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"SCO: Without Fear and Without Research" by Eben Moglen
Monday, November 24 2003 @ 12:53 PM EST

OSDL has just released a new position paper, Eben Moglen, Esq.'s "SCO: Without Fear and Without Research." Here it is in its entirety, thanks to his choosing to allow his words to be used more freely than copyright law would permit him to demand. I believe such generosity is still constitutional.

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

SCO: Without Fear and Without Research
~ by Eben Moglen*

Just The Facts
Making Up the Law

There's a traditional definition of a shyster: a lawyer who, when the law is against him, pounds on the facts; when the facts are against him, pounds on the law; and when both the facts and the law are against him, pounds on the table. The SCO Group's continuing attempts to increase its market value at the expense of free software developers, distributors and users through outlandish legal theories and unsubstantiated factual claims show that the old saying hasn't lost its relevance.

Just The Facts

SCO continues to claim in public statements about its lawsuit against IBM that it can show infringement of its copyrights in Unix Sys V source code by the free software operating system kernel called Linux. But on the one occasion when SCO has publicly shown what it claimed were examples of code from Linux taken from Unix Sys V, its demonstration backfired, showing instead SCO's cavalier attitude toward copyright law and its even greater sloppiness at factual research.

On August 18, 2003, SCO's CEO, Darl McBride, offered a slide presentation of supposed examples of infringing literal copying from Sys V to Linux at a public speech in Las Vegas. Within hours the free software and open source communities had analyzed SCO's supposed best evidence, and the results were not encouraging for those investors and others who hope SCO knows what it is talking about.[1] 

In Las Vegas Mr. McBride offered two examples of code from the Linux program that were supposedly copied from Sys V. The first implements the ``Berkeley Packet Filter'' (BPF) firewall. Indeed, the Linux kernel program contains a BPF implementation, but it is the original work of Linux developer Jay Schulist. Nor did SCO ever hold an ownership interest in the original BPF implementation, which as the very name shows was originally part of BSD Unix, and which was copied, perfectly legally, into SCO's Sys V Unix from BSD. Because the BPF implementations in Sys V and Linux have a common intellectual ancestor and perform the same function, SCO's ``pattern-matching'' search of the two code bases turned up an apparent example of copying. But SCO didn't do enough research to realize that the work they were claiming was infringed wasn't their own (probably because they had ``carelessly'' removed the original copyright notice).

Mr. McBride's second example was only slightly less unconvincing. Mr McBride showed several dozen lines of memory allocation code from ``Linux,'' which was identical to code from Sys V. Once again, however, it turned out that SCO had relied on ``pattern-matching'' in the source code without ascertaining the actual history and copyright status of the work as to which it claimed ownership and infringement. The C code shown in the slides was first incorporated in Unix Version 3, and was written in 1973; it descends from an earlier version published by Donald Knuth in his classic The Art of Computer Programming in 1968. AT&T claimed this code, among other portions of its Unix OS, as infringed by the University of California in the BSD litigation, and was denied a preliminary injunction on the ground that it could not show a likelihood of success on its copyright claim, because it had published the code without copyright notices and therefore, under pre-1976 US copyright law, had put the code in the public domain. In 2002, SCO's predecessor Caldera released this code again under a license that permitted free copying and redistribution. Silicon Graphics, Inc. (SGI) then used the code in the variant of the Linux program for ``Trillium'' 64-bit architecture computers it was planning to sell but never shipped. In incorporating the code, SGI violated the terms of Caldera's license by erroneously removing Caldera's (incorrect) copyright notice.

Thus SCO's second example was of supposedly impermissible copying of code that was in the public domain to begin with, and which SCO itself had released under a free software license after erroneously claiming copyright. SGI had complicated matters by improperly removing the inaccurate copyright notice. So how many PCs and Intel-architecture servers around the world contained this supposedly infringing code? Zero. No version of the Linux program for Intel architectures had ever contained it. No SGI hardware for which this code was written ever shipped. HP, which sells 64-bit Itanium servers, has removed the code from the IA-64 branch of the Linux code tree; it was technically redundant anyway. But SCO's research went no farther than discovering a supposed instance of ``copying,'' without asking whether SCO had any rights in what had been copied, and certainly without providing the audience to whom it was speaking any indication that the ``Linux'' it was talking about was a variant for rare computers from which the supposedly-offending code had already been removed.

What the Las Vegas ``examples'' actually demonstrated was that SCO's factual claims were irresponsibly inflated when they weren't being kept artfully ``secret.'' With the facts running against them even when the facts were of their own choosing, it was unsurprising that after August SCO turned to the law. But the law was not on their side either.

Making Up the Law

SCO's legal situation contains an inherent contradiction. SCO claims, in the letters it has sent to large corporate users of free software and in public statements demanding that that users of recent versions of the kernel take licenses, that the Linux program contains material over which SCO holds copyright. It also has brought trade secret claims against IBM, alleging that IBM contributed material covered by non-disclosure licenses or agreements to the Linux kernel. But it has distributed and continues to distribute Linux under GPL. It has therefore published its supposed trade secrets and copyrighted material, under a license that gives everyone permission to copy, modify, and redistribute. If the GPL means what it says, SCO loses its trade secret lawsuit against IBM, and cannot carry out its threats against users of the Linux kernel.

But if the GPL is not a valid and effective copyright permission, by what right is SCO distributing the copyrighted works of Linux's contributors, and the authors of all the other copyrighted software it currently purports to distribute under GPL? IBM's counterclaim against SCO raises that question with respect to IBM's contributions to the Linux kernel. Under GPL section 6, no redistributor of GPL'd code can add any terms to the license; SCO has demanded that parties using the Linux kernel buy an additional license from it, and conform to additional terms. Under GPL section 4, anyone who violates GPL automatically loses the right to distribute the work as to which it is violating. IBM therefore rightly claims that SCO has no permission to distribute the kernel, and is infringing not only its copyrights, but those of all kernel contributors. Unless SCO can show that the GPL is a valid form of permission, and that it has never violated that permission's terms, it loses the counterclaim, and should be answerable in damages not only to IBM but to all kernel contributors.

IBM's counterclaim painted SCO into a corner on the subject of the GPL. Not only the facts but also the law are now fundamentally against SCO's increasingly desperate position. SCO and its predecessor, Caldera, have benefited enormously from the protections of the GPL. Thanks to the GPL, SCO has been able, for example, to use the invaluable work of compiler designers and implementers around the world who have made GCC the premier cross-platform C compiler. Customer applications run on SCO's Sys V Unix because of GCC, to which SCO contributed modifications particular to its system, and for which it assigned copyright to the Free Software Foundation. Caldera and SCO could not have marketed a usable operating system product without the contributions of the free software community. SCO was happy to take the benefits, but it has unethically sought to avoid its responsibilities. The law does not permit SCO to have it both ways.

So now it has become time for SCO and its lawyers to pound the table. SCO's response to IBM's counterclaim has been a round of absurd attacks on the GPL, its users, and its author, the Free Software Foundation. The GPL, SCO's answer to IBM's counterclaim alleges, violates not just federal statutes but also the United States Constitution. How a private copyright holder can violate the US Constitution by giving others permission to copy, modify and redistribute its work SCO does not deign to say. Legal theories aren't secrets; if SCO's lawyers had anything to offer in support of this novel proposition, they would offer it. Not one case decided in the long history of US copyright affords support to this ridiculous conception of an unconstitutional copyright license. No lawyer of my reasonably broad acquaintance, no matter what his or her view of the GPL may be, takes this moonshine seriously. After failing on the facts, failing on the law, and raising no more than derisive laughter from pounding the table, even the proverbial shyster is out of luck. What will we see next from SCO, an attack on the umpire?

ŠEben Moglen, 2003. Verbatim copying of this article is permitted in any medium, provided this notice is preserved.



*  Eben Moglen is professor of law at Columbia University Law School. He has served without fee as General Counsel of the Free Software Foundation since 1993. This paper is based on a presentation given to the Open Source Development Lab's User Advisory Council in Portland, OR, October 8, 2003 and updated to take account of subsequent developments .

1  The most complete review of the SCO Las Vegas presentation was written by Bruce Perens, and is available at http://www.perens.com/SCO/SCOSlideShow.html


ŠEben Moglen               

  


"SCO: Without Fear and Without Research" by Eben Moglen | 514 comments | Create New Account
Comments belong to whoever posts them. Please notify us of inappropriate comments.
"SCO: Without Fear and Without Research" by Eben Moglen
Authored by: Budgreen on Monday, November 24 2003 @ 01:12 PM EST
an exelently written paper, straight and to the point.

I ran across this a little bit ago and I'm glad to see it pop up here. I hope
it gets some good plugs into other news stories as well.

[ Reply to This | # ]

Oooooooh yeahhhhhhhh
Authored by: Scriptwriter on Monday, November 24 2003 @ 01:17 PM EST
Just the sort of thing I like to see on a Monday morning.

I don't think there's anything here we haven't heard before, but that's OK
with me. It just means that SCO has had no case since before the beginning of
all this, and all IBM has to do is what it's been doing all along -- stick to
the facts of the case while SCO reinvents the Chewbacca strategy.

[ Reply to This | # ]

"SCO: Without Fear and Without Research" by Eben Moglen
Authored by: knutsondc on Monday, November 24 2003 @ 01:31 PM EST
What a great, succinct summary of SCO's antics! I wish that all journalists and stock analysts covering SCO would read this piece before writing their next pieces on SCO. Maybe then SCO's aritificial stock bubble would burst and this absurd situation would move to its next, inevitable stage: the class action securities fraud cases against SCO, its management, and other controlling persons.

Darron

Darron C. Knutson
Attorney at Law
dckATdknutsonlaw.com

DISCLAIMER: My postings should not be construed as legal advice for any particular person reading them and no one should rely on them in the conduct of their business or other important matters. Just reading this posting doesn't make you a client of mine -- otherwise SCO's lawyers might accuse me of monopolizing the market for legal advice by giving it away for free {8^)

[ Reply to This | # ]

Why is this issue invisible to the financial press?
Authored by: mitphd on Monday, November 24 2003 @ 01:35 PM EST
As usual, Eben Moglen hits the nail on the head. The GPL issue is going bring SCO down in the end. Add in IBM's patent claims, and one wonders what will be left for the SCO stockholders.

Yet, the recent Barron's article says absolutely nothing about IBM's counterclaims, either on the GPL or the patents. It apparently assumes that if SCO is telling the truth about 'copied' code in Linux, then SCO rakes in the billions and goes on untroubled, its own copyright and patent violations being forgiven by a benevolent court. Deutsche Bank may have an ulterior motive in pumping SCOX stock, but how can Barron's be so blind?

[ Reply to This | # ]

some missing pieces?
Authored by: rsmith on Monday, November 24 2003 @ 01:40 PM EST

There is no debunking of SCO's claim that they inadvertently distributed the Linux kernel with it's supposedly infringing code.

Can anybody guess why? Is it just to silly to be mentioned? The only reason I can think of, is that if they didn't know, they were negligent. SCO's argument seems to defeat itself (but IANAL). To be fair, he mentions it here . Buy IMHO this point could be made more forcefully.

Onother related point: AFAIK, there have been no attempts by SCO to work with the community to identify and remove any "infringing" code. Also SCO has made it very clear that they just want to collect money instead of addressing the alledged copyright violations. Wouldn't that be enough to get any copyright infringement suit by SCO thrown out of court?

---
--
Confucius say: It is impossible to sling mud with clean hands.

[ Reply to This | # ]

"SCO: Without Fear and Without Research" by Eben Moglen
Authored by: shaun on Monday, November 24 2003 @ 01:46 PM EST
You know Eben is one of the few lawyers I have been able to read sensibly. He
knows when to use legalize and when not to. However he as always just cuts to
the point of the matter and does not mince words. Gotta love that.

--Shaun

[ Reply to This | # ]

"SCO: Without Fear and Without Research" by Eben Moglen
Authored by: bobh on Monday, November 24 2003 @ 01:58 PM EST
the proverbial shyster is out of luck

Mr. Moglen has shown himself to be a careful man. To quite obviously call Mr. Heise a "shyster" in public was no doubt calculated. Strong words from a law professor.

[ Reply to This | # ]

Virtually nobody mentions this
Authored by: Anonymous on Monday, November 24 2003 @ 02:21 PM EST
SCO says it shipping Linux products under the GPL is some sort of mistake.
Presumably, they mean their mistake (nobody forced them to ship Linux).

Let's say you bought Caldera/SCO Linux under the GPL. Now SCO says it was a
mistake to give it you under the GPL, and you must accept a new more restrictive
license (although being a previous Caldera/SCO customer they have kindly excused
you from paying). There seem to be two points:

1. You paid for something (source and binary) under one set of terms (GPL), and
end up getting something else (binary only) under a different set of terms
(SCO's new license)

2. If SCO can retroactively change the terms of sale, because THEY made a
mistake, what is to stop them doing it again and again whenever they want.
e.g.
(a) You pay/get a Linux IP license for the alleged Sys V code in Linux,
(b) Then SCO realizes they made another mistake. As well as Sys V code, they
think there is also OpenServer/Unixware/Volution/whatever code also in Linux
(c) So to keep legally using Linux, you need a third new IP license
(d) Repeat steps (b) to (c) as necessary


Feel free to extrapolate this point, to people who are not SCO customers but
received Linux from SCO either directly or indirectly under the GPL.

[ Reply to This | # ]

Countering The Big Lie
Authored by: jdos on Monday, November 24 2003 @ 02:22 PM EST
This is a Good Thing. These facts need to be restated again and again while SCO
utilizes the Big Lie strategy. This is a nice summation of the facts. The only
thing I would add is that SCO's claim that end users might be liable for damages
(and should therefore purchase SCO licenses) is entirely unsupported in the law.

[ Reply to This | # ]

"SCO: Without Fear and Without Research" by Eben Moglen - blacklight
Authored by: Anonymous on Monday, November 24 2003 @ 02:30 PM EST
I am still waiting for the SCO Group to disclose the identity of the five IP law
experts whom Chris Sontag allegedly talked to and who said that Eben Moglen
doesn't know squat about copyrights law - and I've been waiting for several
months now. I wouldn't be petty enough to voice the suspicion that Chris Sontag
pulled out the five IP experts out of the same orifice that Darl McBride pulled
his team of MIT mathematicians out of, would I? Let me guess: when Judge Kimball
smacks the hell out of the SCO Group, Chris Sontag is going to have an interview
the next day or so that starts with: "I talked to five Federal judges
..."

[ Reply to This | # ]

"SCO: Without Fear and Without Research" by Eben Moglen
Authored by: mdchaney on Monday, November 24 2003 @ 02:33 PM EST

I believe such generosity is still constitutional.

It's not. Look, the Constitution allows for one copy. To allow anyone to make more than one copy is the rough equivalent of usurping the very foundation of our state.

At the present course, I seriously expect the FSF to start coining money and raising an army any day now.

[ Reply to This | # ]

"SCO: Without Fear and Without Research" by Eben Moglen
Authored by: Nivuahc on Monday, November 24 2003 @ 02:49 PM EST
Hey, Anybody know what happens to UNIX when SCO goes kaput?

Who owns the Intellectual Property at that point?

---
Yeah, I finally created an account. You might recognise me from my old nickname though: 'Anonymous'.

[ Reply to This | # ]

"SCO: Without Fear and Without Research" by Eben Moglen - blacklight
Authored by: Anonymous on Monday, November 24 2003 @ 02:53 PM EST
I think that the SCO Group's indiscriminate use of the "grep"
utility to do text search was quite a cute stunt since it had been claiming for
months that it was using "spectral analysis" to find infringing
code. We might as well chalk up the SCO Group's "spectral analysis"
as another urban legend.

[ Reply to This | # ]

"SCO: Without Fear and Without Research" by Eben Moglen
Authored by: Anonymous on Monday, November 24 2003 @ 03:14 PM EST
Interesting that another negative report regarding SCO and their stock jumps almost $2. What else happened that pushed their stock up to $16 again?

[ Reply to This | # ]

"attack the upire"
Authored by: Anonymous on Monday, November 24 2003 @ 03:19 PM EST
Yep. I expect that's what they'll do - they'll come up with some
"conflict" for the judge, and ask for a replacement, which will add
months to their scam (oops, I mean "case").

Remember folks: you read it here first.

[ Reply to This | # ]

"SCO: Without Fear and Without Research" by Eben Moglen
Authored by: Anonymous on Monday, November 24 2003 @ 03:27 PM EST
If SCO are claiming rights to other people's code, quite possibly even
stripping copyright notices out of it's code, why aren't the actual copyright
holders suing them for infringement?

[ Reply to This | # ]

A New Zealand perspective
Authored by: PM on Monday, November 24 2003 @ 03:28 PM EST


The following article on IDG's NZ web site may be of interest. A local lawyer (profile on http://www.simpsongrierson.com/ - I am forbidden to link to it without their written permission which I cannot be bothered obtaining) comments on the GPL and seems to fall into the same trap as SCO and its lawyers (in fairness to the firm it is a well respected local firm handling a wide variety of legal work).

In particular he is implying that the GPL may be open to dispute as users are not required to sign it off, which to my mind is in the same category as saying it is 'unconstitutional'.

The good news is that there is a good rebuttal in the article by a local open source advocate.

[ Reply to This | # ]

"Discovery and infringement claims
Authored by: Anonymous on Monday, November 24 2003 @ 04:08 PM EST
SCO publicly displayed examples of what they claimed were infringements of
their IP rights in Las Vegas. Next they offered specific examples to anyone who
would sign an NDA, doing so many times. How can they go into a courtroom and
refuse to provide specific examples of violations to the defendants when they
have done so many times outside the court?

[ Reply to This | # ]

New news
Authored by: Anonymous on Monday, November 24 2003 @ 04:20 PM EST
1. SCO says they called the FBI

http://www.smh.com.au/articles/2003/11/24/1069522525927.html

A SCO spokesman declined to detail security measures a contractor is taking or
when it began. Hackers have tried to shut down the company's website four times
since March, he said. The company has notified the US Federal Bureau of
Investigation about the threats.


2. SCO to sue "a few" / "half dozen" Linux users

http://www.newsfactor.com/perl/story/22749.html

"It could be a few companies -- it could be a half dozen," SCO Group
spokesperson Blake Stowell told NewsFactor.

BTW excellent, unintentionally humorous DiDio quote in this article.

[ Reply to This | # ]

  • New news - Authored by: grouch on Monday, November 24 2003 @ 05:11 PM EST
  • New news - Authored by: Glenn on Monday, November 24 2003 @ 09:49 PM EST
    • New news - Authored by: Anonymous on Tuesday, November 25 2003 @ 02:47 PM EST
just knowing you wanted to hear the latest from didio
Authored by: brenda banks on Monday, November 24 2003 @ 04:25 PM EST
But, as Yankee Group analyst Laura DiDio told NewsFactor, "the case will
ultimately be decided in court, and like any other court case, SCO's side will
be heard and considered."
http://www.newsfactor.com/perl/story/22749.html

---
br3n

[ Reply to This | # ]

Fraud?
Authored by: Anonymous on Monday, November 24 2003 @ 04:37 PM EST
Lately a lot of people have concluded that SCO never did a code analysis. If
that is true, then it seems to me that SCO has committed fraud, or at least
attempted fraud (I assume that is a crime). They said something they knew is
not true ("we did a big code analysis and found all this SCO code in
Linux"), and did so with the purpose of getting people to give them money
they wouldn't give if they knew the truth. That is fraud. Does this mean
McBride could go to jail?

[ Reply to This | # ]

"SCO: Without Fear and Without Research" by Eben Moglen
Authored by: Anonymous on Monday, November 24 2003 @ 04:58 PM EST
What do current Software companies do to validate the provenance of the code
that their own developers write?

I have worked with a number of large software developers, and I certainly don't
recall any code reviews, or legal processes that were done to protect against
infringing outside copyrights or patents.

I did sign employee/contractor agreements that said that any code that I wrote
belonged to my employer, and that my contributions were my own (and not taken
from someone else).

But what higher level processes is stopping some developer working for
Microsoft, or HP, or even SCO, from copying in some code that they obtained from
a community license, or a proprietary license, or even a GPL'ed license -
without the knowledge or agreement of their employer?

Since propietary code isn't on public display, it isn't quite the target that
open-source code is. FOSS projects need to develop a mechanism to protect
themselves against litigation if a contributor knowingly (or even unknowingly)
infringed on someone else's IP.

What sort of safeguards, audits, or agreements can be executed that would
protect an open source project from a developer who didn't follow the rules..

I don't think closed source projects are any better, but they are not subject
to the same scrutiny

[ Reply to This | # ]

That is the stupidest thing I have ever heard...
Authored by: Anonymous on Monday, November 24 2003 @ 05:14 PM EST

"It [SCO] will argue that the GPL itself is invalid, says SCO's lead attorney, Mark Heise of Boies Schiller & Flexner LLP. Mr. Heise says the GPL, by allowing unlimited copying and modification, conflicts with federal copyright law, which allows software buyers to make only a single backup copy. The GPL "is pre-empted by copyright law," he says"

Okay lets review why the "one copy for backup purposes" exists in US Copyright law. Virtually every software maker if they could would prohibit you from making ANY copies of their media and force you to buy new media if you lost or damaged the one they sent you.

US Copyright law correctly acknowledges fair use rights by guaranteeing that a licensee of a product can protect their purchase by making a backup copy.

To interpret this to mean that you can only make one copy of a program in any circumstance is ludicrous. #1 The GPL explicitly allows this behavior and the author knowingly distributed the software under these terms. #2 You cannot tell someone that they do not have the authority to say how their product can be distributed when they own it or were granted a license to distribute it (hello the GPL!)

[ Reply to This | # ]

Someone gets it right
Authored by: shaun on Monday, November 24 2003 @ 05:15 PM EST
Gartner Group posted a warning to investors concerning investing in SCO. This is
the best liability report I have seen concerning the dangers of investing in
SCOX period.

"Mounting financial pressures have forced SCO to find alternatives
to pay Boies, Schiller & Flexner. SCO not only faces the litigation against
IBM (scheduled for April 2005) but must also defend counterclaims by Red Hat and
IBM. Moreover, after threatening 1,500 Linux users for infringing its
intellectual property rights, SCO has declared that within 90 days (or by about
February 2004) it will start litigation against one or more Fortune 500
companies with large Linux installations."

Read entire article
at:

http://www3.gartner.com/DisplayDocument?doc_cd=118545

--Shaun

[ Reply to This | # ]

NUMA - another SCO blow?
Authored by: Anonymous on Monday, November 24 2003 @ 05:31 PM EST
A little digging provides yet another reference to NUMA that SCO is going to
have trouble with. It's a book called "The Design of OS/2", by
Deitel and Kogan (C) 1992, and clearly shows IBM was aware of the implications
of UMA/NUMA design, because "OS/2 is designed to support mission-critical
applications" (from the forward by Cannavino, VP at IBM), exactly the
kinds of things SCO claims Linux couldn't have done without "SCO"
code. I.e. there is every reason to believe that these things were known to IBM
long before the 1995 agreements referred to recently, and thus before they had
access to Unix code.

There are interesting connections here: SCO claims to have another IBM veteran,
Ed Iaccobucci (spelling?) on their board. He designed much of the original PC,
and may have been involved with both PS/2 hardware, and related OS/2 software
connections to that hardware. It is also reported that earlier versions of this
same book may have included a foreword by Bill Gates. If true (and in this
timeframe Microsoft would have been working on OS/2, their deal with IBM didn't
break down for several more years, around the time of Windows 3.1 release), then
Mr G may also have some substantial knowledge (as an "Architect") of
the NUMA issue. Is it time to subpoena Bill again?

[ Reply to This | # ]

"SCO: Without Fear and Without Research" by Eben Moglen
Authored by: tazer on Monday, November 24 2003 @ 07:14 PM EST
It would seem to me that IBM has a srong footing on solid legal ground, in
regards to the discovery of SCO's complaints. Either SCO is going to have to
enumerate, with specificity, the infringing code, or not. I can hardly think of
a reason why SCO would be permitted to not elaborate on its accusations.

It's just pure speculation on my behalf, but I expect the judge to rule in
favor of IBM and SCO will have a deadline to submit discovery materials to IBM.
Once IBM has had the proper time to analyze the issues at hand, they will
finalize their strategy and proceed with the next legal step, whatever that
might be.

If any information, about the discover material that IBM is requesting of SCO,
is released to the public, I would expect that SCO's stock will sink right then
and there. It will become blatantly obvious if they have a valid claim or not
and the stock will plummet as a result.

I give SCO 6 months of wriggle room before the hammer falls. They'll spin
to-and-fro and, unless they have some legal ace up their sleeves, their demise
will be most distasteful and horrible to watch.

(Of course, I am not a lawyer and these opinions are merely my own and are not
based on any legal facts. I am in no way affiliated with Marlin Perkins or The
Mutual of Omaha. My opinions may not be valid in all states. Void where
prohibited. Any likeness to any companies, existing or not, being purely
intentional, are unintentional and coincidental. This conversation may be
recorded, for quality control purposes.)

[ Reply to This | # ]

OT: AT&T: EBay, PayPal Infringe on Patents
Authored by: shaun on Monday, November 24 2003 @ 07:49 PM EST
This was an interesting article and it makes me wonder if SCO and AT&T
aren't in communications with one another. (Just another conspiricy theory not
to be taken seriously.)

http://story.news.yahoo.com/news?tmpl=story&cid=528&e=5&u=/ap/200311
24/ap_on_hi_te/at_t_ebay_lawsuit

Quick brief:

AT&T Corp. reached out and smacked eBay Inc. with a patent infringement
lawsuit Thursday, claiming the online auction company has been using a payment
system that the telecommunications giant developed more than a decade ago.

--Shaun

[ Reply to This | # ]

And yet the stock rises again.
Authored by: Anonymous on Monday, November 24 2003 @ 07:52 PM EST
I saw that the SCO stock had a big surge today... up to $16. Why? What
happened??

[ Reply to This | # ]

"SCO: Without Fear and Without Research" by Eben Moglen
Authored by: converted on Monday, November 24 2003 @ 08:27 PM EST
I was ju st reading this article. More misinformed FUD. At the bottom, as in a lot of articles of this type, where lawyers give their expert opinions, the lawyers credentials are cited. As has been proven at Groklaw, para's should be the ones to be asked for the facts. The lawyer is only as good as his information. What do ya think PJ?

Sung by Darl et al during the SCO road show...
1 line of SCO IP in the code, 1 line of SCO IP Take it down, pass it around, 1000 lines of SCO IP in the code. 1000 lines of SCO IP in the code, 1000 lines of SCO IP, take it down pass it around, 1000000 lines of SCO IP in the code......

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"SCO: Without Fear and Without Research" by Eben Moglen
Authored by: Scriptwriter on Monday, November 24 2003 @ 11:05 PM EST
Oooooooooooooooooh, finally I get it . . .

the title is a take on the phrase "without fear, and without remorse." It only took me all day to figure this out.

/me slaps self a few times

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"SCO: Without Fear and Without Research" by Eben Moglen
Authored by: Anonymous on Monday, November 24 2003 @ 11:21 PM EST
IANAL. I am just an MCSE who sees the tide of business flowing more and more to
Linux. So I am preparing for it. Not to mention I like the Operating System.
It offers much more flexibility. But I digress.

Has anyone thought, what if SCO does do the impossible and wins?

I read an article last night on what if IBM wins and what the projected state of
affairs would be on the software sector 10 years and then 20 years down the
road. It was rather hilarious how the author made accusations that the GPL
would destroy capitalism as we know it. MS is doing that as we speak, and they
are getting worse by selling licenses for the right to buy more liceses (that
whole openlicense thing). Well, if SCO does win, the losers would be the
companies and Linux users in the US. I am sure that the EU will conspire to
allow some copyright laws to be bent in lieu of keeping MS out.

To read the story I mentioned, here is the link
http://www.technewsworld.com/perl/story/32154.html

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SCO's weak rebuttal (attn Red Hat)
Authored by: Anonymous on Tuesday, November 25 2003 @ 12:16 AM EST
Boston Internet.com took Moglen's story and ran with it:

http://boston.internet.com/news/article.php/3112931

SCO was asked for their response and they only offered this weak statement:

"SCO stands by its claims and looks forward to proving it in a court of
law. ... As we try to provide a SCO IP license, members of the Fortune 500 that
we have communicated with either by mail or face to face really only have two
choices -- license or litigate."

That doesn't speak to Moglen's accusations nor does it offer support for
SCO's claims.

The only thing it does is give yet more ammo for Red Hat that shows SCO is all
too happy to sue Linux users, or at least threaten to.

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"SCO: Without Fear and Without Research" by Eben Moglen
Authored by: Anonymous on Tuesday, November 25 2003 @ 01:37 AM EST
The good news is that they intend to sue a Fortune 500 company. Really
smart. As if one 800 pound gorilla with $5bn cash wouldn't be enough
for a nice suicide--why not take on another one? This is going to be fun
to watch. I can't wait to hear the name of the other company. Maybe
General Electric? Or Boing? Any of these government contractors would
be cool. Or maybe a big oil company. That would draw the federal
government's attention for sure. You mess with oil and you die like the
rest. Darl is going to pick up soap from the floor pretty soon. At least
they can claim it was fun while it lasted.

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OT: McBride quotes to add to DB
Authored by: belzecue on Tuesday, November 25 2003 @ 06:42 AM EST
http://www.crn.com/sections/special/top25/top25_03.asp?ArticleID=45992

Despite his past successes, McBride is the first to admit that people look at
him as the guy chasing the lawsuit.

"But what they don't see is that we're trying to defend the rights of
capitalism for the silent majority," McBride says. "Linux leaders
pound the table about a community-driven model where everything is free, and
that's the flip side of capitalism. This country was founded on capitalism, the
right to make a profit for what you own, not give it away for free."

But McBride is used to taking a beating. "It's like back on the farm
where we had to break a new colt and try and tame them," McBride says.
"You'd get bucked off and thrown into the fences, and with your back
bleeding, you'd get back up and do it again."

This time around, though, McBride isn't trying to tame a young colt, but an
entire open-source community.

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Conf. Call back to Dec. 8th?
Authored by: Anonymous on Tuesday, November 25 2003 @ 07:21 AM EST
According to yahoo's "headlines" section for SCO, the conference
call is on for December 8th. Wasn't it moved to the 3rd or something when the
orals were scheduled on the 5th? Is it back on for the 8th?

I'd hate to miss Darl's weasling, I was planning on filling up by balloon.

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Regarding the GPL and SCO's violation of that license
Authored by: Nivuahc on Tuesday, November 25 2003 @ 07:27 AM EST
PC Pro UK Website has an interesting article with something worth thinking about...

Jason Schulz, staff attorney for the Electronic Frontier Foundation, told us the argument over whether the GNU GPL is enforceable is a blind alley. 'The GPL technically isn't "enforceable" because it's not a contract. It's a license,' he said. 'The GPL is permission from a copyright owner to use the code as long as you also abide by a set of rules... If you violate these rules, your permission to use the code is automatically revoked.

'Thus, if SCO has violated the GPL by not allowing IBM to use [its] code, it is not a "breach" of a contract that must be enforced but rather a situation where whatever permission SCO had to use and modify GPLed code is now revoked - making SCO itself a copyright infringer. This is important because companies who infringe copyrights cannot sue other companies for infringing code that they derived through the process of infringement. In other words, if SCO violated the GPL, they can't sue IBM for copyright infringement on any code that was subject to the GPL.'

---
Yeah, I finally created an account. You might recognise me from my old nickname though: 'Anonymous'.

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OT: Red Hat Reply due last Saterday
Authored by: Anonymous on Tuesday, November 25 2003 @ 08:51 AM EST
Looking at the Red Hat Timeline, the last item is:

10/8/03 MOTION by SCO Group Inc. For Enlargment of Time to Respond to Pltf's First Set of Interrogatories and First Request for Production of Documents and Things Answer Brief due 10/22/03 re: motion

Anyone have any news?

Devon Knoll

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So many ways to lose
Authored by: Anonymous on Tuesday, November 25 2003 @ 09:07 AM EST
Has annyone compiled the number of ways that SCO has already lost this?
-They don't own the code

-They've already distributed (and still are)the code under GPL so gave up their claim to anything in it

-They're suing IBM for GPL code witch they are distributing witch makes them already in breach of the GPL.

-They are attempting to sell a license on to of the GPL so they are again in breach

-Every developper that has a copyright inside the Kernel is entitled to sue them right now for trying to license it for themselfs (witch would make a very very good class action suit against them if everyone got together)

-They have made baseless and false accusations and in doing so hindered RedHat's business witch makes them liable.

-They have artificially inflated the value of their stocks witch makes them liable towards the stock-Holders AND hopefully will bring criminal charges of fraud against them.

-If the money can be traced to say Microsoft or another giant that stands to profit from this case, they could be accused of conspiracy on top of fraud.

And they haven't even had a DAY in court yet!

Damn the amount of antacid these guys must be eating every day by now...

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How TSG reads the GPL.
Authored by: kbwojo on Tuesday, November 25 2003 @ 10:08 AM EST


Maybe this link (thing of TSG as the dog) explains TSG's twisted interpretation of the GPL and all their contracts.


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New press release
Authored by: Anonymous on Tuesday, November 25 2003 @ 10:17 AM EST
a new press release, highlights quoted with emphasis added

Wall Street News Alert -- Aggressive Investment Tips for Tuesday!

WESTON, Fla., Nov. 25, 2003 (PRIMEZONE) -- Wall Street News Alert's "stocks to watch" this morning are: Chimera Technology (Pink Sheets:CNOC), NeoMedia Technologies In (OTCBB:NEOM), SCO Group Inc. (Nasdaq:SCOX) and Friedman's Inc. (NYSE:FRM).

...

Stocks showing interesting activity yesterday were: NeoMedia Technologies In (OTCBB:NEOM) up 15.5% on 6.9 million shares traded, SCO Group Inc. (Nasdaq:SCOX) up 14.2% on 683,900 shares traded and Friedman's Inc. (NYSE:FRM) up 13.1% on 1.2 million shares traded.

...

This profile is not without bias, and is a paid release. WSCF has been compensated for dissemination of company information on behalf of one or more of the companies mentioned in this release. WSNA has been compensated Ninety Thousand shares for coverage of Chimera Technology Corp (OTCBB:CMRD) and Three Hundred and Eleven Thousand shares after the symbol change to (Pink Sheets:CNOC), by a third party (Alex Consulting Inc), who is non-affiliated, for services provided including dissemination of company information in this release. WNSA has sold all but One Hundred and Twenty-Seven Thousand of the shares. WSCF may have received shares of a company profiled in this release prior to the dissemination of the information in this release. WSCF may immediately sell some or any shares in a profiled company held by WSCF and may have previously sold shares in a profiled company held by WSCF. WSCF's services for a company may cause the company's stock price to increase, in which event WSCF would make a profit when it sells its stock in a company. In addition, WSCF's selling of a company's stock may have a negative effect on the market price of the stock. Market commentary provided by Sonja Rudd.

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"SCO: RICO Violation?
Authored by: Anonymous on Tuesday, November 25 2003 @ 10:39 AM EST
Isn't what they are doing some form of dressed-up protection racket? That
being the case, could they be charged for RICO violations?

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deja vu: Nixon & Silent Majority
Authored by: Anonymous on Tuesday, November 25 2003 @ 11:18 AM EST
Silent majority, FUD, strawman arguments,
'proof' they must keep hidden and protected,
socialist and/or communist conspiracies,
claims of FBI involvment, bodyguards, false
perceptions of, and/or exaggerated claims of,
threats and attacks, fighting for freedom
and the constitution.

I am not a professional psychiatrist nor
psychologist but I believe I see a real
pattern of problems with delusions and
paranoia here.

Lawyers understand that even the disturbed
deserve legal representation. However,
seeing the opportunity of enormous enrichment
by riding and fueling this gravey train is
even more disturbing to watch.

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    Yet more journalism without research
    Authored by: Anonymous on Tuesday, November 25 2003 @ 12:24 PM EST
    In response to this, I wrote this:


    Dear Linux Insider,
    First of all, may I say how much I appreciate your site. May I draw your attention to a number of factual errors in your recently published article "Lawsuit Drops 'Nuclear Bomb' on Software Industry":
    I feel that this provocative yet well balanced peice is let down by some easily corrected inaccuracies,
    1. "Detonation of this legal bomb could blow a major hole in public domain software" - Linux is not and never has been public domain. Linux is Free and it is Open Source but it is not public domain because it's authors still retain their copyrights.
    2. Abigail's opinion of this case is interesting but not relevant to the SCO vs IBM case (bacause she is talking about Public Domain, not Open Source), a more appropriate source might be the new position peice by Eben Moglen of OSDL (http://www.osdl.org - see the 1st link).
    3. "SCO group's (formerly known as Santa Cruz Operation)" - actually SCO group is unrelated to the original Santa Cruz Operation. SCO used to be called Calderra, once a well known distributor of the Linux operating system.
    Best Regards,
    Salim Fadhley

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    Here we go again...
    Authored by: Anonymous on Tuesday, November 25 2003 @ 01:31 PM EST
    Have you seen this one yet?

    Looks like pounding the "facts" when the law is against them to me. The "facts" of course being: you will pay or you will be sued.

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    What's driving the stock price?
    Authored by: Bill The Cat on Tuesday, November 25 2003 @ 01:37 PM EST
    Monday saw a $2 jump over Friday's close. Tuesday (today) we see another $1 rise. This stock is now extremely over priced according to Business Week. There has to be some artificial reason that this stock is performing so well when there is nothing to base the performance on. What gives?

    ---
    The more I know about Windoze,
    The more I Love Linux!!!

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    403 comments
    Authored by: Anonymous on Tuesday, November 25 2003 @ 02:13 PM EST
    403 commnents so far. This is getting to be as bad as Slashdot. Of course, the
    average quality is much higher.

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    "SCO: Without Fear and Without Research" by Eben Moglen
    Authored by: Anonymous on Tuesday, November 25 2003 @ 02:44 PM EST
    Here is a nice article you guys should check out:

    http://www.newsfactor.com /perl/story/22756.html

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    GPL is virial ?
    Authored by: cassini on Tuesday, November 25 2003 @ 03:42 PM EST
    Hi! If someone else has already posted this forgot about the whole thing (which would probably be better anyway). I've been very busy the last few days, so please forgive me if I'm not up to date.

    In t his article, a lawyer (introduced as a senior intellectual property lawyer) describes how viral and destructive the GPL can behave in IT - buisness.

    My favourite qutoe :
    ...This "time bomb" lurks because a popular license for open source, the GNU General Public License, (GPL) is "viral." The license attaches to any product with GPL-licensed code, including a derivative work, he said. The entire software package becomes open source and the company thus must distribute it freely and let anyone copy it. A widely used open-source utility, for instance, could "infect" hundreds of software products and destroy their commercial value. ...

    I know, this is the same old FUD over and over again (But why do Buisness- and IT-journalists do not start to know this?). Can someone please forward a copy of the GPL and the LGPL to this clown ? (I'm no English native speaker - as you have perhaps noticed so far - and so I'm not sure if I am able to explain the GPL to a person, who has obviously difficulties to understand the original version).

    Perhaps I should ask WolframSoft for a free copy of Mathematica 5 for Linux, you know, they use/support QT .... :-) Greetings from Austria Martin

    ---
    Tomorrow is going to be wonderful, because tonight I do not understand anything --- Niels Bohr

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    Pro SCOX case; Top Ten
    Authored by: Dan M on Tuesday, November 25 2003 @ 04:22 PM EST
    Pro SCOX case; Top Ten

    Shall we tear this apart?

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    "SCO: Without Fear and Without Research" by Eben Moglen
    Authored by: Tyralf on Tuesday, November 25 2003 @ 05:14 PM EST
    I thought so too. mainly because they alter the license for the whole product
    and not merly the implementation of the software packet. (servicepack)

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    "SCO: Without Fear and Without Research" by Eben Moglen
    Authored by: Anonymous Coward on Tuesday, November 25 2003 @ 05:45 PM EST
    I just realised what SCO and Co. are trying to do.

    quote:
    "If all else fails, immortality can always be assured by spectacular error." Observation by economist John Kenneth Galbraith.

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    Darl's Response & Quote from Andrew Morton
    Authored by: Anonymous on Tuesday, November 25 2003 @ 05:54 PM EST

    Darl's response: here

    Andrew Morton Article: here

    Towards the end of the article is Andrew's quote.

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    "SCO: Without Fear and Without Research" by Eben Moglen
    Authored by: CyberCFO on Tuesday, November 25 2003 @ 09:13 PM EST
    Just trying to get this story over 500 comments. :-)


    ---
    /g

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    "SCO: Without Fear and Without Research" by Eben Moglen
    Authored by: Anonymous on Tuesday, November 25 2003 @ 10:49 PM EST
    Well these point seem somewhat suspect to me. Please tell me exactly what
    institutional support is there for SCO? In fact, I'd like to see some numbers
    on how many new customers they have signed up (not including the protection
    licenses) since they started banging the war drums.

    Much of the Internet world is criticizing them, they are all but being flushed
    down the toilet in Europe, and frankly I can't see them making much headway in
    shipping their own products (they can't ship Linux from this point forward) to
    ex-Linux users, even if they win their case against IBM. There's always
    OpenBSD and we don't even need to consider that until IBM appeals to the
    Supreme Court, most likely many many years away. Start over with OpenBSD and
    you have a 10+ year cycle of killing the free *nix's out there so only you are
    left. 50 million isn't going to buy them 10 years of legal fights with IBM
    much less everyone else who is likely to litigate with them in that timeframe.

    Bottom line is we don't know exactly what is going on in court, we will likely
    not see infringing code even if it is brought out in court since SCO will claim
    it as a trade secret and get it sealed out of the public record anyway. IBM
    will know what the claim is (they have to or you can just flush SCO's case
    right now)

    I don't think it really matters who endorse's SCO, when was the last time
    anyone took advice from Deutsch Bank or some money market manager? Who's to
    say they know the 1st thing about whether SCO's claims will stand up. Are they
    legal experts? I think likely not. All that means is that SCO has convinced
    some midgit minds their fight is legit, doesn't mean a hill of beans to me.

    Darl hasn't sold his shares, well duh. He can't, he's involved in
    litigation, his trading window is probably shut until that plays out.

    SCO has surprised skeptics before? Uh no check again. Other companies prior to
    SCO have successfully enforced copyright infringement claims against some big
    players. Mainly Caldera v Microsoft over DRDOS. Darl had a hand in that and
    probably thinks if he can beat M$ he can surely beat lowly IBM. I'm not sure
    there were millions of skeptics in that case, it actually seemed very clear cut
    to me.

    Lastly, who knows what law enforcement is doing. They most likely aren't going
    to announce much until there's something official to announce. An official
    inquiry would mean they want access to SCO's documents, communications and
    financial records. Until they want that there's not going to be any press
    announcements.

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    IF SCO is liable?:
    Authored by: Anonymous on Wednesday, November 26 2003 @ 07:46 AM EST
    If SCO is liable for damages, can they pay it?

    Have they disclosed to their shareholders their potential liability?

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