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SCOsource Slide Show
Thursday, October 02 2003 @ 01:54 AM EDT

Here they go again. SCO has brazenly put up on their website the Powerpoint presentation from SCOForum 2003. And you don't need to sign an NDA to view it. It appears to be setting forth their legal position, including some cases that they seem to believe support them. Let's see if they do. And let's take a look and see what we can learn about the way they view their case.

Update: The link to the Caldera site no longer resolves. You can still find the Powerpoint presentation here [PDF] on the Internet Archive.

While it is missing whatever it was they said during the presentation at SCOForum, leaving some question marks in the air, it contains the following, which I will analyze point by point:

1. It says on page 2 that "Linux is an unauthorized derivative of UNIX". I don't believe that is true, not unless you accept SCO's novel and expansive definition. If it were true, why did Darl McBride say that Linux doesn't owe its code to UNIX?

2. It claims on page 3: "SCO Owns All UNIX System V Source Code" and so far so good, but then it adds that this means, according to the Novell Asset Purchase Agreement, that they own "All rights and ownership of UNIX and UnixWare..." Do they now claim they own BSD, which is UNIX? If not, how can they claim they own "all rights and ownership of UNIX" ? Novell could only sell them assets it itself owned, and did they own all of UNIX? In the context of the asset purchase agreement, both sides knew what the expression UNIX meant in that narrow reference, but in using it in the slide, I hope they explained that it doesn't mean they own all UNIX. Maybe they should put up some explanation on their website, so visitors aren't confused.

3. On page 6, 7, and 17, they seem to be indicating that AT&T licensed to IBM only the right to use the code in-house, including all derivative code. If that were true, why would IBM be interested in licensing it? And why would Caldera have worked with IBM on Project Monterey and encouraged IBM to contribute to the project, if IBM had no rights under the software agreement with AT&T except to use the source code in-house? Perhaps in the spoken remarks this was explained. This section was quite puzzling. They don't mention their own Exhibit C, the AT&T-IBM agreement which granted IBM rights to derivative works in paragraph 9:

Nothing in this agreement shall prevent Licensee from developing or marketing products or services employing ideas, concepts, knowhow or techniques relating to data processing embodied in software products subject to this agreement, provided that licensee shall not copy any code from such software products into any such product or in connection with any such service and employees of licensee shall not refer to the physical documents and materials comprising software products subject to this agreement when they are developing any such products or services or providing any such services.

4. Page 8 lists all the types of copyright infringement they claim, literal copying, obfuscation, derivative works and non-literal transfers.

5. Page 9 says that "the example being presented is just one of many" showing that "direct System V Code has been copied into Linux kernel releases 2.4X and 2.5x". I thought after the show flopped, they said it wasn't an example of copyright infringement. I'm getting confused. They also cite the case Dun & Bradstreet Software Services, Inc. v. Grace Consulting, Inc., 307 F.3d 197 (3rd Cir. 2002). I take it that means they think it applies to this point and we may expect them to use it in support of their case. So what does the case say? Here's a description of what that case found, on West Case Update:

Consultants to Software Users May Not Copy and Resell Software

Defendant's copying of the software, which it incorporated into its own programs and sold to customers, was not de minimis. That software would not work without the Geac software in it. Further, the claim that the licensing agreement allowed copying of the software is wrong. The license allowed use of the software, not copying for commercial use by others. The Copyright Act does not preempt Geac's claim of trade secret misappropriation since the consultant violated its duty of trust and confidentiality when working on the software."

And here is another such explanation from Copyright/Internet Law Update February 2003 as to what this case means:

NO PREEMPTION OF TRADE SECRETS CLAIM

The source code and the object code constitute literal elements of a computer program and are protected by copyright law. An employee of computer consultant who, by virtue of his confidential position, gained access to client's source code and customer list can be sued not only for copyright infringement, but also for misappropriation of trade secrets. The Copyright Act does not preempt the trade secrets claim because breach of confidentiality is an extra element to be proven. Dun & Bradstreet Software Services, Inc. v. Grace Consulting, Inc., 307 F.3d 197 (3rd Cir. 2002).

Here's a description of the facts of the case:

Defendant Grace marketed a program that "updated" a program authored by plaintiff Geac that prepares year-end tax reports. Through the use of "copy and call" commands, Grace’s program retrieved data and ran code from Geac’s product. The court found that use of these commands constituted infringement, even if text was not inserted from one program into the other, and the two programs remained separated in memory. The court rejected Grace’s argument that "custom and practice" could justify infringement, holding that "purported industry custom and usage" can never modify an unambiguous license agreement that forbids copying. The court also found that copying could not be excused by concerns of "intraoperability" — the need to design different computer programs to work together.

6. Slide 15 shows some bar charts "proving " that "Obfuscated System V Code Has Been Copied into Linux...". Maybe this is the work of those spectral analysts? You think? Maybe you had to be there.

7. Page 18 cites three cases to prove that you can't step outside the scope of a license grant for derivative works. That is true, as far as it goes, but where, oh, where, is the Exhibit C from their Complaint, that seemed to grant IBM certain rights in derivative works? Not a sign of it in the slides. Maybe they just told the audience about it. You say you think they should explain it in the slides that are up on their website and that the slides seem to imply that no such Exhibit C exists or that it has no bearing on this issue? Are you thinking that maybe somebody might be induced to buy their stock without having the full picture?

Here are the three cases:

Stewart v. Abend , (US 1990) which they say stands for the proposition that "Use is infringing if one who employs the [derivative] work does not have a valid license or assignment for use of the pre-existing work". You can find this case here. It's a case mentioned briefly on page 32 of "Opposition of Defendant Napster, Inc. to Plaintiff's Motion for Preliminary Injuction" in the Napster case. I mention this because it was only when I went back and reread the case that I remembered that Fenwick & West worked with Boies on the Napster case, as you can see for yourself on page 36. Now, that's not a crime, by any means, but I will remember this next time I read remarks from Fenwick attorneys in the media about SCO. Sooner or later, it all becomes clearer.

The case had to do with a dispute under the old copyright law involving the movie, "Rear Window", wherein the author of the original story died before he could register for a copyright renewal. What was at issue was whether the derivative work could continue to be used. The court found the dead owner's estate had the right to decide new terms upon renewal of the copyright, that the right of renewal is contingent, and that this affected the derivative rights holder's right to release the movie and exploit the original story in a derivative work.

However, I'm thinking maybe SCO didn't remember this part of the Supreme Court's finding:

The aspects of a derivative work added by the derivative author are that author's property, but the element drawn from the pre-existing work remains on grant from the owner of the pre-existing work. See Russell v. Price, 612 F.2d 1123, 1128 (CA9 1979) (reaffirming "well-established doctrine that a derivative copyright protects only the new material contained in the derivative work, not the matter derived from the underlying work"), cert. denied, 446 U.S. 952 (1980); see also Harper & Row, Publishers, Inc. v. Nation Enterprises, 471 U.S. 539, 547 (1985) ("The copyright is limited to those aspects of the work - termed 'expression' - that display the stamp of the author's originality"). . . see also 17 U.S.C. 3 (1976 ed.) (copyright protection of a work extends to "all matter therein in which copyright is already subsisting, but without extending the duration or scope of such copyright"). This well-settled rule also was made explicit in the 1976 Act:
"The copyright in a compilation or derivative work extends only to the material contributed by the author of such work, as distinguished from the preexisting material employed in the work, and does not imply any exclusive right in the preexisting material. The copyright in such work is independent of, and does not affect or enlarge the scope, duration, ownership, or subsistence of, any copyright protection in the pre-existing material." 17 U.S.C. 103(b)."

Gilliam v. ABC, (2nd Cir. 1999) "One who obtains permission to use copyrighted [work] in production of derivative work may not exceed specific purpose for which permission is granted. Transfer in excess of license was a nullity."

That's their characterization of what the case means. But this case seems a rather odd choice. This was a case cited by US Court of Appeals' Judge Jackson in the US v. Microsoft antitrust matter, which is no doubt one reason it readily came to mind in Boies' law firm when helping to design the slide show. Here is Microsoft's attempt to rely on this case. And here is the DOJ view of the case. And here is what the judge wrote in his Conclusions of Law:

In Gilliam, the Second Circuit found, on appeal from a denial of a preliminary injunction, that a broadcaster's extensive editing of a series of "Monty Python" skits could infringe the copyright holder's rights. 538 F.2d at 23. But the court did "not accept appellants" assertion that any editing whatsoever would constitute infringement. Id. Rather, the court said that "licensees are entitled to some small degree of latitude in arranging the licensed work for presentation to the public in a manner consistent with the licensee's style or standards." Id. The court found likely infringement there because the unauthorized editing deleted 27% of the program, and therefore amounted to a "mutilation of [the] work" that deleted "essential elements in the schematic development of a story line." Id. at 24-25.

And here is where the judge said Microsoft's reliance on this case wasn't such a good idea, especially with respects to computer software:

In addition to claiming a fight to "exclude" licensees as it sees fit, Microsoft cites the Second Circuit's opinion in Gilliam v. ABC, 538 F.2d 14 (2d Cir. 1976), recognizing a copyright holder's "moral right of integrity" where a copyrighted work was significantly changed, or, "mutilated" but still promoted under its original name. But the Gilliam court acknowledged the lack of statutory or doctrinal support in copyright law for the fight it recognized, see Gilliam, 538 [begin page 30] F.2d at 24 , and ultimately grounded its decision in trademark law. Id. at 24-25. Several subsequent decisions considering Gilliam have declined to endorse the "moral right" argument Microsoft advances. See, e.g., Halicki v. United Artists Communications, Inc., 812 F.2d 1213, 1214 (9th Cir. 1987); Weinstein v. University of Illinois, 811 F.2d 1091, 1095 n.3 (7th Cir. 1987); Paramount Pictures Corp. v. Video Broad. Sys, Inc., 724 F. Supp. 808, 820 (D. Kan. 1989).

Moreover, whatever policy justifications that may exist for a moral right of integrity in works of art are substantially weaker when the work at issue is a computer program, whose value lies in its functionality, not its artistry. The Copyright Act itself expressly allows owners of a copy of a computer program to "adapt" it in certain circumstances without the copyright owner's permission. See 17 U.S.C. § 117; see also Aymes v. Bonelli, 47 F.3d 23 (2d Cir. 1995). Although Microsoft undoubtedly enjoys some "right against mutilation" in its software, there are significant factual questions dispute on this issue, chief among them the extent of copyright protection in the specific portions of the software plaintiffs seek to modify.

See an application to the SCO-IBM fact pattern that would be helpful to SCO? See any application between this Monty Python case, about editing to such an extent the artistic integrity of the original work was impaired, and what IBM is charged with? I don't know what they said verbally while showing this slide, but was their characterization of the case accurate, in your opinion? Could they be planning on arguing that you aren't allowed to alter any copyrighted code? This would be a novel use, I expect, but SCO folks are so inventive, don't you find? That wouldn't work anyway, because Judge Jackson went on to shoot down Microsoft's attempt to use Gilliam to justify forbidding OEM modifications, writing:

Assuming the Gilliam line of cases is correct, it does not support Microsoft's claimed right to prohibit any modification of its software program. Rather, those cases recognize that some modifications are permissible. As the Supreme Court reiterated in Sony, copyright protection "reflects a balance of competing claims upon the public interest." 464 U.S. at 431."
Maybe Boies now finds himself in the surreal position of trying to argue against an order in a case he earlier won.

Liu v. Price Waterhouse, (7th Cir.) "Copyright in derivative work used outside scope of license grant reverted to owner of original program."

You can read this case here and here and about it here. The lower courts' rulings were controversial, and it has traveled up to the Supreme Court, but I don't find any decision as of yet, not on Findlaw or in Cornell's LII database. It seems odd to cite a controversial case that has yet to be decided by the Supreme Court as one of the cases supporting your position. If you are interested, some supporting briefs are here. Here's a page where some attorneys, or so they appear, discussed whether it was rightly decided, in which the facts of the case are explained. It's a transfer of copyrights case. Here's a snip:

While the Copyright Act makes authors of derivative works the presumptive owners of copyright rights in their contribution, it also allows parties to adjust those rights by contract. Here, the jury found that the parties to the letter agreement did just that-agreed that Price Waterhouse would hold the copyright in the derivative work. Because of the ambiguity in the letter agreement, it was necessary and proper for the jury to consider 'the parties' intent in entering into the letter agreement in order to determine the respective rights of Price Waterhouse, Yang and the subsequent authors of the derivative work, even though those subsequent authors, the Sky Company Programmers, did not sign the letter agreement.
How SCO feels this case supports their position is hard to figure, unless Exhibit C is irrelevant and they plan on asserting the license terms of the original agreement are the whole story. It's a copyright case involving a Chinese firm, hired to do work which then hired others to do the work. Here's what The BNA's Patent Trademark & Copyright Journal says:
Liu v. Price Waterhouse LLP (U.S., No. 02-1213) appealing the Seventh Circuit's ruling that ambiguities in a contract to produce an upgraded computer program made it appropriate to weigh the parties' intent and find that the owner of the original program, rather than the author of the derivative work, retained rights to the new work. 302 F.3d 749, 64 USPQ2d 1463 (7th Cir. 2002) (64 PTCJ 464, 9/27/02). The petition asks whether the copyright in a lawfully created derivative work can initially vest in the owner of the preexisting work rather than the statutory author of the derivative work absent a signed writing memorializing a transfer of ownership.
8. Page 19 lists all the "examples of significant infringing derivative works contributions to Linux 2.4x and Linux 2.5x "-- NUMA, RCU, JFS, XFS, Schedulers, LinuxPPC 32- and 64-bit support, and Enterprise Volume Management System.

9. Page 20 lists exactly how many lines of code are involved. For RCU, they say there are 46 files, 109,688 lines; NUMA, 101 files, 56,587; JFS, 44 files, 32,224 lines; XFS, 173 files, 119,130 lines; SMP, 1,185 files; 829,393 lines.

10. Page 22 lists an example of "non-literal transfers -- methods and concepts", an email from an IBM employee in which he shares a thought. Somebody call the High Technology Crime Brigade, because they need to come a-running. People are sharing ideas, for crying out loud. SCO owns those thoughts. Boies certainly has come full circle from Napster to taking such a position as this. And what about paragraph 9 of their Exhibit C, which says:

Nothing in this agreement shall prevent Licensee from developing or marketing products or services employing ideas, concepts, knowhow or techniques relating to data processing embodied in software products subject to this agreement, provided that licensee shall not copy any code from such software products into any such product or in connection with any such service and employees of licensee shall not refer to the physical documents and materials comprising software products subject to this agreement when they are developing any such products or services or providing any such services.

11. Page 23 lists the difference between the 2.2 kernel and, significantly enough, the 2.6 kernel, and they assert there is no way that it could have been done "without direct access to 25 years of UNIX development expertise."

12. Page 24 talks about copyright damages, although SCO hasn't to date sued anyone for that. They make the words red that say that a copyright owner gets actual damages and any additional profits of the infringer. Unfortunately for SCO, copyright infringement is what IBM has charged them with, so I hope they are ready to fork over their profits from that infringement, should they be found guilty.

13. Page 26 explains the SCOsource Linux Licensing Program, and you can almost hear the violins start to play as they state that the license is "designed to provide immediate relief to Linux end-users." Of course, the license doesn't include source code, modification, or distribution rights, they say, without seeming to realize that there may be some GPL issues here. Well, IBM is going to give them their PhD in the GPL when they get to court.

They also include all the comparisons of the code, which have been ridiculed from here to Mars, but nothing makes SCO ashamed, so you can gaze at it to your heart's content, and if you are clueless or in a SCO-induced fugue state, you might think it means something. SCO and all their lackeys seem to rely quite heavily on cluelessness to win the day. However, one thing is for sure. Judge Kimball is not clueless.

One other thing, the Register is reporting that HP is still funding the SCO City to City tour, though it would rather you didn't know about it. If this proves to be true, please spare me any email about how HP is actually very supportive of GNU/Linux, and they really mean it, and their indemnification offer wasn't to support SCO, and how it's purely coincidental that they offer indemnification at the same time that SCO calls for it, and a Fenwick attorney talks about expecting IBM to follow HP's lead, and the ever-so "fair and balanced" Rob Enderle says we should smarten up and definitely offer indemnification if we want to win against SCO, and all the other "analysts" are starting to sing the indemnification chorus again. HP at best seems to be trying to play both sides, which isn't good enough. I'm not buying so much as a printer from them, let alone a computer with GNU/Linux software petrified in a HP indemnification prison. That's petrified in the sense of turning organic matter into stone.

None of these singers of SCO's songs understand what GNU/Linux is or the connection between its openness and the ability to modify it and its excellence. They think of software as a product you can stuff in a box and sell like a toaster. If they read this sentence, they won't know what I am talking about. They don't care if they eviscerate Linux. In contrast, IBM has taken a powerful stand, so I'll buy anything they are selling for the rest of my life, as I have the opportunity.

I'm remembering a scripture that says that God is loyal to those who are loyal. That's a pretty good rule for humans too, and if enough of us show loyalty to those who are proving loyal to the community, we can be a force for change even amongst amoral business types who think only of money and the bottom line.

By the way, Sun seems to be having some money troubles, according to the Register. The article states they have revised their fourth quarter financial figures downward:

Sun has been struggling to reach profitability over the last couple of years, as the company has been hit hard by a slowdown in hardware spending. In recent quarters, main rival IBM has managed to scoop up some of Sun's share in the prized market for Unix servers. In addition, analysts charge that Linux servers pose a threat to Sun's Unix business. . . .

The earnings revision, however, comes as a major blow. Sun has wiped out one of its few profitable quarters in recent memory. The company is also saying that things are looking worse than expected. The first fiscal quarter report is due out in mid-October.

See what I mean about things eventually getting clearer?

What SCO and Sun and, yes, HP appear to have forgotten is that we, as home users and as executives on the job, make decisions that affect which of them makes money from hardware, software, and services. Here's a story of one New Zealand organization that just switched from SCO to Linux, and why.

We are the bottom line.

[ Update: Here's slide 10:

And here are slides 19 and 26:


  


SCOsource Slide Show | 174 comments | Create New Account
Comments belong to whoever posts them. Please notify us of inappropriate comments.
SCOsource Slide Show
Authored by: Anonymous on Thursday, October 02 2003 @ 03:45 AM EDT
PPT presentation was removed!

[ Reply to This | # ]

SCOsource Slide Show
Authored by: Anonymous on Thursday, October 02 2003 @ 04:02 AM EDT
Evidently an adult took charge- this presentation is no longer online. Anybody
that thinks there is a SCO "master plan" should consider screwups
like these- these guys, Boss McBride, Sontag, Yarro, etc. are dopes. Wonder
what idiocy they mistakenly included in the slideshow to begin with?

[ Reply to This | # ]

SCOsource Slide Show
Authored by: DrStupid on Thursday, October 02 2003 @ 04:13 AM EDT
The two things I note after a brief perusal:

1) The omission of Exhibit C (and the identical side letter sent subsequently to
the other AT&T licensees)

2) Ploughing straight into the case law of derivative works in a way that begs
the question. RCU is *not* a derivative of SysV. AIX is a derivative of SysV.
The definition of derivative work TSG uses is not one used in any legal
judgement to date (as previously covered in GrokLaw) and would destroy the whole
software industry if accepted.

Or look at it this way: If you brush the side letter under the carpet, and you
pretend that JFS is a derivative work based on SysV, *then* you can start to
build some kind of case. So TSG do just that - it's a classic example of how to
persuade people you don't expect to check up on your facts. And remember the
original target of the SCOsource
slide show was TSG resellers anxious about the lawsuit. How many of them would
actually look up those legal references and take the time to understand them?

Overall my impression is that the slides don't reveal any additional strength
in their position. In fact, they reinforce the impression that they only have
enough for a publicity/FUD campaign, not a real court case.

[ Reply to This | # ]

SCOsource Slide Show
Authored by: shaun on Thursday, October 02 2003 @ 04:15 AM EDT
A lot of things have been disappearing from SCO's Web Site. Letters and Notices
as well. Either the lawyers are telling them it has to come down (hard to say if
that's the case) or they are making an attempt to cover their tracks. (Which is
a little to late to do.)

Fortunately the PPT presentation is at my Yahoo group:

http://groups.yahoo.com/group/no2sco/ in the files section.

Unfortunately unlike the links section which is open to the public to use
without having to join my Yahoo Group I can not do the same to the files
section. However I have no objection if you join to grab the files and then
unjoin when you are done.

--Shaun

[ Reply to This | # ]

SCOsource Slide Show
Authored by: mec on Thursday, October 02 2003 @ 04:16 AM EDT
What a coincidence! I was just crawling all over this presentation and wondering where to hang a comment about it, and then fellow insomniac PJ posts a fresh new story about this very presentation. (Although maybe she's a European, not an insomniac).

Anyways ...not removed, there's just a typo in PJ's link.

Sontag Heise SCO Source Briefing

Here is a more useful link, especially if you can read html better than ppt:

SCO 2003 forum

My favorite presentation so far: Major Accounts Survey Results

Particularly slide 9, which lists the tools that major accounts say that they need the most. The answers are: jdk, gcc, j2ee.

[ Reply to This | # ]

Modified!
Authored by: amcguinn on Thursday, October 02 2003 @ 04:55 AM EDT
Note that this has been modified since the actual SCOForum event. The transliterated-to-greek SysV code has been removed, and there may be other changes we don't know about. This was discussed at some length somewhere (probably /., but I can't find it).

Never forget SCO like to rewrite history.

[ Reply to This | # ]

  • Modified! - Authored by: Anonymous on Thursday, October 02 2003 @ 05:25 AM EDT
  • Modified! - Authored by: mec on Thursday, October 02 2003 @ 05:27 AM EDT
  • Modified! - Authored by: Dave on Thursday, October 02 2003 @ 10:52 AM EDT
Trademarks again
Authored by: amcguinn on Thursday, October 02 2003 @ 05:11 AM EDT
One thing I noticed is that the slides refer to UNIX®, but do not acknowledge that that is not their trademark. I went to www.sco.com to check if they refer to it anywhere, and found this on http://www.sco.com/products/unixware713/ .

UNIX and UnixWare, used under an exclusive license, are registered trademarks of The Open Group in the United States and other countries.

That seems to be claiming that they have exclusive use of the UNIX trademark. Probably they would say it means "UNIX and (UnixWare, used under an exclusive license), are registered...", but that's not how it reads to me.

Given that SCO clearly do have a right to use the UNIX trademark, can they get away with falsely claiming to have exclusive use of it?

Is this a red herring? (maybe "exclusive" doesn't mean what I think it means here).

[ Reply to This | # ]

IBM is just a company
Authored by: Anonymous on Thursday, October 02 2003 @ 05:23 AM EDT
Hi PJ,

Thanks alot for explaining the cited court cases. Your articles also give me a
good idea how the juridical system (at least in the USA) works.

One little note though. You say: "IBM has taken a powerful stand, so I'll
buy anything they are selling for the rest of my life, as I have the
opportunity."

Be carefull about claiming loyalty to a company for eternity. Caldera, for
example, was once a very nice GNU/Linux company. And this is IBM we are talking
about. In Europe we are battling this very same company for trying to get
patents on algorithms, methods and ideas. Although they might seem to be on
"our" side in this SCO battle. They are certainly not our friends in
all cases.

Thanks,

Mark

[ Reply to This | # ]

SCOsource Slide Show
Authored by: Anonymous on Thursday, October 02 2003 @ 06:46 AM EDT
I thought Bruce Perens had the file on his site a long time ago.

http://www.perens.org/SCO/SCOSlideShow.html

[ Reply to This | # ]

Liu v. Price Waterhouse
Authored by: DrStupid on Thursday, October 02 2003 @ 07:55 AM EDT
With respect to this case, SCO's presentation of it as
"Copyright in derivative work used outside scope of license grant reverted
to owner of original program."
seems such a patently inaccurate summary as to be deliberately misleading.

A better summary is:

"Copyright in derivative work prepared outside scope of original agreement
reverted to owner of original program,
in accordance with spirit of agreement."

which is clearly different.

The case is about a "lawfully created derived work" and is basically
P-W saying
"We asked Yang to create this program for us, they agreed that we would
own the copyright on the resulting
work. But then they got another company to do the work for them, who weren't
party to the contract. We
think it would be unfair if as a result we didn't get copyrights, as that was
the spirit of the
original contract."

Assume for the moment that P-W's position is upheld in the end. The situation
described does not
relate to IBM. IBM had a contract with AT&T and moreover a clarification of
that contract which
states explicitly that IBM own copyrights in their contribution to the
derivative work. The legal
documents and the spirit of the agreement are in harmony. Moreover, IBM prepared
the derivative
work (AIX), not a third party hired by IBM.

[ Reply to This | # ]

SCOsource Slide Show
Authored by: ra on Thursday, October 02 2003 @ 08:30 AM EDT
For anyone curious about the strength of SCO's "derivative works"
argument:

http://cm.bell-labs.com/cm/cs/who/dmr/bsdi/930107.amicus.txt

Middle of the page

[fn13] It appears that AT&T similarly tried to restrict other licensees'
rights with respect to code they derived from AT&T's UNIX, because AT&T
sent out a clarification to all its licensees in August, 1985 which stated:
"Section 2.01. The last sentence was added to assure licensees that
AT&T will claim ownership in the software that they developed -- only the
portion of the software developed by AT&T." Exhibit H, attached to the
Shapreau Decl. The 2.01 referred to in Exhibit H is the same 2.01 contained in
the SOFT-00089 agreement. Frasure Depo., at 1 08:21 -1 1 0; 1 1 2:7-21. USL's
Mitzi Bond participated in the preparation of Exhibit H. She testified that the
clarification to 2.01 "indicates that all we did was add a sentence to
the existing one so that licensees would clearly understand that we were not
claiming the ownership in code that they developed that didn't contain
ours" (emphasis added). Bond Depo., at 189:14-191:21.

[ Reply to This | # ]

Derivitive works.
Authored by: Anonymous on Thursday, October 02 2003 @ 08:31 AM EDT
Well,
I just met up with a guy in the back alley who sold me all rights and priviliges
to SOFTWARE.

I am now planning on suing every company selling any product derived from my
wholly owned product SOFTWARE.

I think I'll start with SCO as they seem to understand how their products are
derivitive works of my SOFTWARE.

[ Reply to This | # ]

  • Derivitive works. - Authored by: Anonymous on Thursday, October 02 2003 @ 02:54 PM EDT
Linux is an unauthorised derivative
Authored by: Wol on Thursday, October 02 2003 @ 08:39 AM EDT
I think you'll find it is. The point is, it is not an *illegal* unauthorised
derivative.

Copyright law has a strict definition of derivative. Linux does not fall inside
the legal definition.

Linux most definitely is unauthorised. Like an unauthorised biography. SCO can
be as unhappy as they like over it.

But at the end of the day, this is all typical SCO-speak - "let's tell
the truth in such a manner as to leave a completely false impression".

Linux is derived from Unix. It just doesn't contain any Unix code. Linux is an
unauthorised copy of Unix. So what! There's nothing illegal about that. SCO can
scream and shout as much as they like, but at the end of the day, there's no
case to answer.

Cheers,
Wol

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SCO's Claims are Self-defeating
Authored by: Anonymous on Thursday, October 02 2003 @ 08:48 AM EDT
No need to worry about SCO winning on a loose interpretation of derivative
works. Here are comments I made on the matter:

The GPL also contains several derivative works clauses. See
http://www.gnu.org/copyleft/gpl.html#TOC3. If the US courts interpret
derivative works in favor of SCO, SCO loses. No; that was not a typo. Allow me
to explain:

First of all, note that SCO OpenUnix 8 contains what SCO refers to as the Linux
Kernel Personality (LKP). LKP reproduces Linux functionality, with the aid of
many GPL'ed products integrated within OpenUnix 8. Thus, if the US justice
system is so negligent as to adopt SCO's broad interpretation of derivative
works, the net effect is that Linux gets declared infringing on SCO property,
and SIMULTANEOUSLY, SCO OpenUnix 8 gets declared GPL'ed software. Since
OpenUnix 8 is based on System V code, this would have the immediate effect of
GPL'ing the entire disputed System V code base. Note that this outcome would
be triggered by the derivative works clause in the GPL.

Put more succinctly, if a court is negligent enough to conclude that neither a
"clean room" re-implementation of a function nor independently
(without SCO code) implementing a product then linking it with a SCO product is
sufficient to escape a derivative works claim by SCO, then the court must also
find that such an interpretation holds true for the GPL'ed products (or
GNU/Linux functionality) within SCO OpenUnix 8. SCO has tainted their Unix
products so badly that they cannot escaped this enormous irony.

Furthermore, since Solaris, AIX, and many other major Unix operating systems are
also based on System V code, those operating systems would then have to be
declared free from further claims by SCO.

As you can imagine, the resultant effect would be that SCO's claims would be
immediately invalidated - an outcome SCO obviously must not suspect. And if SCO
does suspect such an outcome, they are obviously hoping the judge, jury, and the
public (in general) are not sharp enough to see the obvious flaws with their
suit. This may very well be the reason why SCO is so desperate to have the GPL
invalidated. Even a successful attack on the GPL would severely backfire.
Thus, SCO's suit is self-defeating.

This then leaves only one possible [sane] interpretation of derivative works,
and it is the only one that has any hope of being favorable to SCO. This is
contingent up the interpretation of the AT&T contracts and side-letters
(amending the original AT&T-IBM contract) acknowledging IBM's ownership of
IBM produced derivative works. If the side letters are, for whatever reason
found to be invalid, the question becomes: are the IBM (independently or
jointly) developed and owned technologies such as RCU, NUMA, SMP, and JFS,
etcetera, derived directly from System V code? If not, SCO has not case.

It should therefore be apparent that, even if there is a derivative works issue
to contest, it is highly unlikely that SCO can win under a "proper"
interpretation of derivative works. It should also be apparent that, because of
the derivative works clause in the GPL, SCO will lose if an interpretation of
derivative works is so broad as to favor SCO's desired interpretation. The SCO
claim of Unix methods in Linux is equally easy to defeat. Thus, the adage,
"if something seems too good to be true, it probably is," could not
ring truer for SCO and their claims.

It is only the ignorance of the courts that could allow SCO to succeed. SCO is
hoping to pull a fast one in court - a danger when you have a jury trial.
Therefore, it is absolutely imperative that IBM and Red Hat legal counsel lay
bear, in court, this obvious hypocrisy.

[ Reply to This | # ]

looks like they need another GPL lesson
Authored by: brenda banks on Thursday, October 02 2003 @ 08:56 AM EDT
http://www.theregister.co.uk/content/53/33163.html

---
br3n

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SCOsource Slide Show
Authored by: ikh on Thursday, October 02 2003 @ 09:23 AM EDT

13. Page 26 explains the SCOsource Linux Licensing Program, and you can almost hear the violins start to play as they state that the license is "designed to provide immediate relief to Linux end-users." Of course, the license doesn't include source code, modification, or distribution rights, they say, without seeming to realize that there may be some GPL issues here. Well, IBM is going to give them their PhD in the GPL when they get to court.

Nope! I don't think so. They are not licensing Linux. They are licensing *their* SysV IP in Linux in binary form only. Their license does not apply to the rest of the kernel which is under the GPL. This of course assumes they have SysV IP in kernel 2.4+.

If you want to see how the understand the GPL check out their license FAQ here http://www.sco.com/scosource/linuxlicensefaq.html or use this link License FAQ

/ikh

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SCOsource Slide Show
Authored by: ikh on Thursday, October 02 2003 @ 10:43 AM EDT
<p>
<em>
2. It claims on page 3: "SCO Owns All UNIX System V Source Code" and
so far so good, but then it adds that this means, according to the Novell Assett
Purchase Agreement, that they own "All rights and ownership of UNIX and
UnixWare..." Do they now claim they own BSD, which is UNIX? If not, how
can they claim they own "all rights and ownership of UNIX" ? Novell
could only sell them assets it itself owned, and did they own all of UNIX? In
the context of the asset purchase agreement, both sides knew what the expression
UNIX meant in that narrow reference, but in using it in the slide, I hope they
explained that it doesn't mean they own all UNIX. Maybe they should put up some
explanation on their website, so visitors aren't confused.
</em>
</p>
<p>
SCO seem to use the term "UNIX" as a short hand for SysV.
</p>

<p>
/ikh
</p>

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SCOsource Slide Show
Authored by: ikh on Thursday, October 02 2003 @ 10:55 AM EDT

3. On page 6, 7, and 17, they seem to be indicating that AT&T licensed to IBM only the right to use the code in-house, including all derivative code. If that were true, why would IBM be interested in licensing it? And why would Caldera have worked with IBM on Project Monterey and encouraged IBM to contribute to the project, if IBM had no rights under the software agreement with AT&T except to use the source code in-house? Perhaps in the spoken remarks this was explained. This section was quite puzzling. They don't mention their own Exhibit C, the AT&T-IBM agreement which granted IBM rights to derivative works in paragraph 9:

In-house refers to the source code not binaries.

I don't think that Exhibit C.9 refers to derivatives but to clean non-derviatives. The first part of para 9 is about holding SysV confidencial. They go on to say that IBM can develop products or services using "ideas concepts and know how" from SysV providing they don't copy any code from SysV and that there employees do not reference either the code or the manuals of SysV. It looks like it is intended to allow IBM to create products and services without having to go to the full cost of "clean room" implementation.

/ikh

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Where's SCO's limit
Authored by: Anonymous on Thursday, October 02 2003 @ 11:54 AM EDT
It looks to me like SCO's concept of derivative is basically anything written
by an AT&T licensee that every comes into contact with UNIX.

I think, according to them, it can't be used again without SCO's permission,
and even if it contains no AT&T code (or even exists independently prior to
being put on the AT&T platform), then SCO seem to think they have some
rights on it.

I was thinking about that theory, and wondering where the limits would apply if
you were to accept SCO's interpretation.

While some on groklaw, have said that SCO limit their claims to kernel space, I
don't actually see them stating that anywhere. Furthermore, the AT&T code,
includes applications outside of the kernel.

So is that really what they are saying?

I'm thinking:

IBM - DB2, Websphere etc. runs on UNIX

SGI - OpenGL runs on UNIX

MIT etc (are they an AT&T licensee, I would have thought so?) - X Window

BSD - sendmail, FTP, etc.

The last three are everywhere (OpenGL in Windows, etc, etc.).

[and no, I personally, do not think this theory will fly]

[ Reply to This | # ]

Very Interesting Web Page - System V
Authored by: Grim Reaper on Thursday, October 02 2003 @ 12:26 PM EDT
Here's something very intersting. Accoring to this page:

http://www.info-discovery.com/solaris/html/node4.html

"At present, the most widely used release is System V Release 4 (SVR4), a
large rewrite of the kernel to incorporate features from System V Release 3, BSD
4.3, SunOS and XENIX into a single operating system. This voracious merging
engendered the prevailing SVR4."

This is even more intersting when you note that even SunOS is based on BSD, and
XENIX - even though based on AT&T Unix, later incorported BSD code. See:
http://www.wikipedia.org/wiki/Xenix

Even if BSD, SunOS, and XENIX code was not copied directly to create System V
Release 4, it would be difficult for SCO to win a case over trade secrets and
Unix methods, when they incorporated so much from other people's
functionality.

This may also explain why there are small variations and similarities between
System V, BSD, and Linux code, and why SCO sees those as attempted obfuscation.

PJ or someone else, maybe you can dig into this some more.

---
R.I.P. - SCO Group, 2005/08/29

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GEAC vs Grace and cherry-picking
Authored by: Anonymous on Thursday, October 02 2003 @ 12:31 PM EDT

There's an interesting commentary about the Grace vs GEAC case at
http://www.ivanhoffman.com/consultant.html
which mentions the following remark made by the court:

Grace may not stultify itself by seeking shelter within selected terms of the License Agreements at one time and then, when it serves its convenience, disregard the conditions and other pertinent terms of the Agreements. Custom and practice in the computer industry, and the evidence of it in this record is vague and conclusory, is no authority to disregard or trump the specific terms of a valid license agreement or the provisions of the Copyright Act.

Seems that the same remark could be made verbatim to describe SCO's attitude vis a vis the GPL.

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SCOsource Slide Show
Authored by: Anonymous on Thursday, October 02 2003 @ 12:38 PM EDT
I see PJ has used the wording of the 1985 agreement to make her point on IBM's
right to borrow know-how for use in other unlicensed products and services.

The restrictions were actually relaxed even more under the SCO Amendment X.
Literal copying into Linux was still prohibited, but the concept of mental
contamination is discarded entirely. The second from last sentence of paragraph
9 of the 1985 agreement was amended to remove the words "and employees of
licensee shall not refer to the physical documents and materials comprising
software products subject to this agreement when they are developing any such
products or services or providing any such services."

That means that if IBM's employees wanted to study the AT&T source code,
and churn out tons of obfuscated Linux code, that was one of their contractual
rights. In that regard, the packet filter slides are just total non-sense.

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SCO Owning UNIX?
Authored by: Anonymous on Thursday, October 02 2003 @ 12:53 PM EDT

It's quite unclear how they could dream this one up. Novell bought the SVR4 (SVR4.2?) source, rights, etc. from USL and renamed it Unixware. USL didn't sell them BSD. The folks who own the UNIX trademark ought to be clobbering SCO over this claim. Where is their statement rejecting this claim? Berkeley is no longer in the OS distribution business but someone associated with the BSDs needs to be screaming bloody murder over this as well.

Perhaps Linux International (have I got tha name correct?) should get itself in touch with the people at PR Newswire -- which is where most of SCOs press releases seem to originate -- and become the clearinghouse for the opposing viewpoint. If we don't get the word out to a wider audience than the people who are already Linux backers, all the world will be hearing is SCO's side of the story.

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SCOsource Slide Show
Authored by: tcranbrook on Thursday, October 02 2003 @ 06:59 PM EDT
I think is extreamly useful to have points of view argued from SCO's
perspective on this dicussion. Please do not attack these for being expressed,
but welcome them for helping to refine our answers.

[ Reply to This | # ]

SCOsource Slide Show
Authored by: brenda banks on Thursday, October 02 2003 @ 07:29 PM EDT
"(d) For an Order permanently enjoining USL, its
agents, employees, successors, and assigns and all others in concert
and privity with it from making false and misleading statements
regarding the origin of those portions of System V, Release 4 and
related documentation that contain, use, or are based on, BSD software
or documentation and from engaging in unfair and deceptive business
acts and practices."

http://cm.bell-labs.com/cm/cs/who/dmr/bsdi/930610.ucb_complaint.txt
this could really break sco's back this is from the old bsd case.
it is about the origins of what the code is and all
sco better read their paperwork and do some research


---
br3n

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SCOsource Slide Show
Authored by: brenda banks on Thursday, October 02 2003 @ 08:26 PM EDT
http://cm.bell-labs.com/cm/cs/who/dmr/bsdi/bsdisuit.html
this was the page page i got that off of
dont know what the outcome was
just thought it was interesting


---
br3n

[ Reply to This | # ]

so the old case?
Authored by: brenda banks on Thursday, October 02 2003 @ 09:00 PM EDT
is probably the object?
it is the only thing that has come close to making sense
i am still rereading statements
and everytime it seems like there is a nugget that points not directly but just
a nudge
it has really been strange and i know you are all tired of me harping on it


---
br3n

[ Reply to This | # ]

Copyright transfer
Authored by: gumout on Saturday, October 04 2003 @ 08:49 AM EDT
PJ, keep the following in mind:

Those who legally analyze the copright issues with SCO should keep something in
mind about the GPL and SCO's distribution of Linux. The GPL is a non-exclusive
license, it is absolutely NOT a transfer of copryright ownership. Much of SCO's
reliance on case law involves transfer of ownership as defined in Sec. 101 of
the Copyright Act. SCO attempts to mix apples and oranges in their case law.
Watch for the term "exclusive right" and check the context.

"In copyright law, ownership cannot be transferred without express,
written authority of a copyright holder. Some have claimed that, because SCO
software code was present in software distributed under the GPL, SCO has
forfeited its rights to this code. Not so – SCO never gave permission, or
granted rights, for this to happen." -- Darl Mcbride
"Copyright law specifies that you can't accidentally transfer a copyright
from yourself inadvertently, you have to do it with a legal contract with
signatures of both parties."
-- Chris Sontag

A close reading of the Copyright Act shows:

Sec. 204. Execution of transfers of copyright ownership
(a) A transfer of copyright ownership, other than by operation of
law, is not valid unless an instrument of conveyance, or a note or
memorandum of the transfer, is in writing and signed by the owner
of the rights conveyed or such owner's duly authorized agent.

McBride and Sontag were right as rain. They were dead on the mark. Give 'em a
big bonus. Superb observation concerning the Copyright Act and transfer of
ownership.

But... further examination of the Copyright Act reveals:

Sec. 101 definitions:
''transfer of copyright ownership'' is an assignment,
mortgage, exclusive license, or any other conveyance, alienation,
or hypothecation of a copyright or of any of the exclusive rights
comprised in a copyright, whether or not it is limited in time or
place of effect, but not including a non-exclusive license.

The GPL is a NON-EXCLUSIVE LICENSE and does not qualify under the Copyright Act
as a "transfer of copyright ownership" as defined in Sec. 101
definitions. Sec. 204 (a) does not have any legal force at all with respect to
the GPL. Congress explicitly exempted a "non-exclusive" license such
as the GPL (and thus "shrink wrap" license) from the formal
requirements of Sec. 204.

McBride and Sontag were wrong as ruin. They were wide of the mark. Take their
bonus and their salary too. Horrible observation concerning the Copyright Act
and the GPL.

---
THERE IS NO INFRINGING CODE

[ Reply to This | # ]

SGI and IBM contracts
Authored by: gumout on Saturday, October 04 2003 @ 09:08 AM EDT
PJ, I forget to mention in a previous post that SCO's contracts license
NON-EXCLUSIVE rights to IBM and SGI as they
have licensed to hundreds of other vendors also. Much of "copyright
transfer of exclusive rights" law was changed by implication in the
Copyright Act by the definition of "transfer of copyright" in Sec.
101. We should keep this in mind when examining case law.


---
THERE IS NO INFRINGING CODE

[ Reply to This | # ]

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