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SCO Claims Linux Sales After Suit Irrelevant 692

molarmass192 writes "Here's the first reaction I've seen from SCO regarding the public's stance that the code they distributed under the GPL negates their claims on code in the Linux kernel. They claim that the lack of copyright notices "placed by the copyright holder" means that the GPL does not protect the unmentioned code in question. "
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SCO Claims Linux Sales After Suit Irrelevant

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  • SCO.... (Score:4, Funny)

    by levik ( 52444 ) on Thursday May 22, 2003 @02:45PM (#6017274) Homepage
    Sounds like it's time to send them my resume.

    A couple of thousand times.

    • Re:SCO.... (Score:5, Interesting)

      by override11 ( 516715 ) <> on Thursday May 22, 2003 @02:49PM (#6017326) Homepage
      Or you could write a script that randomized names / histories / addresses and return email addresses, then set it to send out like 500 an hour. :) Ohh, that would be wicked, they would have no way of telling real apps from fake ones flooding in... and they would have to keep them all.. and thats a "Very Bad thing" (tm)
    • Careful! (Score:5, Funny)

      by wowbagger ( 69688 ) * on Thursday May 22, 2003 @02:54PM (#6017381) Homepage Journal
      Be careful - what if they accept your resume and hire you?

      Then you get to watch them pass the Schwarzschild Radius from the INSIDE!
    • I just had the mental image of Lazlo Troth sitting in the steam tunnels with a printing press running 24x7.

      Lets every single one of us send them a resume a day for the next couple of months.

    • by IronClad ( 114176 ) on Thursday May 22, 2003 @04:44PM (#6018432) Homepage
      Small cult following space aliens
      Small company following space cadets

      Believe genetics will keep them immortal.
      Believe SYS5 never died.

      Announced a nonexistent clone for some rich suit, hid the evidence.
      Announced an expensive suit over a nonexistent clone, hid the evidence.

      From France, prefer outer space.
      From outer space, prefer Utah.

      Hideous pseudo-human spokesperson
      Ray Noorda

      Pull stunts for public attention, hoping we'll buy their crap.
      Ditto, but hope IBM will buy their crappy company.

  • Oh good grief. (Score:5, Insightful)

    by doublem ( 118724 ) on Thursday May 22, 2003 @02:45PM (#6017275) Homepage Journal
    They distributed the @($& code!

    I hate lawyers, I really do.
    • by burgburgburg ( 574866 ) <splisken06@ema i l .com> on Thursday May 22, 2003 @03:08PM (#6017518)
      when they would in theory have full information on what SCO code was stolen, if there were any SCO code in their Linux distribution, they would have been releasing it under the GPL.

      If on the other hand, they claim that their distribution did NOT have any SCO code, then simply diff their distribution against all others to find the files/code sections that they are potentially claiming are SCO code.

      And if there is no difference, then we have further proof that their lawsuit is an extortionate gamble, a desperate grab for cash and a FUD tool of their new friend Microsoft.

    • by MasonMcD ( 104041 ) <> on Thursday May 22, 2003 @05:46PM (#6019004) Homepage
      OK. I guess we have to cover this territory once again. Here is SCO's legal argument:

      "Ladies and Gentlemen of this supposed jury, SCO's detractors would certainly want you to believe my client was issuing confusing EULAs, confounding their critics and confusing the multitudes, and they make a good case. Hell, I almost felt pity myself. But Ladies and Gentlemen of this supposed jury, I have one final thing I want you to consider.

      Ladies and Gentlemen, this is Chewbacca. Chewbacca is a Wookiee from the planet Kashyyyk who carried a gun and ran from the mob. But Chewbacca lives on the planet Endor. Now think about it. That does not make sense. Why would a Wookiee, an eight-foot-tall Wookiee, want to live on Endor with a bunch of two-foot-tall Ewoks. That does not make sense.

      But more important, you have to ask yourself what does this have to do with this case. Nothing. Ladies and Gentlemen, it has nothing to do with this case. It does not make sense. Look at me. I'm a lawyer representing a major software company and I'm talkin' about Chewbacca. Does that make sense? Ladies and Gentlemen I am not making any sense. None of this makes sense.

      And so you have to remember when you're in that jury room deliberating and conjugating the Emancipation Proclamation, does it make sense? No. Ladies and Gentlemen of this supposed jury it does not make sense. If Chewbacca lives on Endor you must not acquit.

      I know he seems innocent. But ladies and gentlemen this is Chewbacca. Now think about that for one minute. That does not make sense. Why am I talking about Chewbacca when billions of dollars of recurring license revenue are on the line? Why? I'll tell you why. I don't know. It doesn't make sense. If Chewbacca does not make sense you must not acquit. Here look at the monkey , look at the silly monkey.

      The plaintiff rests."
  • by dtolton ( 162216 ) * on Thursday May 22, 2003 @02:45PM (#6017286) Homepage
    Sheesh, it's amazing how much the SCO PR department has in
    common with M$ PR department. They both must read slashdot and
    then formulate their responses accordingly.

    When this law suit first came out, I dismissed it as rubbish.
    Then I started to think about it, and I got a little worried
    there was some truth to it. Then I read the OSI
    Position Paper []. I don't worry about this too much any more. The
    OSI position paper makes some very compelling points, which SCO
    hasn't addressed yet. In many cases they simply won't be able
    to address them.

    I'm not suprised that SCO has an opinion that this doesn't hurt
    their case. Of course they'd have that opinion publicly, no
    matter how pissed they are about it privately. Ultimately the
    only opinion(s) that will matter are the judges.

    Did you notice that hughes deflected and had no opinion on a
    more questions than he answered? I suspect he is right about
    the fact that the GPL can't make code free if the original
    author didn't make it free, however the fact that they as the
    original authors *were* distributing it under the GPL
    complicates that claim greatly.

    Of course that is all supposing there is any merit to their
    claim that Linux contains enterprise code from SCO in the first
    place. That is a claim that I and many others are dubious of in
    the first place.
    • by MonopolyNews ( 646464 ) on Thursday May 22, 2003 @02:56PM (#6017395) Homepage Journal
      One, there is still reason to be scared, they have Boies.

      However, consider this... they still ARE shipping their IP under GPL because they have aggreed to indemnify their own users. That code is under GPL, period, or else they can't distribute without THEM violating the codes license. They need to actually recall their shipments of linux.

      Otherwise, if they persist in their claim that it has their proprietary IP then they have violated the GPL by telling their customers they may keep it. Further, their CUSTOMERS can be sued for violating the GPL now that they have been informed that there is proprietary code mixed with GPL code, a mix the GPL doesn't allow in the case of "code fragments".
    • by PCM2 ( 4486 ) on Thursday May 22, 2003 @02:58PM (#6017409) Homepage
      I suspect he is right about the fact that the GPL can't make code free if the original author didn't make it free, however the fact that they as the original authors *were* distributing it under the GPL complicates that claim greatly.
      From the article, it sounds like what he's suggesting is that whomever originally distributed the code under the GPL was not a legal, designated agent of Caldera Inc. Basically, he seems to be saying that the engineering team included code in a GPL'ed release that they weren't supposed to, and that until any code released has been vetted by Caldera's legal department, the license doesn't apply.

      Personally, I think they'll have a real hard time making that argument stick. I mean, what's next? "The guy who uploaded that tarball to our public server was just an intern we hired over the summer. Unless the Executive VP of Intellectual Property personally fired up an FTP client, the license doesn't apply..."

      • by jgerman ( 106518 ) on Thursday May 22, 2003 @03:03PM (#6017474)
        See there's the rub. It doesn't matter if the engineers weren't supposed to release it, or if it didn't go through legal. No one outside of Caldera is subject to their internal procedures. They fucked up, they face the consequences. I've said it before. If those engineers did something to cost the company money fine punish/fire them. But those engineers are acting on behalf of the company, it's not our job to police what they do.
    • by Wesley Everest ( 446824 ) on Thursday May 22, 2003 @02:59PM (#6017427)
      Yeah, the article doesn't really address the issue. Sure, if SCO wasn't distributing linux, then any allegedly pirate source code would not have been released under the GPL by SCO -- and they would have the right under existing copyright laws to demand that it be removed and no longer distributed without their permission.

      But if they continued to distribute linux, along with the GPL burned on all the CDs they made, after they knew that linux contained source code they owned, then I don't see how anyone can argue that they did not by that very act release the source code under the terms of the GPL.

      As I see it (IANAL-BIPOOSD), the best they can hope for is to force everyone to stop distributing old versions of linux from the time after the alleged pirated code made it into linux but before SCO released it under the GPL. They could possibly even collect damages for copyright violations during that period. But, hey, if SCO sells me a CD that they published knowing it contained source code they owned, and they released it under a license that gives me the right to use and copy the source code, I'm going to do just that.

      • by One Louder ( 595430 ) on Thursday May 22, 2003 @03:05PM (#6017496)
        To continue the thought - if they *knowingly* shipped the code under the GPL, that would seem to mean the GPL is properly in force for *that* code. All the other distributions have to do is replace their code with the (presumably identical) code from the Caldera release, then make any necessary patches to bring it up to date, all under the GPL.
      • BIPOOSD (Score:4, Funny)

        by Tangfan ( 254054 ) on Thursday May 22, 2003 @03:22PM (#6017640) Homepage
        I'd just like you to know that I wasted five minutes trying to figure out what BIPOOSD was an abbreviation for. I got the "But I..." immediately, the rest was much, much trickier.

        Then, epiphany.
        "I Am Not A Lawyer, But I Play One On SlashDot"

        Hah! Thought you had me there, but you were wrong!
      • by IO ERROR ( 128968 ) < minus cat> on Thursday May 22, 2003 @03:53PM (#6017932) Homepage Journal
        The way I see it, SCO screwed themselves. If there really is SCO proprietary code in the Linux kernel, then it should be possible to prove in court that by taking this legal action, SCO themselves are in violation of the GPL. IANAL, but I think there is a legal term for this. Ah, yes, "clean hands." SCO does not have clean hands. Consider, from the GPL:

        2. You may modify your copy or copies of the Program or any portion of it, thus forming a work based on the Program, and copy and distribute such modifications or work under the terms of Section 1 above, provided that you also meet all of these conditions:

        a) You must cause the modified files to carry prominent notices stating that you changed the files and the date of any change.

        SCO admits to not doing this.

        b) You must cause any work that you distribute or publish, that in whole or in part contains or is derived from the Program or any part thereof, to be licensed as a whole at no charge to all third parties under the terms of this License.

        SCO's lawsuit itself is proof they aren't doing this.

        4. You may not copy, modify, sublicense, or distribute the Program except as expressly provided under this License. Any attempt otherwise to copy, modify, sublicense or distribute the Program is void, and will automatically terminate your rights under this License. However, parties who have received copies, or rights, from you under this License will not have their licenses terminated so long as such parties remain in full compliance.

        Obviously SCO is trying to have their cake and eat it too. You can't do that, not in this universe.

        5. You are not required to accept this License, since you have not signed it. However, nothing else grants you permission to modify or distribute the Program or its derivative works. These actions are prohibited by law if you do not accept this License. Therefore, by modifying or distributing the Program (or any work based on the Program), you indicate your acceptance of this License to do so, and all its terms and conditions for copying, distributing or modifying the Program or works based on it.

        If SCO distributes a modified version of Linux with their code in it, they must accept the license, or they have no legal rights to Linux.

        Most of us here freely accept the GPL and understand the consequences of contributing code to a project whose code is covered by the GPL. It's pretty clear, when you actually READ the license (when's the last time you read that COPYING file?).

    • by MrResistor ( 120588 ) <> on Thursday May 22, 2003 @03:14PM (#6017572) Homepage
      I suspect he is right about
      the fact that the GPL can't make code free if the original
      author didn't make it free, however the fact that they as the
      original authors *were* distributing it under the GPL
      complicates that claim greatly.

      Hughes is full of it. His arguement might have some basis if they had stopped distributing Linux before they filed the suit, or even at the same time, or maybe even a little after. Then they might be able to argue that until that time they didn't really know that their proprietary code was in there, and perhaps that it took a little time for the "stop" order to filter through the beaurocracy. That isn't how they played it, though.

      Not only did they continue to distribute Linux for a significant amount of time after filing the suit against IBM, they also continued distribution after stating publicly that other Linux vendors were facing legal action as well. How could they take those actions without knowing that their code was included in Linux? If they knew their code was included in Linux significantly before they stopped distributing Linux, and I don't see how they could possibly argue that they didn't, then they were knowingly distributing their proprietary code under the GPL.

      Of course that is all supposing there is any merit to their
      claim that Linux contains enterprise code from SCO in the first
      place. That is a claim that I and many others are dubious of in
      the first place.

      I think it's far more likely that the code in question was stolen by SCO from software origionally under the GPL. Wouldn't that prove interesting?

    • by siskbc ( 598067 ) on Thursday May 22, 2003 @03:18PM (#6017609) Homepage
      Did you notice that hughes deflected and had no opinion on a more questions than he answered? I suspect he is right about the fact that the GPL can't make code free if the original author didn't make it free, however the fact that they as the original authors *were* distributing it under the GPL complicates that claim greatly.

      Uh huh. Their argument and analysis of the GPL only holds logically if SCO never distribubted linux - obviously, GNU were smart enough to make sure the GPL had a clause about people trying to GPL someone else's copyrights, or else GPL could have been destroyed. They try to invoke this to save their ass, since IBM theoretically added the tainted code. But at the point that SCO also distributes it, these clauses don't have any relevance, since they have every right to distribute their own copyrighted code. Those arguments only pertain to works released under GPL that contain material that is copyrighted by someone else and not licensed.

      There are other, much more compelling arguments that SCO could have made, such as the GPL representing an unfair burden to SCO, and/or that SCO made a good-faith effort to ensure that there was no proprietary code in what they were distributing.

      However, this very press release KILLS that, as they fully admit that they continued to intentionally sell linux for months after knowing that it contained their code! There goes that good faith argument. Morons.

      So obviously, this appears on face to be the worst argument they could have made invoking the GPL. But they have a decent legal team - theoretically - so my question is, why mention the GPL at this point when it can only hurt your case if/when you go to trial against linux vendors? They almost seem to have intentionally walked into this GPL argument. It's not relevant for the IBM suit, but if there's a phase 2, it's very relevant. And at that point, it almost looks like they're begging to make GPL the centerpiece of that suit.

      Hey tinfoil hat crowd, think they're getting put up to it?

  • by wowbagger ( 69688 ) * on Thursday May 22, 2003 @02:47PM (#6017299) Homepage Journal
    Linux claims SCO irrelevant after suit.
  • Well DUH (Score:3, Funny)

    by Lord Bitman ( 95493 ) on Thursday May 22, 2003 @02:47PM (#6017300) Homepage
    let's go buy some code from Microsoft, and slip a windows disc in the binder before they hand it to us. THEN IT'LL BE OURS!
  • Copyright notices (Score:5, Informative)

    by Anonymous Coward on Thursday May 22, 2003 @02:49PM (#6017331)
    IANAL, but I thought that (at least under English
    Law) something is copyright whether or not there is
    a notice on it.
    • Re:Copyright notices (Score:5, Informative)

      by Anonymous Coward on Thursday May 22, 2003 @03:01PM (#6017450)
      It is. That's not the issue. The issue is that something can only placed under the GPL by its copyright holder. If somebody ELSE places a work under the GPL, then the GPL does not apply.

      SCO is saying that work that belonged to them was placed under the GPL by somebody else, and that therefore that work is not protected by the GPL, and that therefore... well, you know the rest.
    • by kalidasa ( 577403 ) on Thursday May 22, 2003 @03:05PM (#6017488) Journal

      It is under US law, too (IANAL, but I'm pretty sure about that one).

      Correct me if I'm wrong, but I think they're arguing that they didn't put *their* copyright notices on the Linux code that contained "their" "stolen" code, so they didn't invoke the GPL on that code, even though that code was contained within GPLed code, and that they didn't do so because they didn't realize that "their" code was in there, because "they" didn't add it, "someone else" did. Am I paraphrasing their argument accurately? Because if I am, I suspect they are in legal lalaland.

      But IANAL

  • Deplete the warchest (Score:5, Interesting)

    by PhipleTroenix ( 240551 ) on Thursday May 22, 2003 @02:51PM (#6017350)
    Everyone who has ever bought a copy of Caldera/Linux should return it. Since it was marketed as GPL code and it's not.

    If everyone does this right now they won't have $$$ to pay the lawyers and the whole thing might go away.
  • Playground bully (Score:5, Insightful)

    by blackp ( 217413 ) on Thursday May 22, 2003 @02:53PM (#6017369)
    If a kid hands a kick ball to another kid on a playground, then later sues the kid to pay rent for using that kickball, that is just silly.

    If code was released into the GPL public domain, then SCO has the right to get reparations against those responsible for releasing that code, and maybe those responsible for knowingly distributing that code. In this case, they fire the guy that release the stuff into public domain, and request removal of their propritary information. Getting back licensing fees is nothing more than being a playground bully asking for kids' lunch money to play kickball.
    • Re:Playground bully (Score:3, Interesting)

      by kalidasa ( 577403 )

      If code was released into the GPL public domain

      Stop right there. The GPL is incompatible with the public domain. Please go back to the GNU site and reread the GPL before you post anything else on this subject. If code is public domain, it cannot be GPLed, because the GPL relies upon copyright law, and stuff that is in the public domain by definition is no longer subject to that law.

      IANAL, but I know that.

  • by rxed ( 634882 ) on Thursday May 22, 2003 @02:59PM (#6017424)

    They claim that the lack of copyright notices "placed by the copyright holder" means that the GPL does not protect the unmentioned code in question. "

    This was true in the past, but today all nations that follow the Berne copyright convention [] everything created after April 1, 1989 is considered copyrighted (GPL or otherwise) whether it has a notice or not.

    SCO is running out of ideas. They are doomed.

    • by Abcd1234 ( 188840 ) on Thursday May 22, 2003 @03:10PM (#6017531) Homepage
      Actually, I believe the point of this argument is that, because SCO itself didn't choose to license the "unmentioned code" under the GPL (as they are the copyright holder), then the GPL does not apply, as per a couple clauses in the GPL itself.
      • Yes, but the question is did they continue to redistribute the GPLed code in question AFTER they knew their "stolen code" was in there. That implies that they continued to accept the GPL license on that code, since they were "aware" of their own copyrighted code in the other parts of the work. Whether or not they "marked" it with a copyright notice is irrelevant as I understand the law (IANAL), but whether they were aware of and intended to license said code under the GPL is eminently relevant. Their con
      • Well, as I see it, SCO can only have it one of two ways, with regards to kernel code:
        1. The code they released in their Linux distro was implicitly covered under the GPL or something compatible. In this case, they don't have a leg to stand on in their suit against IBM.
        2. The code was not covered under anything compatible under the GPL; ergo, they violated the GPL by distributing GPL'ed code with their own.

        (Disclaimer: Though I am an IBM employee, I am not a party to any "inside information" that makes

    • "This was true in the past, but today all nations that follow the Berne copyright convention everything created after April 1, 1989 is considered copyrighted (GPL or otherwise) whether it has a notice or not. "

      That's not what the laughable dummies at SCO are arguing. They are now trying to say that the SCO employees who were selling SCO Linux, with the blessings of SCO top leadership, did not own the copyrights on the source code that SCO was distributing and therefore the GPL does not apply.

      It's a total
  • by MagicMerlin ( 576324 ) on Thursday May 22, 2003 @03:00PM (#6017432)
    I am feeling more and more that SCO is a pawn in a much larger and more important struggle that is playing out between IBM and microsoft. Consider:

    1. US and USSR never entered into active confict but used deparate or greedy 3rd world countries (SCO) to engage in conflict.

    2. Like Communism, MS was based around lofty principles but actually survives by strangling all percieved threats.

    3. IBM was earlier in a partnership with MS that turned sour (think US-Soviet relations in WW2).

    4. Both empires keep its people distracted from the real facts by spreading FUD about the other side, even if that means undertaking petty wars.

    5. The soviet empire eventually came down, killed by its own weight. Will MS suffer the same fate?

  • by Znonymous Coward ( 615009 ) on Thursday May 22, 2003 @03:02PM (#6017458) Journal
    I like that, keep using the Caldera logo to reference SCO. They (SCO) really hate that [].
  • argument (Score:3, Interesting)

    by ( 664381 ) on Thursday May 22, 2003 @03:05PM (#6017486) Homepage
    There arugment is that since they didnt authorize the putting in of the IP into the code that they still own it wheather on not it has been distributed on the GPL basis . This is true . It does not matter that they distributed the code because they did so without knowning *supposedly* that it was in there . However once they found out they should have stopped sales of there own linux product immeditly otherwise they are knownlingly distributing there code under the GPL and have implied concent by doing so(IMHO IANAL ,etc.) . However they seem to (given the quality of there PR department) shifted all the PR budget to the legal budget so they can probably weasly there way out of it . The one thing that I think is missing "show me the code" . Show me the code that violates your IP , untill then I dont care about anything you have to say (to sco)
  • by jcdr ( 178250 ) on Thursday May 22, 2003 @03:05PM (#6017490)
    SCO say: "In other words, the GPL itself covers situations where code is improperly or accidentally contributed to the GPL without proper authorization (sic) of the true copyright holder."

    So IBM are liable because SCO accidentally put some code into Linux? How there can present to the court a causal fault from IBM? IBM are not here to verify that SCO don't put there preciouse code into Linux.
  • by mugnyte ( 203225 ) * on Thursday May 22, 2003 @03:05PM (#6017495) Journal
    Ben and Jerry's Ice Cream is suing Baskin Robbins for copyright infringement, due to BR's use of the "vanilla" labelled product sold in all of its stores today.

    B&J sells their own Vanilla using plainly listed ingredients and readily available flavoring. During a brief joint-venture between the two companies, Ben and Jerry's and Baskin Robbins formulated a suite of flavors. During this time, B&J claims Baskin Robbins stole the Vanilla formula and process from their internal patented process files. No mention on if Baskin Robbins actually simply read the label on the product to mimic this flavor.

    Vanilla, or "plain" ice cream has been around for quite some time. The original copyright owner is itself under question, since the ingredients and process to form a similar flavor to the B&J private version are deceptively simple. The knowledge for creating such a product predates B&J and is well known in academic cooking circles.

    A spokesman for B&J's Ice Cream commented Thursday: "We own Vanilla. Any use of the process were without our permission to create an exact product. Nobody could create vanilla without knowing our process. We demand compensation for any other vanilla product which has diluted our market share."

    And now for something completely different...
    • Re:In other news... (Score:3, Interesting)

      by Ricdude ( 4163 )
      Strange example...

      Ben and Jerry's was acquired by Unilever [], a food and grocery product conglomerate, so the analogy still holds (SCO buying out the homegrown AT&T Unix).

      More importantly, Ben and Jerry published an ice cream recipe book [], which includes a variety of recipes for their special ice cream flavours. They even include tips on how to quickly and easily shatter 25 pounds of Heath (tm) bar to add to ice cream.

      Now since SCO is talking about "enterprise" capabilities, you'd have to pick an "e

  • Call it out.... (Score:5, Interesting)

    by BubbaTheBarbarian ( 316027 ) on Thursday May 22, 2003 @03:06PM (#6017509) Journal
    This should be called out for what it is...the first shot in Microsoft's war against OSS. Everything up to this point has been trivial. Now we have a company that is going to openly challenge the GPL, and one that is a MSBitch to boot.

    I bet if you look at the money, all trails will lead to The Beast. OSS has been expecting this to come from any other place (look at openGL for reference of another possible MS suit) then from one of "there own." Makes me ashmed to say I even assosiated with Calders before they became a bunch of a-holes.

    WAR TUX!!!
    • Gee, this is real hard:
      • SCO releases trivial code under GPL.
      • SCO sues IBM (Microsoft's most feared competitor) for releasing said code in Linux distro - plans large court battle to find IBM guilty/GPL invalid. Announces intention to sue linux system integrators.
      • Major media all run articles spreading FUD as to whether developing for linux is a recipe for disaster. Microsoft purchases advertising in said media.
      • Microsoft pays SCO 'undisclosed sum of money' to license code most people think they likely do
  • by Anonymous Coward on Thursday May 22, 2003 @03:08PM (#6017519)
    Slashdot them to oblivion! []
  • by cheros ( 223479 ) on Thursday May 22, 2003 @03:14PM (#6017569)
    SuSE responds to latest SCO actions

    The UnitedLinux product -- jointly designed and developed by SuSE Linux, Turbolinux, Conectiva and SCO -- will continue to be supported unconditionally by SuSE Linux. We will honor all UnitedLinux commitments to customers and partners, regardless of any actions that SCO may take or even allegations they may make.

    SCO's actions are again indeed curious. We have asked SCO for clarification of their public statements, SCO has declined. We are not aware, nor has SCO made any attempt to make us aware, of any specific unauthorized code in any SuSE Linux product. As a matter of policy, we have diligent processes for ensuring that appropriate licensing arrangements (open source or otherwise) are in place for all code used in our products. /archive03/sco_statement.html
  • From the GPL... (Score:5, Informative)

    by MrGrendel ( 119863 ) on Thursday May 22, 2003 @03:17PM (#6017599)
    Section 2 b states:
    b) You must cause any work that you distribute or publish, that in whole or in part contains or is derived from the Program or any part thereof, to be licensed as a whole at no charge to all third parties under the terms of this License.
    This means that even if some sections were in violation of SCO's copyright, then SCO still has to license the entire kernel under the GPL because other valid non-SCO copyrights are in there. They can't just pick and choose pieces, or even files, and claim that they are not covered. If they are part of the kernel, then SCO has to consider them to be covered if they want to redistribute. So, SCO either gave their implicit consent to release those sections under the GPL, or they can claim that they are and never were covered by the GPL, which means that SCO was distributing Linux without a license or any other permission to do so. If they can't or won't abide by the terms of the GPL for any reason, then they cannot distribute any of the code.
    • Re:From the GPL... (Score:3, Insightful)

      by ctid ( 449118 )
      I thought this originally, but I think I was wrong. What SCO is claiming is that the SCO code was placed in the Linux kernel by someone other than the copyright holder. In such a situation, they are right about the fact that the GPL doesn't apply.

      None of this proves that there is actually SCO code in the kernel of course. The longer they delay in revealing exactly what it is, the more I think they're bluffing.
      • Re:From the GPL... (Score:3, Interesting)

        by schon ( 31600 )
        In such a situation, they are right about the fact that the GPL doesn't apply.

        Yes, but only until they distribute the code.

        If they had stopped distributing their Linux distro as soon as they found "their" code in the kernel, they might have a leg to stand on.

        They knowingly distributed "their" code as part of a GPL'ed product. Therefore, the GPL *does* apply.
  • nice try (Score:5, Insightful)

    by sbwoodside ( 134679 ) <> on Thursday May 22, 2003 @03:28PM (#6017700) Homepage
    They're trying to say that if the person who contributes the code is not the copyright holder, then the GPL doesn't apply, so they're not responsible for GPLing the code, so their distro doesn't count. But it does.

    He had this to offer about the GPL and SCO: "The GPL, by its terms, only applies to software programs or works which contain a notice "placed by the copyright holder saying it may be distributed under the terms of this General Public License. (emphasis by him)

    But they published the code, and it contained a notice, which they also published, saying that it's under the GPL. Even if the code went through other hands first, they are claiming that they are the copyright holder, AND they published it with the notice. So they STILL fall under the GPL provisions.

  • by Znonymous Coward ( 615009 ) on Thursday May 22, 2003 @03:29PM (#6017706) Journal
    Here is the SCO businesses model...

    Step 1. Caldera buys SCO.
    Step 2. Flush SCO down the toilet, Linux and OpenUNIX rules!
    Step 3. Caldera Linux and OpenUNIX sales aren't so good.
    Step 4. Rebrand as SCO and embrace Linux (if embrace = SuSe's distro ~s/SuSe/SCO/)
    Step 5. SCO Linux sales aren't to good, but we still own UNIX IP.
    Step 6. Sue IBM, get them to buy us out for our UNIX IP.
    Step 7. Read GPL.
    Step 8. Woops, we GPL'd our way out of a case.
    Step 9. Strip ourselves of Linux so M$ will give us money.
    Step 10. Start a FUD war funded by M$.
    Step 11. ???
    Step 12. Profit?

  • The GPL also states (Score:3, Interesting)

    by cyber_rigger ( 527103 ) on Thursday May 22, 2003 @03:29PM (#6017710) Homepage Journal []

    7. If, as a consequence of a court judgment or allegation of patent infringement or for any other reason (not limited to patent issues), conditions are imposed on you (whether by court order, agreement or otherwise) that contradict the conditions of this License, they do not excuse you from the conditions of this License. If you cannot distribute so as to satisfy simultaneously your obligations under this License and any other pertinent obligations, then as a consequence you may not distribute the Program at all. For example, if a patent license would not permit royalty-free redistribution of the Program by all those who receive copies directly or indirectly through you, then the only way you could satisfy both it and this License would be to refrain entirely from distribution of the Program.

    As of 05/16/03 these files were available at ibc6

    It looks like these files have been removed.

    linux-kernel-binary-2.2.10-1.i386.rpm 4525 KB 07/27/1999 12:00:00 AM
    linux-kernel-binary-2.2.10-1.i586.rpm 4450 KB 07/27/1999 12:00:00 AM
    linux-kernel-binary-2.2.10-1.i686.rpm 4450 KB 07/28/1999 12:00:00 AM
    linux-kernel-binary-2.2.7ac1-1.i386.rpm 4477 KB 07/22/1999 12:00:00 AM
    linux-kernel-binary-2.2.7ac1-1.i686.rpm 4463 KB 07/23/1999 12:00:00 AM
    linux-kernel-binary-smp-2.2.10-1.i386.rpm 4606 KB 07/27/1999 12:00:00 AM
    linux-kernel-binary-smp-2.2.10-1.i586.rpm 4589 KB 07/27/1999 12:00:00 AM
    linux-kernel-binary-smp-2.2.10-1.i686.rpm 4589 KB 07/28/1999 12:00:00 AM
    linux-kernel-doc-2.2.10-1.i386.rpm 800 KB 07/27/1999 12:00:00 AM
    linux-kernel-doc-2.2.7ac1-1.i386.rpm 801 KB 07/22/1999 12:00:00 AM
    linux-kernel-include-2.2.10-1.i386.rpm 836 KB 07/27/1999 12:00:00 AM
    linux-kernel-include-2.2.7ac1-1.i386.rpm 864 KB 07/23/1999 12:00:00 AM
    linux-source-alpha-2.2.10-1.i386.rpm 295 KB 07/27/1999 12:00:00 AM
    linux-source-alpha-2.2.7ac1-1.i386.rpm 292 KB 07/23/1999 12:00:00 AM
    linux-source-arm-2.2.10-1.i386.rpm 222 KB 07/27/1999 12:00:00 AM
    linux-source-arm-2.2.7ac1-1.i386.rpm 274 KB 07/23/1999 12:00:00 AM
    linux-source-common-2.2.10-1.i386.rpm 9333 KB 07/27/1999 12:00:00 AM
    linux-source-common-2.2.7ac1-1.i386.rpm 9403 KB 07/23/1999 12:00:00 AM
    linux-source-i386-2.2.10-1.i386.rpm 281 KB 07/27/1999 12:00:00 AM
    linux-source-i386-2.2.7ac1-1.i386.rpm 276 KB 07/23/1999 12:00:00 AM
    linux-source-m68k-2.2.10-1.i386.rpm 602 KB 07/27/1999 12:00:00 AM
    linux-source-m68k-2.2.7ac1-1.i386.rpm 583 KB 07/23/1999 12:00:00 AM
    linux-source-mips-2.2.10-1.i386.rpm 322 KB 07/27/1999 12:00:00 AM
    linux-source-mips-2.2.7ac1-1.i386.rpm 322 KB 07/23/1999 12:00:00 AM
    linux-source-ppc-2.2.10-1.i386.rpm 419 KB 07/27/1999 12:00:00 AM
    linux-source-ppc-2.2.7ac1-1.i386.rpm 403 KB 07/23/1999 12:00:00 AM
    linux-source-sparc-2.2.10-1.i386.rpm 489 KB 07/27/1999 12:00:00 AM
    linux-source-sparc-2.2.7ac1-1.i386.rpm 489 KB 07/23/1999 12:00:00 AM
    linux-source-sparc64-2.2.10-1.i386.rpm 458 KB 07/27/1999 12:00:00 AM
    linux-source-sparc64-2.2.7ac1-1.i386.rpm 456 KB 07/23/1999 12:00:00 AM

  • Stable door (Score:3, Funny)

    by HermanZA ( 633358 ) on Thursday May 22, 2003 @03:35PM (#6017760)

    Judges are familiar with 'closing the door after the horse bolted'.

    SCO has no case.

  • by msimm ( 580077 ) on Thursday May 22, 2003 @03:36PM (#6017762) Homepage
    Funny thing is, I'm seeing more 'legitimate' media talking about Linux then ever. The more they yell the more respected business journals will end up printing conversion stories with every bodies new favorite underdog.

    I bet this all make for some pretty funny board meetings.
  • by Groovus ( 537954 ) on Thursday May 22, 2003 @03:38PM (#6017780)
    This is slightly off topic, but it was running through my head on my bike ride home from work yesterday....

    If one was served with a cease and desist from SCO regarding linux code, would it not be an acceptable response to then ask them to identify the offending code so that you could remove it from the code base you are using, and then replace it with code from elsewhere (created by you, obtained from another source, etc.) which would not infringe on their "technology"? Additionally would you not also be within your rights to request proof of SCO "ownership" of the offending code? Simply put, would not the burden of proof still be on SCO if they make such an accusation?

    Note that one would be attempting to comply with their request, not going to court or settling for damages. Would this remedy avoid those two outcomes?

    Basically it seems to me that given the nature of open source it would be trivial to shrug off any and all such threats/claims by SCO. I mention this not to discourage those who wish to punish SCO for their actions by dragging them through court and beating them, but more along the lines of attemting to nip any fear businesses may have in consideration of adopting Linux about the legality of using "tainted" code in the bud by establishing clear and easy methods of circumventing such chicanery.

    You could kill the SCO ploy quickly and easily if it was viable to say that if SCO came calling you just need to have them identify "their" code, prove it is theirs, and then replace it by having coder x create substitute code from scratch or obtaining substitute code from open source project y. Would this work?
  • by lobsterGun ( 415085 ) on Thursday May 22, 2003 @03:48PM (#6017870)

    Has anyone heard what any of the SCO techies are saying about this suit? We've all heard what the lawyers and the suits have to say.

    How about we have a Slashdot Interview with an anonymous SCO techie? Most techies I know would jump at the opportunity to set the record straight if they were in a similar circumstance (espescially if their anonimity could be guarranteed.)

    So what do you say Comandante Taco? Can we get and interview?
    • by mandolin ( 7248 ) on Thursday May 22, 2003 @06:43PM (#6019374)
      The suits must be relying on some techies to examine the code, in order to give their case a semblance of feasibility.

      It's probably a small number, too. Any willing techie who could give sufficient information to make for an interesting interview would be quickly discovered, fired, and probably sued as well.

      Anyone at SCO: look for another job now. Your execs have somehow managed to bring the wrath of IBM, the entire linux industry (hey it's a couple thousand dollars :)) and an entire demographic of the world population upon them. You're wasting time with IBM. You have two OSs that compete with each other, drain your time trying to write compatibility kits (which also add bloat..), and they both suck compared to the competition (and I've used OpenServer, I know that of which I speak). You're probably being asked to make up some creative bullshit for the court case. Aside from all that, countersuits are terribly likely.

      I hope the utah job market pans out for you.

    • by swillden ( 191260 ) <> on Thursday May 22, 2003 @06:55PM (#6019455) Homepage Journal

      How about we have a Slashdot Interview with an anonymous SCO techie?

      A SCO employee would have to be a complete fool to do this right now, regardless of what guarantees of anonymity might be provided. In a situation like this, the possible repercussions of being found out far exceed simply being canned.

  • by bstadil ( 7110 ) on Thursday May 22, 2003 @04:01PM (#6018036) Homepage
    We need to start using the "lots of eyeballs" methodology against SCO. We need to find cases inside Unixware where the lifted code from Linux.

    According to latest thread on Kernel List Quoted below this is likely to have happened. Even though the Code is not public available there must be some versions floating around that can be used for "analysis". Once something is found public bug reports can be used as Evidence. Same bugs in SCO binaries as in Linux.

    If someone have a copy of the SCO source code maybe make a Torrent file, so we can start analysing if they indeed stole something. A few nuggets will go a long way to quash the FUD from SCO. Anyone know where old SCO bug reports can be found?


    6. Possible License Violations Within The Kernel Source

    Elsewhere, Christoph Hellwig replied to the original post as well, saying:

    As somone who walked for SCO (or rather Caldera how it was called at that time) I can tell you this is utter crap. There were very people actually doing Linux kernel work then (and when the German office was closed down all those left the company) and we really had better things to do then trying to retrofit UnixWare code into the linux kenrel. Especially given that the kernel internals are so different that you'd need a big glue layer to actually make it work and you can guess how that would be ripped apart in a usual lkml review :)

    It might be more interesting to look for stolen Linux code in Unixware, I'd suggest with the support for a very well known Linux fileystem in the Linux compat addon product for UnixWare..

    Jim Nance said, "Wouldnt it be halirous if whatever code SCO is talking about when they say there is Unix code in Linux turns out to be code some SCO employee ripped out of some GPL program and stuck it into Unixware. That is actually far more likely than what they alledge."


  • Total Crap (Score:4, Insightful)

    by bwt ( 68845 ) on Thursday May 22, 2003 @04:02PM (#6018050) Homepage
    This is total crap. Under SCO's theory, they are admitting violating many, many authors copyrights. If they are distributing ANY non-SCO GPL code mixed with non-GPL'd code (owned by SCO or not) then they have commited a violation of the GPL'd code's copyright. They are practically stipulating to the fact that they have commited copyright infringement.

    The hypocracy of SCO's position is amazing. Let's think about this... Linus and Co. wrote codeset A, the parts of Linux which are their original work. SCO claims it owns codeset B (the UnixWare stuff) and that IBM created codeset C=A+B. If SCO distributed C then they are infringing the licence on A for exactly the same reason that they claim everyone else is violating the licence to B by distributing C. In fact, for them to distribute C is worse from a legal point of view, because they believed that it was infringing, whereas nobody else does. Since SCO has refused to even notify anyone else who distributes C (including the authors of A) of which parts of codeset C they believe are infringing, they are the ONLY ones who could prevent the infringement since they are the only ones with the knowledge to prevent the infringement.

    If their view of the facts turns out to be true, then their distribution of Linux was willful for-profit infringement, practically by stipulation, and Linus, Alan Cox, Dave Miller and every other legitimate code author should get statutory damages from SCO as well as any profits that SCO earned as a result of their infringement.

  • by earthforce_1 ( 454968 ) <earthforce_1@ya[ ].com ['hoo' in gap]> on Thursday May 22, 2003 @04:19PM (#6018212) Journal
    You are too far from reality!
  • Perfectly Reasonable (Score:4, Interesting)

    by maynard ( 3337 ) <j DOT maynard DO ... AT gmail DOT com> on Thursday May 22, 2003 @04:23PM (#6018257) Journal
    "[Huges] had this to offer about the GPL and SCO: "The GPL, by its terms, only applies to software programs or works which contain a notice "placed
    by the copyright holder saying it may be distributed under the terms of this General Public License. (emphasis by him)"
    This is perfectly reasonable. We're all so pissed of at SCO that we forget to think of the potential consequences of taking this line of thought to its logical conclusion. Rip SCO out and reconsider this statement:
    I own a company which writes a proprietary application sold to the public. It contains lib 'a' which is used for manipulating the general class of 'foo', something very useful. One of my employees releases the lib 'a' source under the GPL without corporate knowledge or acquiescence. This is then incorporated into several other GPL'd applications, one of which we happen to distribute without knowing that a part of this application contains our source. Is lib 'a' now covered under the GPL because of our mistake?
    I certainly hope not. I doubt this would be rms's or the FSF's attorney wish either. Such a conclusion goes against the grain of allowing the copyright holder to designate contractual licenses limiting duplication rights. Note that I don't say right to use, but basic duplication rights. The eventual outcome of that would be a loophole which could dilute basic copyright law; the very foundation of the GPL.

    Whatever of SCO's code that may or may not be in the generic Linux Kernel, it's perfectly clear that only the owner of a copyright may specify the contractual terms of licensing. Simply put, if someone other than the owner contributed code which was accepted into the kernel tree (or distributed said code as a patch), the owner shouldn't be held to account for having also distributed their own code by accident; code which they didn't knowingly or purposefully contribute.

    Screwing SCO on a 'gotcha' because they continued to distribute the Linux kernel after they filed the lawsuit may seem like just deserts, but long term it could have damaging consequences to the Free Software community after the fact. We should instead be looking for prior examples of development and ownership for everything SCO claims copyright over. If everything they claim can be proven factually false, their case dies a just death. The way to win is to show that SCO has no legal basis for claiming copyright infringement: that they, as SCO, never created whatever code they claim as theirs is in the Linux kernel; nor could they have since the historical timeline clearly shows developments by a wide range of authors who have no connection to IBM, HP, or SCO (or Project Monterey, SCO OpenServer, and/or UNIXWare). Kill their idiotic suit with facts and they will shut up and die already.

    Should it turn out that some small portion of the kernel contains illegally expropriated code copyrighted by SCO, then rip it out and recode ASAP. Remove the illegal code from all previous copies in the masters and mirrors. Minimize the damage once it's discovered and plead to the judge that the principal authors didn't and couldn't have known. Point out that the plagiarizing author, the one who submitted whatever infringing code in bad faith, should be the responsible party. Let SCO sue that infringer, the person who willfully broke the law, and then let it drop. SCO winds up with little or no money, the principal authors keep their good name and reputation, and Linux continues on it's merry way.

    • by jareds ( 100340 ) on Thursday May 22, 2003 @05:26PM (#6018844)

      I own a company which writes a proprietary application sold to the public. It contains lib 'a' which is used for manipulating the general class of 'foo', something very useful. One of my employees releases the lib 'a' source under the GPL without corporate knowledge or acquiescence. This is then incorporated into several other GPL'd applications, one of which we happen to distribute without knowing that a part of this application contains our source. Is lib 'a' now covered under the GPL because of our mistake?

      It need not be. You need not agree to the GPL, because you have never signed it. However, you have no right to distribute the GPL'd application (except for lib 'a' itself) in question without following the terms of the GPL, becuase you do not hold the copyright to it. You should thus immediately stop distributing versions of the application that contain lib 'a' (as should third parties, who have no right to distribute lib 'a' at all). In contrast, SCO has continued to distribute Linux long after filing this suit. If they have not caused their proprietary code to be licensed under the GPL, they are committing willful copyright infringement. I don't see how there can be other options available to them. (Also, in your example, one would expect your company to inform third parties that you hold the copyright to lib 'a' specifically and ask them to stop distributing it. SCO has not done this. No one yet knows what SCO is claiming copyright to sepcifically.)

      The point is that others cannot distribute GPL'd software containing SCO's proprietary code, but neither can SCO itself. That is the whole point of the GPL! If its claim that Linux contains SCO's proprietary code is correct, it must cease distributing Linux, or at least excise its code from the version it distributes. If SCO continues to distribute Linux without excising its code or releasing its code under the GPL, it should be sued for copyright infringement by the kernel team.

    • by jmorris42 ( 1458 ) * <jmorris@beau . o rg> on Thursday May 22, 2003 @05:43PM (#6018975)
      > Screwing SCO on a 'gotcha' because they continued to distribute the
      > Linux kernel after they filed the lawsuit may seem like just deserts

      Perhaps, but how about these ideas?

      If we stipulate that there is some SCO IP in the kernel (which I doubt) and that IBM did indeed contribute it to Linus and claim it as their own (which I'd be shocked to find true) and acknowledge that SCO did indeed distribute said tainted code before and after learning it's origins we get the following:

      1. SCO can not expect 3rd parties to be any more liable for infringement than SCO themselves are for their own lack of due dilligence. Since SCO is likely to hold themselves and their customers blameless they can't then expect damages from anyone else. After all, only SCO possessed their precious archival UNIX code to compare against so they were in the best position to detect the infringment.

      2. Since SCO has yet to formally request a DMCA takedown, no distributer can be held liable up to such time as they file a formal takedown request. Yes, the DMCA is going to work in our favor in this case, especially for and mirrors.

      3. So we get a best case for SCO, where they prove their case anc get a total legal victory and are unable to collect damages from anyone other than IBM. And IBM can keep the case on appeal until sometime after the final trump blows so they get no money and end up bankrupt.
  • Statutory Damages (Score:5, Interesting)

    by overshoot ( 39700 ) on Thursday May 22, 2003 @04:28PM (#6018303)
    Talk about foot-in-mouth. According to this, SCO deliberately and after consultation with Counsel chose to distribute copies of a copyrighted work without authorization (the non-SCO portions of the Linux kernel.) [1].

    Therefore, every copy of Linux that they've distributed since then (and maybe some before) meets all of the statutory requirements for "willful infringement," which carries a statutory damage of $50,000 to $150,000 per copy. It's not necessary to show damages in this case, the law itself specifies them. Slam-dunk summary judgment stuff.

    The FSF (assignee of at least some of the GPL contributions) should sue SCO pronto, citing their own testimony. SCO is estopped from denying the charge, the Court awards $50,000 times a whole bunch of copies, plus legal fees, and the FSF ends up owning what's left of SCO.

    Happily ever after.

    [1] Since they knew that portions of the work were encumbered, the GPL ceases to enable distribution of any of it, thus copyright law applies. See damages above.

  • by OmniGeek ( 72743 ) on Thursday May 22, 2003 @04:35PM (#6018361)
    As we can clearly see from SCO's assorted statements (sordid statements?). Then again, their lawyers have to put the best public face on whatever rotten hand their client and the facts have dealt them, so maybe they KNOW that they have no case and are banking on the fact that judges can be idiots as well. It makes me have a moment's sympathy for lawyers with idiot clients. ... Whew, thank goodness that passed quickly!
  • by Svartalf ( 2997 ) on Thursday May 22, 2003 @04:42PM (#6018414) Homepage
    It's a valid argument. However, if they're claiming that they're not obligated under the GPL, they're mistaken.

    They knew about the distribution of their code for over 5 months if other official statements made by SCO are to be believed. It is the obligation of distributors of ANY code that is GPLed to ensure that the said code is not encumbered with non-licensed code or patented algorithms without a compatible license. In other words, SCO, by distributing Linux is obligated at the time of discovery to NOT distribute the said code- excising it from the distribution as needed. Since they did not, they abrogated their rights under the GPL to distribute the code in question.

    It's a simple matter really.

    Either they tacitly licensed the code and they should cease comments about infringement or they're guilty of 5+ months of infringement on the copyrights of the code that has the alleged infringements in it.
  • The Iraqi Information Minister.
    He now works for SCO.

I've finally learned what "upward compatible" means. It means we get to keep all our old mistakes. -- Dennie van Tassel