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| SGI Sends Us a Letter: XFS Is Not a Derivative Work |
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Wednesday, October 01 2003 @ 08:35 PM EDT
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SCO is at it again. They are now, according to Infoworld, giving SGI the IBM treatment: In an Aug. 13 letter addressed to SCO's legal department and released to the media Wednesday, SCO Chief Executive Officer Darl McBride claims that SGI's contributions to Linux put it in breach of its 1986 Unix licensing agreement, originally signed with AT&T Corp. but subsequently transferred to SCO.
According to McBride's letter, "SGI flagrantly permitted the copying and use of our proprietary information without any knowledge of the identities of the recipients" and "subjected our source code to unrestricted disclosure, unauthorized transfer and disposition, and unauthorized use and copying."
The letter threatens to terminate SGI's Unix license as of Oct. 14 should SGI fail to "remedy all violations. SGI says SCO can't terminate because, like IBM, their license is fully paid up and nonterminable. The real question is: how does SCO define "all violations"?
As you probably already know, SGI's most recent 10K has this paragraph in its risks assessment section, sometimes colloquially known as the Chicken Little or "the sky is falling" section, in that you are supposed to list every possible bad thing that could impact your company: We recently received a notice from SCO Group stating its
intention to terminate our fully paid license to certain UNIX-related
code, under which we distribute our IRIX operating system, on the basis
that we have breached the terms of such license. We believe that the SCO
Group's allegations are without merit and that our fully paid license is
nonterminable. Nonetheless, there can be no assurance that this dispute
with SCO Group will not escalate into litigation, which could have a
material adverse effect on SGI, or that SCO Group's intellectual
property claims will not impair the market acceptance of the Linux
operating system.
In the spirit of the open source community, SGI has sent us an open letter, in every sense of the word, in which they clearly and simply set forth exactly what the SCO fuss is all about from their standpoint. What I get from the letter is that they looked for any conceivable problem (looking at it from the SCO twisted viewpoint), found a few minor issues SCO might try to use (and yes, it would have been better had there been zero such), removed them immediately to be on the safe side, despite their belief that they are public domain, and are continuing to do so, and then take their stand: XFS is an innovative SGI-created work. It is not a derivative work of System V in any sense, and SGI has full rights to license it to whomever we choose and to contribute it to open source.
They say their license gives SGI rights to all work they creatively do that does not include AT&T code. Here is the letter:
October 1, 2003
To the Linux Community:
As one of many contributors to the Open Source movement and to Linux,
SGI takes the subject of intellectual property rights seriously. Our
contributions are a valuable expression of ideas which contribute to
the intellectual richness of Linux.
Over the past four years, SGI has released over a million lines of code
under an open source license. Throughout, we have carried out a
rigorous internal process to ensure that all software contributed by
SGI represents code we are legally entitled to release as open source.
When a question was raised by the community earlier in the summer about
the ate_utils.c routine, we took immediate action to address it. We
quickly and carefully re-reviewed our contributions to open source, and
found brief fragments of code matching System V code in three generic
routines (ate_utils.c, the atoi function and systeminfo.h header file),
all within the I/O infrastructure support for SGI's platform. The three
code fragments had been inadvertently included and in fact were
redundant from the start. We found better replacements providing the
same functionality already available in the Linux kernel. All
together, these three small code fragments comprised no more than 200
lines out of the more than one million lines of our overall
contributions to Linux. Notably, it appears that most or all of the
System V code fragments we found had previously been placed in the
public domain, meaning it is very doubtful that the SCO Group has any
proprietary claim to these code fragments in any case.
As a precaution, we promptly removed the code fragments from SGIs Linux
website and distributed customer patches, and released patches to the
2.4 and 2.5 kernels on June 30 and July 3 to replace these routines and
make other fixes to the SGI infrastructure code that were already in
progress at SGI. Our changes showed up in the 2.5 kernel within a few
weeks of our submission, and the 2.4 changes were available in the
production version of the 2.4 kernel as of August 25 when the 2.4.22
kernel was released. Thus, the code in question has been completely
removed.
Following this occurrence, we continued our investigation to determine
whether any other code in the Linux kernel was even conceivably
implicated. As a result of that exhaustive investigation, SGI has
discovered a few additional code segments (similar in nature to the
segments referred to above and trivial in amount) that may arguably be
related to UNIX code. We are in the process of removing and replacing
these segments.
SCO's references to XFS are completely misplaced. XFS is an innovative
SGI-created work. It is not a derivative work of System V in any
sense, and SGI has full rights to license it to whomever we choose and
to contribute it to open source. It may be that SCO is taking the
position that merely because XFS is also distributed along with IRIX it
is somehow subject to the System V license. But if so, this is an
absurd position, with no basis either in the license or in common
sense. In fact, our UNIX license clearly provides that SGI retains
ownership and all rights as to all code that was not part of AT&Ts UNIX
System V.
I hope this answers some of the questions that you and the Linux
community might have. We continue to release new Linux work, and are
very excited about the growth and acceptance of Linux. We are
continuing full speed to do new work and release new Linux products.
We take our responsibility to the open source community seriously and
are confident that we have an effective process to verify the quality
and integrity of our contributions to Linux.
Rich Altmaier
VP of Software, SGI
richa at sgi.com UPDATE: According to
Internetnews.com, SCO spokesman Blake Stowell says they have no immediate plans to sue SGI. Huh ?!? That's what it says: Stowell said SCO, at this time, has no plans to sue SGI.
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| Authored by: Anonymous on Wednesday, October 01 2003 @ 09:13 PM EDT |
I am glad SGI is taking a stand here and rolling over on SCO threats. I
honestly believe them and in fact it is my understanding that Novell has
final approval of their Unix contract, not SCO. It was my
understanding to that their contract was perpetual but maybe I am
wrong about that. Nevertheless, XFS really belongs to them and they can
do with what they want.
The unfortunate part is that if SGI were actually ever pushed to court,
they would probably go down for good. They used to be an industry
standard (think of the amazing computer graphics done in Jurassic Park,
which at the time, were revolutionary), however, now they are a bit
player in the computer industry. The industry as a whole has bypassed
them and IRIX is ancient in terms of Unices (e.g., AIX, Solaris, etc.)
Nevertheless, I am glad they are on our side and basically tell SCO to
shove it. Way to go![ Reply to This | # ]
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| Authored by: Anonymous on Wednesday, October 01 2003 @ 09:17 PM EDT |
A very ironic twist now is that on SGI's website, under software products,
there is a link to Caldera Linux, which obviously points to www.sco.com.
Wonder how long this will last on their site?[ Reply to This | # ]
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| Authored by: brenda banks on Wednesday, October 01 2003 @ 09:29 PM EDT |
this is just so sad that a company that might not be able to afford to spend for
lawyers fees might have this to happen.wonder how sco is going to defend itself
when it was contributing to the community also.how is this different
sad is all i can say
---
br3n[ Reply to This | # ]
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| Authored by: Anonymous on Wednesday, October 01 2003 @ 09:30 PM EDT |
I kind of wish someone from AT&T or someone who used to work there who was
involved with sending out the side letters that gave the Unix licensees
ownership of their own code would come foreward and clarify what rights the
letters were intended to grant and whether SCO's claims are legitimate or not.[ Reply to This | # ]
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| Authored by: Anonymous on Wednesday, October 01 2003 @ 09:33 PM EDT |
If SCO followed the same pattern as IBM, for SGI, SGI is supposed to figure for
themselves what "all violations" mean.
In IBM's case, IBM *at least* twice wrote letters to SCO requesting what
specifically SCO thought IBM had done to breach the contract, and what action
IBM should take to remedy any alleged breach. SCO refused.
In other words, it's an impossible bar.
Presumably the recipient of a SCO letter is supposed to pay SCO money for some
kind of license, for an as yet to be negotiated sum...[ Reply to This | # ]
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| Authored by: shaun on Wednesday, October 01 2003 @ 09:36 PM EDT |
Well I think we know who SCO wants to add to the litigation now. It makes
perfect sense but on the other hand SCO makes no sense.
--Shaun[ Reply to This | # ]
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| Authored by: Anonymous on Wednesday, October 01 2003 @ 10:10 PM EDT |
I wonder if SGI's contract is the same as IBM's, a three-way contract with
Novell and SCO. Will Novell veto the contract termination like they did with
IBM?
Also, I think SCO's claims to terminate the contract have no authority unless
they file a lawsuit to enforce it. Are the SCO executives suicidal enough to
fight yet another simultaneous lawsuit with so little cash and recurring
revenue, especially since they're likely to get very little in damages from
SGI?[ Reply to This | # ]
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| Authored by: Anonymous on Wednesday, October 01 2003 @ 10:48 PM EDT |
Looking at the SCO/Novell contract, I start wondering whether Novell could
terminate SCO's UNIX contract. SCO breached the contract when they tried to
terminate IBM's license and they are about to break it again by trying to
terminate SGI's license against Novell's explicit veto.[ Reply to This | # ]
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| Authored by: Steve Martin on Wednesday, October 01 2003 @ 10:52 PM EDT |
Yes, yes, I know... we've been saying that all along. A new wrinkle
just
popped into my feeble brain, though; it appears to all that SCO has abandoned
R&D and all that goes with actually attempting to be a software
company, and is hoping to sit on (a) their licensing streams, or (b) the fruits
of its litigation. Looking at (a), I have to wonder how in the world they think
they're going to get revenue from their licensing deals if they're terminating
their customers' licenses each time they turn around. No licenses, no licensees,
no incoming license revenue. Pretty simple...
It's been said before,
but I'll say it again... "what the heck are they thinking??"
[ Reply to This | # ]
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| Authored by: mac586 on Wednesday, October 01 2003 @ 11:05 PM EDT |
| 1. "200 lines out of the more than one million lines" = 0002%
2. "Notably, it appears that most or all of the System V code fragments
we found had previously been placed in the public domain
At this
rate, SCO will shut down all of the Unix vendors, all of Linux, and will be in a
position to compete head to head with MS . The Bastards.
On a side note,
SGI used to employ Jeremy Allison of Samba fame, allowing him to work
exclusively on Samba and to help promote Linux. Here's a nice letter Jeremy wrote to SCO concerning GPL hypocrisy.
I doubt
that Jeremy's GPL contributions to Samba are included in SGI's 1 million LOC
figure cited in their letter, but it should be noted as a significant
contribution none the less.
[ Reply to This | # ]
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| Authored by: Anonymous on Wednesday, October 01 2003 @ 11:06 PM EDT |
There seems to be an assumption that SGI might not have the resources to fight
SCO vigorously.
I do not believe this is the case.
Admittedly SGI has been losing money, but their last quarter shows over ~$270m
revenue (more than 10X SCO), ~$140m in cash. They could probably raise even more
cash by liquidating short term investments etc.
In the last quarter SGI lost ~$34m overall. Remember losses include all assets,
which include things like write downs and depreciation. Furthermore losses are
expected to be reduced. But even if their entire losses were cash, and contined
on the same scale, they would still have vastly more cash than SCO.
The only measure by which SCO is in anyway comparable to SGI, is in market
capitalization (the number of shares outstanding times price per share). SCO's
price is inflated as a result of their recent PR. In any case, it's very hard
to argue a link between market capitalization and ability to fight a law suit.
[ Reply to This | # ]
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| Authored by: bobh on Thursday, October 02 2003 @ 12:56 AM EDT |
| It looks to me as though this whole thing is about over. I just returned from a
tour of the various web forums where these issues are discussed, and it looks
like the general reaction to SCO "yanking" SGI's UNIX license is laughter.
I
think we've all figured out that SCO does not intend to ever go to court on
any of these issues. The whole compendium of announcements, lawsuits, and
bogus legal pronouncements is purely an exercise in FUD generation. SCO and its
financial backers — Microsoft and Sun — have used our court system as a prop in
a splashy and noisy PR crusade designed to slow the spread of linux.
If
people are now going to start laughing when SCO issues new threats, Microsoft
will not want to fund any more of it. Once that happens, Ralph Yarrow will want
to take SCO into bankruptcy as soon as possible to halt the cash drain and to
get the intellectual property assets out of there before IBM or Red Hat
confiscates them as part of a damage award.
The yahoos in the trade press
still haven't figured this out — they have SCO "yanking" and "slamming" as
loudly as ever. But I think most people now hear SCO's threats and think of the
Black Knight in the scene from Monty Python's Holy Grail... no arms, no legs,
just a big loud mouth issuing threats.
If the FUD is over, then the value of
SCO to its financial backers is over. They're probably all dumb enough to stick
it out another month or two, but eventually they'll see that this case has
turned some corner in the public's mind. SCO isn't scary anymore; it's become a
parody of something scary. It's a cartoon nemesis. Darl McBride has become The
Riddler from a Batman comic book. The more evil he becomes, the louder people
laugh.
Watch for Canopy to pull the plug on this show sooner rather than
later. Microsoft's best outcome at this point is to leave what FUD has been
created circulating in the air. The last thing they want now is for Red Hat to
win a declaratory judgement that pops the FUD balloon. They can read Red Hat's
response, too. They'll see what's coming. They'll want to render the case moot
by cratering SCO before any possible ruling comes down. If I were them, I'd do
it now... before the Motion to Dismiss is itself dismissed. That way SCO can
disappear beneath the waves without ever having lost a point in court (at least,
not in the U.S.). That's as good as Microsoft is going to get for all the money
they spent to make this happen. [ Reply to This | # ]
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| Authored by: Anonymous on Thursday, October 02 2003 @ 01:57 AM EDT |
SCO launched their media war on SGI today. I'm sure they want more coverage,
but they're getting some.
Quick summary:
1. Threatens "enforcement actions" against SGI
2. Releases termination to press
3. Tells press IRIX must be stopped/destroyed
4. Claims SGI work is derivative (a particularly telling Stowell quote below)
5. According to SGI, refuses to give any specifics of the alleged violations, or
what SCO thinks SGI should do to remedy alleged breaches.
If you thought SCO would shut up, you're wrong, they've just opened a whole
new front.
Given point 1, time for SGI to take action, I would think? Comments?
http://www.computerworld.com.au/index.php?id=1197696212&fp=16&fpid=0
In an Aug. 13 letter addressed to SCO's legal department and released to the
media Wednesday, SCO Chief Executive Officer Darl McBride claims that SGI's
contributions to Linux put it in breach of its 1986 Unix licensing agreement,
originally signed with AT&T Corp. but subsequently transferred to SCO
...
Terminating SGI's Unix license would affect SGI's Irix operating system, which
uses SCO's System V Unix code, according to SCO spokesman Blake Stowell.
"It would mean that they would have to either stop shipping it, or either
destroy or return all copies of Irix to SCO," Stowell said.
http://www.cbronline.com/latestnews/503ce422699e39ab80256db30018c176
Lindon, Utah-based SCO yesterday confirmed that it has given SGI notice that it
intends to terminate the Mountain View, California-based hardware vendor's Unix
license. "SCO sent a letter to SGI on August 13 indicating that they had
violated their software contract with SCO by making Unix derivative code
contributions (specifically XFS) to Linux," the company said in a
statement.
"We also indicated that SGI had subjected our source code to unrestricted
disclosure, unauthorized transfer and disposition and unauthorized use and
copying," the statement continued. "We informed them in this letter
that they had two months to remedy all violations of the AT&T/SGI agreements
and if they failed to do so, their rights under these agreements would be
terminated as of October 14, 2003 and they would be required to immediately
discontinue use of the software product and destroy or return all such copies to
SCO."
http://asia.cnet.com/newstech/industry/0,39001143,39153288,00.htm
(SGI comments here to, and noteable is that like IBM, SGI is saying SCO did not
give any specifics of what remedies it expects SGI to undertake for the alleged
violations).
http://www.eweek.com/article2/0,4149,1306331,00.asp
SCO spokesman Blake Stowell declined to say whether SCO will take legal action
if SGI doesn't end use of the license, but said the company will consider
"enforcement options."
...
SCO's Stowell said the company's target is not Linux in the dispute but in
protecting its intellectual property.
"We have no argument with contributions they may have made to Linux that
may have been their own development work of open source but what we do have a
problem with is when they take the Unix System V code licensed from us or
derivative code and contribute that to Linux," he said.
SCO spokesman Blake Stowell said the company had identified SGI software some
time ago as containing illegal contributions from SCO Unix, and executives
decided it was time to press the issue. He declined to comment on what steps SCO
would take if SGI continues to distribute Irix past the Oct. 14 deadline.
"That's a bridge we'll cross when we get there," Stowell said. [ Reply to This | # ]
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| Authored by: Anonymous on Thursday, October 02 2003 @ 02:19 AM EDT |
"In an Aug. 13 letter addressed to SCO's legal department and released to
the media Wednesday, SCO Chief Executive Officer Darl McBride claim..."
That, of course, should read: ""In an Aug. 13 letter addressed to
SGI's legal department..." The error is in the original article.
For a moment there I thought this was more self-serving SCO legal vapourware,
like the letter they drafted to Red Hat but never sent -- but still released it
to the press as if it mattered.[ Reply to This | # ]
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| Authored by: shaun on Thursday, October 02 2003 @ 02:37 AM EDT |
OT to the thread but Linux Online has an Interesting Time Line here:
http://www.linux.org/news/sco/timeline.html
--Shaun[ Reply to This | # ]
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| Authored by: Anonymous on Thursday, October 02 2003 @ 02:41 AM EDT |
Attention PJ:
In a different article, referenced above, Stowell says SCO is looking at
"enforcement options". It's hard not to read that as a threat of
litigation.
I think both Stowell's statements combined clearly add up to, yes litigation
may be on the cards, but not immediately. This is the same argument they are
using in their motion to dismiss the RH case.
I also think Stowell crossed a line when he said Irix copies need to be
destroyed, and can't be sold any more from 14 October. I'm thinking Lanham
Act, etc. I think that this is a separate issue that SGI could take up,
independent of any declarative judgement issues.
My background research on SGI, makes me think that SCO picked another poor
target. SGI seem to have experience in litigation, and a lot more money than
SCO. If SCO attacks IRIX, I don't think SGI has any other choice but to fight,
and I think they are better equipped to fight than SCO.
P.S. In a few months time, I would not be surprised to see SCO turn on Sun or
Microsoft. These guys paid up before, and they probably used a contract without
the legacy of all the AT&T contracts for the more recent license purchases.
I think this will happen when Darl realizes he is not getting any traction on
his other fronts, and SCO needs another cash infusion.[ Reply to This | # ]
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| Authored by: DrStupid on Thursday, October 02 2003 @ 03:36 AM EDT |
"As a result of that exhaustive investigation, SGI has discovered a few
additional code segments (similar in nature to the segments referred to above
and trivial in amount) that may arguably be related to UNIX code. We are in the
process of removing and replacing these segments."
I bet that SGI found more similar snippets than TSG did! ;)
SGI's actions as a whole (pulling ate_utils.c before TSG showed it, and
thereafter going back over all their contributions with a fine toothed comb)
show great due diligence and good faith especially when compared with TSG's
refusal to identify the nature of the violations. That will have an impact on
the final settlement ordered by any court, even if SGI were found to have
infringed.
I'm also glad to hear for the first time a company saying "we have
re-checked everything and it's basically clean."[ Reply to This | # ]
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| Authored by: mec on Thursday, October 02 2003 @ 03:37 AM EDT |
A PR thought:
SCO doesn't follow up many of the things it starts. They just start new stuff
to distract the audience from following the old stuff. Specifically, last week
was damaging for SCO: first there was HP indemnification (I know that's
controversial here but it was unquestionably bad for SCOX stock) and second
there was IBM's countersuit. So SCO has to pull the next shiny object out of
its ass quick, and now we are all talking about SCO versus SGI.
A timeline thought:
SCO Forum was August 17-19. SCO sent their letter to SGI on August 13, a few
days before. So SCO knew, at SCO Forum, that their Exhibit #1 was from SGI and
not IBM. Dunno if this helps any.
A legal thought:
I doubt that "perpetual and irrevocable" means that SCO has no
remedies under any circumstances whatsoever. IBM has restrictions on its
behavior in its contract. SCO must have some recourse if a licensee violates
the contract. In this case, "perpetual and irrevocable" is good PR
for our side, but the law can't be as good as the PR.
Two stock market thoughts:
Two weeks ago, I predicted that SCOX would run up right to September 30 (end of
quarter for hedge funds) and then fall off right afterwards. My prediction was
wrong. It's not moving in that pattern at all.
I believe SCOX went up yesterday because the market heard the news that SCO got
a delay in their trial, and the market things that is good for SCO. I agree, it
is good for SCO.
A nose-counting thought:
Microsoft: allied
Sun: allied
IBM: lawsuit
HP: indemnified
SGI: revoked license
Red Hat: lawsuit
What major software vendors have not been dragged in?
Apple
Oracle (no OS but plenty of apps)
FSF (if you stretch 'vendor')
Intel (they have software fingers)
???
I ask because: it looks like SCO's PR strategy is to pick a new target every
couple of months to keep the PR machine focussed on SCO's agenda. So I'm
wondering who is not involved yet and what SCO will do against each of them.
[ Reply to This | # ]
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| Authored by: ra on Thursday, October 02 2003 @ 03:56 AM EDT |
So if we assume that there are/were several portions of System V similar to the
atealloc code where does that leave us?
The "80 lines" is probably the most dramatic example. The other
examples are likely smaller and likely also minor improvements, if they are
changed at all, over the code released to the open source community by SCO.
I think its safe to assume SCO's derivatives works arguments will fail, so SCO
is left with these copyright infringements.
Can SCO take these infringements to court? Who can SCO sue over them? How much
discretion will a judge have in awarding damages?[ Reply to This | # ]
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| Authored by: Anonymous on Thursday, October 02 2003 @ 04:23 AM EDT |
"Stowell said SCO, at this time, has no plans to sue SGI."
This particular statement actually means nothing. SCO's standard PR statements
all say they have "no plans to sue" until they actually do so. In
other words, in SCO talk, we have "no plans to sue" just means we
haven't filed a complaint yet.
I honestly think SGI's best move at this point is to file for declaratory
judgement. But they're so strapped for cash that they may be hoping that SCO
won't ever get around to suing them, since SCO is similarly strapped for cash.
I can't really blame SGI for opting to engage in excessive due diligence,
meaning that SCO should identify any problems at this point, rather than SGI
searching for them, but I do wonder if it's the best strategy for them.
[ Reply to This | # ]
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| Authored by: Anonymous on Thursday, October 02 2003 @ 04:31 AM EDT |
http://www.caldera.com/2003forum/breakouts/wolfe_udk_gnu-forum2003.final_files/f
rame.htm[ Reply to This | # ]
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| Authored by: Anonymous on Thursday, October 02 2003 @ 09:30 AM EDT |
"The real question is: how does SCO define "all violations"?
Nobody knows but them (maybe), and they aren't telling. If they clearly stated
their position, it could be disproven. They apparently expect to be able to sue
and collect damages without ever revealing the foundation of the claims.
[ Reply to This | # ]
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| Authored by: gdt on Friday, October 03 2003 @ 02:04 AM EDT |
So SGI imply that there are <400 lines of possibly infringing code.
[For non-programmers, that's about 20% of the code written in the semester-long
team coding assignment which typically occurs in the final year of most Computer
Science degrees.]
SCO's latest claim from this week's "SCOsource Update"
presentation is "many" instances of entire functions being copied. Say
many x 50, for some value of many.
Most poeple would
suspect that "many" means more that 8, so SCO seems to be claiming more directly
copied code than SGI has found.
Has SCO ever given more precise numbers
for the number of lines directly copied from SysV to Linux? [ Reply to This | # ]
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