SCO Says IBM is Beating Up on Them 1133
SCO's McBride claims that IBM is stage-managing all the attacks and bad press, which would probably explain why I cleared this article with IBM World Headquarters before running it (not!). The publisher of Linux Journal invites SCO to sue. One of SCO's lawyers has this barely coherent interview where he spouts legal rubbish for a gullible reporter. There's an interview in German (machine translation) with SCO's execs. And finally, SCO is still hoping for a settlement with IBM. Update: 08/22 18:26 GMT by M : ESR responds.
Unilever says it's not going to pay license fees (Score:5, Informative)
http://www.vnunet.com/News/1143155
"As far as I'm concerned it's an issue between SCO and IBM, and I expect that IBM's resources will win the day,"
Clueful Judge (Score:5, Informative)
Groklaw has very extensive research on Kimball's history [weblogs.com], which is nicely summarized and easy to read. Every case has links to much more detail. The overall appearance is that Kimball will probably do the right thing.
Probably most important is the Jacobsen vs Hughes copyright case [deseretnews.com]. Apart from considering much of the material uncopyrightable historical facts, Judge Kimball was quite unimpressed by the plaintif's failure to act in a timely manner to mitigate damages. Quoting from that article:
Obviously this bodes quite well for IBM and all Linux users. SCO of course will claim they stopped distribution of linux, but this ruling at least shows that Judge Kimball isn't likely to be be charmed with the deplorable way SCO has conducted itself. Kimball's willingness to consider the writing a separate work, even though a part of it was loosely based on Jacobsen's also casts quite a shadow over SCO's chances (assuming the unlikely worst case scenario that SCO has an ace up its sleeve, rather than the bogus examples we've seen so far). It's certainly a good sign that Kimball is unlikely to buy SCO expansive theories about what constitutes a derivitive work.
The groklaw page has examples where Kimball has ruled against big business, where he's shown competence at handling software intellectual property disputes (eg, Altiris vs Symantec), and where he's handled very complex cases.
While nothing is 100% certain going into the courtroom, it is a fact that the Judge Kimball has been selected to hear this case. His history shows he's competent, fair, and at least in Jacobsen vs Hughes, he doesn't tollerate the sort of shenanigans SCO has been pulling!
If they really had a case (Score:5, Informative)
What ever happened to the idea that once a case was under way it was sub judice, and if either party discussed it outside the courtroom it was highly prejudicial to their interests?
Re:Whole reminds me of the British empire (Score:5, Informative)
Linux Programmers: We don't need a copyright. We wrote it and we have the GPL.
Should read:
Linux Programmers: Duh, of course we have copyright! Without it the code couldn't be GPL'd.
GPL'd code is copyrighted by its author, it is NOT public domain. End broken-record mode.
Re:What public domain code? (Score:3, Informative)
Actually if it comes right down to it 32v is probably public domain. The judge in the BSD case found the arguments that is is very convincing, which was one of the reasons AT&T wound up begging to settle. Since they settled there's no actual ruling to that effect, but the case is pretty clear - under the law as it stood at the time, AT&T had lost their copyright by failing to fulfil the conditions set by law in order to hold it. And the subsequent changes in the law don't give them a copyright back if it was already lost - they would only extend it if there was a valid copyright in place at the time.
Re:that cnet interviewer... (Score:3, Informative)
This interview happened right before before SCO made themselves look like fools.
Crack and Paranoia (Score:3, Informative)
How else do we explain Darl's paranoid theory about all these free thinkers suddenly being part of a Big Blue conspiracy?
Please, will someone start a fund to send Darl to the Betty Ford clinic?
Re:Paranoia (Score:3, Informative)
- they claim the GPL cant be applied to "their" code, since you cant go around and relicense someone else property. I cant release Ghostbusters under a GPL-like license, it's not mine. The argument makes sense, the matter is who owns the code
- making legal claims without filing is nothing new, people send C&D orders all the time which have no real legal merit
I'm not thrilled with what SCO is doing any more than anyone else is, but dont be too quick to evangelize IBM. They'd pull the rug out from under linux in an instant if they could. It'd be a real sweet plum if someone could take "ownership" of linux.
Heise.de interview (Score:5, Informative)
A Quote:
c't:Mr. Sontag, the code that showed in the Forum has been analysed by experts. The result: the code was introduced by SGI into Linux, not IBM.
Chris Sontag: That's correct. This example is not from IBM., but from another of our licencees. I can't comment about who that is at the moment.
c't: The copy (of the code in SCO's presenttation) seems to reach far further back than your rights to Unix. On top of this, they seem to have already been distributed by AT&T under the BSD licence i.e. they're freely available, could have gotten into Linux from there.
Sontag: This is completely untrue. We own all the files of this code with the complete development tree all the way back to the original 1969 version. We have researched all the tapes and all versions of the code. The code in question comes the exact version of the Unix System V code that we licenced in our contract to SGI. This version was available to SGI and was never in BSD or other releases. And the to-the-letter copy of this code is in Linux. We are raising awareness about such flagrant violations.
c't: But you can't use this as evidence in your claim against IBM?
Sontag: Correct.
c't: Why are you then showing exactly these pieces of code? Your suit is against IBM..
Sontag: We've found many kinds of copyright and contract breaches. The copying of code word for word was the most obvious kind and we wanted to demonstrate this. This is why we showed this in public and why we also show it under NDA. In the case of IBM we have not yet such cases of direct copying, but we haven't researched all the code yet. In IBM's case, it is mainly about another kind of breach of contract, namely the inclusion of derived code in large amounts. The contract states that all changes in the code and derivations thereof remain part of the origionally licenced code.
c't: Your interpretation of copyright law -- relating both to directly copied code as well as derived works-- is described by Professor of Law, Egen Moglen, as being both snesless and as invalid in court
Sontag: Moglen is not exactly known as an IP expert. I've spoken to IP experts and they state that Moglen's interpretation senseless.
c't: Your lawyer, David Boies, is also no IP specialist.
Sontag: True but his special area is contract law and that will be the deciding factor.
c't: You didn't perhaps hire him because of his role in the Microsoft case?
Sontag: Let's say that that aspect will at least not hurt us.
c't:Are you going to sue this other licencee now?
Sontag: I can't say anything about that now, but we're holding all our options open
The rest is an interview with McBride about who has more resources SCO or IBM. Darl thinks he's got enough. The only interesting question is Darl's opinion of the GPL:
c't: You're acting in a very agressive manner in the Forum. You're declared war against Open Source, because it's destructive for the Software branch. Does the whole movement have to die so that a couple of software companies can survive?
McBride: I really meant the GPL there. There's a lot of valuables work in Open Source. Only the extreme claim that nothing that one has developed belongs to oneself anymore can not go carry on any more. Something must change in the GPL or it won't survive. I've discussed this with many representatives of the Open Source movement.
I wonder if their answers consisted of the words "FUCK" and "YOU"?
Lots of PR, no lawsuits (Score:5, Informative)
SCO have made exactly two legal filings to go with all this PR dross they were boasting about.
First, they filed a suit against IBM (not on copyright grounds).
Second, they amended the suit to remove some of the more blatant lies from it.
That's the lot. None of the many contradictory allegations they've made against other Linux distributors or users have been backed by any legal action whatsoever. They didn't even bother to contest the application to get an injunction against them in Germany to stop them spreading this FUD. The injunction stands (in Germany).
Re:IBM will buy SCO...after SCO execs have no opti (Score:2, Informative)
Manual tranlation of the Heise article (Score:5, Informative)
SCO: We keep our options open for further law suits
The dispute on whether parts of code from Unix development have possibly entered into Linux, and therefore whether rights held by SCO have been violated, has gained momentum again. At the SCOForum in Las Vegas, the SCO group has for the first time publicly presented parts of code and comments, which are supposed to prove the allegation of the company against IBM and the Linux community. Pictures of the code, which were published on Heise online, led to a first analysis by open source developers. Further investigations led to the assumption that the code shown in greek letters in SCOs evidence for code theft may point towards a transfer. Greg Lehey, for one, thinks so. Bruce Perens, however, merely concludes that none of the evidence brought forward by SCO would be sufficient to prove SCO Group's rights in court. SCO, in turn, argues that the code is protected by a licence with SGI.
c't spoke to Chris Sontag, Vice President Intellectual Property SCO, and Darl McBride, head of SCO, about the origins of the purported stolen code, the further directions of the legal dispute and the situation of SCO as a company.
c't: Mr. Sontag, the code sequences shown by you on the forum have been analyzed by experts. Result: Silicon graphics inserted them into Linux, not IBM
Chris Sontag: That is right. This example is not from IBM, but another of our licensees. At the moment, I cannot comment on who it is.
c't: The copy is supposed to go much further back than your rights on Unix. Moreover, it is said to have already been distributed by AT&T under the BSD licence, therefore freely accessible, and could have entered into Linux that way.
Sontag: That's completely wrong. We posess all files of this code with the complete source tree (lit: pedigree) in all version, up to the origin in 1969. We have looked through all tapes and all versions of the code. The code in question dates from exactly the version of Unix System V which we have delivered to SGI and licenced with a signed contract. This version was at the disposal of the licensee, and it was never in BSD or other releases. And the letter-by-letter copy of this version is found in Linux. We want to point out such flagrant breaches.
c't: But this evidence is useless in the dispute with IBM?
Sontag: Correct.
c't: Why then are you demonstrating exactly this code publicly as evidence? You are sueing IBM.
Sontag: We found several kinds of breaches of copyright and of contracts. Literal copying of code was the most obvious kind, and we wanted to prove this as well. Therefore, we have shown it in the public talk, and demonstrate the example also unter terms of an NDA. In the case of IBM, we have not yet found such cases of verbatim copying, but we have not examined everything yet. With IBM, this is above all about a different kind of breach of contract, namely the transfer of derived results on a very large scale. The licensing agreement provides that all changes and derived products remain within the originally licensed body of work.
c't: Your interpretation of copyright law -- concerning direct copies, as well as derived works -- was said to make no sense and not to be admissible at court by Egen Moglen, Professor of Law at Columbia University.
Sontag: Moglen is not exactly known as an expert for intellectual property (IP) law. I spoke with IP experts - and they think Moglen's interpretation makes no sense.
c't: Your lawyer David Boies is no IP specialist either.
Sontag: Correct, but his expertise is in contract law, and that will be the decisive weapon.
c't: You really didn't chose him for his highly publicised role in the Microsoft case?
Sontag: Let's say that aspect won't harm us at least.
c't: Will you sue this other licensee, as well?
Sontag: I can't comment
Re:First long, thoughful post. (Score:3, Informative)
USC 17 106 Exclusive rights in copyrighted works
Subject to sections 107 through 122, the owner of copyright under this title has the exclusive rights to do and to authorize any of the following:
(1) to reproduce the copyrighted work in copies or phonorecords;
(2) to prepare derivative works based upon the copyrighted work;
(3) to distribute copies or phonorecords of the copyrighted work to the public by sale or other transfer of ownership, or by rental, lease, or lending;
(4-6 deleted because they only deal with visual arts)
If the owner of the copyrighted code wants to authorize, via the Gnu Public Licence or the Lesser Gnu Public Licence, or a license of the owner's own devising, unlimited reproduction and distribution and modification into derivative works, they can do it. USC 17 106 says they have the EXCLUSIVE rights to do so.
Heise is supposedly a hotshot lawyer, in a top-notch and extremely expensive law firm. HYe is also either an idiot, or being paid to spout bullshit to journalists.
well, here is some truth in McBride's interview (Score:3, Informative)
Wow, hundreds of customers--McBride admits then that their UNIX business is nearly non-existent then. No wonder lawsuits are the only option they have left for making any money from their SysV code.
Re:With apologies to Dave Sim (Score:2, Informative)
Because it's based on a quote from Cerebus the Ardvark [amazon.com].
Re:Clueful Judge (Score:3, Informative)
Maybe Kimball will be a bit more carefull this time round as he has already had part of one decision against a Canopy company overturned on appeal. He does seem clued up though.
See here [ipo.org] for details on the Altiris case.
Peace and Karma...
Re:Yup (Score:4, Informative)
"And has been doing. Forbes points out that SCO has pulled this same shit with Microsoft -- and won. In this case they bought the rights to an old, 'decrepit' version of DOS and proceeded to sue the shit out of Redmond. They are crafty bastards. And they basically leverage intellectual property law to fuck other people over."
To compare the DRDOS suit with the current SCO activity means that you have not been studying your history. The basis of the DRDOS (the "decrepit" version of DOS) lawsuit is as follows.
DRDOS was superior (by many peoples accounts) to DOS for a brief period in Microsoft's history. The Windows operating system (Windows 3.1 and earlier) ran on top of both versions of DOS. Microsoft deliberately put into their Windows code a test to see if it was running on top of DRDOS and then create a nasty looking crash. Microsoft then spread rumours through its vendors that DRDOS was unreliable. This killed the market for DRDOS.
There is clear and verifiable evidence of this and this is why Microsoft settled.
To compare the current SCO lawsuit to a lawsuit based on clear criminal behavior is to legitimize SCO's current lawsuit -- exactly why Forbes and other magazines give the current lawsuit credibility. The previous lawsuits were valid, why can't this one be as well? Absurd, unfortunate, but probably true.
Re:derivative works (Score:3, Informative)
17 USC 103 (b) The copyright in a compilation or derivative work extends only to the material contributed by the author of such work, as distinguished from the preexisting material employed in the work, and does not imply any exclusive right in the preexisting material. The copyright in such work is independent of, and does not affect or enlarge the scope, duration, ownership, or subsistence of, any copyright protection in the preexisting material.
SCO's claim that IBM's AIX is a "derivative work", made in part of code they licensed from "old SCO" is true. However, having your copyright work used in a derivative work by someone else does not give you rights to any third-party work that went into the derivative work, nor does it give the author of the derivative any rights in the source material, although they can usually copyriught the whole thing under their name. IOW, what was yours remains yours, what I created is mine, and his stuff is still his stuff. It would be unusual to have any contract about derivative works to require the creator of the derivative to hand over ABSOLUTE control of all the things they created for the derivative work - and it would be impossible to sneak that past the IBM contracts review team unless you wrote it in invisible ink.
As a civilian example, and assuming the usual assignment of rights for a single use took place, all the songs that went into Moulin Rouge were copyright, making Moulin Rouge's score a "derivative work" (copyrighted as a whole, by whoever wrote the score and re-arranged the music) ... but even if I held the copyright to "Lady Marmalade", I would have no rights in the complete score, the screen play, the completed film, or the soundtrack album merely because they used my work. Likewise, the writer of the Moulin Rouge score [probably] had the right to use "Lady Marmalade" in a single film, and they can't use it in the sequel without acquiring permission again.
SCO's position is that their rights in the source work for a derivative work extend "upstream" to all works that went into the derivative - the NUMA code that came from elsewhere, for example - their position may look good in a press release, and may serve to intimidate small businesses, but it has no basis in law.
Re:Who is buying SCO stock? (Score:3, Informative)
It can be profitable, especially with a volatile stock that is cheap to play with, such as SCO. If you had bought it at noon and sold at 1PM that's a $1.00 per share gain. Do this often enough and you can make a lot of money real fast. You can also go broke real fast.
Re:the media (Score:2, Informative)
Now, you may say that it only reaches a targetted segment of the general audience, but that's okay. What is the threshold for reaching a large enough audience to be considered "the media"? Everything from Psychology Today to the New Criterion to the Paris Review to People Magazine to the New York Times all service some subset of the entire general audience, but I think you would be hard pressed to claim than any of those could not be called "the media". Of course, you may be defining "the media" as CNN, ABC, the New York Times, and a few other very major sources. I still question what the threshold is to be considered "the media".
Russell
No SCO in Linux? well... (Score:2, Informative)
Not quite SCO, but still:
Then again, who cares, SCO laywers are the real trolls hereRe:An honest question (Score:3, Informative)
Now I don't expect that there will be any necessity to remove GPL code just because it was contributed by Caldera. But it will mean that the terms of the GPL will need to be adhered to in a way as scrupulous as Debian has ever argued for. E.g., they will have grounds to object to any code that was released under the Caldera Public License, or the BSD with advertising clause (unless there is a subsequent waiver granted), because those licenses are not totally in accord with the GPL.
This may result in a brief period where distributions need to be issued with code that is under separate licenses on separate CDs, and only be merged together by the end-user (rather like the Debian non-free tree, only more extensive). Of course, this should be fixed as quickly as possible. At question, then, would be which code is under which license. Standard BSD and GPL, and many other licenses can cohabit gracefully. And much code that was originally issued under the BSD license was later re-issued under the modified to remove the advertising clause BSD. But I have no idea how much was included under the Caldera Public License, or how much, if any, remains under the original BSD license.
I'm offended (Score:2, Informative)
Switched to Linux yesterday... (Score:2, Informative)
The install was as smooth as a "dumb" Windows install can be, all my peripherals were recognised including my only-sold-in-Japan USB printer, my USB CF card showed up as a new icon on the desktop, as well as my Win2K NTFS partitions.
After the install was done I could watch my Divx movies by just clicking on them, no need to install extra software, burning CDs worked fine too (K3b works really well).
All the tools I need are here, I will keep my Windows partition for a while but I'm pretty I will delete it soon.
ESR's response... (Score:1, Informative)
Eric, while you're at it don't forget some other forms of non-monetary motivation: peer recognition, reputation (resume) enhancement, benevolence, ego (there's one Mr. McBride should recognize!). It is far too common a belief that the Econ 101 "utility function" has units of $. They're easy to see and count, and the MBAs tend to focus on them because it's easily measured. But that does not tell the entire story of human motivation, which is what economics really is all about.
Re:If you don't comply with Big Blue... (Score:3, Informative)