|
|
| SCO Replies to Red Hat and Amendment S3 Comparison to Original |
 |
|
Friday, October 17 2003 @ 03:24 PM EDT
|
I have the SCO reply to Red Hat, which you can read here. We'll be writing more about it shortly, but meanwhile I thought you'd like to see it for yourselves. Here's something else of interest, a comparison line by line Dr. Stupid did for us (at work on his toy operating system) of the original S3 in September and the recent Amendment to the S3, which SCO just filed. Note the difference in the indemnification section, among other changes. Of course, toy OSs don't always get everything right, but it's still a very useful comparison.
|
|
|
|
| Authored by: Dave Lozier on Friday, October 17 2003 @ 03:40 PM EDT |
Thanks PJ. I just wouldn't be able to keep up on things if it wasn't for you
and everyone else here that lends a hand. :)
---
~Dave[ Reply to This | # ]
|
| |
| Authored by: Anonymous on Friday, October 17 2003 @ 03:50 PM EDT |
This is one great comparison of the two files. Basically from what I can
gather from this statement, SCO is saying that yes were are profitable
again but the deck is stacked against us and if we don't come up with
something from these lawsuits, we are screwed. Again, this is my take
from but IANAL nor DIPOOT (do I play one on TV) and IANAFA (I am not
a financial analyst).
One thing that caught my eye was in Recent Developments section, the
original statement said that they had discovered UNIX code in the Linux
kernel. Now the statement says they allege that code is in Linux. Maybe I
am overanalyzing the meaning of allege but it sounds to me like they are
hedging their bets somewhat. That they don't want to make too bold of
a statement about the code.
Anyway, a good read nonetheless with the comparisons highlighted.
Excellent work![ Reply to This | # ]
|
| |
| Authored by: stanmuffin on Friday, October 17 2003 @ 03:51 PM EDT |
SCO claims that Red Hat has "no ownership interest whatsoever" in
the Linux kernel.
So if Red Hat doesn't have any ownership interest at all, despite holding
copyrights over portions of the kernel, then where does SCO get its supposed
ownership interest which would allow it to collect license fees from all Linux
users?
[ Reply to This | # ]
|
| |
| Authored by: brenda banks on Friday, October 17 2003 @ 04:06 PM EDT |
doesnt it look weird that all of a sudden they are finally mention cases to
support what they say?
this all reads like every word that has been spoken by sco has been written by
an attorney before hand and well and carefully orchestrated?
or am i seeing things?
going to research some of these cases they listed
br3n
---
br3n[ Reply to This | # ]
|
| |
| Authored by: Upholder on Friday, October 17 2003 @ 04:13 PM EDT |
| On page 9 of the PDF, SCOX claims that:
SCO had never contacted Red Hat,
much less taken an adverse position with an existing obligation and SCO had
never written any adversarial correspondence to Red Hat containing and
unmistakable threat of litigation; indeed, it had never written Red Hat any
correspondence at all.
I very clearly remember a letter from SCOX to
Redhat that said something very similar to "our response is likely to include
claims of copyright infringement".
Do they think that letter doesn't
count?
[ Reply to This | # ]
|
| |
| Authored by: gnuadam on Friday, October 17 2003 @ 04:14 PM EDT |
Red hat has what it really wanted from this document anyway. SCO is admitting
that all of their claims stem from their derivitave code theory and it's not
the widespread literal copying that they were FUDing about.
It also means that despite what they're saying, it would be a simple matter to
cure the problems if IBM is found to have inappropriately added code. They just
need to remove IBM's additions. Harder would be to replace them.
Here's hoping IBM wins.[ Reply to This | # ]
|
| |
| Authored by: brenda banks on Friday, October 17 2003 @ 04:15 PM EDT |
is this the gpl weakness on page 12?
that because it isnt owned or controlled by one that noone can claim damage?
does this make sense?
it doesnt to me but others that are more familiar with copyright law please?
---
br3n[ Reply to This | # ]
|
| |
| Authored by: Anonymous on Friday, October 17 2003 @ 04:24 PM EDT |
From the PDF [page 16 although it's repeated a lot]
"Specifically the IBM action will decide the critical issue in this
case"
From SCO's website (question 14)
[http://www.sco.com/scosource/linuxlicensefaq.html]
"Some Linux users have the misunderstanding that the SCO IP License for
Linux hinges on the outcome of the SCO vs. IBM case. If that case were
completely removed, Linux end users would still need to purchase a license from
SCO to use the SCO IP found in Linux. The IBM case surrounds mis-use of
derivative works of SCO UNIX. It does not change the fact that line-by-line SCO
IP code is found in Linux."
Can you lie to a judge in a blatant manner like that?[ Reply to This | # ]
|
| |
| Authored by: pfefferz on Friday, October 17 2003 @ 04:53 PM EDT |
Here's what I'm stuck on,
"Therefore legal liability that may arise from the Linux Development
process may also rest with the end user."
and
"We intend to aggressively protect and enforce these rights."
Then they say, "it is patently clear there is no threat of litigation by
SCO," because their original statement said that "Consistent with
this effort.." we're suing IBM.
Consistent is not a excusionary term, it means to be in harmony with. Had they
said in the letter, "our only action will be against IBM" then I
would buy their argument.
I pray the judge is a level headed fair individual with a short fuse for
corporate malfeasance.
---
Zachary A Pfeffer
Linux Programmer
Chip Designer[ Reply to This | # ]
|
| |
| Authored by: archanoid on Friday, October 17 2003 @ 04:58 PM EDT |
I read the response, and since IANAL, I await responses from people more
lawyerly than myself.
However, I do have three immediate thoughts about this respones:
1. This appears to be the best-prepared, most well thought out, lucid work
produced by SCO/Caldera's lawyers yet. Are they finally getting serious?
2. Continued stalling. To wit: "Indeed, if this Court does not dismiss
this action, SCO intends to file a motion to stay and/or transfer to
Utah." (from page 17 of the PDF) At least now they're being up front
about their intention to stall some more.
3. It appears they still don't get the GPL. Several arguments are made that
the GPL enforces your inability to sell any GPL'ed work (that it must be
"free" as in gratis, not libre). Again, from page 17 of the PDF:
"Pursuant to the GPL, the Linux kernel is provided to anyone who requests
it for free, and is therefore not 'purchased' by any customer in a commercial
transaction as defined under the Act."
Well, gee, does anybody actually "purchase" SCO UnixWare? No, they
license it. But that's beside the point. I don't understand the GPL to say
you have to provide the kernel to anyone who requests it for free. It says you
can charge for it, if you so choose. Am I wrong? Can't I, if I so choose,
pull together a collection of all GPL softare, package it, and sell it for $1
million a pop? So long as I provide the same rights to the person I'm selling
it to, the GPL doesn't stop me. Market forces might, but that's another
issue.
There are other statements as well that suggest they still don't really
understand the GPL.
[ Reply to This | # ]
|
| |
| Authored by: stanmuffin on Friday, October 17 2003 @ 05:08 PM EDT |
| From p. 16, emphasis mine:
"the IBM action will decide the critical issue
in this case; namely, whether the Linux 2.4 and 2.5 kernels contain source code
contributed by IBM in violation of its license agreement. If SCO
prevails and thereby establishes that the Linux 2.4 and 2.5 kernels
improperly contain SCO's protected material, then all of Red Hat's claims
necessarily fail, as there will be a determination that the Linux 2.4 and 2.5
kernels contain infringing material."
This is false. The
deception lies in jumping from "protected material" to "infringing
material".
SCO's claims against IBM are all about contract rights, and not
about copyright infringement. If IBM is found to be 100% guilty of breaching
its contract, it doesn't affect Red Hat at all.
IBM holds the copyrights
on what SCO calls the "derivative works" (NUMA, RCU, etc.) Red Hat and its
customers are not "infringing" by copying and using these things, even if IBM
was contractually forbidden to release them.
[ Reply to This | # ]
|
| |
| Authored by: rgmoore on Friday, October 17 2003 @ 05:14 PM EDT |
I think that this clearly shows yet another reason that SCO isn't sending out
its invoices. They're making a big deal in this suit about the fact that they
haven't actually stepped across the line and explicitly told customers that they
have to pay SCO money or be in violation of SCO's rights. They carefully danced
around the issue in their threatening letter to 1500 Linux using companies, and
they've avoided saying outright that they'll sue individual users for violating
their rights. But if they were to send out actual invoices, that would clearly
constitute a threat- pay up or we'll sue. If they send out the invoices before
the motion to dismiss comes up, it will kill whatever chance they currently have
of winning. ---
Behind every sleazy lawyer, there's a sleazy client. [ Reply to This | # ]
|
| |
| Authored by: sscherin on Friday, October 17 2003 @ 05:17 PM EDT |
Just wanted to bring up something I noticed in the 8K filing and the Redhat
reply..
In the 8K filing
<i>In connection with SCO's intellectual property enforcement effort,
SCOsource, SCO has alleged that the Linux 2.4 and the upcoming 2.6 kernel
contain SCO intellectual property. In an effort to offer marketplace solutions
to these Linux-related intellectual property issues, SCO released a licensing
program to offer Linux users a right-to-use binary mode only license, subject to
certain limitations. In the coming months, SCO intends to expand the licensing
program to include migration options for those end users who may be looking for
alternatives to Linux. Over the past several months, SCO has had discussions
with several major companies for the purpose of bolstering SCO's intellectual
property licensing and migration initiative.</i>
Yet in the Redhat reply they state
<i>It is patently clear that there is to threat of litigation by SCO
aginst any company using the Linux 2.4 kernel and greater kernels</i>
So what they want us to believe is that SCO has IP in the 2.4 and 2.6 kernels
but they are going to be nice and allow redhat to continue distributing it and
it's not a threat to Redhat customers. Yet they plan on asking those same
customers to pay licensing fees to SCO for it's IP in those kernels?
Funny it sounded better in my head :)[ Reply to This | # ]
|
| |
| Authored by: inc_x on Friday, October 17 2003 @ 05:31 PM EDT |
Heh, they acknowledge that they no longer focus on developing
UNIX. :-)
(S3, Page 4, paragraph 5) [ Reply to This | # ]
|
| |
| Authored by: brenda banks on Friday, October 17 2003 @ 05:33 PM EDT |
http://tinyurl.com/rckq
---
br3n[ Reply to This | # ]
|
| |
| Authored by: nabet on Friday, October 17 2003 @ 05:43 PM EDT |
| This reply is definately better written and argued than anything else that has
been submitted by SCO to the courts so far. Seems like SCO's lawyers are
finally beginning to earn their pay.
However, notice on page 16 and 17 how
SCO couldn't resist making the claim that the purpose of the GPL is to destroy
the ecomonic value of software copyrights. Notice the wording: they are
not simply claiming that GPL'd software can destroy the value of competing
proprietary software (which it certainly can), they are also claiming that the
GPL is designed to make copyright law itself ineffectual. How they can get from
the former statement to the latter is beyond me.
It seems like SCO needs
some lessons on how copyright law works. Just because SCO may be finding it
difficult to sell their proprietary software products in the face of better (and
cheaper) GPL'd software products, doesn't mean their software products are any
less protected by copyright!
I believe this reveals something important
about how SCO views copyright: they think the purpose of copyright is to protect
proprietary or monetised works only, and that to allow Free or
Open Source Software to be similiarly protected goes against the spirit of
copyright law: if there is no economic value associated with FOSS, then how can
protecting it with copyrights make FOSS more valuable?
Of course, SCO is
convienantly forgetting that the purpose of copyright law is to "encourage
future inventions". They only see the part that says "by giving authors a
temporary monopoly on their copyrighted works", which has traditionally
translated to "making money off copyrighted works". SCO doesn't understand that
encouragement to invent things can come in forms other than financial ones: to
authors of GPL'd software, the incentive is that the GPL encouranges others to
contribute code to their software in order to make it better than the author
could alone; as opposed to taking a copy of the software, adding some
proprietary extensions, and selling it for profit--thereby benefiting nobody but
the seller. [ Reply to This | # ]
|
| |
| Authored by: brenda banks on Friday, October 17 2003 @ 05:57 PM EDT |
http://www.banktech.com/story/techwire/TWB20031017S0010
"SCO is in the process of following up on letters sent to 1,500
enterprises this year, advising them that they may be in violation of SCO's
intellectual property rights in their use of Linux. "Our goals is not to
go out and start suing companies," McBride said. "But, as we go down
that path, if we have certain companies out there that are using Linux and
we're unable to come to a resolution or reach an impasse, then we absolutely
will reserve the option of (taking) the legal path as the remedy to go resolve
that."
---
br3n[ Reply to This | # ]
|
| |
| Authored by: AdamBaker on Friday, October 17 2003 @ 06:08 PM EDT |
I don't see why there would have to be a "day of reckoning" if SCO
didn't intend to sue RedHat if they don't remove any code. Also I think SCO
are claiming that RedHat would be liable for past damages which is the exact
issue which declaratory judgments are intended to avoid.
Also with regard to the kernel not being a red hat product, the kernel as
distributed by kernel.org isn't but RedHat I suspect claim a collective
copyright on their patched kernel and I know for certain they do on their discs
that include the kernel as they also contain RedHats copyrighted and trademarked
logos which are most certainly not free, so they sell a product of which the
kernel is a critical element (I wouldn't buy a distro that didn't include one)
and which most definitely is not given away free - they have certainly objected
to others trying to sell copies of their discs[ Reply to This | # ]
|
| |
| Authored by: Anonymous on Friday, October 17 2003 @ 06:10 PM EDT |
IANAL
But I think this motion will *probably* fail
I agree it is the best filing yet by SCO by a long way
However it has a number of problems on a quick cursory reading.
My ill-informed layman's opinion:
1. It seems to introduce new arguments (which should have been in SCO's initial
memo in support of the motion) rather than than being responsive to Red Hat
2. I do not think they sufficiently address Red Hat's counts III to VII
3. Their arguments that IBM case will settle Red Hat's issue seem flawed to me,
as does their position about Red Hat's interest in Linux, or interpretation of
the GPL.
That said, I believe Red Hat made 2 mistakes
4. In their reply brief they should have addressed SCO's memo differently. From
two angles, whether fact based dismissal, and law based dismissal.
5. They should have registered copyrights on their contributions to Linux and
sued for copyright infringement as per IBM did in their counterclaim.[ Reply to This | # ]
|
| |
| Authored by: Anonymous on Friday, October 17 2003 @ 07:31 PM EDT |
What a load of $*?!
<i>
"Pursuant to the GPL, the Linux kernel is provided to anyone who requests
it for free, and is therefore not 'purchased' by any customer in a commercial
transaction as defined under the [Lanham] Act."
"Red Hat, accordingly, makes money by providing professional
services."
"It [Red Hat] does not make money by selling the Linux kernel."
</i>
What are these people on!!!!! SCOs Lawyers cant even come up with anything close
to a 'loophole'. Does not make money selling the Linux kernel? Try their
RedHat Enterprise Server editions. The kernel is an essential part. It is
customized (patched) with RedHat's own patches specifically for their
Enterprise Server Edition offering - you know the thing they MAKE MONEY OFF OF
!!!! .. Gawd, this is just incredible. I mentioned this before and I think it's
worth doing. Get a list of SCOs Lawyers. Collect their 'public' legal
arguments. Show how absurd they are (I especially like the one copy only
argument and their 'Freedom of Speech' defense to ReHat). Then send the whole
thing to their respective BAR associations claiming at most they are
participants in a stock scam and at the very least ethically challenged. I think
if we did the same as we did with our Open Letter to McBride and a couple of
thousand(s) of online signatures people would take notice (the press would) and
maybe the bar association would too. At the very least it may make these scum
lawyers look over their shoulder.[ Reply to This | # ]
|
| |
| Authored by: Anonymous on Friday, October 17 2003 @ 08:07 PM EDT |
According to the Amended S-3
TSG is claiming ownership of the Unix(r) trademark.
This is a lie, TSG does not own the Unix (r) trademark!
It is the property of the Open Group.
See:
http://www.unix.org/what_is_unix/the_brand.html
And I quote here " UNIX certification and the UNIX brand is part of The
Open Group's internationally recognized portfolio of open systems certification
programs which represent the three primary ingredients required for open
systems:"
So, what brand does TSG own?
Every time TSG open their collective mouths lies spew forth!
Regards,
Linux developer from the Northwest
[ Reply to This | # ]
|
| |
| Authored by: brenda banks on Friday, October 17 2003 @ 08:15 PM EDT |
http://linuxtoday.com/news_story.php3?ltsn=2003-10-17-017-26-OP-BZ
awesome write up
---
br3n[ Reply to This | # ]
|
| |
| Authored by: Anonymous on Friday, October 17 2003 @ 08:38 PM EDT |
Somebody *qualified* needs to write to the court, pointing out (with Exhibits):
1. SCO's claim that the IBM case can determine the Red Hat issues is false,
according to SCO's own statements
(i) On the web site
(ii) Blake Stowell to computer world, posted above
(iii) Darl and friends in May 30 teleconference (which asserts IBM case not to
involve copyright issues)
2. SCO's argument that Red Hat has no interest in Linux is false
(i) Red Hat copyrights in Linux
(ii) Red Hat sales of Linux. Ideally something like a Red Hat CD (with their
name on it) and receipt for purchase included as exhibits.[ Reply to This | # ]
|
| |
| Authored by: Anonymous on Friday, October 17 2003 @ 09:22 PM EDT |
Starting with the very first paragraph:
"Red Hat seeks declaratory
and other relief from this court with respect to [the Linux 2.4 and 2.5
kernels]" (page 1)
No, it seeks relief with respect to "[any]
LINUX version sold, used or distributed by Red Hat, or used by Red Hat's
customers[,]" which includes Red Hat Linux and Red Hat Enterprise
Linux. They deliberately (I think) ignored this in the original motion,
too. I guess it would be harder to argue that Red Hat doesn't have control over
something called "Red Hat Linux." (And when did they see Red Hat ship 2.5
kernels, anyway?)
"[...] no proprietary interest in, contractual
right to, or control over [...]" (page 1)
"Proprietary" and
"control" here, and all over the brief, are used in an equivocation
fallacy.
They cite paragraphs 22 and 26 of the complaint in
support:
"The GPL allows access to the software source code, and
allows others to use, change and improve the software source code [...] In other
words, Linux remains open, not proprietary. [...]
Since its inception, the LINUX
kernel was and still is licensed and distributed under the GPL, which ensures
that the operating system remains free for copying and further development.
LINUX can be freely copied and modified by anyone
[...]"
pro·pri·e·tar·y
adj.
1. Of,
relating to, or suggestive of a proprietor or to proprietors as a group: had
proprietary rights; behaved with a proprietary air in his friend's house.
2.
Exclusively owned; private: a proprietary hospital.
3. Owned by a private
individual or corporation under a trademark or patent: a proprietary
drug.
Red Hat means 2 or 3 (not open), but SCO uses it as 1, which
contradicts the complaint:
"Therefore, although Red Hat owns the
copyright to the LINUX software that it develops, [...]" (emphasis
added)
Red Hat certainly has contractual rights to it because the
GPL is a contract.
The cited paragraphs support the notion that Red Hat has
no control over Linux in the sense that Red Hat cannot dictate what others do
with Linux, but they directly contradict it when the relevant meaning of
"control" is used, which is whether Red Hat itself can modify Linux
(since Red Hat is also "anyone").
And behold the brazenness: they claim here
that Red Hat has no control over Linux, and then, on page 4, say that Red
Hat
"may need to revisit its distributions and remove any UNIX
code from its distributions and compensate SCO in some way for the use of
SCO's UNIX code." (emphasis added)
No control, huh? (Suddenly,
it's also "distributions," not "Linux kernels 2.4 and 2.5.")
And a separate
contradiction in the same sentence: they say that Red Hat can't have controversy
with them over Linux because Red Hat doesn't have sufficient ownership/control,
but then repeat their own quote that Red Hat will owe them money for past
infringement! This is more legal than factual (and IANAL), but if SCO's
position is that Red Hat will be liable for past infringement despite
allegedly not having sufficient ownership/control, then by their own assertion,
controversy doesn't depend on ownership/control.
"Specifically,
Red Hat has not alleged, and cannot allege, that it is the "manufacturer" of the
infringing product[.]" (page 7)
Duh, of course not -- Red Hat
doesn't think that it's infringing. Otherwise, however, it can and
has:
"Within a few years, companies developed and sold
packaged versions of the operating system [...] Red Hat [...] was one of these
companies." (par. 23, 24, emphasis added)
"[...] Red
Hat's complaint makes clear that it has no say in the creation, development, and
implementation of the Linux 2.4 or 2.5 kernels [...] Rather, as touched upon in
Red Hat's complaint, what is or is not included in the kernel is dependent upon
Linus Torvalds (and others at the Open Source Development Lab), not with Red
Hat." (page 7)
"Touched upon." Meaning, the complaint doesn't
really say anything like that at all, it just mentions Linus when describing
Linux history, but I guess they had to put in some pretense that this factual
assertion has some basis in the complaint, rather than introduced by themselves,
which it really is. On the contrary, the complaint says that Red Hat is one of
the companies that develop packaged versions of Linux (see quote above). Apart
from being outside of the record, it's also wrong, of course. Red Hat may have
no say in what goes into Linus tree of the kernel (as a company; some of
its employees do), but it certainly has a say in what goes into its own version
of the kernel, which is what it "s[ells], use[s] or distribute[s]" and over
which it is suing SCO.
"Because Red Hat's activities of adding
features, testing, providing management services and consulting are wholly
without any connection to the inclusion of SCO's intellectual property [...]"
(page 8)
Another factual assertion outside the record. And did I
mention that this, if true, doesn't stop you from saying that Red Hat will owe
you compensation??
Flawed claims about the equivalence with SCO v. IBM on page
11:
"Specifically, the IBM action will decide [...] whether the
Linux [...] kernels contain source code contributed by IBM in violation of
its license agreement. If SCO prevails and thereby establishes that the
Linux [...] kernels improperly contain SCO's protected material, then all
of Red Hat's claims necessarily fail, as there will be a determination that the
Linux [...] kernels contain infringing material." (emphasis
added)
This is a triple fallacy of exclusion:
"source code contributed by IBM in violation of its license agreements" is not
necessarily "SCO's protected material," "SCO's protected material" is not
necessarily "infringing material," and even if there is infringing material, Red
Hat can conceivably succeed under the Estoppel doctrine. Not that they even
bothered to define "SCO's protected material."
"If, however, SCO
fails to establish that the Linux [...] kernels contain its protected
intellectual property, then Red Hat's claims could
proceed."
False dilemma (there may be "code contributed by
IBM in violation," but no "[SCO's] protected intellectual property," or,
depending on the definition of "protected intellectual property," it may have
been contributed without violation) plus illicit major (in SCO v. IBM,
SCO can, at most, fail to establish that Linux contains its "protected
intellectual property" contributed by IBM, not by others -- since that's
all SCO alleges there).
"The Linux 2.4 and 2.5 kernels are
distributed under a licensing scheme that prevents Red Hat from having any
proprietary interest therein. Pursuant to the GPL, the Linux kernel is provided
to anyone who requests it for free, and is therefore not "purchased" by any
customer in a commercial transaction as defined under the Act. [...] see
also GPL (allows charging for services only). [Red Hat] does not make money
by selling the Linux kernel."
And they shamelessly attach a copy
of the GPL, which does not require to provide Linux to anyone, for free
or not (it only requires to provide the full source if you provide the
binary, or part of the source) and does not prohibit charging for the
software (as long as you include the source at no extra cost, or at cost). Most
clearly, Linux is "purchased" by customers (ever heard of boxed sets??)
and Red Hat does make money from selling it (and for a while, it was all it
did). The fact that the customer can give it away to others doesn't make it any
less of a purchase.[ Reply to This | # ]
|
| |
| Authored by: gumout on Friday, October 17 2003 @ 09:59 PM EDT |
--- SCO pulls a Bait and Switch ---
This is a blatant, dishonest attempt to deceive the Court concerning Red
Hat's Memorandum by switching factual speakers and quotes.
Here's the original quote by Darl McBride to which Red Hat's Memorandum
referred concerning "there will be a day of reckoning... when this is
done".
http://www.crn.com/sections/BreakingNews/dailyarchives.asp?ArticleID=4148
CRN: Have you talked to Red Hat?
McBride: Yes. We approached Red Hat [about licensing source code libraries]
and they thought [our claim] was interesting. They said they'd talk about it,
but then called back and said we'll pass [on licensing the source code from
SCO]. [Red Hat Chairman and CEO Matthew] Szulik said copyright issues scare
him. But Red Hat has had a free ride. In its IPO filings, one of the warnings
to investors stated clearly that Red Hat may be violating IP and one day they
may have to step up and pay royalties. Why not? Every time I ship a copy of my
operating system, I pay royalties to Novell and Veritas. There will be a day
of reckoning for Red Hat and SuSE when this is done. But we're focused on the
IBM situation.
SCO's Reply Brief cites Chris Sontag in Mozillaquest concerning "a day
of
reckoning".
http://www.mozillaquest.com/Linux03/ScoSource-10_Story02.html
Chris Sontag: What [he] meant was that if SCO prevails in their lawsuit with
IBM, companies like Red Hat and SuSE may need to revisit their distributions
and remove any UNIX system code from their distributions and compensate SCO in
some way for the software code that they benefited from by using our UNIX
code.
---
Sir, ( a + bn )/n = x , hence God exists; reply![ Reply to This | # ]
|
| |
| Authored by: Anonymous on Saturday, October 18 2003 @ 02:11 PM EDT |
PJ,
In its reply brief, SCO argues on page 7 that "Red Hat
cannot allege that it is a party to a controversy
involving the Linux 2.4 kernel or the 2.5 development
kernel because Red Hat does not have a sufficient
connection to that development process."
This makes no sense to me. If I copy and distribute "The
Adventures of Huckleberry Finn," which I had no part in
writing, could SCO make all the threats it wants about my
work infringing their copyrights without my being able to
ask for relief in the form of a declaratory judgment of
non-infringement?
And on page 12, SCO makes the argument that Linux is
"distributed under a licensing scheme that prohibits Red
Hat from having any proprietary interest therein. ... It
does not make money by selling the Linux kernel."
Therefore, "Red Hat simply has no standing under 43(a).
[the Lanham act]"
This, too, seems crazy to me. Is SCO trying to assert
here that if milk were sold in the same way gasoline is
sold (that is, the local store operator doesn't own the
gasoline in the underground tank, but merely stores it and
sells it for the gas company), that a local grocery store
would have no recourse under the Lanham Act to a false
allegation that all the milk they sold was spoiled?
That seems crazy to me.
Besides, the Lanham act says:
"Any person who, on or in connection with any goods or
services, or any container for goods, uses in commerce any
word, term, name, symbol, or device, or any combination
thereof, or any false designation of origin, false or
misleading description of fact, or false or misleading
representation of fact, which -
... in commercial advertising or promotion, misrepresents
the nature, characteristics, qualities, or geographic
origin of his or her or another person's goods, SERVICES,
OR COMMERCIAL ACTIVITIES [emphasis added] shall be liable
in a civil action by ANY [emphasis added] person who
believes that he or she is or is likely to be damaged by
such act."
The GNU General Public License explicitly permits charging
a fee for the physical act of transferring a copy of
licensed programs. SCO included a copy of this license
as an exhibit in their brief. The relevant permissions are
in section 1 of the license. Being able to charge a fee
for the physical act of transferring a copy of a licensed
program sounds pretty close to being a "SERVICE OR
COMMERCIAL ACTIVITY" [emphasis added] to me.
Suppose Red Hat's "SERVICES AND COMMERCIAL ACTIVITY"
[emphasis added] consisted solely of charging a fee for
the physical act of transferring copies of an operating
system kernel licensed under the GPL. Further soppose
that Red Had, in fact, had no "proprietary interest" in
this kernel. Wouldn't a false allegation that Red Hat's
tranferred copies included unlicensed and illegal software
nonetheless still be fully actionable under the Lanham
act?
Also, the statute appears to grant a right of action to
"ANY [emphasis added] person who believes that he or she
is or is likely to be damaged by such act." (I know, Red
Hat is not a real "person," but a corporation is a person
in the eyes of the law.) What is there in the five
element test for the prima facie case cited by SCO or the
Lanham act itself that places any limit on the type of
rights a person must have in a product to have standing to
sue?
The act itself seems to say that a person can sue if
he is or is likely to be damaged even if the product,
service, or commerical activity being falsely disparaged
is that of a third party. Doesn't the Linux operating
system fit into *at least* that category with respect to
Red Hat, even if one were to agree with everything else
SCO is saying?
[ Reply to This | # ]
|
| |
| Authored by: Anonymous on Saturday, October 18 2003 @ 09:21 PM EDT |
I found it humorous that SCO would complain about the German court preventing
them from
``making statements in Germany that, in substance,
disparage Linux, or entities involved in the Linux
industry...''
Color me naive, but do most corporations find
it necessary to make disparaging statements about competitors products or their
users? Oh, I can see the occasional jab in an advertisement (I wonder just
who IBM was referring to in the ``Executivus Obsoletus'' commercial?) but
SCO seems to make a habit out of crossing way, way, over the line and the more
outrageous the statement the better [1]. It may not be unethical to do this
but, to me, it shows an incredible lack of class. Not that we've seen any
indications of SCO management having any, it's interesting to see that they're
pointing it out to the SEC.
---
[1] -- I've developed a real dislike for
vendors that do this beginning some years ago with HP's salespeople who turned
every pitch into an opportunity to badmouth their competitors. It leaves a very
bad taste in one's mouth and makes it difficult to see anything positive in
their products. But I digress...
[ Reply to This | # ]
|
| |
| Authored by: Anonymous on Saturday, October 18 2003 @ 09:29 PM EDT |
This is entirely off-topic, but is there anything that can be done
about the way Groklaw's pages are being formatted? Even running my browser in
full-screen mode (which I hate doing) I find that, sometimes, I only get about
2/3 of the page displayed (and that's on a 19-inch monitor!) and I have to
scroll horizontally. It's either that or I have to shrink the font size down to
the point of eye strain.
Has anyone else noticed this? [ Reply to This | # ]
|
| |
| Authored by: skidrash on Sunday, October 19 2003 @ 03:11 AM EDT |
"Pursuant to the GPL, the Linux kernel is provided to anyone who requests
it for free, and is therefore not 'purchased' by any customer in a commercial
transaction as defined under the Act."
Water is free. Go down to a beach and scoop it up.
But people DO PAY FOR IT.
Just another ridiculous misrepresentation by SCO.
[ Reply to This | # ]
|
| |
| Authored by: skidrash on Sunday, October 19 2003 @ 03:36 AM EDT |
You could charge $10,000 for Linux. As long as you provided source when source
was requested, you're within GPL.
NOTHING in GPL prohibits you charging that $10,000.
[ Reply to This | # ]
|
|
|
|
|
