but Linux had SMP support LOOOOOONG before IBM got into the open source game. Idiots.
I hope SCO execs have to sell their kidneys to pay for the lawsuit filed by IBM when courts figure out how unsubstantiated these claims truly are!
Insite on the IBM/Sequent deal concerning SCO (Score:2, Informative)
http://news.com.com/2100-1001-228275.html
Re:Sun sponsoring SCO? Possible proof! (Score:2, Informative)
Sun paid Novell ~$100M to get out of paying royalties and for the right to distribute derivative works in perpetuity.
IBM, HP, and everybody else paid Novell in the neighborhood of $10M just to get out of paying royalties.
So, Sun is in the clear, and has been since long before this lawsuit was a gleam in the eye of the SCO executive team. What I'd like to know is, even if SCO does win the lawsuit, can Sun continue to distribute Linux?
Re:SMP? RCU? (Score:5, Informative)
Your understanding of derivative works is similarly faulty. While it's true that the issue of what is a derivative work in software has never been litigated, it is not true that the owner of the original work owns the copyright to the derivative work. When a company, like IBM, buys the right to make derivative works, they own the copyright on the derivative work. Disney bought the rights to make films from A.A. Milne's Winnie the Pooh. The Milne heirs do not own the rights to those films, Disney does.
Re:They must really be scared now. (Score:3, Informative)
I've never had penguin, but puffin is quite tasty if cooked right.
Re:IBM and Linux SMP (Score:5, Informative)
The issue is whether or not the source code in Linux was written by SCO or not.
Similarly, the comment in the topic about RCU being invented by Sequent is irrelevant. The issue is if the code that implements RCU in the Linux kernel was written by SCO.
If the code was written by SCO, then they have a case. If it wasn't, they don't.
Remember - SCO's not claiming patent infringement, they're claiming copyright violation. Their claim is that the Linux kernel contains code that was written by SCO and shared with IBM under SCO's license to IBM. They claim that IBM then turned around and inserted that code into the Linux kernel that they distributed, thus violating SCO's copyright.
Whether or not the concepts that are embodied in that code were original to SCO is utterly irrelevant to SCOs case. The ONLY issue is whether or not SCO's code appears in the Linux kernel.
OSI really does say it all in their position paper (Score:2, Informative)
SCO/Caldera alleges (Paragraph 57): âoeWhen SCO acquired the UNIX assets from Novell in 1995, it acquired rights in and to all (1) underlying, original UNIX software code developed by AT&T Bell Laboratories.â
SCO/Caldera neglects to mention that those rights had been substantially impaired before its acquisition of the ancestral Bell Labs source code. There was a legal action in 1992-1993, in which Unix Systems Laboratories and Novell (SCO/Caldera's predecessors in interest) sued various parties including the University of California at Berkeley and Berkeley Systems Design, Inc. for alleged copyright infringement, trade secret disclosures, and trademark violations with regard to the release of substantial portions of the 4.4BSD operating system[36].
The suit was settled after AT&T's request for an injunction blocking distribution of BSD was denied in terms that made it clear the judge thought BSD likely to win its defense. The University of California then threatened to countersue over license violations by AT&T and USL. It seems that from as far back as before System V Release 4 in 1985, the historical Bell Labs codebase had been incorporating large amounts of software from the BSD sources. The University's cause of action lay in the fact that AT&T, USL and Novell had routinely violated the terms of the BSD license by removing license attributions and copyrights.
The exact terms of final settlement, and much of the judicial record, were sealed at Novell's insistence. The key provisions are, however, described in Twenty Years of Berkeley Unix: From AT&T-Owned to Freely Redistributable, [McKusick99]. Only three files out of eighteen thousand in the distribution were found to be the licit property of Novell (and removed). The rest were ruled to be freely redistributable, and continue to form the basis of the open-source BSD distributions today.
Ten years ago â" at a time when Linux was in its infancy â" the courts already found the contributions of other parties to what is now UnixWare to be so great, and Novell's proprietary entitlement in the code so small, that Novell's lawyers had to settle for a minor, face-saving gesture from the University of California or walk away with nothing at all.
Re:IBM and Linux SMP (Score:3, Informative)
The thing is, SCO already knows this, because they're the ones who sponsored it - they gave an SMP box to Alan Cox specifically so he could work on it.
I don't know what SCO's been smoking, but it must be pretty potent stuff!
How do you know what they're claiming? (Score:5, Informative)
Re:Maybe Linus is going to 'santize' linux.. (Score:5, Informative)
Re:the weirdest claim (Score:1, Informative)
However, when I was a lawyer, the quest I always asked myself was WHAT ARE YOUR DAMAGES FROM THAT BREACH? And another little question was IS IT A MATERIAL BREACH? And a third little question: IS IT A FUNDAMENTAL BREACH?
Breach of contract does not allow you to terminate the contract absent either (a) a clear termination clause [and IBM claims it is an irrevocable license]; or (b) a breach that goes to the root of the contract. OTHERWISE all you get is damages WHICH you have to prove in a court of law.
Export controls just doesn't cut it in my humble opinion (presuming there is a contract clause dealing with that).
Re:SMP? RCU? (Score:1, Informative)
IIRC, the first version to have SMP support was in the 1.3 series, in 1996.
Re:SMP? RCU? (Score:5, Informative)
Thanks to xyote [slashdot.org] for pointing this out [slashdot.org]:
What lawsuit ? (Score:5, Informative)
why spend the money on fighting the lawsuit or paying a settlement - buy out SCO
SCO hasn't sued anybody yet..
And if their behaviour can be used as a indicator of how solid their case is, I'd say here is a good change they won't be suing anybody in the forseeable future.
Either that, or the case will be dismissed right after SCO has explained it's case and the judge has had a good belly laugh ..
Re:Which bit of IBM... (Score:3, Informative)
Sadly, the answer may be "yes," because you get into the issue of rexport. It doesn't matter where technology is created, the law just says you can't export it. Hypothetically, it could be created in the UK and packaged by Linus in Finland (before he moved here). IBM could then legitimately download it, but putting it back up for anyone else to download without export restrictions would be a violation.
That's all assuming, of course, that the SMP technology in Linux is sufficient to be controlled under these laws. I believe this is a novel position from SCO. Certainly if the government felt that way they would've been moving to shut down Linux's distribution at the time. It's not like Linux was some big secret. And I can sure tell you they knew enough what was going on at PGP to keep us dotting our is and crossing our ts with regard to export control. You'd better believe IBM had a flock of lawyers looking at issues just like this when they first got involved with Linux, and they decided there was no issue, here.
We asked about that in the IBM interview last year (Score:5, Informative)
by 2names
As Linux developers inside IBM, do you get to see the AIX source code? If you do, are you allowed to "steal" some ideas from AIX and implement them in Linux? If not, why not, and what's the IBM official line?
IBM Kernel Hackers:
First of all, before any of us were allowed to contribute to Linux, we were required to take an "Open Source Developers" class. This class gives us the guidelines we need to participate effectively in the open source community - both IBM guidelines and lessons learned about open source from others in IBM.
We are definitely not allowed to cut and paste proprietary code into any open source projects (or vice versa!). There is an IBM committee who can and do approve the release of IBM proprietary or patented technology, like RCU.
That covers "stealing" code, but what about ideas? We might talk to an AIX programmer and comment we're seeing performance issues in Linux in this area or that area and she tells us they discovered that they really needed to profile the network routines when they saw that. Having solved the problem once, our non-Linux peers can help steer us without spelling it out for us, allowing us to still develop solutions that can then be open sourced.
It's a fine line to walk, especially as an engineer who just wants the answer
Interview [slashdot.org]
Re:SCO drops some claims about linux (Score:4, Informative)
You borrow some stock from someone else; the stockbroker will choose who donates the stock. You immediately sell the stock, and the broker puts the money from the sale into an account.
You then wait. One of two things will happen:
1. The original owner of the stock will decide to sell, and will therefore demand his shares back;
or
2. You'll decide to cover your short.
Either way, you tell the stockbroker; he uses the money in the account to buy as many shares as you'd borrowed originally, and gives them to the original owner.
Then he gives you the leftover money.
This works GREAT when the stock price falls.
Now, what happens if the company goes bellyup? Well, in that case the stock is officially worthless; the owner will never ask for the shares. The entire short account -- all the money you made from selling the stock -- goes to you, with NO investment of your own money.
Now, what happens when the stock price goes up? Well, you still have to buy as many shares as you sold! So pay up, buddy.
The benefit of shorting is that you don't have to pay your own money; the risk is that there's no maximum amount you can lose, and there's always a maximum amount you can win. The stock could in theory increase forever; but it can never decrease below 0.
-Billy
Re:/. pathetic response (Score:5, Informative)
So far four components of the Linux source have been implicated: SMP, RCU, NUMA, and JFS.
I have done a little digging into the NUMA code. IBM has contributed several people who have participlated in developing NUMA under linux. Some names I've run across: Martin Bligh [linuxsymposium.org], Matthew Dobson, Patricia Gaughen [linuxsymposium.org], John Stultz, Michael Hohnbaum. IBM even has a Linux NUMA news archive [ibm.com]. It appears that IBM jumpstarted it's NUMA efforts when it purchased Sequent [com.com] which was intitally intended to boost its participation in Project Monterey, which is no doubt the origin of SCO's objections.
The most obvious source file for NUMA is
Re:SMP? RCU? (Score:3, Informative)
Um... Linux had SMP support way before May '98. I was in College in 1997 and my desktop computer was running SMP Linux on a Dual P133 at the time. Don't remember the mobo maker tho... maybe tyan?
Re:SMP? RCU? (Score:3, Informative)
I removed those rights to derivative modifications from those contracts... The world can thank me later....
(Hint Real-time unix, makes a very nice SMP OS, B.T.W. it was running on SMP 68K platforms, first, then ported to 88K, then Intel).
SCO has no claim, as AT&T & sub licensee quickly backed down on that clause during source code contract negotiations...
Note: I pointed out that the "we are entitled to your modifications" clause was an obvious violation of then Anti-trust statutes.
They both agreed.. clause removed.. SCO is so screwed...
Lastly, the clause was never exclusive, for obvious reasons. Thus companies & employees were free to give the code to anyone they choose.
Re:How do you know what they're claiming? (Score:5, Informative)
On the bad news side... (Score:3, Informative)
Basically, the contract with AT&T says that IBM will treat all derivative works as if they were part of the original codebase. While that dosn't grant copyright to AT&T/SCO, transfers of copyright must be in writing, it might constrain how IBM can disclose code which was originally part of a SysV derivative. This is undoubtedly where SCO thinks its case lies.
Re:How do you know what they're claiming? (Score:5, Informative)
Sounds like SCO's definition of "derivative works" is similiar to that of the GPL.
Absolutely not. The parallel you're drawing is this: IBM wrote code that was used with and linked to SCO code, and SCO is claiming that they, therefore, have some rights to what is done with the other code that IBM wrote based on expertise they gained working with the SCO code. From a very naive viewpoint, you can say: "See, SCO's code 'infected' IBM's code (and engineers), just like GPL'd code 'infects' code that it touches." But you'd be wrong.
The GPL does not prevent you from taking code you wrote in one context and using it elsewhere. If you own the copyright, you can release it as many times as you like under whatever terms you like. So it *certainly* doesn't limit what you can do with new code that you write, even if it happens to draw upon expertise you developed while enhancing the GPL code.
For that matter, the GPL doesn't even prevent you from reading someone else's GPLd code, understanding their nifty, super-cool algorithm and implementing it yourself in your own, closed software. As far as the GPL is concerned, if you wrote it, you own it, no matter where you got the ideas from. Where the GPL gets sticky is when you want to distribute a closed version of something that contains code someone else wrote, and that is perfectly sensible: the fact that you may have written some parts of it doesn't give you the right to violate the wishes of the owner(s) of the rest of it.
Re:How do you know what they're claiming? (Score:5, Informative)
Yet there seems to be this idea in the software development community that even reading someone else's source code will "contaminate" your mind, and make you unable to write a similar program without infringing on copyright.
Yep. I understand how this mentality arose, but it sure is unfortunate.
It arose simply because (a) code is functional and (b) lawyers are conservative. Since form follows function, independently-written routines that do the same thing will often be similar, and sometimes look extremely similar. This means that it may, at times, be hard to prove that you wrote a piece of code if someone else happens to have highly similar code that predates yours.
Attornies (notably, Compaq's attornies back when they reverse-engineerd IBM's BIOS) saw this problem and devised a sure-fire solution: If we can show that the programmers who wrote code B never saw code A, then it's clear that B isn't a copy of A, not even some sort of "inadvertent copy". Hence the development of "clean-room" reverse-engineering, the notion that the engineers who are "exposed" to A are "contaminated" and can't work on B, etc.
It made sense for Compaq, since they did *not* want to face IBM's legal dept. in court, but it has left the rest of us with an unfortunately skewed view of copyright as it pertains to code.