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What's Good for the Goose... Is Good for the Gander
Sunday, August 03 2003 @ 12:08 AM EDT

Can't tell them apart, can you? And that's my theme today.

Remember the part in the complaint about IBM allegedly violating export controls? I was thinking about it myself quite a lot today, while I was doing some food shopping, when all of a sudden, I had one of those Eureka moments. I remembered reading about Amazon being fined for violating export controls that regulate the very countries listed in the complaint. This is going to get a bit complicated, but it's great at the end, so if you follow the bouncing ball all the way, I think it's worth it.

First, here are the two relevant paragraphs from the Amended Complaint:

116. Export of UNIX technology is controlled by the United States government. Thus, SCO, IBM and all other UNIX vendors are subject to strict export control regulations with respect to any UNIX-based customer distribution. . . . [PJ: SCO allows that IBM in later amendments to the agreement were given the right to export to several countries.] However, no permission has ever been granted by SCO or its predecessors to IBM to allow it to indirectly make available all or portions of the Software Product to countries outside the United States that are subject to strict technology export control by the United States government: viz., Cuba, Iran, Syria, North Korea and Libya. IBM is ignoring and attempting to circumvent the export control restrictions that apply to UNIX as it accelerates development of Linux for enterprise use.

117. Thus, IBM has breached Section 4.01 of the Software Agreement by, inter alia, making extensive, advanced multiprocessor scaling functions of the Software Product, including derivative works and methods based thereon, available for free distribution to anyone in the world with a computer. As it relates to Linux 2.4.x and 2.5.x releases, IBM is indirectly making the Software Product and and operating system modifications available to countries and organizations in those countries for scaling single processor computers into multi-processor supercomputers that can be used for encryption, scientific research and weapons research.

They couched it as a contract issue, and it may be, depending on what the contracts say, not all of which we have yet seen. But by listing those particular countries and phrasing it the way it did, it was also a public slur, and one that seemed gratuitous. Putting those words in the complaint, SCO gives us a big hint as to why they may have decided to bring this up.

These are the countries US companies can't trade with under export regulations monitored and enforced by the US Treasury Dept. Here's the news article I remembered, listing Amazon and American Airlines and a lot of other mainstream companies fined for trading with the forbidden countries. Here's a story about Boeing paying a fine for trading with a forbidden country a couple of years ago. Notice the headline. And here is the US Treasury list of offenders, month by month. Here are the sanctions, country by country. Encryption in any software product is regulated with respect to export. Here is the US Bureau of Industry and Security, a branch of the Commerce Department. Here's their compliance and enforcement page. These are the regulations. And here's a snip from Microsoft's page Exporting Basics [PDF]:

Many Microsoft products are subject to export restrictions under U.S. law because they include encryption technology. . . .Just because an item is subject to U.S. export controls does not necessarily mean it cannot be exported. In the case of Microsoft encryption products, a one time government technical review is required prior to export. . . . Once a review has been completed, software may become eligible for a particular licensing authority. This authority may then be used by all exporters, not just Microsoft.
Could it be that SCO, by adding this item to the complaint, thought IBM would have criminal charges brought against it, with concomitant fines, and end up a headline, like Boeing and Amazon? I can just see the headline: "Linux Violates Law Against Trading with the Enemy" or some such nonsense.

But here is the funny part. Also the fun part. Both SCO and Sun have themselves continued offering Linux, the kernel, and the GNU tools up until this very day, kernels with at least some, if not all, of the high-end stuff they are saying IBM put into Linux that they claim is violating the export restrictions. We've presented the evidence for that here on Groklaw.

And SCO employees helped write the kernel and added to its high-end functionality, and we've posted evidence of that. If IBM is guilty, why isn't SCO? And Sun? Now Sun says it will be distributing its own Linux. My, my.

And in case SCO plans on arguing that it merely distributed for free but didn't sell after it found out about the high-end code, I beg to differ, as you can see in my earlier article, Psst, Want to Buy OpenLinux? It's Still Being Sold Online, which I posted June 5. If you go to Caldera's site, you can still buy OpenServer even today, with the following warning at the bottom of the page:

Please note that the electronic transfer of this data to a destination outside of the United States constitutes an export (as defined by the U.S. Bureau of Export Administration) and is authorized ONLY to the buyer. Any subsequent re-exportation of this data requires that the buyer obtain an additional export license. Also note that it is ILLEGAL to re-route SCO product to Cuba, Iran, Iraq, Libya, North Korea, Sudan or Syria and that you must file a special license if you intend to re-route goods to the embargoed regions of Serbia or the Taliban controlled areas of Afghanistan. Placement of this order constitutes an agreement to comply with these stipulations.
Could this be the clue as to what they are claiming: that contributing to Linux, which is then downloaded by ftp, IBM was contributing to an illegal route/re-route? If so, SCO did it themselves too, if offering the Linux kernel is enough to be guilty. I checked all the links in the June 5 story, and they are all still good. You can buy OpenLinux here [http://linux.tucows.com/ preview/73977.html] [PJ: Note that in 2009, the url no longer resolves; however thanks to Wayback, you can see the offer as I did in 2003 here, and if you click on OpenLinux, you will get to the actual offer, and notice the date in the Internet Archive url is April 30, 2003, *after* SCO sued IBM in early March] and OpenLinux Server here [PJ: Note it's not available there in 2009, but it's not available on Wayback, so it's not possible the trace the exact day it disappeared. And you can get both OpenLinux and SCO Open Server here. And, as we reported, you can ftp it every which way, any time you like. Not that I am recommending SCO products, by the way. Not today. Not ever.

They can hardly argue they don't know that high-end code is in there now, so many months after they "first" found out, if you believed that story about not knowing about this particular code being in there, which I don't, when they continue to sell and allow free distribution so many months after their alleged "discovery". And now Sun says it plans on doing a Linux distro. With or without the high-end code? They've been allowing downloads of this kernel all along, as we reported yesterday, so what are these folks thinking?

Here's their dilemma. They can't take the infringing code out without letting us all know what the code is, can they? So either Sun plans on "violating export regulations", according to SCOThink, or this claim in SCO's complaint is just FUD in the first place. Or we are about to learn what the infringing code is, when Sun removes it from its new Linux distro. Or maybe they'll just change their minds. They know how to do that. It is conceivable that this has something to do with some kind of evidence only SCO knows about, but that seems hard to believe, especially about IBM.

Question: Do the indemnifications offered by SCO and Sun indemnify their users against charges of export regulation violations? This whole thing is so ridiculous.

So, bouncing the thought along to the end, I trust this means that if anyone on the dark side was thinking how great it would be if only some FUD could make it into headlines about Linux being on a list of violators of export regulations, they will now realize that they appear to be vulnerable to the same accusation, in the same goose pen with IBM, and with Linux. I can't believe the government would bring charges selectively against IBM or a Linux distributor without having to do the same to SCO and Sun, if anyone violated any regulations at all in the first place, which isn't, as usual, proven.

So, unless I'm missing something, I'd say SCO hit itself in the head with another boomerang by bringing this issue up at all.

Of course, we helped. There are days when writing Groklaw is just a plum pleasin' pleasure.


  


What's Good for the Goose... Is Good for the Gander | 16 comments | Create New Account
Comments belong to whoever posts them. Please notify us of inappropriate comments.
radiocomment
Authored by: Anonymous on Saturday, August 02 2003 @ 09:56 PM EDT
Seriously? I love you. Will you marry me?
Anonymous Coward

[ Reply to This | # ]

radiocomment
Authored by: Anonymous on Saturday, August 02 2003 @ 10:01 PM EDT
well...AC...there's this one little snag...

hint: AC

Thanks for the "offer" though. : )


pj

[ Reply to This | # ]

radiocomment
Authored by: Anonymous on Sunday, August 03 2003 @ 02:01 AM EDT
pj, what if by a cruel act of parenting his first name really is Anonymous? ;)
After all, Coward is a perfectly respectable surname (It did ok for Noel ;) style="height: 2px; width: 20%; margin-left: 0px; margin-right: auto;">Dr Stupid

[ Reply to This | # ]

radiocomment
Authored by: Anonymous on Sunday, August 03 2003 @ 08:11 AM EDT
There was a kid at my school called Wayne Kerr. His parents didn't even realise.... ;-)

Cambo


Cambo

[ Reply to This | # ]

radiocomment
Authored by: Anonymous on Sunday, August 03 2003 @ 10:04 AM EDT
Now we're waay off topic - but there was, honestly, a girl at my school called
Helen Back(!)
Dr Stupid

[ Reply to This | # ]

radiocomment
Authored by: Anonymous on Sunday, August 03 2003 @ 11:56 AM EDT
It now says (I think probably added fairly recently) on SCO's FTP site a bunch of stuff including that you are not supposed to download if you live in Cuba, Libya, etc. Go to ftp.sco.com to see it.

So perhaps SCO will argue this text makes them (SCO) compliant with export regulations whereas IBM's lack of the same text makes them non-compliant! (Fidel Castro, Gaddafi, Assad and their friends, may be the axis of evil, but they always read and obey web site EULAs don't you know).

As you I think can download Linux from US government (NSA I think), doesn't this make it a mute point?


quatermass

[ Reply to This | # ]

radiocomment
Authored by: Anonymous on Sunday, August 03 2003 @ 12:12 PM EDT
I can just imagine someone in Cuba saying "oh dear, I'd better not download this then!" SCO's defence would be as laughable as someone piling up US military documents in the street at the height of the Cold War and saying "please take one - oh, unless you're a spy."

Besides, IBM don't distribute the kernel - no kernel on IBM's ftp servers. So SCO and Sun (and the NSA indeed!) are doing more *exporting* than IBM.

Essentially, SCO's use of the national security argument is not a serious legal one and will backfire horribly in court. So why did they do it? Answer - because it makes good sensationalist press. SCO's dying flame needs the oxygen of publicity to survive.


Dr Stupid

[ Reply to This | # ]

radiocomment
Authored by: Anonymous on Sunday, August 03 2003 @ 01:10 PM EDT
SCO has not looked at the mirror lately. They would/should be frighten of what
they see if they have the guts.
Quan

[ Reply to This | # ]

radiocomment
Authored by: Anonymous on Sunday, August 03 2003 @ 04:14 PM EDT
OK, I'll play devils advocate here. First, the export violation claim appears to be simply a means for SCO to break their contract with IBM and claim damages from, or stop the distribution of AIX. If either or both party conducts illegal activities under the terms of a contract, it just may be grounds for weaseling out of the contract. Two wrongs don't make a right in these cases. Two wrongs, just may be sufficient to undo the this particular contract.

Secondly, the heart of the SCO case is that IBM violated export regulations by transferring regulated proprietary code from AIX to a public license form or forum whereby it would, by nature be available to restricted countries. The violations of export restrictions lie not in making Linux available for distribution, but in transferring the restricted technology to a form or forum (a public license product) where it would be be impossible to regulate it's export.

Thirdly, the government has the larger problem in finding the ways and means to regulate public license products that may contain restricted technology. They obviously cannot regulate it's export and they may not even be able to control the developmental efforts of hundreds or thousands of contributors that may evolve quite by accident into a superior product that the government may deem worthy of export restriction. That there is a huge problem both in the instant case as well as in the development of future public license technology.

Lastly, I don't see how Sun's and SCO's distribution of a product already under a public license affects SCO's claim that IBM allegedly improperly or illegally transferred/stole proprietary licensed code from AIX to Linux. The sin was in the initial transfer to a public licensed product. Once the genie is out of the bottle, the cat is out of the bag, pandora's box is opened etc. It can't be put back in, corrected or erased, but damages can certainly be paid.

I fear that you, pj and others in the Linux community who are in love with the cause, may be vulnerable to ignoring the fact that a very many number of attorneys are quite capable of creating legitimately arguable cases for or against almost anything. That is what they are paid to do. They are quite capable of earning their keep. I for one would not underestimate the ability of SCO's attorneys to blow large quantities of smoke, even now, and make it appear legitimate to many people. The Linux community does not in fact contain all of the smart people. Many attorneys are also very smart.

These are just my thoughts and I ain't even an attorney neither. Hope this helps stimulate a little more discussion.

Snookered once.


sn

[ Reply to This | # ]

radiocomment
Authored by: Anonymous on Sunday, August 03 2003 @ 04:49 PM EDT
Well, snookered once, I'm thinking you may need to change your handle, to twice. : )

Your link shows you are located in Utah. On the positive side, you could have just posted as AC, so I will not assume anything necessarily, but may I inquire if you are connected, either in business or through your church activities, with SCO, Canopy, or any of its employees, including management? Do you own shares in SCO, by any chance?

On the points you raise, Groklaw has already posted info regarding breaking the contract. That was the first thing we wrote about it. This post was about FUD, not about lawyering.

However, as to your claim that GNU/Linux can't be controlled and is therefore impliedly a danger, you are simply wrong. The government already does control export of it and all other software products, as the article pointed out. You will find the same notices on software regarding export to the countries mentioned in SCO's notice when you download free and open source software as when you download SCO's off of their web site. If you are going to argue that there should never be any software downloads, and that's a different discussion, and then that would affect MS, SCO, and every other proprietary software distributor too. That was the point of the article. There is no difference.

All the other points you raise have been answered already on Groklaw.

I note that you are an SEC Registered Investment Advisor. Do you see any issues in this story? Anything jumping out at you? I'd be interested in hearing your views, if so, if you wish to email me.


pj

[ Reply to This | # ]

radiocomment
Authored by: Anonymous on Sunday, August 03 2003 @ 09:04 PM EDT
Ok. So I'm a little new here. I do in fact enjoy the research and information here, not to mention your writing style.

"All the other points you raise have been answered already on Groklaw."

Answered or researched? I also have read just enough to know that statement is so unlike you with your many disclaimers about not being an attorney. As for me, I may as well be snookered thrice for all the times I have incorrectly called the "obvious" outcome of a litigation. The only thing I've learned over the years is never to bet against Goliath no matter how charming of a story David carries. In this case, I presume Big Blue is sufficiently endowed to assume the title of the big guy who had the sword and the armor.

No, I have no vested interests, associations or acquaintances with SCO (Utah ain't that small of a place) however I do have a unique perspective on Utah companies and business ethics which I would be happy to email to you if I can find your email address on the site. (I'm new here remember?)

One last thing regarding the points Groklaw has already "answered". Exactly how can the government control or regulate distribution of restricted technology that has essetially become "public" if it is free and could be made available to virtually anyone anywhere in the world. That was my point. If Linux truly contains any restricted technology, it's too late and too bad. Anybody who wants it can get it. As to the future, if the GPL community comes up with another neat new gee whiz product that the government "wants" to restrict, well, I think they're gonna be outta luck. That was my point. Attaching a warning to the software, well, I see your point, but it hardly achieves the objective, namely restricting distribution to certain parties.

I'm also curious as to what the "evidence" that we have yet to see will say about IBM stealing proprietary licensed code and "donating" it to GPL. SCO can donate whatever they own whenever they want to without waiving any and all rights to the rest of their "secrets". Licensees don't have the same privileges. OK, maybe Sun does but we'll even withhold judgement on that one. Seems like the stealing issue could be a valid claim if the evidence shows it, but we all know that attorneys can argue "evidence" many ways.

Yes there are investment issues, opportunities and hazards in any litigation. This one appears to be a mosquito on an elephant to Big Blue. AIX will live on unaffected. The real question is once Big Blue has defended and protected their own interests, how much will they commit to defending the open source community. Remember, one of the laws of nature is "Take care of business first and charity later." I made that up but I think it is valid.

Later dudette,

I'm anxious to read your next installments.


sn

[ Reply to This | # ]

radiocomment
Authored by: Anonymous on Sunday, August 03 2003 @ 09:59 PM EDT
1. I wasn't suggesting a business relationship or anything else. Your laws of nature motto has already informed me of your business ethics. You missed my point by a large mile. Don't mail me anything, please.

2. Research in itself provides answers.

3. Q: How did you last update your Microsoft software? Downloading over the internet? Open to the public, n'est pas? Yet it has encryption, so it is regulated. Hence the notices. Since you are new, I won't let my curled lip show too much, but really, you've no idea how careful the FSF is and always have been about carefully complying with all regulations. Moglen was one of the attys who worked on the PGP case. This is an area of the law where he is, happily, an expert. So, not to worry, dude.


pj

[ Reply to This | # ]

radiocomment
Authored by: Anonymous on Monday, August 04 2003 @ 02:32 AM EDT
The US should realise that they can not control distribution of software and technology that originates outside their country. In my opinion Linux is an international project (if I must assign a nationality because my life dependent on it, I'ld say Finnish!). Take a look at the nationality of the maintainters of the stable branches: Alan Cox, 2.2, UK; Marcelo Tosatti, 2.4, BR; Andrew Morton, 2.6, AU. The great creator of unstable, Linus himself, is Finnish!

I remember the PGP fiasco. It was illegal for me to download it from the US; but mirrorring the Canadian original distribution was widely done. It was legal too, as long as your download didn't run through the US! (US goverment changed the regulations because the situation became too ridiculous.)


MathFox

[ Reply to This | # ]

radiocomment
Authored by: Anonymous on Monday, August 04 2003 @ 08:41 PM EDT
PJ,
Could you clarify the church comment that was made to snookered. style="height: 2px; width: 20%; margin-left: 0px; margin-right: auto;">Mike
Henderson

[ Reply to This | # ]

radiocomment
Authored by: Anonymous on Monday, August 04 2003 @ 08:58 PM EDT
Mike,

Follow his link and look around.


pj

[ Reply to This | # ]

radiocomment
Authored by: Anonymous on Monday, August 04 2003 @ 09:32 PM EDT
PJ,

Thank you, I followed the link, it was interesting. I'm enjoying the discussion, and it's nice to be able to see behind the FUD.


Mike Henderson

[ Reply to This | # ]

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