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Is There a Curse on UNIX or Something?
Wednesday, December 03 2003 @ 06:31 PM EST

Sometimes I think there must be a curse on UNIX, like there supposedly was on the tombs of some of the pharaohs of Egypt. If you stole any of the contents of the tombs, even though you might be tempted by the possibility of easy wealth, you ended up horribly dead or worse. Or like the curse on the city of Babylon, where anyone trying to rebuild the city would be doomed to failure.

I think owning UNIX must be like that. Maybe it was supposed to stay free, and when AT&T decided to take everyone's freely donated work and "monetize" it, the curse began. Now it looks like it's on SCO.

The invoice thing didn't work out well. The license program is on a slow boat to nowhere. The IBM trial is not helping, and Red Hat is breathing down their neck too. And now they have announced they want to collect money because of some missing copyright attributions on some really old BSD code. I see trouble ahead.

Maybe they're like Sisyphus, and for some great cosmic wrong, SCO has been condemned to try one legal theory after another. Just as they near the top of the hill and are about to make a buck at last, down they fall and then have to start up the hill again, lugging a new and equally doomed legal theory. It's kind of heart-wrenching to watch.

Let's take a look at the viability of their latest claim.

I at first thought I shouldn't write about UNIX history until I understood it. Then I realized that nobody on planet Earth understands UNIX history. It's unknowable. At least by normal mortals.

There are too many pieces and too many missing pieces, but I'll have to try to muddle through, like poor SCO will at trial, if they actually do sue someone for failure to "reinsert" the copyright notices. I'll just plunge in, therefore, and you can watch my UNIX education unfold before your very eyes. How's that for daring and panache? All you UNIX greybeards can chime in any time and correct any errors you see.

It helps that Groklaw has come into some of the documents from the BSDi trial. But first, before we get to that, what is it SCO is now claiming?

SCO's BSD "copyright infringement" claims are a bit clearer, thanks to an article in PCPro. It shows that SCO understands the BSD case about as well as it understands the GPL. Here is Stowell's characterization:

"SCO's PR Director Blake Stowell told us that a case between AT&T and Berkeley Software Development (BSD) was settled where the latter had to remove certain files and reinsert copyrights that had been stripped out. 'Some of these same files have now gone into [the Linux kernel] (both those that had to be removed because they were never supposed to be in BSD in the first place, and the files for which copyright attribution had been stripped away. The copyright attribution has still been stripped away as they were contributed into Linux). This is a violation of SCO's copyrights,' he said.

'We haven't yet gone down the path to determine how the code got into [the Linux kernel]. We only know that the code is in there... the problem really impacts the Linux business user more than anyone else, because all liability rests with them,' he added."

So, selective enforcement only against deep pockets. Let's go down the path to determine how the code could have gotten into the kernel, if in fact it has, something not yet proven. First, it seems AT&T didn't have any copyright notices on their files until 1992, because they didn't want any copyright notices on their files until then. They first applied for copyright for 32V in 1992. By that time, they had been licensing the code for more than a decade. 32V was first published in 1978, as you will see in the judge's opinion. That's one reason they had little hope of prevailing in the BSDi lawsuit. Here is what the judge said about their copyrights, and, yes, it's long, but UNIX history is like that:

"In order to prevail, Plaintiff must prove that it has a valid copyright in the UNIX code. Plaintiff's chief difficulty here is the 'Publication doctrine.' The publication doctrine denies copyright protection to works which the copyright owner 'publishes,' unless the owner has properly affixed a notice of copyright to the published work. This doctrine has suffered steady erosion over the years, and it now applies in full force only for works published prior to January 1, 1978. For works such as 32V (published in 1978), which were published after that date but before March 1, 1989, the doctrine is subject to the escape provisions of 17 U.S.C. Section 405(a) and the common-law 'limited publication rule.' For works published after March 1, 1989, the publication doctrine has been eliminated by the Berne Convention Implementation Act, 102 Stat. 2857 (1988).

"Because Plaintiff copyrighted 32V in 1992, Plaintiff benefits from a statutory presumption of validity and BSDI has the burden of proving otherwise. Williams Electronics, Inc. v. Arctic International, Inc., 685 F.2d 870, 873 (3rd Cir. 1982). BSDI seeks to carry this burden by proving that AT&T and Plaintiff have widely published 32V without proper notice. Publication is defined as: the distribution of copies or phono records of a work to the public by sale or other transfer of ownership, or by rental lease or lending. The offering to distribute copies or phonorecords to a group of persons for purposes of further distribution, public performance, or public display, constitutes publication. A public performance or display of a work does not of itself constitute publication.17 U.S.C. Section101.

"Version 32V source code has now been distributed, without notice, to literally thousands of licensees. Consequently, Plaintiff can have no valid copyright on 32V unless it can fit within one of the statutory or common law escape provisions.

"The three statutory escape provisions are listed in section 405(a). These provisions relieve a copyright owner from the harsh consequences of noticeless publication if the owner (i) omitted the notice from a 'relatively small number of copies;' (ii) registers the work within five years of publication, and then makes a 'reasonable effort' to add notices to the noticeless copies already distributed; or (iii) proves that a third party omitted, notice in violation of an express agreement in writing 17 U.S.C Section 405(a)(1)-(3).

"Plaintiff cannot avail itself of any of these provisions. Notice was omitted from thousands of copies of 32V; no contractual agreements require the licensees to affix notice; Plaintiff failed to copyright 32V until 1992, well over five years after 32V was published; and Plaintiff has not yet made reasonable efforts to add notices to the many noticeless publications of 32V. Consequently, Plaintiff must try to fit within the common-law doctrine of limited publication.

"Under the common-law doctrine of limited publication, a publication will not divest an author of copyright protection if the author "`communicates the contents of a manuscript to a definitely selected group and for a limited purpose, and without the right of diffusion, reproduction, distribution or sale. . ." Rexnord, Inc. v. Modern Handling Systems, Inc., 379 F. Supp. 1190, 1197 (D. Del. 1974) (quoting White v. Kimmell, 193 F.2d 744, 746-47 (9th Cir. 1952), cert. denied, 343 U.S. 957 (1952); see also American Visuals Corq. v. Holland, 239 F.2d 740, 744 (2d Cir. 1956) (quoting White v. Kimmell). There is some question as to whether the doctrine of limited publication survived the 1976 amendments to federal copyright law, but the weight of authority holds that its has. See Nimmer on Copyrights, Sect. 4.13[B](1992), and the cases cited therein ('the doctrine of limited publication continues under the current Act').

"For the present dispute, the key criterion is that the alleged copyright owner must only have distributed the works to a 'Selected group.' To qualify as a selected group, those receiving the work must be more than just customers self-selected by their desire to purchase the work. Otherwise, 'all the purchasers of the work' would qualify as a 'selected group,' and all publications would be limited publications. For example, if a programmer sells software to anyone willing to meet the asking price, then the programmer can hardly be said to have communicated the work to a selected group. See Brown v. Tabb, 714 F.2d 1088, 1092 (11th Cir. 1983) (the group containing all of the potential purchasers of a jingle was not a 'selected group'); Academy of Motion Picture Arts v. Creative House Promotions, 944 F.2d 1446 (9th Cir. 1991) (Oscar winners are not a selected group because Plaintiff did not distribute its Oscars generally to the public). Situations where courts have found selected groups include distribution of manuscripts by authors to a small collection of friends; of floor plans to contractors so they can prepare bids; of advance copies of works to colleagues for criticism or review; of samples to potential customers; and of promotional material to dealers. Himmer an copyright, Sect. 4.13[A] (1992).

"As the above examples suggest, the traditional scope of the limited publication doctrine is narrow. But courts have shown a tendency to expand the scope of this doctrine when applying it to computer products. See Nimmer on copyright, Sect. 4.13[A][1], [2). For example, several courts have declined to find a publication where a copyright owner has communicated support materials to customers buying computers. One such case is Hubco Data Products Corp. v. Management Assistance Inc., 219 U.S.P.Q. 450 (D. Idaho 1983), where the court faced the issue of whether the plaintiff computer manufacturer had published the operating system distributed with its computers. The computers (complete with operating systems) apparently were available to anyone willing to pay their price, but the court none the less found only a limited publication of the operating system. The court reasoned that the 'operating systems were only offered to owners of [plaintiffs) computers.' Id. at 455. See also Data General Corp. v. Digital Computer Controls, Inc., 188 U.S.P.Q. 276 (Del. Ch. 1975) (schematic drawings were the subject of a limited publication because they were only distributed to those who bought computers).

"The limited-publication variations endorsed in Hubco and Data General, even it valid, are of no help to Plaintiff here. Version 32V was not distributed as an ancillary communication supporting the sale of a computer -- 32V was the actual product itself. Consequently, the only question is whether AT&T and Plaintiff limited 32V's distribution or offered it to whomever could pay.

"Plaintiff argues that it has only distributed 32V to three select groups of licensees: educational organizations, U.S. government agencies, and carefully-screened corporate entities. Although the former two groups could conceivably qualify as 'selected,' the latter can qualify only if the screening process is suitably restrictive. According to depositions of Plaintiff's personnel, the screening includes investigating the kind of code a potential customer seeks (source or binary); detailed information about the nature of the customer's business; the customer's financial ability to pay; and whether the customer is in a country that protects trade secrets. Plaintiff needs all of this information to assess three features of its prospective customers: which product is best for the customer, whether the customer can pay, and whether the customer will take good care of Plaintiff's intellectual property, (Kennedy Decl., Ex. C at 1622, Ex. D at 111-12; Pl.'s Reply Br. at 10.)

"Even accepting this description of Plaintiff's screening process as true, it is hard to see how the screening would yield a selected group of corporations within the meaning of the doctrine of limited publication. Plaintiff essentially seeks what any lessor of property seeks: someone who will take good care of the property and pay the bills as they fall due. If this were enough to create a selected group, then practically anyone who leased property would belong to a selected group.

"The copyright laws in effect prior to 1989 do not allow such expansive protection against the consequences of noticeless publication.
As quoted above, publication includes distributing copies by 'renting, leasing, or lending.' 17 U.S.C. Section 101. Under Plaintiff's construction of the doctrine of limited publication, 'renting, leasing, or lending' would not constitute publication whenever the owner of the copyright screened out irresponsible customers. It seems unlikely that Congress drafted this section with this purpose in mind.

"Consequently, I find that Plaintiff has failed to demonstrate a likelihood that it can successfully defend its copyright in 32V. Plaintiff's claims of copyright violations are not a basis for injunctive relief."
[emphasis added]

So, if they had no claim for copyright violations, we need an explanation as to why copyright notices were to be put on these files, when the judge said they had no likelihood of being able to prove they had any such rights. According to Blake Stowell's remark, the answer is that sometimes you can get in a voluntary settlement what you can't get from a judge. And evidently that is what happened. At the time of the voluntary settlement, the parties agreed to put copyright notices on certain files. This is more than the judge seemed willing to grant. Stowell's characterization of copyright notices having been stripped off and needing to be reinserted, which makes it sound like Linux or somebody did something wrong, seems misleading.

PC Pro interviewed an attorney who clearly feels SCO's position is very weak, because any "infringement" is de minimis anyhow, even in a best-case scenario for SCO, and then he says this about the settlement:

"Open Sources: Voices from the Open Source Revolution , O'Reilly (ISBN 1-56592-582-3) contains a potted history of the case in question, and describes the settlement agreed on 4 February 1994 thus: 'The result was that three files were removed from the 18,000 that made up Networking Release 2, and a number of minor changes were made to other files. In addition, the University agreed to add USL copyrights to about 70 files, although those files continued to be freely redistributed.'

"'Moreover,' says Schultz. 'if SCO then released its own Linux distribution under the GPL, that would presumably trump any previous restrictions they made on BSD, since the Linux distribution was more recent. It would certainly seem reasonable to me to assume Linux was legal if SCO released their own version under the GPL, which it appears they did.'"

So they hope to make money from 3 files that were supposed to be removed and they claim were not and some copyright notices on maybe 70 files that were perfectly legal to use and that SCO, in its Caldera persona, later released under the GPL? Somebody send poor Mr. Skiba a memo, will you? I think he may need to adjust his math. And where, in this picture, are the damages that SCO has suffered? Here's what the judge in the BSDi case wrote about the amount of code overlap at issue in that case:

"The alleged overlaps between parent and child probably amount to less than a percent of the total. . . . Indeed, ignoring header files and comments (see below), the overlap in the critical 'kernel' region is but 56 lines out of 230,9995, and the overlap elsewhere is 130 lines out of 1.3 million."

Compare what Stowell said, that the copyright notices were stripped and were supposed to be "reinserted", with the answers given in USL's responses to BSDi's second set of Interrogatories from USL v BSDi, Interrogatory 6, one of the documents we now have obtained:

"Interrogatory 6.

"Identify any file in the UNIX/32V source code that at anytime has been distributed, whether pursuant to license or otherwise, without a copyright notice.

"Response 6.

"All files contained within the UNIX/32V have been distributed by AT&T or USL without a copyright notice pursuant to the license agreements referenced in response to interrogatory number 1, all of which restrict the licensees right to make copies of such source code and limit the distribution of derivative works to other UNIX/32V source code licensees."

What I gather is that the code never had a copyright notice in the first place because they chose trade secret over copyright protection. You couldn't have both, so they removed any copyright notices themselves and distributed the code for years that way. Here is their answer to Interrogatory No. 5:

"AT&T and USL have distributed the UNIX/32V source code without a copyright notice pursuant to the license agreements referenced in response to Interrogatory No. 1, all of which restrict the licensee's right to make copies of such source code and limit the distribution of derivative works thereof to other UNIX/32V source code licensees."

So, how am I doing so far? I'm getting that there were no copyrights on this code originally because AT&T deliberately removed any such notices, so they could rely on trade secret status instead. Nobody stripped off their copyright notices against their will or did it to steal IP and obfuscate the theft. They did it themselves. So for years, the files were distributed without copyright notices because that was their free will choice. Then in 1992, they filed for copyright, but the University challenged it, and the judge's opinion was that they had no valid copyright. If SCO really wants to retry the BSDi case, I hope someone notices that detail. I'm sure they do.

Apparently, then, the super hush hush agreement that settled the case required a few files to have copyright notices put on them, according to what the attorney quoted above is saying. No one knows for sure until we see the sealed agreement which files, from all I have discovered so far. That was to be done by the parties to the agreement. Linux was not a party to that agreement. If there was a failure to follow through, who would you sue? Linux?

Keep in mind that Linux began in 1991. So before the trial and all while the trial was going on, code was being donated to Linux that everyone believed was legal, and it was legal, from what I am seeing. Then, when the trial ended with a settlement, the parties made a secret agreement between themeselves that from that day forward, they'd put copyright notices on a handful of files. But those files may well have been in Linux already. And Linux wasn't party to the settlement and would have no way of knowing what files were to have copyright notices attached unless the parties revealed it. Wouldn't that seem to be a logical explanation for any lack of copyright notices in those source code files, if in fact such proves to be the case?

And what would be the remedy here? How about telling everyone what files are involved so the copyright notices can be put on the files? Is that too simple? Not monetized enough? There was reportedly another clause in the agreement, namely that USL was never to sue anyone using 4.4 BSD-Lite as the base for their system.

See what I mean about a curse? How are you going to make money from this mess? It gets worse for SCO. It seems, reading the judge's opinion and the interrogatory answers, that a lot of trade secrets got spilled here and there along the way too. That's not good for SCO. A trade secret is only a secret for as long as it's a secret.

There were thousands of UNIX licensees worldwide that either had, or were eligible to receive, the UNIX/32V sources or it's derivatives. Some of them were individuals, not entities. It can only be an estimate, because the bookkeeping wasn't stellar. Here is how AT&T and USL described their own licensing records at the central licensing records repository, from the same document, USL's responses to BSDi's second set of Interrogatories:

"USL maintains original license agreements and related correspondence at a central repository located in Greensboro, N.C., which generally contains correspondence related to licenses, amendments of modifications to such licenses and correspondence with licensees. . . .Included among such documentation are electronic data bases which comprise USL's best, although incomplete, list of such information, and which are known to contain inaccuracies." [emphasis added]

"Known to contain inaccuracies." And "incomplete." That's how well the trade secrets were guarded. There were, then, thousands of copies of 32V distributed, but the best records about their disposition are inaccurate and incomplete. According to several depositions in the case this best record didn't reflect the fact that the University of California at Berkeley itself even had a UNIX/32V license. Talk about your incomplete. Some of these UNIX trade secrets may not have been too closely tracked or guarded due to the sheer number of unmarked files, records, or documents that were simply lost, misplaced, or otherwise unaccounted for. The UC Regents Amicus brief, footnote 24:

"USL produced a 1986 data base of its source code licensees, bates nos. P8832-9312, which is too large to attach in total. However, the data base contains approximately 5,760 licensees for AT&T's various software products. A large number of these licensees could obtain 32V though AT&T's source code exchange program. Frasure Depo., at 54:25-57:8. The voluminous data base does not even list every source licensee for 32V, as evidenced by the absence of any 32V entries for the University of California."

And they would like to claim a trade secret and copyright violations on this pile of spaghetti?

Let me see if I can summarize. The sealed settlement agreement was a big secret, with no one allowed to tell what the terms of the settlement were. The trade secrets were spilled all over the highway, so to speak. They would now like to hold Linux enterprise users responsible for not abiding by the terms of this secret agreement. They expect to collect money from people not party to a secret agreement for failure to live up to the terms of the secret agreement to which they were not signatories? Um, a lot of money? How? There is one more pesky problem from SCO's point of view, as the attorney pointed out. Caldera open-sourced UNIX/32V and destroyed any trade secret protections it had previously enjoyed.

This isn't a failure in the open source development model. This crazy code is like a bucking bronco. They lost control of it every which way. It's a failure of AT&T's and USL's distribution model.

For a company wanting to get rich quick, I foresee a problem with their new legal theory, but it'll be worth standing by and watching SCO trudge up the hill with it. Like I say, maybe it's a curse. I think they should maybe just give up and have no further truck with UNIX. Just slap a GPL on it and call it a day. Maybe then the curse will lift and they can find some peace.

Here are some handy links that will help you get up to speed on the BSDi case. No reason I should suffer all by myself:


Is There a Curse on UNIX or Something? | 520 comments | Create New Account
Comments belong to whoever posts them. Please notify us of inappropriate comments.
OT: Interview with PJ
Authored by: Anonymous on Wednesday, December 03 2003 @ 06:57 PM EST
Sorry for the OT post. PJ was nice enough to give me an email interview which is now posted at Linux Universe. So for those of you who wanted to know more about the Mistress of Groklaw, here it is.

Sorry, still no pictures. :-P Plenty of excellent words, though. :-D

Thanks again, PJ!

In matters of style, swim with the current, in matters of principle, stand like a rock.
--Thomas Jefferson

[ Reply to This | # ]

Is There a Curse on UNIX or Something?
Authored by: Anonymous on Wednesday, December 03 2003 @ 07:07 PM EST
This commentary and the information released by it, points out in spades that
SCO 1) Did not do their homework 2) Shot their mouth off in hopes of getting
capitulation for a settlement/buyout 3) Really believes they can bully IBM the
same way they did Microsoft over DR-DOS, and 4) their greed has outstripped
their fear to the point that even their lawyers can't control their mouths.

The BSD case, once Novell opens those files will pretty much wash away any
additional substantive claims SCO might preport to tender and be taken

[ Reply to This | # ]

Is There a Curse on UNIX or Something?
Authored by: gumout on Wednesday, December 03 2003 @ 07:08 PM EST
"So, if they had no claim for copyright violations, we need an explanation
as to why copyright notices were to be put on these files, when the judge said
they had no likelihood of being able to prove they had any such rights."

I touched on this two weeks ago in a post.... You can't copyright that which
copyright law disallows.

Blake Stowell seems to be saying that although prevailing copyright law didn't
allow the 32v files to be copyrighted, the agreement between USL and BSDI did.
Since when did common law overule prevailing federal copyright law? You can't
agree to copyright something that doesn't qualify under the prevailing
copyright statute.

The USL v. BSDI case was settled voluntarily with prejudice to both parties.
You'd have better luck trying to reopen the Scopes Monkey Trial.

How do 99% of lawyers manage to graduate in the bottom 1% of their class?

[ Reply to This | # ]

OT: Useful (to IBM) HP Comment
Authored by: bobh on Wednesday, December 03 2003 @ 07:15 PM EST
CNet is running an interview with the head of HP's linux program. One exchange:

    Have you actually won sales as a result of indemnification? I'll give you one scenario in the financial-services industry. On the day of our announcement, the CIO of a major company was about to issue a purchase order to IBM. The announcement came out, and he said, "We have to go rethink." The purchase order was blocked purely on the basis of our indemnification.

Hmmm. Proof of actual damages.

[ Reply to This | # ]

This may not be correct
Authored by: Thanatopsis on Wednesday, December 03 2003 @ 07:23 PM EST
First, it seems AT&T didn't have any copyright notices on their files until 1992, because they didn't want any copyright notices on their files until then.

I was hacking kernels back in 1986 and I'm real sure they had a notice in each source file like the following:

/* Copyright (c) 1984, 1986 AT&T */
/* All Rights Reserved */
/* The copyright notice above does not evidence any */
/* actual or intended publication of such source code. */

using namespace ianal;
accept(this->as(sound_advice)) ? abort() : continue();

[ Reply to This | # ]

Cock Pistol Shoot Foot.
Authored by: orgngrndr on Wednesday, December 03 2003 @ 07:29 PM EST
Ancient Unix License issued by Caldera:

to wit:
240 West Center Street Orem, Utah 84057
801-765-4999 Fax 801-765-4481

January 23, 2002

Dear UNIX enthusiasts,

Caldera International, Inc. hereby grants a fee free license that includes the
rights use, modify and distribute this named source code, including creating
derived binary products created from the source code. The source code for which
Caldera International, Inc. grants rights are limited to the following UNIX
Operating Systems that operate on the 16-Bit PDP-11 CPU and early versions of
the 32-Bit UNIX Operating System, with specific exclusion of UNIX System III and
UNIX System V and successor operating systems:

32-bit 32V UNIX 16 bit UNIX Versions 1, 2, 3, 4, 5, 6, 7

Caldera International, Inc. makes no guarantees or commitments that any source
code is available from Caldera International, Inc.

The following copyright notice applies to the source code files for which this
license is granted.

Copyright(C) Caldera International Inc. 2001-2002. All rights reserved.

Redistribution and use in source and binary forms, with or without modification,
are permitted provided that the following conditions are met:

Redistributions of source code and documentation must retain the above copyright
notice, this list of conditions and the following disclaimer.

Redistributions in binary form must reproduce the above copyright notice, this
list of conditions and the following disclaimer in the documentation and/or
other materials provided with the distribution.

All advertising materials mentioning features or use of this software must
display the following acknowledgement:

This product includes software developed or owned by Caldera International, Inc.

Neither the name of Caldera International, Inc. nor the names of other
contributors may be used to endorse or promote products derived from this
software without specific prior written permission.


Very truly yours,
/signed/ Bill Broderick
Bill Broderick Director, Licensing Services

* UNIX is a registered trademark of The Open Group in the US and other

Even though Caldera/SCO grant this license to the "Ancient Unix"
code base. The System V base is still a derivitive of the "Ancient
Unix" code base and is covered in this license.

Any code that SCO claims as infringing, MUST NOT be in the "Ancient
Unix" License. for if it were, you could simply say the code is derived
from this "BSD style" license that Caldera now SCO so nicely let us

And this is all incidental to the GPL license..which this is not.

[ Reply to This | # ]

Is There a Curse on UNIX or Something?
Authored by: surak on Wednesday, December 03 2003 @ 07:29 PM EST
Good summary. Yep, that's about right. The only thing I
can see missing is that isn't SCO is claiming that System
V code (first released in 1982) was included, not UNIX 32V
code, which was the subject of the USL v. BSDi case?

If that's the case, how can Blake Stowell's remarks about
copryight attributions dating back to the USL v. BSDi case
be accurate? System V is full of copyright attributions,
where 32V is not. Of course, System V contains a whole
lot of 32V code...

Argh. I'm confused.

[ Reply to This | # ]

Is There a Curse on UNIX or Something?
Authored by: shaun on Wednesday, December 03 2003 @ 07:32 PM EST
Is UNIX cursed? No but any attempt to control it sure is. UNIX is the original
OSS model. It wasn't held behind closed doors and locked away from the public.
So many people contributed to it that there is no way to track it all.

The different flavors of UNIX show its diversity and real power and Linux is
showing the same "muscle" as well. SCO owns very little actual code
of the SysV base in reality if you follow it back to its creation. Something
many programmers have come out and said.

SCO would be better off shutting its doors now.


[ Reply to This | # ]

So what exactly is the penalty for possession...
Authored by: Jude on Wednesday, December 03 2003 @ 07:33 PM EST
... of copyrighted material that lacks a copyright notice?

I just looked at a few of the books I own, and every one I checked had only a
single copyright notice, just inside the front cover.

If my little brat of a nephew happens to rip one of those pages out of it's
book, do I become a criminal?

If I buy a book in a used book store, and the book lacks the copyright notice
page, are the copyright police gonna throw me in the klink? How about the user
book store owner?

[ Reply to This | # ]

Is There a Curse on UNIX or Something?
Authored by: Anonymous on Wednesday, December 03 2003 @ 07:42 PM EST
There is a typo in the quote above, about 3/5th of the way through the story:

"The alleged overlaps between parent and child probably amount to less than a percent of the total. . . . Indeed, ignoring header files and comments (see below), the overlap in the critical 'kernel' region is but 56 lines out of 230,9995, and the overlap elsewhere is 130 lines out of 1.3 million."

In the figure 230,9995 it appears there is either a misplaced comma or an extra digit inserted.

[ Reply to This | # ]

OT: new SCO teleconfrence
Authored by: jcurious on Wednesday, December 03 2003 @ 07:42 PM EST
The monday following the hearing (ie. this monday):

[ Reply to This | # ]

Nice summary of the BSD issues, but one problem
Authored by: Anonymous on Wednesday, December 03 2003 @ 07:44 PM EST
Linux didn't use BSD code (not even the TCP/IP stack which is incorrectly
reported to be BSD-derived in many places). It is possible that some BSD code
was used, but what are the chances it would be on of those same three files, or
70 files? There's another problem in that the old BSD license was not
compatible with the GPL so in those days it would not have been proper to use
BSD code if it was under the standard BSD license. The BSD groups and the
Univeristy of California have since removed the advertising clause from the
license which makes it compatible with the GPL.

So there could actually be a problem is there is BSD code in old versions of
Linux, but it seems unlikely.

I wonder if they are talking about userspace though. Linux uses lots of BSD
utilities and libraries like glibc use lots of BSD code.

[ Reply to This | # ]

Is There a Curse on UNIX or Something?
Authored by: phrostie on Wednesday, December 03 2003 @ 07:46 PM EST
some one on Slashdot said it best, "One OS to Rule them
but be careful of the precious.

Oh I have slipped the surly bonds of DOS
and danced the skies on Linux silvered wings.

[ Reply to This | # ]

Unix Ownership Timeline
Authored by: seeks2know on Wednesday, December 03 2003 @ 07:47 PM EST
I have been frustrated by my inability to keep the timeline of the historical events related to this case straight in my head, so I set out to build a brief timeline that I could use as a ready reference tool.

If this duplicates work done elsewhere, please accept my humble apologies.

Unix Ownership Timeline
1969 -- Ken Thompson, researcher at Bell Labs, writes the first version of Unix.(1)
1978 -- Inital release of BSD Unix (2)
1979 -- AT&T announces plans to commercialize Unix.(1)
1991 -- AT&T spins off UNIX Systems Labs as separate company to market Unix (3)
1993 -- Novell acquires UNIX Systems Labs from AT&T. (4)
Oct 1993 -- Novell transfers UNIX brand and trademark to X/Open. (5)
Nov 1995 -- Novell sells UnixWare to Santa Cruz Operation (SCO) (4)
Feb 1996 -- X/Open and the Open Software Foundation (OSF) merge to become The Open Group (6)
Aug 2000 -- Santa Cruz Operation (SCO) sells Server Software Division to Caldera. (7)
Aug 2000 -- Santa Cruz Operation (SCO) changes its name to Tatantella. (8)
May 2001 -- Caldera acquires Unix server business from SCO. (9)
Mar 2003 -- Caldera files lawsuit against IBM. (10)
May 2003 -- Caldera changes its name to SCO Group. (11)
Aug 2003 -- Red Hat files lawsuit against SCO Group. (12)

(1) Red Hat Timeline
(2) History of Unix chapter in O'Reilly's Practica l Unix & Internet Security book
(3) The Open Group: UNIX History and Timeline
(4) SCO versus IBM and Linux Timeline by John C. Dvorak
(5) X/Open Press Release
(6) Open Group Press Release
(7) InfoWorld article: SCO sells out to Caldera
(8) TechWeb article: SCO Reborn as Tarantella
(9) Caldera Press Release
(10) Groklaw IBM Timeline
(11) vrunet article: SCO changes name
(12) Grokaw RedHat Timeline

[ Reply to This | # ]

Is There a Curse on UNIX or Something?
Authored by: Anonymous on Wednesday, December 03 2003 @ 07:47 PM EST
Let's not forget _Lions' Commentary on UNIX(R) 6th Edition with source code_
ISBN 1-57398-013-7, published in 1996 with the permission of [old] SCO, and with
the following note:

From the 4th page:

"To the extent SCO has an intellectual property interest in the material
contained herein, SCO has granted a license to publish solely for the purpose of
creating an educational work. SCO grants no license for any other use of this
material. None of the computer software source code contained in this
publication may be copied, distributed, modified, transferred, or used in any
way. It has been printed here solely for educational purposes in the study of
an historical landmark in computer history."


Then, on subsequent pages, *all* of the authors and guest contributors make
comments about how they all have photocopies of the source code for UNIX and
Ritchie says that "It's notoriously one of the most-copied manuscripts of
computerdom, and it's good to have it in the open record."

Some trade secret.

UNIX was written, as I recall, by a couple of PhD's with a little too much time
on their hands, and a desire to create a better OS (not unlike Linux). TSG just
doesn't get it. Let's hope the judge does.

[ Reply to This | # ]

  • BELL LABS != USL - Authored by: Anonymous on Thursday, December 04 2003 @ 01:39 PM EST
Authored by: OK on Wednesday, December 03 2003 @ 07:47 PM EST
So, there was a secret agreement between two parties. How is SCO going to
enforce that agreement on the third party which was not informed and even
allowed to to know that agreement? It sounds like they want to enforce a third
party to comply with a contract which it [thrid party] did not and could not
sign, therefore it is not even in the contract SCO claims it [third party,
again] broke. Or did I miss something?

[ Reply to This | # ]

  • Wow! - Authored by: Jude on Wednesday, December 03 2003 @ 07:56 PM EST
    • Wow! - Authored by: Anonymous on Wednesday, December 03 2003 @ 08:19 PM EST
      • Wow! - Authored by: Jude on Wednesday, December 03 2003 @ 08:49 PM EST
      • Wow! - Authored by: darthaggie on Wednesday, December 03 2003 @ 09:59 PM EST
        • Wow! - Authored by: DrStupid on Thursday, December 04 2003 @ 03:56 AM EST
        • Wow! - Authored by: Anonymous on Thursday, December 04 2003 @ 04:26 AM EST
          • Wow! - Authored by: Anonymous on Thursday, December 04 2003 @ 01:51 PM EST
    • The Septuagent - Authored by: Anonymous on Thursday, December 04 2003 @ 06:44 PM EST
Is There a Curse on UNIX or Something?
Authored by: Anonymous on Wednesday, December 03 2003 @ 07:50 PM EST
The original culprit is definitely AT&T.

Bell Labs was really more academic than corporate.
US laws prevented AT&T from engaging in commercial computer business, but
the people who wrote it wanted it spread and used.

AT&T used to be a monopoly, so they had more or less to give things away.
So how to give it away while giving an appearance of not giving it away?

What do you do if you have something valuable you can't sell? Handed it over
to another company, which can then sell it, but in the meantime, it's been
practically in th epublic domain for years.

[ Reply to This | # ]

Horse feathers!
Authored by: Anonymous on Wednesday, December 03 2003 @ 07:55 PM EST
Object lesson for SCO:

Take a feather pillow and a knife into a high tower on a windy day.

Next cut the pillow open and shake out all the feathers.

Now go down and gather up all the feathers, and put them back in the pillow.

Can't do it? That's how much success you're going to have claiming trade
secret violations when all the secrets were spilled out years ago. And to top
it off, you all spilled all the secrets again when you open sourced them.
Sorry, guys, once a secret is out it isn't a secret any more.

[ Reply to This | # ]

  • Horse feathers! - Authored by: Anonymous on Thursday, December 04 2003 @ 04:02 PM EST
AT&T couldn't sell Unix
Authored by: n0ano on Wednesday, December 03 2003 @ 07:58 PM EST
Everyone seems to forget that, based upon the provisions of the 1956 Consent Decree, AT&T was legally restricted from selling computer software, which includes Unix. Only when the Consent Decree was lifted in in 1982 was AT&T allowed to enter the computer market (with noticably disastrous results I should add, maybe they never should have agreed to lift the ban).

One aspect of this is that, prior to 1982, there were no copyright notices in the Unix code for the simple reason that no one saw any point in it. If AT&T couldn't market Unix why worry about the source code? There were no ulterior motives about copyrights and removing them, they simply weren't there in the first place.

I was working for Bell Labs up until 1983 and I remember vividly when the command came down from on high "Thou shalt put copyrights in all Unix source files". All of us engineers were going "Huh? Give me a break, there's thousands of files, we have better things to do with our time". I distinctly remember arguing about which files needed a copyright (being engineers we only wanted to put copyright notices on files with `unique & new' code), we were all incensed at the stupidity of putting a copyright notice on something like the command `/bin/true' which was a file that consisted of the single line `exit 0'. We all said that since that file was clearly not copyrightable that meant we had to go through every single file and decide whether or not a copyright notice was justified, a herculean task that no one wanted to tackle.

Fortunately I quit Bell Labs before the copyright issue was resolved (I pity the poor engineer who demeaned himself and copyrighed the command `true' :-)

"Censeo Toto nos in Kansa esse decisse." - D. Gale

[ Reply to This | # ]

Is There a Curse on UNIX or Something?
Authored by: n0ano on Wednesday, December 03 2003 @ 08:05 PM EST
True, but, as I pointed out in another post to this story, there were no
AT&T copyright notices in Unix prior to around 1982. (Hint - that was when
the 1956 Consent Decree was lifted.)

"Censeo Toto nos in Kansa esse decisse." - D. Gale

[ Reply to This | # ]

Thanks PJ
Authored by: blhseawa on Wednesday, December 03 2003 @ 08:10 PM EST

You handled that like a Unix greybeard!

One minor point to add, prior to 1978, around 1976 if memory still serves, Unix
was published as Technical Papers by researchers Brian W. Kernighan and Dennis
M. Ritchie as was source code for the Unix kernel in the Bell Labs Technical
Journal, I for one still have an original copy.

Since the beginning of Unix, very much like the Internet of today coming out of
DarpaNet, there was extensive sharing of code and ideas between AT&T (Bell
Labs) and many Universities, including UCB. This cross sharing of source code
and ideas, is why Unix became popular among Universities. You have great minds
standing on the shoulders of other great minds. In fact, Linux and GNU and the
GPL are all about the same principal.

With this backdrop, it is hard to ever argue trade secrets, since it was
published in source form. And as we all should know, copyright only protects
the expression of an idea, not the idea itself, which is much different then
patents. But, that is OT.

In some sense Unix was and is in all of its forms, group brainstorming, the
building of good ideas and rejecting bad.

As PJ would say, "It is all about community". Simple, huh?

Unfortunately, once a community has formed, you cannot put group knowledge back
in the bottle.

It is this principal of open source (community) software that will destory
TSG's claims, and perhaps more compelling, that it is about free as in

Just a couple of thoughts from an old Unix greybeard!



[ Reply to This | # ]

Sisyphus' Axiom:
Authored by: Ed L. on Wednesday, December 03 2003 @ 08:16 PM EST
"Human beings were invented by rocks to make going uphill easier."

"Proprietary software is harmful, not because it is a form of competition,
but because it is a form of combat among the citizens of our society."

[ Reply to This | # ]

PJ awesome interview
Authored by: brenda banks on Wednesday, December 03 2003 @ 08:31 PM EST
you are becoming famous


[ Reply to This | # ]

All your GROKLAW is mine.
Authored by: gumout on Wednesday, December 03 2003 @ 08:41 PM EST
I own the Trademark and all Intellectual Property connected with
"GROKLAW" but you can license it from me for only $699 per posted
comment... or I'll sue your pants off!

Oops! Forgot PJ is a lady. I'll sue your skirt off!

How do 99% of lawyers manage to graduate in the bottom 1% of their class?

[ Reply to This | # ]

Dig a little deeper into that history.
Authored by: mac586 on Wednesday, December 03 2003 @ 08:44 PM EST
    "Open Sources: Voices from the Open Source Revolution , O'Reilly (ISBN 1-56592-582-3) contains a potted history of the case in question, and describes the settlement agreed on 4 February 1994 thus: 'The result was that three files were removed from the 18,000 that made up Networking Release 2, and a number of minor changes were made to other files. In addition, the University agreed to add USL copyrights to about 70 files, although those files continued to be freely redistributed."

Here is a link to that fine reference. If you want to understand the history of UNIX in a "broader and deeper" way than what PJ has laid out before us read the entire link. If you want some more holes in SCO's argument, read the next few paragraphs that follow the one above:

    "The newly blessed release was called 4.4BSD-Lite and was released in June 1994 under terms identical to those used for the Networking releases. Specifically, the terms allow free redistribution in source and binary form subject only to the constraint that the University copyrights remain intact and that the University receive credit when others use the code. Simultaneously, the complete system was released as 4.4BSD-Encumbered, which still required recipients to have a USL source license."

    "The lawsuit settlement also stipulated that USL would not sue any organization using 4.4BSD-Lite as the base for their system. So, all the BSD groups that were doing releases at that time, BSDI, NetBSD, and FreeBSD, had to restart their code base with the 4.4BSD-Lite sources into which they then merged their enhancements and improvements."

At this point, there are a variety of UNIX distributions available, in binary and in source, on FTP servers across the internet. Each version is free of any threat of litigation by USL. Do any trade secrets exist at this point? Does any intellectual property exist at this point?

If you read the entire essay, you can also see how the open source development model lead to advances that clearly eclipse the "big SW vendor" model. You can witness the timelines necessary to reproduce UNIX-like utilities from published documentation.

Remember how McBride's rants about how difficult is will be for the Linux community to remove the infringing code? A similar process was done by the BSD developers to rid themselves of 32/V code so they could release a "free" version of Unix:

    "Resigned to our task, Karels, Bostic, and I spent the next several months going over the entire distribution, file by file, removing code that had originated in the 32/V release. When the dust settled, we discovered that there were only six remaining kernel files that were still contaminated and which could not be trivially rewritten..."

    "Within six months of the release, Bill Jolitz had written replacements for the six missing files. He promptly released a fully compiled and bootable system for the 386-based PC architecture which he called 386/BSD."

SCO's claims are so bizarre when you understand the history of UNIX and Linux. Do yourself a favor and read the entire essay. It's not very long, and it beats trying to understand that wacky UNIX tree diagram that SCO hacked up in its vulgar attempts to rewrite history. They should have sponsored a book burning before they started down this path, maybe then they'd have a case.

*All of the emphasis (bold and underline) in the quotes were added by me

[ Reply to This | # ]

Where is the tip jar ?
Authored by: Anonymous on Wednesday, December 03 2003 @ 09:21 PM EST
In the latest interview PJ says :
"It's a labor of love, for sure. I love doing it, probably more than you
enjoy reading it. The only bad part is I have to make a living first and then do
it, so sometimes that means I have trouble keeping up with the story and getting
enough sleep. Readers have been leaving tips in the tip jar, after I put one on
the site recently, and that helps a lot, because it means I don't have to do as
many hours of paid work before I can do Groklaw. Also, I feel a sense of
responsibility to get it right, to be fair and accurate, to verify, to have two
sources for a story, the traditional journalistic values. I lose sleep over that
sometimes too."

Where is that tip jar ?

I would like to contribute because the value of Groklaw to the community is
outstanding !



[ Reply to This | # ]

Authored by: Jude on Wednesday, December 03 2003 @ 10:17 PM EST
Maybe there's some Tantalus in here, too: Darl is standing in a pool of IP
that drains away when he tries to drink from it, and overhead is a money tree
that pulls it's fruit out of reach when he tries to grab it.

[ Reply to This | # ]

  • Sisyphus? - Authored by: Anonymous on Thursday, December 04 2003 @ 09:58 AM EST
Is There a Curse on UNIX or Something?
Authored by: Jeff on Wednesday, December 03 2003 @ 10:31 PM EST
"the problem really impacts the Linux business user more than anyone
else, because all liability rests with them"

Is there really any legal liability for business users? Is there even any case
in history that supports SCO's claim that they could sue end users?

[ Reply to This | # ]

PJ Interview
Authored by: Anonymous on Wednesday, December 03 2003 @ 10:35 PM EST
Excellent interview with PJ!

Wow... 500,000 hits in one week... 26 million hits per year...

I think I am safe in saying this is way beyond what SCO receives at their corporate web site...

I think we know who has the audience's attention. It ain't SCO!

[ Reply to This | # ]

Is There a Curse on UNIX or Something?
Authored by: shaun on Wednesday, December 03 2003 @ 10:58 PM EST
PJ You're becoming a very Famous person and have been placed in the same light
as the OSDL


[ Reply to This | # ]

SCO going afetr BSD end users now.
Authored by: shaun on Wednesday, December 03 2003 @ 11:07 PM EST


[ Reply to This | # ]

PJ Check this out --- Unix History -- Including pictures
Authored by: blhseawa on Wednesday, December 03 2003 @ 11:21 PM EST

Please read this!

Here is a link to Unix History including dates and pictures,
it is 44 page pdf so it isn't small.

>History of Unix</a>

Great read excellent piece of work!

Actually, would make a great reading for the Judge.



[ Reply to This | # ]

This Property Has Been Condemned
Authored by: Anonymous on Thursday, December 04 2003 @ 01:20 AM EST
"Wouldn't it be a hoot if what they actually ended up with is their own precious source code being declared public domain?

That is essentially what did happen. In the BSDi case, The Regents filed a motion for dismissal and claimed immunity under the Eleventh Amendment of the US Constitution. This was granted in part and denied in part. USL restated a claim to include both a state-law claim and a new federal claim. They felt that The Regents use of 32V amounted to an Unconstitutional "taking" without compensation under the 5th and 14 Amendments. The Judge ruled that USL couldn't claim it had been denied compensation, since USL had not yet pursued the state-law claim in the California Courts. USL raised concerns about the adequacy of state compensation. The Judge held that "Even were Plaintiff to face dissolution as a result of Defendants' acts, compensatory damages would still be the appropriate remedy." It seems that USL was faced with a case where 32V would either be ruled a work in the public domain, or that they faced a "taking" under the Doctrine of Imminent Domain. The unresolved matter of the Regents immunity was probably also troubling to USL. The owners of USL - Novell - reached a settlement in both cases. The settlements remain under seal. You can read more about it at

This Property Has Been Condemned

So long as they don't repeal the 11th Amendment BSD4.4Lite is completely safe. Hope that helps;-)

[ Reply to This | # ]

The Bad Central Repository - SVR4 Too!
Authored by: Anonymous on Thursday, December 04 2003 @ 01:40 AM EST
One point that needs to be developed further is that this computer printout from
1986 was what AT&T provided The Regents during discovery in 1992. This
printout and the inaccurate and incomplete online data base were the best
licensing records for everything - including SVR4 - which of course was a part
of these records.

For example, several missing records for System V licenses were pointed out in
an Exhibit submitted by Keith Bostic.

In 1992 there were 5700 or so licensees. Today Darl claims 6000. These are the
same records he's using to keep track of those trade secrets!

[ Reply to This | # ]

Is There a Curse on UNIX or Something?
Authored by: eric76 on Thursday, December 04 2003 @ 03:18 AM EST
If a court did find that certain files were stripped of their copyrights for one
reason or another, why would there be any monetary damages to SCO? I don't see
how SCO could claim to have suffered monetary damages because of that.

Wouldn't it just as likely just order that those copyright notices be put back
into the files?

[ Reply to This | # ]

Is There a Curse on UNIX or Something?
Authored by: minkwe on Thursday, December 04 2003 @ 04:36 AM EST
Unix history is very easy, just read "The bottled Imp" and you get
the picture.

SCO now has the imp and they bought it for a nickel.

There are only two choices in life. You either conform the truth to your desire,
or you conform your desire to the truth. Which choice are you making?

[ Reply to This | # ]

Linux news on the BBC
Authored by: Anonymous on Thursday, December 04 2003 @ 04:39 AM EST
Brazil bets on Linux cybercafes

"Since last year, all the centres have been using the free operating system GNU/Linux.

"The government is the biggest software buyer," said Ms Tibirica. "We can save a lot of public money using the free software solution."

She pointed out that the free software has many advantages: no need to pay for licences and it is possible to use a simpler version of the computer, with one server and several thin clients - computers without hard disks.

These computers, according to Ms Tibirica, cost a quarter of the price of a machine and have reduced maintenance costs."

[ Reply to This | # ]

Is There a Curse on UNIX or Something?
Authored by: BsAtHome on Thursday, December 04 2003 @ 05:03 AM EST
Has anybody done a MD5 comparison between Linux 2.3.x-2.6.x and UNIX 32V? I've
seen it between Linux and BSD, but it would be interesting to see if there is
any overlap at all.


SCOop of the day, Groklaw Rulez

[ Reply to This | # ]

Is There a Curse on UNIX or Something?
Authored by: brenda banks on Thursday, December 04 2003 @ 05:38 AM EST
if sco had access to this old case history and didnt raise a fuss about the
copyright files before now then it would seem that estoppel would also come into
play here also?any way you look at it they still released it as GPL


[ Reply to This | # ]

PJ and the slippery slope.
Authored by: gumout on Thursday, December 04 2003 @ 07:23 AM EST
Here is a listing of required reading at the University of Utah College of Law.
This may indicate how Utah law would treat the analysis of the GPL. I see a
slippery slope ahead by not veiwing the GPL as a unilateral contract license.

*** Offer and Acceptance: Unilateral Contracts***
+ KC&P, pp. 72-84, 93-95
+ Petterson v. Pattberg, 248 N.Y. 86, 161 N.E. 428 (N.Y. 1928)
+ Cook v. Coldwell Banker/Frank Laiben Realty Co., 967 S.W.2d 654 (Mo. Ct. App.
+ REST 2d CONTR 25, 30, 32, 45, 53, 54, 62, 69UCC 2-206

How do 99% of lawyers manage to graduate in the bottom 1% of their class?

[ Reply to This | # ]

5th, 11th and 14th amendments
Authored by: FrankH on Thursday, December 04 2003 @ 08:27 AM EST
Many of the quotes about the BSD settlement include references to the 5th, 11th
and 14th amendments. While I am sure that those amongst you who are US citizens
can probably recite the constitution (and all of its amendments) in your sleep,
having ingested it with your mother's milk ;-), us foreigners need a litle

I found this I
hope it helps somebody as it helped me.

[ Reply to This | # ]

Authored by: Anonymous on Thursday, December 04 2003 @ 09:14 AM EST
Perhaps someone with a lower-numbered PID than myself can help those of us with
lower uptime:

32V - pronounced "thirty-two vee"?

Any others we ought to know about?

[ Reply to This | # ]

Is There a Curse on UNIX or Something?
Authored by: Frodo42 on Thursday, December 04 2003 @ 09:29 AM EST
Sometimes I think there must be a curse on UNIX, like there supposedly was on the tombs of some of the pharaohs of Egypt. If you stole any of the contents of the tombs, even though you might be tempted by the possibility of easy wealth, you ended up horribly dead or worse.

I think owning UNIX must be like that. Maybe it was supposed to stay free, and when AT&T decided to take everyone's freely donated work and "monetize" it, the curse began. Now it looks like it's on SCO.

That's so weird it's irresistible :)

Unix is something that just happened, under the auspices of AT&T who were legally prohibited from turning it into a moneymaker. When they try to make it a money machine, everything falls apart. Noone makes Unix as such a commercial success, it seems - and now Linux, which also sortof just happened, is coming together, overcoming fragmentation and other Unix curses, and is a commercial success. SCO comes in, tries to seize everything - and is poised to be torn to pieces.

Quite a drama. Coming to a court next to you Dec. 5th - that'd be today.

PS I particular like the 'or worse' part :)

[ Reply to This | # ]

Is There a Curse on UNIX or Something?
Authored by: Alizarin on Thursday, December 04 2003 @ 10:02 AM EST
Just slap a GPL on it and call it a day. Maybe then the curse will lift and they can find some peace.

Nah, SCO is dead even if they do that. Nobody is going to want to do business with them anymore. That's all there is to it.

[ Reply to This | # ]

Is There a Curse on UNIX or Something?
Authored by: tzicha on Thursday, December 04 2003 @ 10:44 AM EST
"Just slap a GPL on it and call it a day."
Except they cannot because not all the code in SysV belongs to them. You can only place under the GPL what you have the right to, ownership in otherwords. To place under the GP License, the New SCO would need contact all contributors and licensors to get permission, or remove all that code before the licensing can occur.

[ Reply to This | # ]

PJ is squeamish.......
Authored by: Anonymous on Thursday, December 04 2003 @ 10:52 AM EST
...about the following. It may have to be reposted from time to time if Groklaw
disappears it and the goal is not met.

*** *** *** *** ***
My Fellow Groksters:

Due to the unforeseen utility and popularity of Groklaw, you are now being asked
to do more to satisfy your demands of Groklaw.

The legal assault on the GPL, open source software, and Linux by the forces of
greed and amorality is as damaging as it is unfounded. Thanks to your time and
expertise, Groklaw is not only an enlightening view of this battle, better even
than a front row seat in the courthouse, it has become a prominent force in the

Thanks to your time and expertise Groklaw, has become an unprecedented resource.
Browsers can delve into the diverse and complex issues as deeply as they care
to go. Who are you? Coders, legal kibitzers, corporate analysts, businessmen,
librarians, historians, financiers, gamers, revolutionaries, humanitarians,
computer enthusiasts and so on endlessly....worthy reps of the world community.

What Groklaw needs right now is more leadership.

What more leadership means right now is more of PJ's time. Crunch time is
approaching. Far reaching decisions are days away. The battle will intensify
and endure for years to come. PJ needs to spend more time leading Groklaw. PJ
has created Groklaw as a labor of love. Imagine what PJ can produce with her
full-time labor of love.

We are asking for something easy, not your time or expertise, just your
donation. Judging by the weekly hits on Groklaw, by Christmas we can set up
Groklaw for at least the next year. Every Grokster must find a dollar formula
that works. How about a dollar for every time you click on Groklaw? How about
a dollar per hour spent on the site? A dollar a month or a dollar a week? Leave
your spouse out of it. Give less to the alma mater. If you have done work for
Groklaw, such as reading, browsing, or commenting, contribute what you think a
few hours of your time is worth. You lawyers donate at least your hourly rate.
PJ allowed in her interview that there were 2000 Groksters signed up and

If every Grokster contributes something, we will probably have PJ exclusively
for the next year. It is important for Groklaw to maintain the fact, if not the
appearance, of neutrality and fairness. For this reason PJ has had to turn down
support proffered by "interested" entities.

So Groksters, this is a task easier than staunching the flow of FUD. It is
easier than fathoming "pump and dump." It is easier than retyping
pdf's. It is easier than stalking with scribbled questions at "road
shows" or reading the omens in an "Opposition to a Motion to
Compel." Get off your buns, clickers, and reach behind for your credit
card. Click on Pay Pal at the home page. Pay Pal makes paying as easy as

Let's get this over with by Christmas and get back to the serious business of
slaying predatory patenteers and misnomered monopolists.

Yours truly,


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

[ Reply to This | # ]

Authored by: Anonymous on Thursday, December 04 2003 @ 11:04 AM EST
Couple of things I noticed in reading this... these may be typos in
the originals, dunno.

P starting "The limited-publication", "even it valid"
-> "even if valid"

P starting "Under the common-law doctrine", "holds that its
has." ->
"holds that it has."

P "The alleged overlaps" "56 lines out of 230,9995,"
-> 230,995 or


[ Reply to This | # ]

I think Caldera knew this -- SCO is backsliding.
Authored by: Anonymous on Thursday, December 04 2003 @ 11:22 AM EST
The ironic thing is that I think Caldera understood this when they bought SCO.
My recollection is that Caldera, was familiar with the waterred down value of
the AT&T copyrights, thats why they openned the software. At the time my
impression was that they bought SCO for the business channel and customers. They
were going to support them and offer them Caldera Linux as a migration path.

Its only the Canopy Group and the New SCO that wants another payday like they
got with DR-Dos. I wish they understood that many people who supported them in
the Dos claims think they're reprehensible now -- because they are wrong.


[ Reply to This | # ]

Is There a Curse on UNIX or Something?
Authored by: jamtat on Thursday, December 04 2003 @ 11:31 AM EST
I see a fundamental fallacy in your reasoning in this article. I certainly
agree that SCO's case is flawed legally and logically, so I see no sort of
fallacy there. But I think the fallacy involves a profitability/coherency
connection you're presuming that does not, in fact, exist. Despite the
incoherence of SCO's claims, they ARE nonetheless making money. They are
making a pretty good profit (judging by their stock prices) by putting forward
these specious claims, or by applying a thin veneer of legal legitimacy. The
Open Source movement needs to wake up to this business reality, with the
"progress" it seems to be making in the business world. The economy
and the people that succeed in it could give a **** about your coherence and
legitimacy. If you can make lots of money selling plutonium tainted excrement,
you'll be the darling of the economists and a hero of capitalism. The more
people you can fool out of their money, the greater a scion of the capitalist
system you'll be. Exposing the injustice being perpetrated by SCO is somewhat
obscured by promoting this fallacy.

[ Reply to This | # ]

Only curse is on us
Authored by: John Goodwin on Thursday, December 04 2003 @ 12:14 PM EST

It should now be clear that naming your free software project anything remotely
like an well know and allegedly equivalent proprietary software product
("Linux", "Lindows") simply causes busloads of idiots to
assume you are doing something illegal and no amount of arguing will save you
from that conviction.

The lesson is this--free software is fine. But you should have *nothing*,
*ever* to do with a proprietary software product. Each and every aspect of
proprietary IP is like a contagious virus.

Today's object lesson:

(FAT file system)

You should not talk to vendors, use their products, buy their products, support
their products, integrate with their products. Let them all die.

Proprietary == Pollution

Don't pollute. Don't buy software.

The real problem is that this lesson probably applies to commodity hardware
(which after all has hidden programmed layers), as well. Commodity Turing
machines and the privacy to do what you want with them is just too good for the
masses. Freedom is Slavery. Harrumpf. OK I've not finished my first cup of
coffee yet. Snarl.

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December 5
Authored by: Anonymous on Thursday, December 04 2003 @ 01:19 PM EST
Do we have anyone going to the Dec 5 hearing? Will they be taking notes? will
an official transcript be publishe? how long do we have to wait?

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Is There a Curse on UNIX or Something?
Authored by: old joe on Thursday, December 04 2003 @ 03:42 PM EST
Who has standing to reopen the ATT UCB dispute now?

ATT transferred Unix to USL (Unix Systems Lab)
USL transferred Unix copyrights to Novell.

Novell transferred some Unix rights to SCO (Santa Cruz Operation).

SCO sold these rights to Caldera and changed their name to Tarantella.

Caldera changed their name to 'The SCO Group'.

BSD International - BSDi - seem to have aquired the rights to the BSD copyrights
from the University of California.

BSDi transferred these rights to Wind River then changed their name to iX and
switched to making servers.

Wind River transferred Free BSD to FreeBSD Mall but seem to have retained the
rights to BSD.

iX is now owned by

Have I got the above right?

Do any or all of the above still have copies of the court agreement? Which of
them have the right to allow (or veto) disclosure of the court agreement.

Any ideas?


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SCO's BSD "copyright infringement" claims
Authored by: Anonymous on Thursday, December 04 2003 @ 03:45 PM EST
If the BSD-code in the secret agreement has any interest wouldn't it be
possible to find out what parts are affected by comparing the last release
before the trial and the first release after the trial?
I am fully aware that there are lots of changes between release versions of
OS's but by sorting out what is old and then take a closer look at the new
remaining parts in the post-trial release wouldn't it be possible to narrow
down the scope of the search? It's not going to be easy but still maybe
possible. People that have been involved must know what parts that have been
added or removed that have a past that is not fully accounted for. If three
files are removed then the people that made the replacements must know why they
had to create them or if there is some functionality missing in the new release
because of missing files. Parts of OS's don't appear or disappear without a
reason and people involved noticing it. I don't know enough about BSD and I
don't know how interesting it is to find out but I do think that it is
possible. Look at what you guys found out about SCO's claims by using

[ Reply to This | # ]

New Darl letter!
Authored by: Anonymous on Thursday, December 04 2003 @ 03:55 PM EST
He's claiming the GPL is invalid again.

Unfortunately it links to SCO's website.

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Roll up your sleeves. another Open Letter from Darl McBride.
Authored by: sjohnson on Thursday, December 04 2003 @ 03:57 PM EST
I just caught this on Linux Today. Darl has release another open letter today. This time it's dealing with their position on GPL and copyrights.

Darl's next Open Letter

I haven't finished reading it myself. But I tingle with anticipation on ripping it to shreds. Go forth and prepared to shred....

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Is There a Curse on UNIX or Something?
Authored by: Anonymous on Thursday, December 04 2003 @ 05:03 PM EST
Can SOMEBODY explain to Dear Darl the Difference between
"Copyrighted Code"
and a "Software Patent"
The FSF OR RedHat never ever implied that code should no longer be copyrighted
OR the proprietary applications should all become Free!

But software patents ARE a threat to ALL development be it Free OR proprietary.
Legally, you should be able to protect the code you write to do something. But
you should NOT be allowed to protect the "doing something" and
charge people for it. That's nonsence. Just imagine. Someone could have
patented the right-click, or the pull-down menue or even the double-click and
extract money from anyone who wants to use it. That's where the danger lies.
That what the FSF is fighting.

No guns, no bombs...just brains
The way it should be.

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Kevin McBride?
Authored by: Anonymous on Thursday, December 04 2003 @ 05:43 PM EST
Do we know if Darl has a brother (or other family member by this name? If not
can someone check if anyone else with the last name McBride works for SCO?

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Is There a Curse on UNIX or Something?
Authored by: eamacnaghten on Thursday, December 04 2003 @ 05:48 PM EST
Excuse me if this is known about, but possible new filing..


Credit to heimdal31 on Yahoo for finding it...

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Another open letter from Darl McBride
Authored by: tcranbrook on Thursday, December 04 2003 @ 05:52 PM EST
An open letter from Mr McBride has appeared here. I think this letter tells us a lot about the arguments SCO will make in coming months, both to the press and in the courts.

He begins with an attack on the GPL.

"SCO asserts that the GPL, under which Linux is distributed, violates the United States Constitution and the U.S. copyright and patent laws."

After a short discussion of the value of copyright laws in a general economic sense, he gives us the legal theory for the previous charge.

"The software license adopted by the GPL is called "copyleft" by its authors. This is because the GPL has the effect of requiring free and open access to Linux (and other) software code and prohibits any proprietary use thereof. As a result, the GPL is exactly opposite in its effect from the "copyright" laws adopted by the US Congress and the European Union."

He then proceeds to attack FSF and RedHat for undermining the free world. This starts with a statement about their statements about software patents:

"Red Hat's position is that current U.S. intellectual property law "impedes innovation in software development" and that "software patents are inconsistent with open source/free software."

Then he does a fast shuffle of patents with copyright,

"At SCO we take the opposite position. SCO believes that copyright and patent laws adopted by the United States Congress and the European Union are critical to the further growth and development of the $186 billion global software industry, and to the technology business in general."

Followed by a really wonderful threat of the collapse of civilization as we know it.

"Despite the raw emotions, however, the issue is clear: do you support copyrights and ownership of intellectual property as envisioned by our elected officials in Congress and the European Union, or do you support "free" - as in free from ownership - intellectual property envisioned by the Free Software Foundation, Red Hat and others? There really is no middle ground. It is no understatement to say that the future of the global economy is in the balance."

Notice the little play with "free".

""free" - as in free from ownership "

Next, comes some really meaty legal references,"

"To understand the strength of this authority, it is interesting to read the recent U.S. Supreme Court case, Eldred v. Ashcroft, 123 S.Ct. 769 (2003). In Eldred, key arguments similar to those advanced by the open source movement with respect to copyright laws were fully considered, and rejected, by the U.S. Supreme Court. This suggests that however forcefully open-source advocates argue against copyright and patent laws, and whatever measures they take to circumvent those laws, our intellectual property laws will carry the day."

Hey, that's big important Supream Court stuff! But then he gets to the core of it. Is this what they are going to say in the court?

"SCO argues that the authority of Congress under the U.S. Constitution to "promote the Progress of Science and the useful arts" inherently includes a profit motive, and that protection for this profit motive includes a Constitutional dimension. We believe that the "progress of science" is best advanced by vigorously protecting the right of authors and inventors to earn a profit from their work."

Yes! SCO is constitutionally guarteeted to a profit! And then there these bad guys, well, they believe:

"The FSF and Red Hat believe that the progress of science is best advanced by eliminating the profit motive from software development and insuring free, unrestricted public access to software innovations."

"Free, unrestricted public access to software innovations", now can you imagine that!

Well, the rest of it you just have to read yourself. The best I can figure, they are going to argue the the constitutional mandate to "promote the Progress of Science and the useful arts " prohibits giving something away for free.

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SCO's Latest Open Letter a Doozy
Authored by: BWCarver on Thursday, December 04 2003 @ 06:20 PM EST
Darl McBride just wrote another open letter explaining why they think the GPL is unconstitutional and invalid. It's at Newsforge. Basically it shows a totally shameless lack of understanding of the GPL. I rant about this at greater length at my blog. Can't wait to see PJ demolish Darl's latest bunch of rubbish. It's stunning how bad Darl's reasoning is.

Like Digital Freedoms? Donate to EFF before they're gone.

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Darl McBride: Open Letter on Copyrights
Authored by: Sten on Thursday, December 04 2003 @ 06:30 PM EST
New article on SCO's web site, posted 12/4/2003

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GROKLAW Quoted in IBM Memorandum
Authored by: eamacnaghten on Thursday, December 04 2003 @ 06:36 PM EST
IBM's Reply Memorandum in Support of SCO's Second Motion to Compel Discovery

See http://pacer.

Go to page 8 - See the Groklaw reference....

PJ - My admiration for you increases on a daily - nay hourly - basis.

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SCOX share dumping coming up?
Authored by: Anonymous on Thursday, December 04 2003 @ 07:18 PM EST
I'm not a financial expert, but I noticed that at NASDAQ close today the SCOX share price stood at $16.64 and 248,658 shares had traded. AT 16:12 there was an after hours sale of 50,000 SCOX shares which dropped the share price to $16.27 (see here). Could this have anything to do with the IBM memo? I'll be very interested to see if this triggers a crash in SCO's share price tomorrow morning. I'm not familiar with the web sites enough to find out who made the sale so can't see if it was an SCO insider.

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SCOX Open Letter - Boy, I bet PJ is PISSED!
Authored by: Grim Reaper on Thursday, December 04 2003 @ 07:31 PM EST
No word from PJ yet. I bet she's taking time to calm down before tearing darl
three new ones. :-)

For the love of money is a root of all kinds of evil (1 Timothy 6:10); R.I.P. -
SCO Group, 2005/08/29

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PJ - Who owns the ancient Unix sources?
Authored by: freeio on Thursday, December 04 2003 @ 08:28 PM EST
Harlan mentions elsewhere above that the documents from Novell granting whatever
rights TSG has refer to UNIX System V only, and fail to mention the ancient UNIX
codes at all. Since the only commercial interest Caldera would have had would
have involved the current version, and not the older versions, it may well have
escaped being listed in the contract. Thist provides an interesting strategic

If this be true (Harlan seems to have read the documents and asserts this to be
so) then it would imply that Novell still has the undiluted rights to any
previous version of UNIX. Assuming that Novell has those rights, it is well
within its control to assert whatever it wishes in this regard, including
potential re-licensing, perhaps with a BSD license without advertising clasue.

Thus it would appear that Novell could play quite the spoiler. If TSG does not
own the ancient UNIX codes, then neither does TSG own any supposed trade secret,
method, or whatever is in them or derived from them. Only where System V
differs from the ancient codes would there be any potential legal claim.

Now it is true that there have undoubtedly been many, many changes since 32V or
system 3, but it would seem that it would immediately preclude from
consideration anything older (such as the SGI memory allocation copy gaffe,
which came from truly ancient sources). That would not stop the case outright,
but it would provide yet another nail for the TSG lawsuit coffin.

73 de w4ti

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Larry Lessig's responce to Darl's open letter
Authored by: Flower on Thursday, December 04 2003 @ 09:22 PM EST
Check the blog entry.

Teach it phenomenology.

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OT: Counter the FUD!
Authored by: Sunny Penguin on Thursday, December 04 2003 @ 10:06 PM EST
This is my short take on Darl AKA "Elmer FUD" letter:

>From Darls latest FUD:

1. SCO intends to delay 18 months before showing the code in court.

2. SCO makes groundless posts to the media. No Code shown in court.

3. SCO is in violation of copyright and has been notified in June of this year.

SCO has received a copyright infringement notice by a Linux Kernel developer in
June 2003. This is old news, but here is a link:

4. SCO business is failing due to no competitive product, and no programmers
working on new software. SCO cannot compete with open source programmers.

5. SCO is trying to steal copyrighted code from the Linux kernel developers.

6. SCO makes public informal statements they refuse to give in court.

7. SCO implies they will use the DMCA against Linux, The DMCA is for proven
violations only. SCO please prove your code exists in court first.

As we can see Darl is desparate to continue the FUD until Longhorn is released.

Norman Madden
Chuluota, FL

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Is There a Curse on UNIX or Something?
Authored by: Anonymous on Thursday, December 04 2003 @ 10:20 PM EST

This thread is getting very long.

[ Reply to This | # ]

You know IBM reads Groklaw now !!!
Authored by: Anonymous on Thursday, December 04 2003 @ 10:44 PM EST
Woop Woop Woop


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Completely OT: Microsoft Linux
Authored by: converted on Thursday, December 04 2003 @ 10:58 PM EST
The end of Linux perhaps? :^P

MSLinux -

On another front, seem even charity is only measured by dollars. W orld's Nicest Guy? Bill Gates!
"... and Linus Torvalds - where are you?...they are nowhere close to Microsoft co-founder Bill Gates on the generosity list. "

What so conveniently falls under the blanket of cynicism is a mind which refuses to be bought.

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Is There a Curse on UNIX or Something?
Authored by: dwandre on Thursday, December 04 2003 @ 11:41 PM EST
So would a demurrer citing the BSDi settlement be a good reponse for someone who's a target of an SCO lawsuit? According to the link to, a demurrer says that "even if the facts alleged in the complaint were true, there is no legal basis for a lawsuit." The argument would be interesting but it would give the judge a chance for an early exit.

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usl vs bsd
Authored by: gloog on Friday, December 05 2003 @ 11:22 AM EST
More ancient history:

"it was funny that usl attacked bsd to later discover that usl had took code from bsd and ripping away the bsd copyright notices to put that code into their stuff... they feared so much publication of their wrongdoings in the press they went for an agreement."

"there has never been system v code in bsd. the ip which connected bsd with the suit is derived from pre-system v and system iii versions of unix. in fact, truth is version 7 of unix has more berkeley code and bsd copyrights than att copyright notices (;"

http://perso.wanadoo.f r/gilbert.fernandes/usl_bsd/
All great world-historic facts and personages appear, so to speak, twice... the first time as tragedy, the second time as farce [Karl Marx, 18th Brumaire of Louis Napoleon]

Much as I despise Karl, hard to argue with him on this one...

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The curse on unix
Authored by: vagn on Wednesday, December 10 2003 @ 02:43 AM EST
There is indeeed a curse on unix.

If you say "Unix is mine" you die!
And good riddance.

You can say "unix is cool" with no risk.
"Here's my contribution" is also safe.

res publica non dominetur -- the commonwealth is not 0wn3d

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