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Law Professor Examines SCO Case 558

Posted by michael
from the legal-eagle dept.
An anonymous submitter writes "This law professor from the University of California points out weakness in SCO's legal bluster, and further takes a poke at closed software, for those hungry for more SCO scraps. At the end, he references Slashdot for more info ('itself a demonstration of the power of dispersed individuals working together')."
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Law Professor Examines SCO Case

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  • by wo1verin3 (473094) on Thursday June 26, 2003 @09:50AM (#6302695) Homepage
    They're liars.
  • by Jonsey (593310) on Thursday June 26, 2003 @09:53AM (#6302718) Journal
    We've got grounds for a huge lawsuit. It's obvious that in bad faith the University Professor is attempting to slashdot slashdot. He even included a direct link to our homepage. Untold damage!

    Sue! Sue! Someone, call SCO!
  • by notque (636838) on Thursday June 26, 2003 @09:55AM (#6302745) Homepage Journal
    Slashdot User Examines SCO Case

    "Slashdot User notque from the University of Arizona points out weakness in SCO's legal bluster, and further takes a poke at closed software, for those hungry for more SCO scraps."

    Uhh.. I think SCO sucks, and I think Microsoft sucks.

  • by Meat Blaster (578650) on Thursday June 26, 2003 @09:56AM (#6302753)
    Most of my friends agree that the SCO tactics raise questions about their underlying evidence. If you've got the trump card against IBM, why wouldn't you play it right away instead of engaging in this kind of game they've been playing? But you know, given some of the history here I'm starting to wonder if they've got something that's slam dunk against Linux. I doubt it, but I can't imagine they'd try to bluff IBM, let alone the raging Linux community.

    It could be that they've got a solid case. It could be that they're working out some great shenanigans. Irregardless, I'm starting to wonder if Linux should be open to the average user to contribute, or if perhaps it should be restricted to a core group of companies and Linus who can afford lawyers to vet the code. Things are getting pretty scary in the open source world, particularly with the lawyers getting involved...

    • expect even more feeders to follow.
      Where there's money there's greedy people - a necessary evil that goes with the creation of a new paradigm for software.

      Pull out the duct-tape and expect the herd to move in and trample everything. By next year David Letterman will be making lame jokes about Linus' hair.
    • by rekulator (582156) <<if.tuh.cc> <ta> <erruk>> on Thursday June 26, 2003 @10:19AM (#6303015)
      I'm starting to wonder if Linux should be open to the average user to contribute, or if perhaps it should be restricted to a core group of companies and Linus who can afford lawyers to vet the code.


      It's not _that_ open. Try getting a patch without review to the vanilla tree.. :) You can send your patches to the mailing list and after review of many it may or may not be accepted.

      And besides, isn't IBM one of these "core companies"?
    • by CrazyWingman (683127) on Thursday June 26, 2003 @10:31AM (#6303137) Journal
      If you've got the trump card against IBM, why wouldn't you play it right away instead of engaging in this kind of game they've been playing?

      Anyone ever hear the phrase, "Even bad publicity is good publicity"?
    • txs SCO (Score:3, Interesting)

      IMHO those lawsuits will always turn in favor of open-source software. It's causing people which never though of it to think about differences between proprietary and open-source software, and to even worry about it.

      I hope that, then, more and more people will feel more confident about open source, then start to use it.

    • "I'm starting to wonder if Linux should be open to the average user to contribute"

      Instead why don't we refuse contributions from corporate companies. After all it's mainly the U.S. based corporations that erode everything that is even remotely based on benevolent principles -- Capitalism at work primary focus is not on the advancement of humanity...

      This is no more a good idea than yours - to do either will do more harm than anything some [insert evil doer here] can dream up to deter the growth of GNU

    • >>but I can't imagine they'd try to bluff IBM, let alone the raging Linux community.

      Why not? SCO is going BR anyway. SCO has everything to win and nothing to lose by filing this lawsuit. At the very least, SCO sent their stock price from $2 to $10. Insiders are still selling like mad.

      IBM, on the other hand, has a lot to lose if SCO has a case. If SCO had any case at all, it would have been best for IBM to settle as quickly and quietly as possible.

      There is no way IBM would want this to court if the

    • I think Cringely made the best point about this possibility when he pointed out that IBM HAS THE BEST IP/LEGAL DEPARTMENT IN THE BIDNESS. Nobody is in a better position to vet the code than IBM, so if there were anything there to be concerned about, I would have expected to hear from them by now.

      As stupid as it sounds, SCO is bluffing -- if you're going to be stupid, be stupid big.
    • There's lots of reasons to not play your trump card first. But I can't think of any reasons for someone with a winable case to go to the media like this. I hear judges don't like that. And it doesn't seem to be at all common practice. But people with no case do it frequently enough that I've heard about it before. I guess their lawyers look at the case, and when the client asks if they should try for good PR they say "It couldn't hurt."

    • There is of course a way more obvious reason. The stock was worth $0.60 before the lawsuit was filed, and is $10 now.

      Just wait until the big shareholders have quietly unloaded their stock, and expect a retraction of the lawsuit (on second thought, we may not have a strong case against IBM at all...)

      [Any ressemblence to actual persons or situations is purely coincedental]
  • by Crashmarik (635988) on Thursday June 26, 2003 @09:56AM (#6302756)
    GPL or not

    The second principle is that a party's rights can be affected by its later conduct - which can constitute a "waiver," giving away rights. Until recently, SCO was a willing player in the Linux movement, releasing code under the open source ("copyleft") license. Everything that happened to Linux was in the open. Yet SCO delayed in suing.

    SCO had made their bed in deciding to take advantage of the open source movement. Now they want to retroactively change the decision.
    • by binaryDigit (557647) on Thursday June 26, 2003 @10:03AM (#6302833)
      SCO had made their bed in deciding to take advantage of the open source movement. Now they want to retroactively change the decision.

      The guy in the article made a similar comment and I fail to see how it's relevant at all. The issue here is that IBM licensed some code and SCO is claiming that IBM then used this licensed code in Linux. That SCO also participated in Linux development is utterly irrelevant unless they themselves also put proprietary Unix code into Linux.

      Now the issue of what took SCO so long to figure this all out might be more relevant. But it would appear that SCO and IBM have been in talks about this for a while, so it's hard to say how long the "offending" code has been there.
      • Ummm, no (Score:4, Insightful)

        by TheConfusedOne (442158) <the.confused.one@nOspam.gmail.com> on Thursday June 26, 2003 @10:17AM (#6302995) Journal
        SCO is claiming that IBM licensed some code (from AT&T mind you) and since they (actually Sequent) wrote some code that ran on top of that licensed code then they had to obey the license for the new, original work created without any help or IP from the "licensor".

        That would be like saying since McAfee wrote Virus Scan on top of Windows and using the information from Windows then they can't reuse any of that code in writing a Virus Scanner for any other OS.
        • Re:Ummm, no (Score:5, Insightful)

          by binaryDigit (557647) on Thursday June 26, 2003 @10:39AM (#6303207)
          That would be like saying since McAfee wrote Virus Scan on top of Windows and using the information from Windows then they can't reuse any of that code in writing a Virus Scanner for any other OS.

          Ummmm no. There is a huge difference between writing an application FOR an OS and writing code that is a PART of the OS. SCO is claiming that any code that becomes a PART of the OS becomes their property (rightly or wrongly). To clarify your analogy, it would be like McAfee being granted a license to make VirusScan a PART of Windows, but in return, M$ now makes claim to that code. If their license says that McAfee then can't use that code in other apps, then they'd get sued if they tried.
          • Re:Ummm, no (Score:3, Informative)

            And while we may think that such an arrangement is silly, because it is, it's up to the lawyers involved to ensure that whatever contracts they sign on behalf of their companies are good for the company. It's caveat emptor-- it's the company's lawyers better know what they're doing. In this case, the agreement between IBM and AT&T was modified by IBM at the time of the agreement so that the stuff that IBM developed, including derivative works, was owned by IBM. The whole issue is that SCO hasn't yet tol
          • Re:Ummm, no (Score:5, Interesting)

            by Elwood P Dowd (16933) <judgmentalist@gmail.com> on Thursday June 26, 2003 @11:41AM (#6303840) Journal
            There is a huge difference between writing an application FOR an OS and writing code that is a PART of the OS.

            No, no there isn't. The difference between application level software and operating system software is completely arbitrary, and many people disagree about what the difference is.

            And no matter where the line is, doing the actual programming is absolutely the same.
          • A part of "Unix"? (Score:3, Informative)

            First off, the code in question was implemented on PTx(?) which was a variant based off the licensed IP. Second off, the code they're debating was in fact written for OS/2 and ported from there.

            SCO is trying ot claim that since the writers worked on both the Unix variant and the OS/2 one that the knowledge used from the one extends the license to the other.

            They're trying to lay claim to a derivative of a derivative of a derivative. To make matters more entertaining the actual derivative was a paper abou
      • by Ami Ganguli (921) on Thursday June 26, 2003 @10:17AM (#6302997) Homepage

        But their claims are far broader than copyright, and seem to stem from a questionable interpretation of the word "derived".

        You might be able to build a case that SCO had no reason to know about the alleged copyright infringement, but clearly SCO new about and even participated in incorporating "enterprise class" features into Linux. Not only wasn't it a secret, it was widely publicised by IBM.

        Now, looking a the contracts as shown on SCO's web site, you might be possible to interpret them SCO's way (well, I don't really think so, but let's pretend for the sake of argument). There's no way you could conclude, however, that SCO didn't know that IBM was porting JFS or RCU to Linux. SCO knew it, and continued to distribute Linux anyway as part of their business.

      • by Wylfing (144940) <(brian) (at) (wylfing.net)> on Thursday June 26, 2003 @10:18AM (#6303008) Homepage Journal
        The issue here is that IBM licensed some code and SCO is claiming that IBM then used this licensed code in Linux.

        NO. IBM did not license any of the technologies in question from SCO. What SCO is claiming is that even though the code was developed by IBM (during AIX and OS/2 development) that SCO has exclusive rights over it because it constitutes a derivative of Unix. This affects Linux because now that this "Unix derivative" code is in Linux, SCO claims Linux is a derivative of Unix.

        If you're going to quote SCO's bullshit lies, get it right!

        • What SCO is claiming is that even though the code was developed by IBM (during AIX and OS/2 development) that SCO has exclusive rights over it because it constitutes a derivative of Unix.

          The specific instance I'm referring to is the RCU code done by Sequent. Sequent (now IBM) licensed the Unix code and made modifications. SCO is claiming that the conditions of the original license agreement makes these modifications their property. This code they claim has now found it's way into Linux, therefore is a
      • by dmaxwell (43234) on Thursday June 26, 2003 @10:18AM (#6303011)
        The guy in the article made a similar comment and I fail to see how it's relevant at all. The issue here is that IBM licensed some code and SCO is claiming that IBM then used this licensed code in Linux. That SCO also participated in Linux development is utterly irrelevant unless they themselves also put proprietary Unix code into Linux.

        That is only one issue. SCO has been claiming that ALL modern operating systems are in some fashion derived from ideas that they own. They have been talking about per CPU licenses for Linux users and that the "free ride" is over. I'd say their previous Open Source participation is EXTREMELY relevant.
      • by 47PHA60 (444748) on Thursday June 26, 2003 @01:08PM (#6304682) Journal
        I think that what you are failing to see is how this argument is legally relevant. This suit is about a contract, not copyright or patents. SCO uses the term "intellectual property," but this term is not a legal term, US law has no concept of it. US law only understands contracts (like NDA's), copyrights, and patents.

        SCO's court filings, which must conform to US law, only say that IBM violated their contract. Now, if court decides that a contract was violated for many years and out in the open, they may rule that it is now too late to enforce that contract.

        The other legal argument (not the argument that may make sense to you and me on first reading, but the argument that actually cites law and legal precedent) is that if SCO's copyrighted, contractually protected source code was in the Linux kernel, and that source code was available for examination by anyone in the world with a computer, SCO should not have been distributing that source code themselves. "It's really hard to know" usually does not cut it in a US court.

        US courts are not likely to find "I didn't know (the gun was loaded | the car had drugs in it | I was distributing my own source code without knowing it)" persuasive.

        We will know nothing more until the evidence comes out. Finally, any argument I have made above presumes evidence which does not as yet exist, as far as the court is concerned. I would not be surprised if SCO files a motion to keep the discovery process and evidence hidden from the public.
  • Evil Plot (Score:5, Funny)

    by Schezar (249629) on Thursday June 26, 2003 @09:58AM (#6302779) Homepage Journal
    At the end, he references Slashdot for more info ('itself a demonstration of the power of dispersed individuals working together')."

    Now, if only we could breed, we would rule the world! Muh ha ha ha!

    I attack the darkness.
  • by hankaholic (32239) on Thursday June 26, 2003 @09:58AM (#6302787)
    From the article:

    Then, about a decade ago, a young Finn named Linus Torvalds introduced an operating system (named Linux, after its creator) that did some of what UNIX did. Linux proved remarkably successful. The community of Linux users adopted a mascot--the penguin - as a sort of trademark.

    At the risk of parroting RMS here, Linus started the kernel roughly a decade ago.

    GNU started the OS itself about two decades ago.

    It is an important distinction. I really wish that there was a distribution of the GNU OS that used a non-Linux kernel (but was otherwise like other GNU/Linux distros), which would be more concrete evidence of the importance (and extent!) of the GNU portions of the overall OS.
    • by hankaholic (32239) on Thursday June 26, 2003 @10:09AM (#6302911)
      After further thought, the article mentions that SCO implies that "UNIX" could not be recreated without looking at UNIX source.

      There is a lot of vagueness there -- aside from the kernel, GNU had recreated the majority of the OS long before SCO owned any such trademarks.

      The part they lacked most, the kernel, has been so long in coming almost because of that fact -- they recreated the OS to work with existing kernels, so there wasn't a dire need for one.

      In other words, reinventing the OS was more important than reinventing the kernel. But the OS (GNU) was recreated legally, and the FSF owns copyright to every line of code in a GNU project (to prevent silly suits such as this one).
      • The part they lacked most, the kernel, has been so long in coming almost because of that fact -- they recreated the OS to work with existing kernels, so there wasn't a dire need for one.

        Given the philosophical drive of the GNU Project, I highly doubt this statement. I don't think GNU thought it was such a great idea to run free utilities on top of a closed-source proprietary kernel.

        the FSF owns copyright to every line of code in a GNU project (to prevent silly suits such as this one).

        Nothing can prev

  • Go SCO!!! (Score:3, Funny)

    by bytes256 (519140) on Thursday June 26, 2003 @09:59AM (#6302792)
    I have to say I'm gonna root for SCO on all of this from now on, I love cheering for an underdog
  • Not that Linus', RMS, or ESR didn't have some good points on the technical side, but it is good to see a legal perspective of the case.
  • by Anonymous Coward on Thursday June 26, 2003 @10:01AM (#6302813)
    This really demonstrates the only Archilles heel that Linux has to fear: software patents.

    If Microsoft or anyone else gets coordinated enough, maybe 10 years from now, the software industry will be so littered with software patent landmines that Linux will no longer be able to continue development. This is a very real possibility.

    Please, Slashdot readers, we need to join together to figure out how the hell we are going to stop this, or else we need to come up with implementations of new ideas, business methods, software algorithms before anyone else like Microsoft can, and publish them open source so that no one else can claim a patent on them!

    Talk to your representatives in Washington, Europe, whereever because this is a very real and very serious threat that **will** kill software development.
    • by Anonymous Coward on Thursday June 26, 2003 @10:39AM (#6303208)
      Um...Mr Insightful. I hate to tell you this but software patents don't discriminate against just OSS. Software patents is a mainefield that the entire computing industry has to face every day.

      Since it's the US that's pulling most of this nonsense. It's the US that will suffer the most, while the rest of the planet will shake it's collective head, and mutter something under it's breath about those silly Americans.

      If there's any dark knight? It's the same force that brought about the mess in the first place.

      That's right, greed. You'll see change when rampent software patents make it nearly impossible to continue to make money.

      Then you'll see the gordion knot undone quicker than it took to tie.
    • In the case of a software patent , the offending algorithm would be fully disclosed in the patent application, out in the open for all to see. It would be published on the first date that the patent holder has the right to prevent unauthorized use.

      With this full transparency, legions of open source coders could write around the protected algorithm. Although important code might be sacrificed, no legal problem would remain.

      Much more distressing is the possibility that a company like SCO finds a judge who a

    • by OmniGeek (72743) on Thursday June 26, 2003 @11:01AM (#6303460)
      I think Linux itself is not threatened in its essence. Pray hard (if you live in the EU or US) that the EU doesn't follow the US' idiot lead and decide that software can be patented. As long as there are significant Linux players in countries that DON'T recognize software patents (say, China, India, and Brazil, to name a few?), Linux will thrive safe from the software patent menace. I don't think innovation itself will wither, just in certain countries.

      Of course, this will come as cold comfort to those of us in the idiot countries, because if M$ and company DO manage to erect software patent barriers to OSS, Linux will be a banned article we cannot legally import.

      The logical result of all this will be that the US and (probably) EU will lose their technological edge to China and India and become second-rate powers (and probably not just in the software field) until the software patent madness is overturned.

      Our leaders, if they had any ability to think strategically beyond the next election, would realize that Open Source is a critical resource for their countries' ability to compete in the only area they have a critical advantage in -- their technological edge. (Not that I like what's been sliced up with that edge recently, but living in a declining country is an unpleasant prospect...).
  • by dfn5 (524972) on Thursday June 26, 2003 @10:02AM (#6302825) Journal
    At the end, he references Slashdot for more info...

    Slashdot refers to him, he refers to Slashdot. HELP!!! I'm stuck in a DOS loop!

  • Due process (Score:5, Informative)

    by spagbol (458981) on Thursday June 26, 2003 @10:02AM (#6302827)
    I have a small company and was attacked in a similar way by a large German company (I'm in the USA). They simply attacked with a lawyer from a large office in New York and I am in a small town in California. My lawyer did some digging and found that there is a federal law that states you must give the person in violation a full description of the violation and allow a responce. If there is not a civilized responce then you can go to court. We never went to court and we got the problem sorted out. It sounds like SCO would be in violation of that federal law.
  • by ElectricPoppy (679857) on Thursday June 26, 2003 @10:07AM (#6302889)
    Well, there went his credibility...
  • by srichman (231122) on Thursday June 26, 2003 @10:08AM (#6302891)
    A key to Linux's success was that its license (dubbed a "copyleft" instead of a "copyright") required users also to give away their own modifications to the software for free.
    Uh, no, sorry Mr. Law Professor, it doesn't. Not if they're not distributing it.
  • by cheesedog (603990) on Thursday June 26, 2003 @10:08AM (#6302894)
    "What comes of litigation? Poverty and degradation to any community that will encourage it. Will it build cities, open farms, build railroads, erect telegraph lines and improve a country? It will not; but it will bring any community to ruin." -Brigham Young, JD 11:259.

    Sure, the federal government wouldn't let old Brigham retain governership of Utah when it became a state, but wouldn't it by nice if we could install the guy as head of SCO? Even as a man who's been dead for more than a century, he could probably run that ship better than its current leadership.

  • SCO biggest Goof (Score:3, Insightful)

    by linuxislandsucks (461335) on Thursday June 26, 2003 @10:08AM (#6302896) Homepage Journal
    ..is not listening to cusotmers..

    After they lose this case there will be nothing lkeft but the angry mob of customers taking McBride's hide and stapling it to the wall..
  • by spuke4000 (587845) on Thursday June 26, 2003 @10:09AM (#6302906)
    he references Slashdot for more info ('itself a demonstration of the power of dispersed individuals working together').
    I though slashdot was a 'demonstration of dispersed individuals procrastinating together'.
    Who knew I was demonstrating power all this time?
  • by RouterSlayer (229806) on Thursday June 26, 2003 @10:14AM (#6302967)
    please people, wake up!
    can't you see it's obvious what SCO is doing?
    and what this is all really about?
    no... ok clueless ones, here's a clue for you...

    after they announced the lawsuit their stock went up $10 a share, and the VP sold over 100,000 shares that day!

    hello?!? Don't you get it? They don't care if they lose (and they will) that was never the point!

    just like the WMD crapola in iraq (there never were any, it never was about that), it was about the oil!

    all SCO wants to do is jack the stock high enough, long enough for their CEO, VPs, etc to cash out nice and RICH, and leave a burning twisted pile of rubble at the end....

    they probably figured IBM (or someone - say Mr. Bill at M$) might buy them out, but either way, they're getting fat and rich off the share prices.

    its a stock scam, and the securities people should be all over this!

    so now you know the truth... what are ya gonna do about it?
    • by Greyfox (87712) on Thursday June 26, 2003 @11:11AM (#6303557) Homepage Journal
      If you suspect that SCO's officers are illegally manipulating the stock market, you could complain to the SEC's [sec.gov] enforcement division. There's a contact page over there somewhere where you can find their E-mail address. As twitchy as the SEC should be after the debacle with Enron et al, I would think they'd be on top of anything that smelled funny. I suspect that they've probably already evaluated this case and decided it was kosher. They can't afford any more black eyes right now, after all.

      Word of advice; personally, I wouldn't accuse the SCO folks of running an illegal pump-and-dump scam in a public forum, since that could potentially lead to a libel suit. Since you've represented this as fact and not opinion, I'd say you're at pretty high risk...

      • Re: SEC (Score:3, Interesting)

        by OmniGeek (72743)
        I suspect that they've probably already evaluated this case and decided it was kosher.

        Or perhaps, it suddenly occurs to me, the SEC is hesitant to interfere with ongoing private litigation and will act if and when the case is shown to be meritless and it all becomes public record? (NB: a sealed settlement with IBM would massively complicate that effort). Twitchy they may be, but they're still run by an administration that is decidedly anti-regulation; that might limit their potential eagerness and make
      • The SEC probably isn't going to listen to a random linux user who doesn't happen like what SCO's doing and before SCO's share price has dropped dramatically.

        OTOH I bet they *will* listen to hundreds of SCOX investors after they get bilked.


    • please people, wake up!
      can't you see it's obvious what SCO is doing?

      ...

      all SCO wants to do is jack the stock high enough, long enough for their CEO, VPs, etc to cash out nice and RICH, and leave a burning twisted pile of rubble at the end....

      they probably figured IBM (or someone - say Mr. Bill at M$) might buy them out, but either way, they're getting fat and rich off the share prices.

      Yes. It is obvious. This is discussed again and again each time SCO comes up. Thanks for restating it.

      But you,

  • by AtariDatacenter (31657) on Thursday June 26, 2003 @10:18AM (#6303012)
    Either:
    a] SCO wins and Linux and/or IBM is injured ...or... b] The evil GPL has destroyed the intellectual property of SCO.

    I have to wonder if they researched the issue and then clued in SCO to go after people.

    Also...
    What if it is determined that IBM gave up its rights (by helping Linux) and that SCO isn't the sucessor the the rights? Would nobody own UNIX, and if so, would that devalue it in some way?
  • SCO's real game (Score:5, Insightful)

    by heironymouscoward (683461) <heironymouscoward@@@yahoo...com> on Thursday June 26, 2003 @10:30AM (#6303123) Journal
    SCO (ex-Caldera) is run by lawyers, and they are not stupid nor crazy. Clearly they have a plan and it justifies putting their company at total risk.

    Assume for a second that this case goes to court. What are the chances that it will be resolved quickly? Not good. The matter is arcane enough that it will spend several years going through judgement, appeal, judgement, appeal, as long as SCO can pay their own (cheap) legal fees.

    What on earth can SCO be after? I don't believe it's a settlement from IBM. They _know_ IBM, a company that has always lived by the fist.

    What else? Their business is bankrupt. They sell _nothing_. Their IP is worthless - indeed, realizing this may have been the trigger that set them on their course.

    Nuisance value, that is their game. They are attacking Linux and all OSS by association, and they are attacking it a level that plays directly to the paranoia of managers making a Windows / Linux choice today. What SCO are saying, and getting lots of attention to, is that Linux/OSS is not a safe choice. Even IBM are likely to be sued. How about your business next? If the RIAA can sue ten thousand P2P users, why can't SCO sue ten thousand Linux users?

    Normal decent paranoia suggests that Microsoft's hand and money lie behind this move, but that is not the crux of the matter.

    What is important is that we are at the stage when Linux/OSS seriously threatens commercial interests, and this looks like an undeclared war by those interests against it. War is not nice, not decent, not logical.

    Such attacks can go either way. Linux has never has so much publicity as during the last weeks, and the association IBM+Linux is now strongly in the minds of many managers. This is a good thing. People trust IBM.

    The OSS community must counter attack. The best approach would be a collective libel and defamation suit by some thousand OSS developers, seeking punitive damages against SCO.

    Such a suit would not win but it would show SCO that their opponents are not helpless nerds unable to understand the meaning of cold, hard steel. Knives out!!

    Perhaps someone from the EFF would set up a campaign fund? I would gladly contribute $50 or $100 if it would result in SCO getting slapped with a suit.
  • by eddy (18759) on Thursday June 26, 2003 @10:37AM (#6303194) Homepage Journal

    I just reloaded [msn.com] to see a Reginald Charles selling $55,450 worth of his SCO stock. At $55,450 that's the largest insider trade listed since this thing started.

    06/20/03 BROUGHTON REGINALD CHARLES Sold 5,000 $11.09 $55,450

  • by argoff (142580) on Thursday June 26, 2003 @10:40AM (#6303227)
    Is is well known that SCO relies heavially on BSD code. But the BSD license, while it allows forking, strictly forbids suing over derived code. Since linux and BSD share alot of code - I could envision SCO loosing controll over all of their 'intellectual property'

  • by DrWhizBang (5333) on Thursday June 26, 2003 @10:40AM (#6303228) Homepage Journal
    is it just me, or are we slowly bing SCO'ed to death here on slashdot? let me get this straight off the bat:

    SCO is publicly making a public ass of it ('s corporate) self.

    there, it's been said. i don't need to say it again. if the subject comes up here around the water cooler, i may voice my opinion again to a new party, but really, i'm pretty confident that SCO has no legal grounds here (yes, IANAL, like most other slashdotters). this "me too"ism that is growing here is getting out of hand. how many people do we really need to tell us that darl and co. are raving?

    i am sure that there are all kinds of interesting submissions that are being passed over in favour of SCO stuff, and most lilely because of volume, so please - i beg you: don't submit more SCO stories. pretty please? with sugar? unless something changes?

    i'm done whining now (which is my right as a slashdotter). move along...
  • McBride interview (Score:3, Informative)

    by hobsonchoice (680456) on Thursday June 26, 2003 @10:40AM (#6303231)
    Part 1 [vnunet.com] and Part 2 [vnunet.com] of 3 part interview with McBride
  • by eric76 (679787) on Thursday June 26, 2003 @10:42AM (#6303249)

    I wasn't aware of the timing, but according to the article, SCO's McBride said:

    When IBM walked away from Project Monterey it put a dagger into the heart of SCO. Santa Cruz Operation lost its heart at that point and sold its business to Caldera. Caldera tried to run it as a commercial business. That didn't work and it was nearly flat-lined when we took over last year.

    Let's see. He's saying that IBM quit working on Project Monterey before Caldera bought Santa Cruz Operation's UNIX rights. That Santa Cruz Operation sold the rights precisely because they weren't as worth much at that point.

    But part of SCO's lawsuit against IBM is SCO's claim that because IBM quit working on Project Monterey, IBM is conducting anti-competitive behavior.

    Since SCO knew about this at the time they bought it, then surely, the price SCO paid for those rights was already discounted because IBM was no longer pursuing Project Monterey.

    It's kind of like buying a junked car that had been damaged in a collision and then suing the driver of the other vehicle for wrecking your car. It was already wrecked when you bought the car! At best, the seller might have had a claim against the other driver, but not the seller.

    If SCO wins, maybe we should buy the salvage rights to a World War II navy vessel sunk in a World War II battle. Then we can sue Japan for the full cost of the ship plus interest and penalties because they sunk our boat.

    • by hobsonchoice (680456) on Thursday June 26, 2003 @10:56AM (#6303393)
      I would agree with you. But doesn't it sound similar to DR-DOS? (although of course nobody at SlashDot cared, as it was MS who was in the cross hairs)

      The point is:

      DR-DOS was already damaged when Caldera bought it. Caldera got it cheap as a result.

      MS actions may have damaged DR-DOS, but it was DR that suffered, not Caldera. Yet Caldera was the one suing for damages (and getting a settlement).

      Seeing a pattern here? You should.
  • by Anonymous Coward on Thursday June 26, 2003 @10:45AM (#6303273)
    Rejected /. story submission but semi-relevant to the story of SCO (funded by MS) using the courts to attack competition while the same courts are not willing to protect anyone against the manipulation of competition by a monopoly)

    Corel shareholders fight suspicious takeover deal

    Corel is being buried alive, and at breakneck speed [corelrescue.com], by Microsoft cofounder Paul Allen [www.cbc.ca] and a former MS executive who, incidentally, also worked for the McKinsey consultancy firm which validated the post-MS investment strategic U-turn. Under the deal all Corel products [corel.co.uk] would be privatized for a measly $30M. Corel shareholders [corelrescue.com] - who've also pushed for Linux support long and hard - hope to canvass enough NO VOTES to scrap the deal but the raiders are tilting the rules in their favour.

    It all went horribly wrong after the Linux powerhouse merger [vnunet.com] agreement between Corel and Inprise/Borland was derailed three years ago. We understand that Borland (in which MS had a shareholding stake) had valid reasons for pulling out under the agreed terms, but the combination would still have made perfect sense. Corel founder and CEO Mike Cowpland was soon ousted and CTO Derek Burney was named interim CEO. Conveniently soon afterwards Burney's half-acquintance, Microserf Tom Button, gave him a call [com.com] and invited Burney for a visit at the MS campus and before we knew it, he had signed a $135M investment deal with MS, accompanied by an incredibly one-sided Alliance deal [macworld.com] in which Corel had all the commitments [216.239.39.100] and Microsoft basically none. In his debt of gratitude, Burney even promised not to sue MS over any anti-competitive tactics that MS "may" have used in their MS-Office offensives. Next Burney drew up a new strategy based on those commitments - again incidentally [www.cbc.ca] killing all Linux efforts and reducing emphasis on anything competing with Microsoft - and submitted his ideas for "validation" [itworld.com] by McKinsey & Company, a consulting firm with strong culture of alumni networking [mckinsey.com].

    From 2001 onwards Corel milked the increasingly-abandoned WordPerfect Office for revenue while toiling away on its dotNET descendant. Staff was getting laid off as a three-year turnaround plan was revealed to be centered on a dotNET-based enterprise system for massaging corporate data and delivering it in realtime to any type of devices through extensive use of XML and SVG graphics. Corel even bought SoftQuad and Micrografx to merge their technologies into the project codenamed Deepwhite [zdnet.co.uk]. Great idea but with somewhat misguided execution.

    In 2002 Corel managed to strike a few high-profile albeit limited OEM preload deals [com.com] with the likes of Dell, HP and Sony. While Corel received little in terms of revenue from those deals, even that limited success must have come as a shock for Microsoft. "How dare those ingrate nobodies invade our holy turf!" could have been the likely reaction at Redmond. With the anti-trust spotlight under a friendly operator it was time for the final strike, and how better add insult to injury than by not just taking Corel out but actually keeping the corpse within the family!

    In December 2002 the Paul Allen financed Vector Group, managed by a fo

  • by dh003i (203189) <(moc.liamg) (ta) (i300hd)> on Thursday June 26, 2003 @10:49AM (#6303320) Homepage Journal
    This kind of stuff really pisses me off. Mr. Chander has written a basically intelligent article, discussing why SCO's case is BS. Yet, he has revised history, probably unknowingly.

    Linus Torvalds did not "indtroduce an operating system...that did some of what UNIX did". Linus wrote a kernel, which is complementary to UNIX kernels (though different in architecture, design, etc). He did not write the entire operating system -- properly called GNU/Linux. He wrote one component necessary for the operating system that is now improperly called "Linux".

    This is not a knock again Linus. He has never claimed credit for any entire GNU/Linux operating system, nor GNU/Linux in general. He has simply claimed credit for the Linux kernel.

    It is, however, a prime illustration of how simply calling all GNU/Linux OS' "Linux" is revising history. People here talk about it like, "so what, everyone knows Linus didn't write all of the software for Linux-based OS' [GNU/Linux distros]". We know that. Obviously, no one else does. This lawyer thinks that Linus Torvalds created the GNU/Linux distributions from the ground up, single-handedly.

    It is an example of revisionist history. Just like how Issac Newton is credited as the founder of Calculus, but no-one mentions Leibniz, who invented calculus at the same time as Newton independently.

    Linus has done great things for the FS and OSS communities. We should, however, credit others where credit is due.
    • Always remember your target audience. This article was written on a site about law, not a site about software engineering. His muddied software definitions and imprecise Linux/Unix history were undoubtedly intentional. He was interested in conveying broad software principles as an introduction to his legal arguments. Getting bogged down in software technicalities, such as the different between Linux the kernel and Linux the common umbrella term for what is rightfully the GNU toolset, would have detract
  • by teamhasnoi (554944) <teamhasnoi@@@yahoo...com> on Thursday June 26, 2003 @10:55AM (#6303380) Homepage Journal
    As SCO is now requesting open source code to ensure it does not contain SCO's property, please send your ISOs and uncompressed images of Redhat, Suse, Lindows, Debian, Slackware, Gentoo, Mandrake, Yellow Dog, and Knoppix to investorrelations@sco.com [mailto]
    robertb@sco.com [mailto]
    kmartens@sco.com [mailto]
    darlm@sco.com [mailto]
    chriss@sco.com [mailto]
    shitheads@sco.com [mailto]
  • by ctid (449118) on Thursday June 26, 2003 @11:01AM (#6303455) Homepage
    But I'd love to hear the Professor's views on the evidence that has emerged thus far. As far as I can see, SCO's case revolves around developments at IBM and Sequent (now owned by IBM). They have talked about RCU and NUMA and JFS and something else I have forgotten. It seems that what SCO have shown so far is equivalent to this: IBM devise a new scheme for (eg) scheduling in the kernel. They implement this new scheme in AIX, sell it to some customers and everyone (including SCO) is happy. Later on, IBM conceives its Linux strategy. They then port their new XYZ scheduling scheme to Linux, offer it to Linus and eventually it gets merged into the Kernel. Now SCO comes along and says that IBM has no right to incorporate it into Linux because it belongs to SCO. The fact that the original technology licensed to IBM has got nothing like XYZ scheduling in it doesn't matter to SCO; as far as they're concerned, since IBM incorporated it into AIX first, the technology belongs to SCO.

    All of this begs the question as to what SCO have been showing to their independent experts. Suppose they grab the code for XYZ scheduling, as seen in AIX. Then they grab the code for XYZ scheduling, as seen in Linux. Obviously, these two pieces of code, are going to be a pretty good match, even down to the comments. They tell the independent consultants that the former is System V code (because SCO claims that everything that was ever added to AIX belongs to them). And they tell the consultants that the latter is from kernel 2.4.XX. So the independent consultants, in all good faith, report that there is a match between "SCO code" and Linux code. My bet is that this is what SCO have been doing. I believe that this is the reason for SCO wanting people to sign NDAs. They can't risk anyone who knows anything about the kernel saying exactly what the code represents. It is in their interests to fudge the issue of where the code has come from. If some random hacker has grabbed the original SVR4 code and slipped some of it into a patch that has found its way into the Kernel, that could occasion some sympathy for SCO (not $3bn or even $1bn worth of sympathy). If that is the case, it looks like code that SCO originally paid for is being used without SCO being compensated. On the other hand, if it's IBM's implementation of XYZ for AIX, which they have ported to XYZ for Linux, then SCO's case is dead in the water, and SCO knows it.
    • by Queuetue (156269) <scott AT pantastik DOT com> on Thursday June 26, 2003 @12:11PM (#6304122) Homepage
      Close, but here you go astray:

      Now SCO comes along and says that IBM has no right to incorporate it into Linux because it belongs to SCO. The fact that the original technology licensed to IBM has got nothing like XYZ scheduling in it doesn't matter to SCO; as far as they're concerned, since IBM incorporated it into AIX first, the technology belongs to SCO.

      SCO does not lay claim to the Sequent code. IBM owns that free and clear. SCO's opinion is that because it was first integrated to AIX, it is a derivative work of UNIX, and can not be released to anyone without a UNIX liscense. But SCO does not lay claim to it, since they did not write it.

      Some speculate that Sequent covered these bases quite well. In a white paper released before code was developed, they described the generic algorithms and functionality outside of any actual implementation. The UNIX port can be said to come from that whitepaper, which indicates it is not derivative of anything.
    • The Monterey Project (Score:5, Informative)

      by Mouth of Sauron (196971) on Thursday June 26, 2003 @01:33PM (#6304924)
      In the late 1990s, IBM, Sequent, and the Santa Cruz Operation were working together on a project called Monterey. Monterey/64 was designed to be a common UNIX platform running on 64-bit Intel (Merced/Itanium) and Power4. It had wide industry support from hardware and software vendors, such as Intel and Oracle. Around 2000, IBM scrapped the project based on issues with the Itanium1 platform and concerns about SCO's ability to deliver. UnixWare retained its name for some time after the SCO purchase from Novell. In the next year or two IBM acquired Sequent and Caldera acquired SCO. However, in this way did Sequent non-uniform memory access made it into UnixWare and AIX.

      This is how IBM and SCO have NUMA cache concurrency code. NUMA made it into Linux because IBM wanted to improve Linux reliability on their SMP Xeon-based servers, and instructed some of their programmers including some people who worked on Dynix/Sequent that wrote NUMA in the first place. This is how NUMA came to be in Linux. What I believe is the management at SCO has little knowledge of the code history of their SVR4 UNIX product. Caldera upper level management is populated with experts in hostile takeovers and making a business out of patent and copyright enforcement. I have no doubt that they took the effort to see if the Linux kernel had any resemblance to their UNIX code tree, and lo and behold some of the SMP memory management code is identical.

      SCO quickly informs IBM to stop putting UNIX code in Linux, but they don't seem to know that NUMA belongs to IBM, it is a derivitave work of AIX, which is a derivitive work of Dynix, both of which IBM owns, and on top of that IBM's source license with UNIX Systems Lab gives them intellectual property of code they create based on AT&T code.

      Claims that IBM is "diluting" UNIX by putting UNIX-based code in it and having UNIX-knowledgeable software engineers working on it is rather a stretch of the imagination. If IBM has sole intellectual property on Dynix/Sequent, just because they shared it with Santa Cruz does not mean they cannot use the code elsewhere. SCO wants to compare their SVR4 UNIX with Linux code, but what we really need to see is Dynix and AIX right beside them. This will prove that IBM owns NUMA.

      Claims that using NUMA in Linux will place SCO UNIX under the GPL are also false. SCO will retain rights to use and improve NUMA code they received from Monterey, because it pre-dates the NUMA code used in Linux. So in the end there are essentially who Sequent NUMA forks, the one in AIX and UnixWare cum SCO UNIX is proprietary and the other written for Linux is open source.

  • To put it simply (Score:3, Informative)

    by Badgerman (19207) on Thursday June 26, 2003 @11:03AM (#6303479)
    From the article:
    More generally, companies trying to derive more revenue from their intellectual property portfolio may lash out at licensees. But licensees of open source software distributed under a permissive license do not have to worry about this possibility.

    Nuff said. Here's your argument for your PHB.
  • by Jeremy Erwin (2054) on Thursday June 26, 2003 @11:08AM (#6303530) Journal
    The hour long discussion has been archived on mp3 [nostarch.com]
  • by worldcitizen (130185) on Thursday June 26, 2003 @11:10AM (#6303553)
    While I agree that SCOX hardly has merits for this lawsuit, I'm afraid professor Chander is writing on hearsay rather than the actual claims made by SCOX. The point (at this moment, until SCOX files their next update to the suit) is about what constitutes a derived work and whether IBM (and Sequent) lost their rights to their original research when they incorporated it into Unix. This is not analyzed at all.

    Some defensive items in the article are correct but that is because previous reporting got those right already, for example the delay in SCOX taking action and their willful distribution of supposedly infringing code under GPL terms (fully willful, there was no "inadvertent" element, they were "advertising" these featues)

    The closing comment highlights how much this article is about politics more than law Otherwise, there will be no such thing as truly open, free software - and as a consequence, there will effectively be an economy-dragging tax on information technology. A judge will hardly be bothered with the existance or not of free software, there isn't a law or constitutional principle or similar that says freedom of software is protected. Same for SCOX being able to collect a "tax" from others, if judges were bothered by this, stupid patents wouldn't have a chance and we know this is not what actually happens...

    So, Mr. Chander, please read the freaky claims before speaking about them. Getting infected with slashdotters' bad habits can be very dangerous in court.

  • Read history McBride (Score:5, Interesting)

    by mormop (415983) on Thursday June 26, 2003 @11:11AM (#6303567)
    SCO alleges that "as long as the Linux development process remained uncoordinated and random, it posed little or no threat to SCO...." But in truth, Linux was always coordinated - just by many different hands.

    In the final years of the 1930s the german army raced across Europe trashing all opposition in their path. At the time of their greatest military successes the German army was running a field command structure called "mission based" command.

    Mission based command placed the authority to act in the hands of the soldiers on front line, the idea being that those closest to the front would undoubtably be best positioned to make fast assessments of a situation. Should an opportunity present itself they were free to exploit it to their advantage without having to check with the beaurocracy above. The overall target was known - to win, and as long as your actions fitted the target it was up to you.

    This system worked so well that all fell in their path 'til they hit the English channel and turned on Russia (at the instruction of their one leader).

    Contrast this to the latter half of the war. The more centralised command became around the leader and his sycophantic entourage, the worse things got until eventually the leaders own incapability to understand the demands of those at the front line led to the collapse of the whole system.
    The first example was Hitlers order to Rommel to stand fast to the last man at El-Almain. The same mistake was made again at Stalingrad and in several other situations.

    The distributed, "module based" development of Linux allows developers to react in the same way as the soldiers on the front line, patching and adding features on the fly without having to discuss it with their manager, product manager, product devlopment manager, product development management manager etc. leading to events like the KDE team patching the SSL flaw in konqueror while the MS FUD machine was still denying it was a problem.

    NO! before you start saying it their are no insinuated similaraties between OSS community developers and certain historical characters of an evil nature it's the model that's similar. Ironically the intent in the case of Linux is freedom not enslavement.

  • by n0ano (148272) <n0ano@arrl.net> on Thursday June 26, 2003 @11:14AM (#6303597) Homepage
    The autor states Three decades ago, AT&T created a computer operating system called UNIX to run its telecommunications network.


    In point of fact, Ritchie created Unix to run a chess program, not for telecommunications. Only later, when AT&T discoverd that Unix was a very creditable OS, was it used for more prosaic, business related work.

  • his argument (Score:4, Insightful)

    by Dark Fire (14267) <clasmcNO@SPAMgmail.com> on Thursday June 26, 2003 @11:41AM (#6303845)
    The law professor's commentary suggests that while this case is being spun against open source software and could certainly affect it, the case is also an example that demonstrates significant problems in the software licensing of proprietary code. Given further analysis, the commentary could be developed into a thorough examination into the problems of software licensing and proprietary software. If the proper legal analysis was completed by reputable individuals, the resulting work could be published nation-wide in various reputable magazines, journals, and newspapers. The analysis could then be expanded throughout the IBM vs. SCO legal action. Let's change the focus of this case from Open Source ignores IP issues to the destructive nature of software licensing in business. If IBM wins, we get an "I told you so" card and the momentum behind open source could hit critical mass and be a BIG win. If SCO wins, it won't just be a blow against open source, but it will be a blow against every business since the powers of the copyright holder concerning software will increase by an order of magnitude. SCO and others are spinning this case against open source with no published evidence, just unsubstantiated legal claims. For any ip lawyer who reads slashdot, we need you. Competent analysis of this case is essential. The outcome of this case is either going to benefit software development or hinder software development, both proprietary and open source. Let's stop allowing SCO to spin this case without substantiating any of their claims, let's spin the case to show what it is really about, software licensing. Let's do it not with unsubstatiated claims, but with superb ongoing legal analysis of the situation throughout the progress of the case. Thank you.

  • by Mostly a lurker (634878) on Thursday June 26, 2003 @11:53AM (#6303957)
    Let us assume (it really is possible) that SCO just wants to spin this out as long as possible. Am I right that we will need to endure literally years (not weeks or months) of unsubstantiated FUD before SCO can be forced to prove anything? No doubt, eventually, SCO can be sued into the ground if (as most of us suspect) their claims are frivolous. This is rather irrelevant in that the company was clearly going under before they initiated all this. Can any lawyer indicate how, under US law, this might be brought to a quick conclusion if IBM has no real case to answer? How quickly?
  • by ashitaka (27544) on Thursday June 26, 2003 @11:54AM (#6303965) Homepage
    There are 70 lawyers in my firm.

    At least one has come into my office asking if we use Linux and expressed concern about the lawsuit when informed that we do. (Samba, CUPS, etc.)

    I explained the lgeal reasons why they should not be concerned but since I am just the IT manager my words have little credence.

    This is the kind of article I can forward to all the lawyers who ask as it's from the kind of source they will listen to, speaking a language they understand.

    As other posters have pointed out, it's not what he says (which we all already knew), it's who is saying it.

  • by u19925 (613350) on Thursday June 26, 2003 @12:19PM (#6304170)
    SCO has said, it won't sue SCO Linux customers. Can they afford to this? I think no. It is in catch-22 situation.

    If SCO sold the SCO Linux to its customers legally then that sell is governed by GPL and SCO loses right to its proprietary code. If it didn't sell them under GPL, then SCO had no right to sell at all and its customers are using illegal copies and now anyone can sue SCO Linux customers. In truth, the SCO Linux customers are doomed. Either SCO must recall the product or they can be sued by Linux developers. SCO wants to sell SCO Linux but without GPL and it can't do it.

    The SCO case against IBM is altogether a different matter. That is between IBM, SCO and let them figure out in court. But if SCO tries to sue Linux customers, it is in deep trouble.
  • by oaf357 (661305) on Thursday June 26, 2003 @12:36PM (#6304334) Homepage Journal
    Great article. This is an absolute "must read".

    "In its complaint, SCO claims, in essence, that without its UNIX contracts, IBM was nothing, and without IBM, Linux was nothing. But both of these claims, like SCO's allegations, are dubious."

    He worded that entirely too nicely.

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