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The License, Should You Choose to Accept It
Wednesday, August 06 2003 @ 11:25 PM EDT



LWN has it posted.They say SCO sent it to them upon request.

The part that is surprising is the warranty. Or should I say the lack of much of one. What happened to all that trash talk about Linux not indemnifying its customers? This warranty, as far as I can see, and assuming that it's authentic, has a warranty for SCO's code only, and only up to a point. There doesn't seem to be any warranty for any GNU/Linux code or any warranty regarding infringement of any third party IP either.

Remember yesterday, when McBride taunted Red Hat for saying essentially the same thing in its SEC filing? Am I missing something? I guess they don't feel they can indemnify beyond their own code, under current circumstances, but they don't seem to be doing that altogether either, so it does mean that the indemnification is narrowly defined, at least compared with what I was expecting after all the lyrical poetry about indemnification.

On first, quick reading, I see that they are letting you run their stuff and they won't sue you over doing that, if you meet all the other conditions. Wherever you see "Company", that would be you:

7.0 LIMITATION OF WARRANTY

SCO MAKES NO WARRANTIES OF ANY KIND EXPRESSED OR IMPLIED WITH RESPECT TO ANY SOFTWARE OTHER THAN THE SCO INTELLECTUAL PROPERTY DEFINED BY THIS AGREEMENT. SCO WARRANTS THAT IT IS EMPOWERED TO GRANT THE RIGHTS GRANTED HEREIN.SCO DOES NOT WARRANT THAT THE FUNCTION CONTAINED IN SCO PRODUCT WILL MEET YOUR REQUIREMENTS OR THAT ITS OPERATION WILL BE UNINTERRUPTED OR ERROR FREE. ALL WARRANTIES, TERMS, CONDITIONS, REPRESENTATIONS, INDEMNITIES AND GUARANTEES WITH RESPECT TO THE SOFTWARE, WHETHER EXPRESS OR IMPLIED, ARISING BY LAW, CUSTOM, PRIOR ORAL OR WRITTEN STATEMENTS BY ANY PARTY OR OTHERWISE (INCLUDING, BUT NOT LIMITED TO ANY WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE OR ANY IMPLIED WARRANTY OF NON-INFRINGEMENT OF THIRD PARTY INTELLECTUAL PROPERTY RIGHTS) ARE HEREBY OVERRIDDEN, EXCLUDED AND DISCLAIMED. SOME STATES OR COUNTRIES DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES, SO THE ABOVE EXCLUSION MAY NOT APPLY TO YOU. THIS WARRANTY GIVES YOU SPECIFIC LEGAL RIGHTS AND YOU MAY ALSO HAVE OTHER RIGHTS WHICH VARY FROM STATE TO STATE OR COUNTRY TO COUNTRY.

8.0 LIMITATION OF LIABILITY

UNDER NO CIRCUMSTANCES WILL SCO OR ITS REPRESENTATIVES BE LIABLE FOR ANY CONSEQUENTIAL, INDIRECT, SPECIAL, PUNITIVE, OR INCIDENTAL DAMAGES, WHETHER FORESEEABLE OR UNFORESEEABLE, BASED ON YOUR CLAIMS OR THOSE OF YOUR CUSTOMERS (INCLUDING BUT NOT LIMITED TO, CLAIMS FOR LOSS OF DATA, GOODWILL, PROFITS, USE OF MONEY OR USE OF THE SCO PRODUCTS, INTERRUPTION IN USE OR AVAILABILITY OF DATA, STOPPAGE OF OTHER WORK OR IMPAIRMENT OF OTHER ASSETS), ARISING OUT OF BREACH OR FAILURE OF EXPRESS OR IMPLIED WARRANTY, BREACH OF CONTRACT, MISREPRESENTATION, NEGLIGENCE, STRICT LIABILITY IN TORT OR OTHERWISE, EXCEPT ONLY IN THE CASE OF PERSONAL INJURY WHERE AND TO THE EXTENT THAT APPLICABLE LAW REQUIRES SUCH LIABILITY. IN NO EVENT WILL THE AGGREGATE LIABILITY WHICH SCO MAY INCUR IN ANY ACTION OR PROCEEDING EXCEED THE TOTAL AMOUNT ACTUALLY PAID BY YOU TO SCO FOR THE LICENSE OF THE SCO PRODUCT THAT DIRECTLY CAUSED THE DAMAGE. SOME JURISDICTIONS DO NOT ALLOW THE LIMITATION OF EXCLUSION OF LIABILITY FOR INDIRECT, SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES SO THE ABOVE LIMITATION MAY NOT APPLY TO YOU.

[emphasis added]

Sorry for their screaming, but that's typical in warranty sections of legal docs. Look what you can't do if you get the license for a desktop:1.4 "Linux Desktop System" means a single user computer workstation controlled by a single instance of the Linux Operating System. It may provide personal productivity applications, web browsers and other client interfaces (e.g., mail, calendering, instant messaging, etc). It may not host services for clients on other systems.

Here's an interesting bit:

2.3 Provided Company provides the Linux System information and pays SCO the applicable right-to-use license fees required as included Section 1 of Exhibit A to this Agreement, SCO grants Company the right to use all, or portions of, the SCO Product only as necessary to use the Linux Operating System on each Linux System for which the appropriate CPUs have been licensed from SCO. Company must take reasonable means to assure that the number of CPUs does not exceed the permitted number of CPUs. Such right is granted to use the SCO Product in conjunction with the Linux Operating System solely in Object Code format.

Oh, they get to audit you too, and if you didn't do your proper bookwork, well, it's out with the wallet. Naturally. If you underpaid by a certain threshold, you pay for the audit yourself, you thief. Thou also shalt not "reverse engineer or decompile, translate, create derivative works or modify any of the SCO Product", without writing to them first, just in case any of you were thinking of getting cute:

If Company wishes to exercise any rights under Article 6.1b of the EC Directive on the Legal Protection of Computer Software (Directive 91/250), Company shall, in the first instance, write to SCO's Legal Department at the address above.

If you are unhappy with them, go to Utah courts only to sort it out. You agree it's Utah or nowhere:

9.5 This Agreement shall be governed by, and construed and enforced in accordance with, the laws of the State of Utah and the United States of America, specifically excluding the United Nations Convention on Contracts for the International Sale of Goods, and without giving effect to conflict of laws. Any litigation or arbitration between the Parties shall be conducted exclusively in the State of Utah.

And they don't have to actually serve you in person. You must agree that they can serve you by mail, certified or registered.

Far be it from me to tell anyone what to do, either SCO with its business, or anyone out there wanting to get one of these things. No doubt you have your attorney you can ask to advise you.

But, as long as we're getting misty-eyed about rights, does anyone really want to be treated like this? SCO has brought that question to the fore, and speaking only for myself, I can't see how anything could highlight more plainly the difference between proprietary and free software than this case and this license do. Does it sound like both sides have rights, in an equitable arrangement of benefit to both parties, or does it read like a plea bargain deal?

According to this article, now SCO wants us to pay them $32 per device using embedded Linux. Eek. I guess that means your Zaurus is now contraband. There's just one thing. Maybe SCO's never used a Zaurus or a Tivo, which is another device us pirates need to pay them $32 to run, but, as cool as your Zaurus and your Tivo are, unless they have a secret life when you aren't looking, do they need NUMA or RCU? Mwuahahahahaha. Which reminds me: did you note in the transcript of the teleconference that McBride only mentioned these two, not the complete foursome?... Uh oh. Hide your Linux watch. No. Do the right thing and turn yourself in and get your lawyer to work out the best deal possible.

Favorite quotation from the article is from, believe it or not, an analyst, who says:

"This situation is rather odd in a lot of ways," said Gordon Haff, a senior analyst at Illuminata."

Sounds like the Onion. This analyst, to quit horsing around for a minute, seems to actually get it.

********************************

THE SCO GROUP, INC.
INTELLECTUAL PROPERTY 
COMPLIANCE LICENSE FOR LINUX
This Intellectual Property Compliance License Agreement for Linux
("Agreement") is made and entered into on the date last executed by and
between The SCO Group, Inc., for itself or its Subsidiaries
(collectively referred to herein as ("SCO"), a corporation of the State
of Delaware, with its place of business at 355 South 520 West, Suite
100, Lindon, Utah 84042, U.S.A., and __________________ ("Company"), a
corporation of the State of ___________________, with its place of
business at ______________________________________. 
RECITALS
WHEREAS, SCO is a licensor, manufacturer and distributor of SCO software
and related products and materials, and 
WHEREAS, SCO wishes to grant and Company wishes to accept certain
limited rights to use certain SCO software programs, which rights
Company wishes to accept; 
NOW, THEREFORE, in consideration of the mutual promises made herein it
is agreed as follows:
1.0	DEFINITIONS
1.1	"Code" shall mean computer programming instructions.
1.2	"CPU " shall mean a single physical computer processor.
1.3	"General Purpose Computer System" means a commercially available
system which is intended to be reprogrammable by the end user and is
either (i) intended for primary use as a general purpose business
computer, a personal computer, or a scientific/technical workstation; or
(ii) part of a network configuration whose primary purpose is for
executing general application programs supporting general business,
personal, or scientific/technical activities.
1.4	"Linux Desktop System" means a single user computer workstation
controlled by a single instance of the Linux Operating System.  It may
provide personal productivity applications, web browsers and other
client interfaces (e.g., mail, calendering, instant messaging, etc). It
may not host services for clients on other systems. 
1.5	"Linux Operating System" shall mean an operating system
distributed under the name Linux or a derivative thereof.
1.6	"Linux Point of Sale/Embedded System" means a computer system,
controlled by a single instance of the Linux Operating System, that can
not be used as a General Purpose Computer System and, as such, is (1)
restricted in  normal use to the execution of a predefined set of
special purpose applications, and (2) does not allow an end user,
directly or indirectly, to (i) add or run general purpose application
software; (ii) add or administer users; or (iii) provide system
administration functions other than diagnostics and maintenance.
1.7	"Linux System" shall mean a computer system, containing the
licensed CPUs, controlled by a single instance of the Linux Operating
System.
1.8	"Object Code" shall mean the Code that results when Source Code
is processed by a software compiler and is directly executable by a
computer.
1.9	"SCO Product" shall mean the SCO intellectual property in Object
Code format included in any or all of the following: (i) the Software,
(ii) the Updates and (iv) any copy of the Software or Updates; to the
extent made available to You.
1.10	"Software" shall mean the Linux Operating System in Object Code
format.
1.11	"Source Code" shall mean the human-readable form of the Code and
related system documentation, including all comments and any procedural
language. 
1.12	"Update" shall mean the updates or revisions in Object Code
format of the Software that You may receive.
2.0	GRANT OF RIGHTS AND OBLIGATIONS
SCO MAKES NO GRANT OF RIGHTS OF ANY KIND WITH RESPECT TO ANY SOFTWARE
OTHER THAN THE SCO PRODUCT COVERED BY THIS AGREEMENT.
THIS AGREEMENT DOES NOT INCLUDE ANY RIGHTS TO ACCESS, USE, MODIFY OR
DISTRIBUTE ANY SCO SOURCE CODE IN ANY FORM UNDER ANY LICENSING
ARRANGEMENT. 
2.1	Provided Company complies fully with this Grant of Rights and
Obligations, SCO will not consider such use of the SCO Product licensed
by Company under this Agreement to be in violation of SCO's intellectual
property ownership or rights.
2.2	This Agreement does not grant a right to receive any
distribution of software from SCO.  SCO grants Company a limited and
non-exclusive right to SCO Product under the terms and conditions of
this Agreement.  Company acknowledges that it is not granted any other
right except for the rights specifically set forth herein.  
2.3	Provided Company provides the Linux System information and pays
SCO the applicable right-to-use license fees required as included
Section 1 of Exhibit A to this Agreement, SCO grants Company the right
to use all, or portions of, the SCO Product only as necessary to use the
Linux Operating System on each Linux System for which the appropriate
CPUs have been licensed from SCO.  Company must take reasonable means to
assure that the number of CPUs does not exceed the permitted number of
CPUs.  Such right is granted to use the SCO Product in conjunction with
the Linux Operating System solely in Object Code format. 
3.0	ORDERS, PRICE AND PAYMENT
3.1	Company's initial order for the right-to-use licenses, including
Linux System details and License Fees, is included in Exhibit A of this
Agreement.  SCO shall invoice Company, at the time of execution of this
Agreement, pursuant to the information contained in Section 2 of Exhibit
A.  
Caldera shall have the right to increase any list price on thirty (30)
days prior written notice.
3.2	Should Company require to add additional right-to-use licenses
for Linux Systems or additional CPUs, Company shall submit a purchase
order to, and subject to acceptance by, SCO's Sales Administration
Department located at SCO's Santa Cruz, California facility.  Such
purchase orders shall state the Linux System details and License Fees
included in Exhibit A of this Agreement and shall reference and bind
Company to the terms and conditions of this Agreement.
3.3	License Fees are exclusive of all applicable taxes.  Company
agrees to pay all taxes associated with right-to-use licenses ordered
under this Agreement, including but not limited to sales, use, excise,
added value and similar taxes and all customs, duties or governmental
impositions, but excluding taxes on SCO's net income.
3.4	Payments for  shall be due and payable thirty (30) days from
date of invoice.  SCO may charge Company interest at the rate of 1 1/2
percent per month, or such maximum rate as may be permitted by law,
whichever shall be less, with respect to any sum that is not paid when
due.
3.5	 Company shall make all payments in United States Dollars.
4.0	RECORD KEEPING AND AUDIT
4.1	Company shall keep full, clear and accurate records with respect
to Linux Systems and the number of licensed CPUs per Linux Systems.
Such records shall contain all information necessary to determine
exactly all fees due hereunder.  Company shall provide to SCO, upon
request by SCO, reports with such records including the number of copies
of  made by Company. 
4.2	SCO may cause an audit to be made at its expense (except as
provided herein) of the applicable records to verify statements rendered
hereunder, and prompt adjustment shall be made by the proper party to
compensate for any errors or omissions disclosed by such audit.  Any
such audit shall be conducted during regular business hours at Company's
offices and in such a manner as not to interfere with Company's normal
business activities.  In the event that an audit discloses an
underpayment by Company to SCO of the greater of five percent (5%) or
the equivalent of Five Thousand United States Dollars ($5,000), then
Company agrees to bear the cost of the audit.
4.3	Upon written request, SCO agrees to make available to Company,
in the event that SCO makes any claim with respect to such audit, its
records and reports pertaining to the audit and any such records and
reports prepared for SCO by third parties.
5.0	TERM OF AGREEMENT; OBLIGATIONS UPON TERMINATION
This Agreement shall remain in effect until terminated as set forth
herein. Company may terminate this Agreement, without right to refund,
by notifying SCO of such termination. SCO may terminate this Agreement,
upon reasonable notice and without judicial or administrative
resolution, if Company or any of Company's employees or consultants
breach any term or condition hereof.
Upon the termination of this Agreement for any reason, all rights
granted to Company hereunder will cease.
6.0	PROPRIETARY NATURE OF SCO PRODUCTS AND OWNERSHIP 
6.1	No title to or ownership of the SCO Product is transferred to
Company.  Notwithstanding any provision of this Agreement to the
contrary, Company acknowledges that SCO, owns and retains all title and
ownership of all intellectual property rights in the SCO Products.   
6.2	SCO Products and related materials, and all copyrights, patent,
trade secret and other intellectual and proprietary rights therein, are
and remain the valuable property of SCO and its suppliers.  Company
shall not reverse engineer or decompile, translate, create derivative
works or modify any of the SCO Product.  If Company wishes to exercise
any rights under Article 6.1b of the EC Directive on the Legal
Protection of Computer Software (Directive 91/250), Company shall, in
the first instance, write to SCO's Legal Department at the address
above.
7.0	LIMITATION OF WARRANTY
SCO MAKES NO WARRANTIES OF ANY KIND EXPRESSED OR IMPLIED WITH RESPECT TO
ANY SOFTWARE OTHER THAN THE SCO INTELLECTUAL PROPERTY DEFINED BY THIS
AGREEMENT.
SCO WARRANTS THAT IT IS EMPOWERED TO GRANT THE RIGHTS GRANTED HEREIN.
SCO DOES NOT WARRANT THAT THE FUNCTION CONTAINED IN SCO PRODUCT WILL
MEET YOUR REQUIREMENTS OR THAT ITS OPERATION WILL BE UNINTERRUPTED OR
ERROR FREE.
ALL WARRANTIES, TERMS, CONDITIONS, REPRESENTATIONS, INDEMNITIES AND
GUARANTEES WITH RESPECT TO THE SOFTWARE, WHETHER EXPRESS OR IMPLIED,
ARISING BY LAW, CUSTOM, PRIOR ORAL OR WRITTEN STATEMENTS BY ANY PARTY OR
OTHERWISE (INCLUDING, BUT NOT LIMITED TO ANY WARRANTY OF MERCHANTABILITY
OR FITNESS FOR A PARTICULAR PURPOSE OR ANY IMPLIED WARRANTY OF
NON-INFRINGEMENT OF THIRD PARTY INTELLECTUAL PROPERTY RIGHTS) ARE HEREBY
OVERRIDDEN, EXCLUDED AND DISCLAIMED. SOME STATES OR COUNTRIES DO NOT
ALLOW THE EXCLUSION OF IMPLIED WARRANTIES, SO THE ABOVE EXCLUSION MAY
NOT APPLY TO YOU. THIS WARRANTY GIVES YOU SPECIFIC LEGAL RIGHTS AND YOU
MAY ALSO HAVE OTHER RIGHTS WHICH VARY FROM STATE TO STATE OR COUNTRY TO
COUNTRY.
8.0	LIMITATION OF LIABILITY
UNDER NO CIRCUMSTANCES WILL SCO OR ITS REPRESENTATIVES BE LIABLE FOR ANY
CONSEQUENTIAL, INDIRECT, SPECIAL, PUNITIVE, OR INCIDENTAL DAMAGES,
WHETHER FORESEEABLE OR UNFORESEEABLE, BASED ON YOUR CLAIMS OR THOSE OF
YOUR CUSTOMERS (INCLUDING BUT NOT LIMITED TO, CLAIMS FOR LOSS OF DATA,
GOODWILL, PROFITS, USE OF MONEY OR USE OF THE SCO PRODUCTS, INTERRUPTION
IN USE OR AVAILABILITY OF DATA, STOPPAGE OF OTHER WORK OR IMPAIRMENT OF
OTHER ASSETS), ARISING OUT OF BREACH OR FAILURE OF EXPRESS OR IMPLIED
WARRANTY, BREACH OF CONTRACT, MISREPRESENTATION, NEGLIGENCE, STRICT
LIABILITY IN TORT OR OTHERWISE, EXCEPT ONLY IN THE CASE OF PERSONAL
INJURY WHERE AND TO THE EXTENT THAT APPLICABLE LAW REQUIRES SUCH
LIABILITY.  IN NO EVENT WILL THE AGGREGATE LIABILITY WHICH SCO MAY INCUR
IN ANY ACTION OR PROCEEDING EXCEED THE TOTAL AMOUNT ACTUALLY PAID BY YOU
TO SCO FOR THE LICENSE OF THE SCO PRODUCT THAT DIRECTLY CAUSED THE
DAMAGE.
SOME JURISDICTIONS DO NOT ALLOW THE LIMITATION OF EXCLUSION OF LIABILITY
FOR INDIRECT, SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES SO THE ABOVE
LIMITATION MAY NOT APPLY TO YOU.
9.0	MISCELLANEOUS
9.1	Neither party shall be liable for any delay or failure in its
performance hereunder due to any cause beyond its control provided,
however, that this provision shall not be construed to relieve Company
of its obligation to make any payments pursuant to this Agreement.
9.2	Company may not assign, sublicense, rent, lend, lease, pledge or
otherwise transfer or encumber the SCO Products, this Agreement or any
of the individual licenses granted under it or Company's rights or
obligations hereunder.
9.3	All notices and requests in connection with this Agreement may
be sent or delivered to the addresses above by hand, by certified  mail
return receipt requested, by fax, or by courier.
9.4	Support and maintenance are not available under this agreement.
9.5	This Agreement shall be governed by, and construed and enforced
in accordance with, the laws of the State of Utah and the United States
of America, specifically excluding the United Nations Convention on
Contracts for the International Sale of Goods, and without giving effect
to conflict of laws.  Any litigation or arbitration between the Parties
shall be conducted exclusively in the State of Utah.
Company  expressly consents to the jurisdiction of such courts.  Process
may be served by U.S.  mail, postage prepaid, certified or registered,
return receipt requested, by express courier such as DHL or Federal
Express, or by such other method as is authorized by law.  Nothing in
this Section will prevent SCO from seeking injunctive relief against
Company or filing legal actions for payment of outstanding and past due
debts in the courts.
9.6	If any provision or provisions of this Agreement shall be held
to be invalid, illegal or unenforceable, the validity, legality and
enforceability of the remaining provisions shall not in any way be
affected or impaired thereby.  The Parties will seek in good faith to
agree on replacing an invalid, illegal, or unenforceable provision with
a valid, legal, and enforceable provision that, in effect, will, from an
economic viewpoint, most nearly and fairly approach the effect of the
invalid, illegal, or unenforceable provision.
9.7	This shall be the only agreement between the Company and SCO
with respect to the subject matter herein and shall not be modified
unless a written amendment has been signed by one of SCO's and Company's
officers.
9.8	This Agreement is signed by Company on behalf of all the
employees and agents entitled by Company to use of .  Company undertakes
to make all users of  aware of their responsibilities under this
Agreement.  This Agreement supercede all prior agreements between SCO
and Company.

IN WITNESS WHEREOF, the parties hereto have executed this Agreement,
effective as of the last date properly executed by both parties.  All
signed copies of this Agreement shall be deemed originals.


THE SCO GROUP, INC.	___________________________________

By:			By:		

Name:			Name:		

Title:			Title:		

Date:			Date:	

  


The License, Should You Choose to Accept It | 37 comments | Create New Account
Comments belong to whoever posts them. Please notify us of inappropriate comments.
radiocomment
Authored by: Anonymous on Wednesday, August 06 2003 @ 08:32 PM EDT
Could somebody, preferably PJ, explain the meaning of section 9.6?

Do you have to keep paying and submitting to audits even if a court finds their is no SCO IP in Linux, or if the SCO IP has been removed from your distribution?

Likewise what happens if a court finds there was no SCO IP in Linux in the first place, or there wasn't in your particular distribution, would you have keep paying and submitting to audits in this case?


quatermass

[ Reply to This | # ]

radiocomment
Authored by: Anonymous on Wednesday, August 06 2003 @ 08:33 PM EDT
Add to both questions, especially last question: Would you be able to get your
money back for the licenses already purchased?
quatermass

[ Reply to This | # ]

radiocomment
Authored by: Anonymous on Wednesday, August 06 2003 @ 09:16 PM EDT
Ask your lawyer, quatermass, but those are good questions to ask. For real. style="height: 2px; width: 20%; margin-left: 0px; margin-right: auto;">pj

[ Reply to This | # ]

radiocomment
Authored by: Anonymous on Wednesday, August 06 2003 @ 09:41 PM EDT
http://www.vnunet.com/News/1142837

Looking forward to seeing SCO sued into oblivion.


Z

[ Reply to This | # ]

radiocomment
Authored by: Anonymous on Wednesday, August 06 2003 @ 10:29 PM EDT
Hm... Z's comment has me thinking. I wonder at the depth of financial resources SCO has and how many fronts they can fight on at once? It would be nice to see the Linux community mobilize in as many countries as possible and launch as many legal assaults on SCO as can be managed in order to force SCO to run through their funds in court cases much more quickly than they anticipated.

They'll either, a) die the death of a thousand legal cuts, or b) the people backing them (*cough*Sun/Micro$oft*cough*) will be forced to expose themselves by dumping more money into SCO to fund their legal efforts.

Does anyone have any thoughts on this?


Sean

[ Reply to This | # ]

radiocomment
Authored by: Anonymous on Wednesday, August 06 2003 @ 10:34 PM EDT
Yup, it looks like it violates the GPL. Quick, someone who contributed to Linux
get a preliminary injunction!
Aaron

[ Reply to This | # ]

radiocomment
Authored by: Anonymous on Wednesday, August 06 2003 @ 11:22 PM EDT
Reading SCO's license conditions, I prefer to use my Linux under the GPL. Anyway I don't want to be on SCO's list of people and companies to whom a useless licence can be sold with some legal threats. Think about the dozens of "salesmen" lining up at your front door when SCO starts selling that list.

With regard to the financial situation at SCO: their actions give me the impression that they are in desperate need of some cashflow. Is there someone with a financial background that can confirm it, checking SEC filings for example?


MathFox

[ Reply to This | # ]

radiocomment
Authored by: Anonymous on Thursday, August 07 2003 @ 01:20 AM EDT
My exact thoughts Aaron. They are just taking the whole of the Linux kernel as their own "VALUABLE TRADE SECRETS."

Notice they are calling their "product" Linux. Correct me if I'm wrong, but Linux is a registered trademark to Linus. I was not aware that a judge transferring ownership to his Royal Highness, McBride.

What's more, I noticed, they refuse to provide you with any of the *actual* binaries they are requiring you to only run it with. How can you not, "reverse engineer or decompile, translate, create derivative works or modify any of the SCO Product," without them providing you a binary? Wouldn't compiling the source code effectively be creating a derivative work? What if you compile in Robert Love's Preempt patch? Oh right, SCO owns anything that runs on UNIX. Perhaps they expect you to keep the source code, but just don't dare look at it!


nexex

[ Reply to This | # ]

radiocomment
Authored by: Anonymous on Thursday, August 07 2003 @ 03:20 AM EDT
nexex:

I am not a lawyer, so I'm just going by their web site, Darl quotes, etc. According to my interpretation of SCO's statements, you supposed to only install Linux binaries, but install you get from some Linux distributors (but not SCO). Recompiling them, is not allowed.

If SCO's theories were true, then Linux distributors are committing a copyright violation by giving you Linux in the first place, so in order to sign SCO's Linux license, you must already have been party to an illegal act. In other words, I think there is a massive internal contradiction.

When it gets to embedded Linux, the internal contradiction in SCO's theories is even more apparent. SCO says on their site that their license is not given to Red Hat, etc., because that would violate the GPL. Darl says Red Hat are violating the GPL by distributing Linux. If this theory is true, it must also apply to any embedded Linux manufacturer. So in order for an embedded OEM to sign up as a SCO Licensee, they must according to SCO's theory, violate the GPL, just like Darl seems to think Red Hat are doing now.

For customized Linux, SCO suggests people "outsource" the customization. So it's all the contradictions in the "If SCO's theories were true" paragraph, plus they require you to get a third party ("outsource") to also violate the GPL, plus the third party ("outsource") must violating SCO's IP [because they haven't signed for a SCO Linux license) or SCO's contract (because if they have signed they are not supposed to recompile).

To me at least, it seems like the whole thing is just riddled with self-contradictions

Sean: I think we will find out their financial condition around August 14th, because that is when they have their conference call to discuss earnings. So I expect they must file their quarterly results then, look at www.sec.gov. However the results only give a snapshot of their condition at the close of the quarter, so you'll have to guess how it's changed since then (one and a half months I think). I have seen nothing to indicate Sun owes them any more money. I believe Microsoft's existing contract has some to be paid over several quarters, and an option for more, but I do not think it is enough to make a real difference to SCO's overall position. I'm not sure when they stopped selling OpenLinux, but they have lost any sales of that since then, and any of the new Linux license sales will not ship up until next quarter. I believe SCO has got loans from Canopy before, so this must be an option for SCO - they also could cut expenses by laying off staff.


anon

[ Reply to This | # ]

radiocomment
Authored by: Anonymous on Thursday, August 07 2003 @ 03:41 AM EDT
Section 8.0: "MISREPRESENTATION" stood out. Is this usual in a software license?

If you signed up because of MISREPRESENTATION, according to SCO would you have any come back?

Would the FTC agree?

I don't know if this is in any way analagous, but I can't help thinking about some of those diet "miracles", multi-level marketing things, etc., where they put some disclaimer or term of sale in really small print which totally contradicts all the advertising and marketing material.


anon

[ Reply to This | # ]

radiocomment
Authored by: Anonymous on Thursday, August 07 2003 @ 03:47 AM EDT
That's not all they are doing to violate the GPL:

http://shop.caldera.com/cald era/license.html

"Non-Commercial UNIX Licenses"

"SCO's Free Non-Commercial Use UNIX® Licensing Program has been discontinued. We regret that we have been forced to take this action due to the significant abuse of the program by commercial enterprises. However, you can purchase a 60-day evaluation license with a UnixWare or OpenServer media kit, or you can download a Non Commercial Use license for OpenLinux. Please see the Download page for details."

Non-Commercial Use License for Linux!?

Not forgetting that offering a GPLed product under any other license, when you are not the relevant license holder and thus have the source code under license yourself, is misappropriation of someone else's work and reputation, and is disallowed by the GPL.


Wesley Parish

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radiocomment
Authored by: Anonymous on Thursday, August 07 2003 @ 03:59 AM EDT
Wesley, it is possible (under the GPL) to bundle a Linux kernel with propriatary software. You can restrict integral redistribution of the whole system this way (SuSE did (does) something like that with their YaST installer/configurator tool). As long as the GPL software can be unbundled and freely distributed seperate from the propriatary stuff this is legal.

Think Oracle selling CD's with Linux(free) and their database(payware). They have the right to restrict distribution of the database that they provide on the CD, but not the right to put additional restrictions on the Linux kernel.


MathFox

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radiocomment
Authored by: Anonymous on Thursday, August 07 2003 @ 04:15 AM EDT
One last point before I crawl back to my basement to compile device drivers and play LARPs (attention Forbes!).

It sounds to me the analogy to the RIAA vs Napster is a good one - but Darl has it the wrong way round

Napster wanted to make money off distributing other people's copyrighted work (music). They wanted to effectively (in practice if not in law) re-license this work for their own (Napster's) benefit. David Boies represented them. David Boies lost.

SCO want to make money off other people's copyrighted work (their contributions to Linux). They want to effectively re-license this work (in practice if not in law) for their own (SCO's) benefit. David Boies is representing them. David Boies will ?


anon

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radiocomment
Authored by: Anonymous on Thursday, August 07 2003 @ 04:38 AM EDT
Be careful with the EE Times article - it looks like they haven't been reading carefully. EE Times say that it is the OEM who should buy the license but SCO say (at http://www.sco.com/scos ource/linuxlicensefaq.html) it is the end user. This is an important distinction because if the OEM believes a license is required they cannot distribute the non infringing parts according to the GPL.

This does however present a useful opportunity for anyone who has a device running embedded Linux. All embedded devices will be running a modified kernel with unnecessary parts removed. The supplier of your device must give you a copy of this on request (as per the GPL) but you have no way of telling if it contains SCOs claimed code. The version number is no clue as even if it says 2.2 it might have had 2.4 code merged into it - therefore every owner of such a device should ask SCO to either say what code infringes so they can check or check the kernel themselves. Of course they have to do the latter which with only a few hundred requests could keep them out of mischief for a while :-)

The free license to anyone who has bought OpenLinux is also interesting as it is a move away from the position that could just about be defended of OpenLinux isn't properly licensed but we won't prosecute OpenLinux users to explicitly granting a license. If they grant any license to OpenLinux customers it must give them all of the rights of the GPL including free redistribution.

To my mind the biggest issue now is how anyone can get a ruling before 2005. Presumably Red Hat thought that they could get their declaratory judgement sooner than that (maybe they still do) but SCO think they can drag that out even longer than the IBM case.Is a preliminary injunction the only way to get something to happen quickly? If so what grounds could there be for one? I believe some kernel authors have assigned the copyright in their contributions to the FSF, is there any chance that the FSF would act in a case that required a kernel contributor to claim that SCO was illegally using their code?


Adam Baker

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radiocomment
Authored by: Anonymous on Thursday, August 07 2003 @ 04:51 AM EDT
I'm still here.

If SCO thinks it's the end users, and not the manufacturer, who must buy their license, then why did Darl head off to Japan to talk to embedded manufacturers?

If SCO thinks it's the end users: I thought they said their license is only for commercial purposes.

If SCO thinks it's the end users: Are they really going to try and sue millions of Tivo or Linux-mobile-phone owners? How do they even know who they are? What are they going to do, write a letter to everybody in the telephone directory, saying "You owe us $32 for each of the following you possess: Tivo, Sharp Zaurus, etc. Please sign the attached contract, remit payment, and register at our web site to activate your license(s)."?


anon

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radiocomment
Authored by: Anonymous on Thursday, August 07 2003 @ 05:31 AM EDT
Let's each buy a share of SCO. If enough of us do it and assign our voting proxy
to someone like Linus Torvalds, we can force SCO's abuse to stop and not have to
wait for the courts.
jim

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radiocomment
Authored by: Anonymous on Thursday, August 07 2003 @ 05:37 AM EDT
Sorry jim; even the thought of investing in SCO makes my stomach turn! I think
it's better to fight them in court.
MathFox

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radiocomment
Authored by: Anonymous on Thursday, August 07 2003 @ 05:39 AM EDT
PJ, Your site sucks;-) It has made me into a bad Christian, thirsty for revenge
against SCO and the other foes of freedom, and now that thirst needs slaking.
What can individual users do to facilitate the fight? Is there a central
"defend Linux and free software" activism website? How can I donate my $32 to a
"sap SCO's resources and stomp them into the dust" fund? Thanks. style="height: 2px; width: 20%; margin-left: 0px; margin-right: auto;">Kevin
Murphy

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radiocomment
Authored by: Anonymous on Thursday, August 07 2003 @ 05:44 AM EDT
I want to write a letter to my local trading standards office - lets see if I can persuade them to open a file on SCO. I am based in the UK, so if anybody who knows British / European consumer law cares to suggest improvements I would be delighted:

Dear Trading Standards,

It has come to my attention that a US based firm (called the SCO group), has been engaged in what looks like an international protection racket. Basically they are arguing that the widely-used free software product 'Linux' (www.linux.com) contains stolen program information and that all users of Linux based computers must pay them a license fee or risk litigation. The problem is that they refuse to publicly state their evidence other than a viewing centre in Utah USA, and then only under some unusual conditions.

In an announcement made yesterday they claimed that everybody who has bought an appliance that makes use of Linux software in some way also owes them money - for example they claim that owners of a Tivo machine (http://www.tivo.com - a computerised video recorder that uses 'Embedded' Linux software) owe them $32 per appliance.

May I suggest that since this issue is only just beinning, you please open a file on this company and keep observing their activities. This company wants to mislead british businesses and consumers into thinking they have to pay for the rigth to use Linux (which is a free software and therefore can be used without paying anybody!).

I appreciate this is not exactly your 'run-of-the-mill' fraud, and there may be verry little that Trading Standards can do untill there are any victims.

These sites contain very extensive analysis of the fuss SCO are making right now: http://radio.weblogs.com/0120124/Salim Fadhley

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radiocomment
Authored by: Anonymous on Thursday, August 07 2003 @ 05:46 AM EDT
I think that's a bad idea. You'd have to buy more than 22.5 million, as they have the right to issue up to 45 million. It also rewards SCO's executives and Canopy by increasing the stock price when they sell stock. I think that you'd probably have to buy the whole 45 million, because you can't just trample on minority shareholders. SCO want people to buy their stock.

If all these new shareholders are working together, they might be SEC rules about it, I don't know. There are rules about lots of things.

We also haven't seen SCO's employment agreements, so if you just fire or demote Darl and team, they might end up suing you. So the plan seems both unfeasible and counter productive.

I think SCO thinks this can be resolved by a buy out or cash settlement. That might resolve the short-term, but I think Linux vendors should also want show the integrity of both their past and future actions, and a buy out or settlement won't address that.

Lastly, I do not think the Linux side should be conceding in any way, when SCO have not shown in public any verifiable evidence (I don't count some NDA session in the Marriott, etc, where the evidence is selective, edited, and not open to full examination).


anon

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radiocomment
Authored by: Anonymous on Thursday, August 07 2003 @ 05:47 AM EDT
MathFox: Here are the possible outcomes. SCO's claims are baseless and no
Linux user need pay them a dime. We won't know this until 2005 or later. SCO's
claims have merit and we have to pay them $699 (or $1399). Or we buy the stock
at $13, give out proxies to Linus and make them, as shareholders stop this
nonsense. The $13 is not an investment in them but a very cheap way to make
this all go away.
jim

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radiocomment
Authored by: Anonymous on Thursday, August 07 2003 @ 05:49 AM EDT
"Bad idea..." was about buying 1 share, in case that wasn't clear.

UK - SCO has an office, in I think Hatfield. BTW, I suggest you call the Trading standards office as well as writing, maybe even before, as you can probably get help on what issues are within their remit, your concerns etc., so you know what to write about.


anon

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radiocomment
Authored by: Anonymous on Thursday, August 07 2003 @ 06:50 AM EDT
I think one of PJ's great contributions to this whole affair is the humor she brings to it.

The whole thing makes me so hopping mad (which is exactly what SCO wants to do, piss off as many linux users as possible), that I can't keep my cool about it. That is exactly when you can be tricked into making mistakes. At all times we must keep our sense of humor.

How often do you hear, or feel like saying, "what can we do to just make this thing go away?" Why are we in such a rush to make this "go away?" Perhaps, when viewed properly, this is a great opprotunity.

Think about it. Our IP laws are in a broken state right now, and linux is seriously rocking the boat. We should be thankful that the entire IP system is being called into question by SCO's behavior. I recall reading on slashdot not too long ago that the EU is currently debating whether to allow software patents or not. What a wonderful thing to have SCO sabre rattling at this time. They are even sabre rattling at the U.S. Gov right now.

Perhaps the longer this goes on the better. Let the world see how broken the patent and general IP system is. Especially the lawmakers. Let them look long and well upon it.

PJ's research is exactly what the doctor ordered. When the day of reckoning comes, a full and accurate record will be required to make the most of it.

Chris Marshall


Chris Marshall

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radiocomment
Authored by: Anonymous on Thursday, August 07 2003 @ 06:53 AM EDT
Personally, I don't know if the system is broken, it probably is, all systems are broken

However, my opinion, I think SCO is going to lose even under the current broken system


anon

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radiocomment
Authored by: Anonymous on Thursday, August 07 2003 @ 07:24 AM EDT
anon:

"Broken" is not a binary distinction, it's a spectrum. Broken in what way, and to what degree?

I meant broken in that it is retarding innovation, not accelerating it, which is supposedly it's purpose. Now companies like IBM, which you would think could turn the system to their advantage, feel its claws around their throat, and are doing everything they can to help us and linux.

Imagine you are Cisco, and you are toying with the idea of patenting Network Address Translation. You might be inclined to cheerlead legislative efforts to strengthen you ability to enfore such a patent against the linux kernel. Then you get a letter from SCO. They want $32 per router you sell. See my point?

Of course SCO is going to lose. The question is, exactly how are they going to lose and in what way? How can we make the most of it?

I am actually looking forward to having them around for a few years as an existance proof.

Chris Marshall


Chris Marshall

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radiocomment
Authored by: Anonymous on Thursday, August 07 2003 @ 07:42 AM EDT
My point is SCO can only (and in my opinion, will) be defeated within the current legal system, not some idealistic future one.

SCO's claims against IBM relate to contracts - which will continue to exist, whatever the system.

SCO's claims against Linux relate to types of IP, which I don't even think are part of the system, in my opinion, namely (1) trade secrets which are apparently not secret, (2) "control rights", (3) ability to over-ride somebody else's copyrights, because you think you have a copyirght claim on part of something. I am not a lawyer, but these don't seem like an established part of the legal system to me, in my opinion.


anon

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radiocomment
Authored by: Anonymous on Thursday, August 07 2003 @ 08:51 AM EDT
Anon:

I agree with you that SCO will be defeated in the current legal system. Your summary of the issues is dead-on. I especially like your point 3, which is what really gets me hopping mad at SCO, that they are trying to get their copyright respected whilst simultaneously violating the copyrights of a much larger contribution on the part of thousands of developers who volunteered their time and talent and only asked that their work be kept free. 100 or a thousand lines of code versus over 10 million. The sheer gall.

The thrust of my argument was not to pine for some future idealistic legal system to be brought into existance. I just think software patents have gotten out of control. Remember the one-click patent fiasco? This is the chickens coming home to roost.

Something has to reign in the abuse of the patent system. SCO may be just the ticket.

Chris Marshall


Chris Marshall

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radiocomment
Authored by: Anonymous on Thursday, August 07 2003 @ 09:00 AM EDT
Anon:

I guess what I am saying is that I am looking forward to the precedents that will be set, in the current legal system, as it deals with SCO in the next year or two.

And that the last thing we want is for SCO to go away or be bought off. This is very bad publicity for the nonsense of many of the software patents that have been granted in the last 10 years. Many players have been cheering that nonsense on. Let the stink of it reach the ramparts of heaven itself. Let all be made aware, especially the makers of law.

Chris Marshall


Chris Marshall

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radiocomment
Authored by: Anonymous on Thursday, August 07 2003 @ 09:09 AM EDT
IBM have filed a counter claim http://news.com.com/2100-101 6_3-5060965.html

IBM alleges things SCO violating GPL (and therefore copyright), and SCO products infringing 4 of IBM's patents.

For the patents, "IBM is seeking unspecified monetary damages and an injunction stopping SCO from shipping its software" - "The infringing SCO software, IBM said, is its UnixWare and OpenServer operating systems, its SCO Manager remote administration tool and its Reliant HA "


anon

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radiocomment
Authored by: Anonymous on Thursday, August 07 2003 @ 09:38 AM EDT
Hi guys,

On the trading union issue, I wonder if the EU Commission would be interested? They just put out a report recommending open standards. I'll see if I can find the url.


pj

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radiocomment
Authored by: Anonymous on Thursday, August 07 2003 @ 09:39 AM EDT
Here: http://europa.eu.int/information_society/eeurope/action_plan/index_en.htmpj

[ Reply to This | # ]

radiocomment
Authored by: Anonymous on Thursday, August 07 2003 @ 09:55 AM EDT
Yes, EU and national governments are very serious about the adoption of open source. (They don't mind to spend on software, but prefer to stimulate the European instead of the American economy.)

For a SCO complaint I would contact the National or EU fair trade buro. Sorry, I don't have phone numbers or adresses. :(


MathFox

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radiocomment
Authored by: Anonymous on Thursday, August 07 2003 @ 10:18 AM EDT
pj, is there anything that we, the Linux community, can do in this situation other than just watch? I'm a Linux Newbie myself and this whole SCO-Scam makes me mad as hell. We need an outlet for the rage of this injustice and I'd prefer it be something useful in helping to obliterate the SCO-Scourge and their illegal activities.

Contact the SEC? BBB? FBI? DOD? Do any of the new anti-terrorist laws apply to anything they're doing (since the Feds in the U.S. use Linux)? I'm grasping at straws here.

Z


Z

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radiocomment
Authored by: Anonymous on Thursday, August 07 2003 @ 10:47 AM EDT
Z: Start by spreading the word about SCO and why nobody should pay them. Maybe
you can help to bring in the killer penguins to the SCOforum2003 in Vegas (Aug
17-19) or organize some flash-mobbing there. Be creative, keep it legal and
fun!
MathFox

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radiocomment
Authored by: Anonymous on Thursday, August 07 2003 @ 10:52 AM EDT
Z

I think the most constructive thing you can do is continue using linux and to have fun doing it. Help other people learn how to use linux once you are good enough at it.

Whatever you do, don't let the whole SCO thing get you down. There is no way in hell SCO is going to go the distance. Not even the slightest chance. The only real question is will we be no better and no worse off, a little better off, or a lot better off 2 years from now. I'm betting a lot better off.

Four years ago I was the first person at my company using linux. I started solving serious problems for my company by using linux, and building on top of it. I didn't have to convince anyone it was better than windows, I just started saving them money and the more I saved, the more they asked me to keep doing it.

Now there are at least 10 people here who are developers and they are all using linux. We operate a satellite network and the software we run on our packet switch used to run on top of PSOS on VME processor cards. Now we have ported it to linux running on commodity linux boxes.

The momentum linux has behind it is unstoppable at this point.

Relax and have fun learning how to use linux.

Chris Marshall


Chris Marshall

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radiocomment
Authored by: Anonymous on Thursday, August 07 2003 @ 11:05 AM EDT
Its funny (not in Ha Ha way but more of DoH! way) but I got interested in Linux because of what appears to me a blatant Big Brother future for Microsoft's products. The more I look at what they're doing the more I need an escape pod for when the defecation hits the oscillator. I decided to start learning Linux before it was too late and I ended up doing so just in time for SCO-Scam 2003.

Despite that, I'm having a great time at this site (though I wish there was a full-fledged forum). Pamela's humor is terrific, she's very knowledgeable and she doesn't pull any punches. She's giving her best back to the community in its darkest hour and doing a tremendous job.


Z

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radiocomment
Authored by: Anonymous on Thursday, August 07 2003 @ 06:16 PM EDT
Hi Z and all,

Thanks for the compliments. Sorry to inspire unChristian thoughts, but I'm struggling with that myself these days.

I'm open to suggestions about figuring out a better forum. When I started, I never thought anyone much would visit. I was just writing to the air. And I chose radio software because an atty who I was thinking of doing some work for used it and my work would have entailed helping with his blog. Groklaw was born from a need to learn blogging. I actually would like to make a move. I need a place for Groklaw to live more permanently and more accessibly. I want to switch software, maybe to A List Apart? Groklaw just took off, and no one is more amazed than I am. It's been a real pleasure, but it's clear I need to move to larger quarters and figure out a better system of commenting. Anyone's ideas are welcome. Groklaw isn't just mine any more. So, specific suggestions will be taken seriously. Of course, I'd have to be able to actually handle it, from a tech standpoint. That's where the specificity will be helpful.

As to the question of what to do, ask your lawyer for ideas if you wish to do something, or donate money to the appropriate legal fund you feel would be most effective. Money is very important in a legal fight. It costs a great deal to fight well, so money is a significant and truly meaningful help.

PS: I think IBM already has money. : )


pj

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