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The Linux Show's Town Hall Meeting Transcript |
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Tuesday, December 02 2003 @ 07:30 PM EST
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Here is a transcript of The Linux Show's November 18 Town Hall meeting, which aired immediatley after Darl McBride's keynote speech at CDXPO. Here is how it came to be.
A Groklaw reader, Trepalium, did a transcript and posted it. I was concerned we might need permission so I quickly wrote to Jeff Gerhardt, host and producer of The Linux Show, providing him with the transcript and asking him for permission to publish it on Groklaw. He not only granted permission, he -- in the best open tradition -- built on our work. He corrected the transcript and provided his own commentary on the discussion. There remain a few places where the sound quality made it impossible to make out a word here or there, but otherwise it's the entire show. Enjoy. And Jeff, thanks.
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The Open Source Town Hall Meeting
With Editorial Comments added by Jeff Gerhardt
My thanks to the folks at Groklaw both for transcribing
the content of the Enterprise IT Week Town Hall Meeting and for giving me the
opportunity to add comments to the transcript. Please see the very end of the transcript for my comments on
the emails I have gotten about the "fairness of the panel" and the way it was run.
Keep in mind that I had ONE real goal in participating on the panel and that was to repeat
a single message over and over. The message in brief was that we (the Open Source community)
had in our hands the definitive data as analytical proof
to debunk all of SCO's IP violation claims that we have seen so far and were ready to present it to anyone who asked. I succeeded in
that goal. I also wanted to ignore comments by SCO as much as possible, and thus avoid direct
confrontation. This would allow me to maintain a perspective from the "high road." Could I have jumped
all over some of Sontag's comments? Yes of course. In some cases I did not respond because of
my desire to be considered "reasonable." In other cases, I was unable to respond because of the
format of panel. There was one case where I wish I
had been able to respond. But, my goals were met, and I feel the interests of the Open Source
community were as well.
The transcript:
Enterprise IT Week Conference chairman Jack Powers moderates a Town Hall discussion on the implications of the SCO
actions and the future of Open Source. November 18th, 2003
Panelists:
- Jeff Gerhardt, Host and Producer, The Linux Show
- Steven J. Henry, Chair, IP Transactions Group, Wolf, Greenfield & Sacks, P.C.
- David Schatsky, Senior Vice President of Research, Jupiter Research
- Chris Sontag, Senior Vice President and General Manager, SCOsource, The SCO Group
Host: We live in interesting times, along with interesting, interesting folks.
I want to introduce our panel briefly. I want to ask them briefly to give us what
they thought about it, what they think this is all about. And I've got a million questions,
and I'm sure there's a million different answers we can give. Our panel today, starting from
my left is David Schatsky, Senior Vice President of Research for Jupiter Research, Steven J.
Henry, chair of the IP Transaction Group for the law firm Wolf, Greenfield & Sacks,
Jeff Gerhardt, producer of The Linux Show, and Chris Sontag, Senior Vice President and
General Manager of SCOsource. So, David, you start. What did you think about what you heard,
and what should we be looking for and what should we be worrying about?
DS: [unintelligible] really solid points, that it's kind of chilling in a way because
[unintelligible] really solid case for the intellectual property that the company possesses.
I think that he, especially if you heard later, towards the end of the presentation, he tends
to wrap this whole suit in the flag, as preserving American jobs, standing up for intellectual
property rights, and that's obviously beside the point, it's really about the self interest
of the company. But I think it all boils down to the sort of confused patrimony of the UNIX
source code, and the tree metaphor is a valid one for explaining what the roots of the case
really are.
Host: Steve, what did you think?
SJH: Well, I am an IT lawyer, and I believe the system works, or is supposed to work the way Darl
explained. I believe it does protect value, does produce incentives to innovate and invest,
but there's an old expression that I think comes to mind that "the devil's in the details". I
was not persuaded by Darl's speech about SCO's position because I really don't know in that
network of something like 140 agreements they have with [unintelligible] back to AT&T what
their rights really are and how the codebase really breaks down at this point.
Host: [unintelligible] some number of millions of lines that allegedly are present?
SJH: Millions and millions.
Host: Yeah, interesting. Jeff, what did you think?
JG: Well certainly as part of a community that is advocating Open Source, we feel very
strongly about our own intellectual property and the defense of that open source intellectual
property. And, so really, at lot of the things Darl said today, on an intellectual basis, I'd
have to agree with him, he has every right, the company SCO has every right in the world to
defend their intellectual property. But eventually the time comes where they really do have
to prove their case. Up to this point, the track record of the hyperbole has been very thin,
and as of yet we have not seen, within the Linux community, one ounce of evidence that we've
been able to duplicate that SCO has claimed.
CS: The first point I'd like to make is that SCO's issues are not about the concept of Open
Source. I think you heard Darl when he spoke, mentioned that the ability for the people to
share source code for which they have developed or the IP basis is well understood, is
something that's reasonable, for which SCO has even participated in. Our issue is when a
Open Source model's being used to effectively hijack some of SCO's intellectual property and
apply it into a distribution model for which is very damaging to SCO and its business. We
have shown source code, we have shown examples of our intellectual property violations, we've
talked about the derivative works, over a million lines of code, that IBM and Sequent and
others have contributed into Linux that has been identified, and we don't hear much about
that. We've also shown some of the examples of literal copyright infringement, and those
examples have been either ignored or quickly removed and said, "Oh, there's no more problem".
The analogy I like to use in terms of, "oh, just show us the code, and we'll go ahead and
remove it, and there'll be no more problem", is the example of a bank robber who robs a bank
and now has the posse in hot pursuit behind him. Makes a swing back around past the bank and
throws the money bags back into the bank and says, "Hey, no harm, no foul". There is a
problem, there has been damages and [unintelligible] occurred, and we intend to get justice.
Host: I have a question. The issue is that in Linux there is lines and lines of the original
UNIX code that is owned by SCO. How can Linux work, if it's not based on UNIX? How could you
make a Linux that works, if you didn't take, maybe not code, but maybe certain intellectual
property from that? What is Linux except a clone of UNIX?
JG: It's in no way a clone of UNIX. Not at all. In terms of historical background, certainly,
the kernel owes a historical background to UNIX because the early UNIX developers
really developed an art form, a standardized way of developing code, that is being used today,
by the modern IT development community, not just Linux but across the industry, and so there
is the existing art form. There are those standards that are out there. But is Linux a
derivative copy of UNIX? No, that's nonsense. It's not at all.
Host: [unintelligible] finding a bunch of lines that are in the old system and in the new
system. Maybe Steven, you can talk about this. If you make something that works just like
something, did you just steal something?
SJH: There are two separate issues, and I think Darl correctly tried to separate them here.
Firstly, when they filed the suit, there was no copyright claim involved. Just straight
misappropriation of trade secrets and breach of contract case. You can read the complaint;
it's on-line. When it comes to the copyright side, now we have questions of, "Was protected
code copied?" Ordinarily, you don't prove copyright infringement, you don't get the
opportunity to prove it, by having direct evidence of copying. You prove it by the fact
that the accused party had access to the source code and that the result is substantially
similar to the protected source code. It certainly sounds like, from the things we're hearing
out of SCO, that it's substantially similar, if not identical, and their burden is going to
be to go back and show that those similarities are not due to merely functionality, but
due to the fact that somebody saw or had in mind, at the time, the protected copyrighted code
when they wrote the Linux code.
Host: So you have to show that someone did it, that there was an opportunity for someone to do
it, and the person actually did it, rather than it's just the same because that's the way
you'd be to write code for it.
SJH: In fact, that is likely to be the same kind of proof that, or more of less the same
kind of proof, they'd have to have on the contract side to show that they didn't just have
somebody who independently, without looking at the code that was under wraps, write new code
that was the same.
Host: Interesting.
CS: Let me go ahead and make a comment on that because I think that Steve brings up an
interesting point. You're speaking actually to the, more of the non-literal kind of
versions of copyright infringement, where it's not the direct line-by-lines, which is the
majority of copyright cases that actually go to trial end up being these very esoteric,
"well, it was the methods, and the concepts and the structures and the sequence of this
body of copyrighted work used." We have a substantial body of those non-literals which we
have evidence and will present appropriately in court, but we also have literal copyright
infringement where the line-by-line code was copied. And we know specifically which version
was copied, and the licensee from SCO, who licensed that particular version, it all
matches up, the fact points are all there. It's not some old, ancient version of UNIX,
it was a particular, significantly newer version of UNIX that was copied. We can tell
because the kind of the "DNA analysis" of how each version changes over time. And so,
I just want to give that flavor, that there is a strong basis for the position that
we've taken, and we look forward to laying that all out, but we're not going to lay
out the whole case for the media, or... We have a respect for the law, and we're going
to appropriately lay that all out.
JG: I'm a little bit surprised to see you're not going to lay it out for the media, because
you seem to have been battling this case in the media quite a bit. There's also some
subtleties about copyright and intellectual property. Let's take a case in point of one
of your licensees, Sequent, as a case in point. Yes, indeed, if there was a derivative
work developed by Sequent, and there are derivative works developed by Sequent, you do
in fact own a copyright in the source code, but you do not own intellectual property to
the trade secrets and methods by which they developed that software. If then, the people
from Sequent come along and develop very similar code, it's their right to because they
own those trade secrets and they own those methods. And so, there's going to be a lot of
these situations for you that are going to be next to impossible to prove out. I've got to
be honest with you, the Open Source Software Initiative sat down and they did a many-month-long, detailed analysis comparing the various Linux kernels to System V system,
and other than basic noise from the standards of which software is developed and an
awful lot of preexisting open source code, such as the BSD code that you and I have
talked about before, there's not a whole heck of a lot that we have found in a complete
multi-month-long analysis. I'd like to talk to the people -- you don't have to show me
the code -- just let me talk to the people, who did your analysis so we can compare
notes. Maybe we're wrong.
Host: This is why they have law and lawsuits.. Lawyers and lawsuits.
JG: Right...
Host: David, you had a question.
DS: I had a question for Chris. In the cases you were just describing, "crystal clear
examples of copying lines of code", what motive can you imagine there would be for
legitimate companies to engage in those practices when the infringement would be so
clear cut.
CS: You know, we don't know what the motivation was. It could've been accidental, a
process by which several developers worked on something, they were testing something
and didn't realize that code got into a production stream, but the copyright notices
were removed and [unintelligible] we even have leaders in the Linux community that have
basically agreed that yes, that code should not, that development process was flawed by
that particular vendor, and that code should not have been included, and that all future
versions of Linux will have that code pulled out. So in terms of showing the code, yeah,
we've shown an example, and the Linux community is trying to pull it out, but that
doesn't completely solve the problem, and we've many other examples that have to be
rectified as well. Some of which, I think, are substantial. Derivative works, we can
argue about - when a derivative work is a completely substantially different body of
work. We also have a huge amount of case law regarding what is derivative works in lots
of different areas and trades. Copyrighted works, the derivative of those copyrighted
works, when they're using the methods and concepts of that original work. There is
afforded protection by copyright.
Host: Chris, I want to raise our eyes up here a little bit. What we've been talking a lot
about here is this specific lawsuit, this specific case, and you want your money that was
lost because this happened, and the other guy says it didn't happen, and it all goes to
court, and some lawyer and some, god help us, judge decides which is right in this case.
And at the end of the day, either you get paid some settlement money, or you charge
everyone for the rights, and so on. Okay, fine. I never watch CourtTV because listening
to the discussions on how the trial is gonna go drive me nuts. But, here I'm in business,
I'm an enterprise IT guy, I'm trying to figure out what the heck to do in this area.
Of course, I can say, "Oh, my God! Linux, too complicated" or "Too risky" and I have to
go someplace else. Short of that, what do you, when you come a-callin' someday, assuming
you win your case, what are you gonna want from me? What's it gonna cost me to use the
Linux I've already got sitting inside?
CS: Simply, we want to come up with a fair and reasonable licensing policy for the
appropriate IP that is SCO IP that's in any product. And we've done lots of licensing
over the years. Lots of people have licensed our intellectual property, including
IBM, including HP, including Sun and many others. And we just want to get reasonable
licensing for that [unintelligible].
Host: And what is your regular retail price for the regular retail products? Today's cost?
What does it cost to get . . .
CS: Anywhere from $800 to several thousand dollars for the different versions of our
operating system.
Host: So, I hate to say it this way, but, worst case, I'm gonna have to pay you some money.
CS: Certainly, sure.
Host: Best case, it all goes to hell. Or my HP, for example, indemnifies me against
having to pay this extra money. I mean, when we get to a court case what we're really
talking about is money at some place. You're saying, "Alright, it'll cost me this much
to run my multi-billion dollar data center to make this problem go away when it
becomes a problem for me."
CS: And if I'm an IT shop, and I want to have a solid basis for the technologies
I'm running in my organization, I think ultimately, companies want to pay for the
IT, you know, for the IP that they're using in their company. Every company that
I've talked to when I've sat down with them have said "We want to pay for, you know,
we want to make sure we're do things correctly." I don't know of any Chief Technology
Officer, CIO, that does want to be right with the law.
Host: Okay, so that's part one of this discussion. That whatever happens is just money.
Turn on the mike for Amy.
Amy Wohl: So, first of all, several folks have gone out, surveyed the large IT shops about whether
they're concerned about this issue, and 85% of them have come back and said it isn't an issue.
That is, they have not stopped installing Linux and they have not signed up for licenses.
So I would suggest to you they're a lot less concerned about this than you might imagine.
Second of all, as I understand this, having spoken to several of the lawyers directly
involved in the case. If you have a license already from a company that you bought Linux
software from, you have in fact bought a license and SCO can try to say anything they
like, but, they're going to have a lot of fun trying to get you to, litigate and be forced to
sign another license for something you already own a license to. The GPL is, in fact,
a license.
Host: It's interesting...
AW: It is an intellectual property protection, in spite what Darl is saying.
Host: Okay, I want to take it to the next step with this. It's an interesting figure -- 85%
say it's not a problem because they've got money and lawyers. And if we have, if we draw
the rough parallel between SCO coming after people for infringing its intellectual
property, and the RIAA music people coming after people, when they sue 12-year-old
Brianna LaHara and take $2,000 from her, that can make a lot of people in that area, in
that world, scared. When a company, a 60 million dollar company, comes and tries to sue
General Motors because of a license, it becomes just a lawsuit and just becomes a question
of dollars and cents. That's one level that is a reasonably understandable problem. But
I want to knock it up a notch, because I want to say, okay, suppose I'm running Linux,
suppose I wait to see whatever's gonna happen with this thing. But suppose I'm building
a product on top of Linux, I'm building software on top of Linux, I'm building Linux-based products.
What do I, in the way things work today, am I creating new problems for
myself, after this first problem, by building something on top of an open-source product,
or is what's going to happen, is my new product I create from here on in, is that gonna get
stuck with this same problem or not?
JG: It depends on the tools you use to develop the technology, and the license you use to
license the product. There's plenty of Open Source GPL products that are also available
with commercial licenses. Apache is one. MySQL, a tremendously successful company, that has
the same software available with two different licenses. So if you're a software development
company, sure you can develop commercial software based on the Linux operating system. You
just need to be aware of the tools you're using and not use GPL tools, and you have to look
at the way you're manipulating the operating system. And if you do modify the operating
system to run the software, then yeah, you do have certain licensing issues you have to
address.
DS: But you're asking if you build an application on top of an unmodified operating system,
are you enhancing your liability?
Host: I'm asking where does my liability start in this next step.
DS: The problem is the suit has injected a massive and unwelcome dose of fear, uncertainty and
doubt in an already embattled IT environment, and to the extent you're using UNIX
of any flavor, you now have a giant headache. And to an extent you're building
applications that run on it, those, while they may not infringe, they're increasing your
dependence on this shaky foundation that's just been shaken up.
Host: And so what should I do to protect myself?
SJH: You have a basic problem here, and the question a couple moments ago highlights it.
And it underlays everything that Darl said, and that is, and I'll spare you the Latin,
but the basic premise of the law is, you can't give what you don't own. I mean, the license
isn't worth the paper it's written on, if the licensor doesn't have the right to give you.
It's just like going out and buying a house. You better check the title. And the problem
in the open source world is that developers have been extremely lax in worrying about title.
They don't, in the simplest case, if you have a small company and it's got some stringers
that do a little bit of code here and there. I mean, they don't even have written agreements
to assign the rights into the company, so they give an open source license GPL or otherwise
to what? To what they have, but that consultant or stringer can come along at any time,
and say, "What a second, you, Mister Licensee, are now an infringer."
Host: So, we need a much more explicit understanding of who owns what.
CS: And that's probably a limitation that exists with the... I mean, that's a very big
problem
with the development process in Linux right now, is that there isn't good
checks and balances
there.
JG: I would disagree with that. I would completely disagree with that. There is a tremendous
amount of peer review that goes on within the open source marketplace that is extremely
detailed, and I would venture a guess that Microsoft and SCO, not the present SCO but the
historical SCO, have been guilty of far more code confiscation than the open source
community.
Host: But you can't prove it because nobody tracks it.
JG: Oh, we certainly can prove it because they both, AT&T and Microsoft, infringed on the
BSD license.
Host: But I think that Steven pointed out...
CS: What's your point about?
JG: My point is that there is peer review, there is checks and balances. Do checks and
balances need to be improved? They always do. Review always needs to be done as well
as it possibly can because everybody needs to protect everybody else's IP.
CS: Well, unfortunately, I think it's kind of the fox guarding the hen house because
many of the core people that are involved in that peer review of the IP going into Linux
have a very high degree of disdain for IP in general. There's emails that have gone back
and forth between many of the principles involved with Linux talking about their disdain
for patents and the, that whole process and that they ignore it. I mean, that's a documented
fact. That's out there. So, we may have peer review, but it may not be a very effective
peer review, because like I said, it's like the fox guarding the hen house.
Host: I mean, the more important point is that you have to prove the
provenance of software you're hoping to protect. You are needing to show
an audit trail, the right signoff up and down the line that what I'm giving you, I own to
give you.
SJH: And, in fact, my understanding is that a lot of the contributors to Linux have UNIX
employment in their background with companies that were under these various restrictive
licenses, and where they gained access to the source code, and even if they didn't have
it on paper in front of them when they were sitting down to do their Linux coding, and
there may be infringements there too, but that doesn't mean that Linux doesn't infringe.
Host: We have a question back here.
Male from Audience: Going back historically... Let's roll the camera back, right, even
before SCO got a hold
of System V, the issue around System V code being in Open Source is historical, and what I
point back to is BSD, for instance, was basically in violation, and then it came out with
BSD Lite. 4.4BSD came out of the University and was basically stripped of all the System V
things, that was settled and that was done. And I'd like to hear. . .
CS: I'd actually give you one correction. Not all the System V code was stripped out. There
a certain amount of code that was joint copyright attributions had to be applied for Berkeley
and USL and AT&T. So there was a certain set of files for which the over, there
was this splitting, of Solomon splitting the baby, that some assets that had to be held
in common. But you're right there is a certain settlement that was made for correcting a
BSD-based solution.
Male in Audience: I'm seeing that correction seemed to go a lot more smoothly than this one.
And I'd like your opinion on what we can possibly learn from that historical event and what
separates that from this.
Host: Well, there wasn't, was there a bunch of stockholders hoping to cash in? Listening
to Darl's story from the beginning, it seems like, it's a very interesting and compelling
story. A guy shows up, there's a lot of money that he sees laying on the ground, and goes
and tries to do it. I mean God bless America. For us on the other side of this, it's a
question of where's our, or what's our exposure and what do we have to do? And truly,
and what should we do from now on, all the time, when we make software so this kind of
thing never happens to us in a small, in a microcosm case?
DS: I think this casts, as I said before, creates a lot of doubt, and it probably
undermines certainty that any given technology purchase, that might have some kind of
open-source influence, can be ever completely safe. I think it creates the impression
in the industry that somebody is trying to patent the carbon atom, something that is
ubiquitous and permeates of everything. Someone went back and found out they happen to
own it, and now we're all liable.
Host: Interesting, interesting. Any other questions? Amy?
AW: I think it's interesting to note that while some of the members of this
panel seem to think that Linux developers or customers are avoiding making open-source decisions because of the SCO activities. In fact that is not borne out by what's
going on in the market place. The Linux market share has increased during this period, to
the detriment of UNIX, not to the detriment of Microsoft operating systems, which is just
the continuation of a very long-range trend and that is in spite of the fact we're paying
more for Linux as time goes on. It's actually correct to note that it is not a free operating
system. Most people choose to buy a paid version and to buy maintenance and support at the
same time, rather than than simply getting the software for free. And also there are more
and more developers moving their applications to the Linux platform, or developing first
port, the first version for Linux, and then porting off of Linux, instead of porting to
Linux after they've finished the application development. There's absolutely no indication
at all as far as I can tell that that's going on.
SJH: The same could be said for illegal music file sharing online. Until lawsuits started
dropping like rain, it was undiminished, even when they were threatening them. But now that
hundreds of people have been sued, I think there is some evidence, that it is in decline. But,
on the other hand, that's also accompanied by reasonable legal alternatives to using the
music, and that's what we need to see here, too.
Host: The lawsuit in question here, is the lawsuit against IBM, and kind of famously,
they didn't pay you to go away or buy you, as everybody says. Is IBM the wrong target
for this, or -- they've got 7000 Linux developers, I've read -- I mean, in terms of people in
the world, did you start with IBM because they have the deepest pockets, or they were
most likely to settle? I mean, why IBM first?
CS: We filed suit against IBM because we had a significant problem in terms of the
major contract violation that was very damaging to SCO. And it was very obvious and
apparent to us. A lot of the other issues, in terms of IT issues we've identified,
took a lot longer for us to be able research and uncover. It's not . . . in a way you're
talking about 7 million lines of code or more, and going through all that is like
looking for needles in a haystack in some cases.
Host: How do you prove this in a court of law, I mean no offense Steve, but when I
talk to lawyers it doesn't seem like they have these bigger pictures involved, and
you guys have picked David Boies, who is one of the top lawyers in the world. But,
how do you go about convincing (even though he lost his case with Al Gore), how do
you go about convincing and proving to people who are not computer people, people who
are not coders that this [??] exists. I wonder if this is difficult or. . .
SJH: Two words: expert witnesses. And if they are believable, then the judge or
jury are going to accept it from one or the other.
Host: So you pay money to an expert to come in and say, "I say this." And the other
guys, the other.
SJH: We have lay judges and lay juries, and you hit them with sufficiently complex cases,
and if you want to be pragmatic and cynical about it, they'll do their best to understand
it, but at some point they start to have psychological reactions because they're human
beings, and they believe that somebody is feeding them a cleaner story than somebody
else, and they end up going that way. Some of what we're hearing is that it's going to
be really a black-and-white situation, you put the code up side-by-side. You don't have
to be technical to know it's the same. In the old days, in the copyright world, there
were things like map maker's tricks. Map makers would salt their maps with false towns,
railroad crossings that didn't exist, things of that sort because it was an open-and-shut
case when you found the copy. There was no way for those things to be there as artifacts,
unless there had been copying, and SCO presumably will be able to put the code side by
side, and say "there's just no reason that everything is going to line up this way if
someone did it innocently -- couldn't happen."
JG: Again, I'd have to disagree with you. Although I agree from the standpoint that expert
witnesses is going to be what decides this, putting the code side-by-side is helpful, but
is it ironclad? No. Without the genealogy of that code along with it, it really doesn't
tell the judges a whole heck of a lot. And a lot of this code that is absolutely identical
has its heritage from BSD. We have seen that when we have done side-by-side code analysis,
and I wish we had evidence to the difference, but...
CS: That's the same burden you have, even in a music copyright, you have to separate
protectable from the unprotectable. And I'll agree with Jeff that genealogy also has to be
factored in, but I'm not sure where he's looking at his genealogy because some of what he's
attributing to BSD is not appropriate, and even some of BSD has ended up in Linux without
appropriate attribution, and all of that is a problem.
Host: Interesting. Chris, what's the date of this lawsuit? When is this all going to come
to a head, or start to come to a head?
CS: April 2005
Host: April 2005
CS: 17 months out.
Host: Maybe I'll actually watch CourtTV and start worrying about it then. Thank you very
much, and please give me a big round of applause for our panel. Go forth and be open.
Was the Panel Fair?
The following section is 100% the opinion of Jeff Gerhardt.
First let's do the math.......
Total Comments:
- Host: 33 comments
- CS: 15 comments
- SJH: 9 comments
- JG: 9 comments
- DS: 6 comments
So, was it Biased?
In my opinion I can only find fault on a couple of trivial issues. Sontag was given more
time and more
frequent questions and responses than others on the panel. But I was in no way prevented
from delivering my message or representing my agenda. It would have been nice for
the host to have taken the previous 45 minutes being dedicated to Darl's Keynote, as a
factor in his allotment of time. But it is really unfair to find fault in this. The
panel needed to stand on its own.
In general I feel that Jack did the best job one could expect under the conditions. Lets
look to the positive, that someone from the community got to sit on a stage next to Chris
Sontag and three times call his bluff on the source code issue.
Although SCO had already begun to hint at possible BSD inquiries, I find it interesting
that the following day SCO made public a significant change in strategy.
The comment by the audience member
was one of the most inciteful comments of the
evening, in my opinion. Why did SCO have no trouble resolving the issue when BSD code got included in
UNIX? The "bank robber" drove back to the "bank" and seemed to have no trouble getting the money back to the bank in that case.
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Authored by: OK on Tuesday, December 02 2003 @ 08:20 PM EST |
That was an interesting reading. [ Reply to This | # ]
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Authored by: Anonymous on Tuesday, December 02 2003 @ 08:37 PM EST |
"The comment by the audience member was one of the most inciteful comments
of the evening, in my opinion. Why did SCO have no trouble resolving the issue
when BSD code got included in UNIX? The "bank robber" drove back to
the "bank" and seemed to have no trouble getting the money back to
the bank in that case."
I'd like to hear that mentioned more often...
--andy richter[ Reply to This | # ]
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Authored by: gumout on Tuesday, December 02 2003 @ 09:28 PM EST |
"We've also shown some of the examples of literal copyright
infringement, and those examples have been either ignored or quickly removed and
said, "Oh, there's no more problem". The analogy I like to use in
terms of, "oh, just show us the code, and we'll go ahead and remove it,
and there'll be no more problem", is the example of a bank robber who
robs a bank and now has the posse in hot pursuit behind him. Makes a swing back
around past the bank and throws the money bags back into the bank and says,
"Hey, no harm, no foul". There is a problem, there has been damages
and [unintelligible] occurred, and we intend to get justice."
--- Chris Sontag ---
The answer is simple. Both sides should follow the law. IANAL but ... from
The United States Supreme Court:
"[w]here one person has committed a tort, breach of contract, or other
legal wrong against another, it is incumbent upon the latter to use such means
as are reasonable under the circumstances to avoid or minimize the damages.
The person wronged cannot recover for any item of damage which could thus have
been avoided." Ford Motor Co., 458 U.S. at 232 n.15 (quoting C.MCCORMICK,
LAW OF DAMAGES 127 (1935)).
See also Faragher, 524 U.S. at 807:
"[t]he employee has failed in a coordinate duty to avoid or mitigate harm
reflects an equally obvious policy imported from the general theory of damages,
that a victim has a duty to use such means as are reasonable under the
circumstances to avoid or minimize the damages that result from violations of
the statute. Ford Motor Co. v. EEOC, 458 U.S.219,231, n. 15 (1982) (quoting C.
McCormick, Law of Damages 127 (1935); Faragher v. City of Boca Raton, 524 U.S.
775, 807.
Note the principle above "[a]n equally obvious policy imported from
the general theory of damages", has been endorsed and reaffirmed by The
United States Supreme Court as a "general policy" with respect to
damages.
Wanna bet the farm on the chance the 10th Federal Circuit will carve out
an exception to this general policy of damages, so SCO can meet
"confidental contractual obligations" and not identify alleged
infringinging code that has already been released into general public view ?
---
How do 99% of lawyers manage to graduate in the bottom 1% of their class?[ Reply to This | # ]
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Authored by: gumout on Tuesday, December 02 2003 @ 09:42 PM EST |
CS: Well, unfortunately, I think it's kind of the fox guarding the hen house
because many of the core people that are involved in that peer review of the IP
going into Linux have a very high degree of disdain for IP in general. There's
emails that have gone back and forth between many of the principles involved
with Linux talking about their disdain for patents and the, that whole process
and that they ignore it. I mean, that's a documented fact. That's out there.
So, we may have peer review, but it may not be a very effective peer review,
because like I said, it's like the fox guarding the hen house.
Since some of those "core people" have been SCO employees,
perhaps we should use our text processors to replace the phrase
"the fox guarding the hen house" with the phrase "an
incestuous relationship".
---
How do 99% of lawyers manage to graduate in the bottom 1% of their class?[ Reply to This | # ]
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Authored by: Anonymous on Tuesday, December 02 2003 @ 09:43 PM EST |
Just in case in matters to anyone - there was an initial transcript of this
posted on Nov 23
http://www.groklaw.net/comment.php?mode=display&sid=20031122082956104&ti
tle=The+Open+Source+Town+Hall+Meeting&type=article&order=&pid=25780[ Reply to This | # ]
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Authored by: whoever57 on Tuesday, December 02 2003 @ 09:57 PM EST |
It's unfortunate the no-one challenged CS on SCO's claim to have shown some
examples.
It's also a shame that no-one challenged the assertion (not mentioned in the
meeting, but frequently said by Darl and others) that there is "too much
code to remove" -- it does not matter how much violating code there might
be -- from 0% to 100% -- it's not SCO's decision as to what to do with it.
It's Linus' decision. It's like you sued someone then immediately went to the
judge and said: "your honor, there is no way the defendent can pay, so why
not just declare him bankrupt now".
---
-----
For a few laughs, see "Simon's Comic Online Source" at
http://scosource.com/index.html[ Reply to This | # ]
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Authored by: Anonymous on Tuesday, December 02 2003 @ 09:59 PM EST |
Amy Wohl was really in Sontag's face with some solid facts... love it! [ Reply to This | # ]
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Authored by: gumout on Tuesday, December 02 2003 @ 10:03 PM EST |
IBM INTERROGATORY NO. 12:
Please identify, with specificity (by file and line of code), (a) all source
code and other material in Linux (including but not limited to the Linux kernel,
any Linux operating sytem and any Linux distribution) to which plaintiff has
rights; and (b) the nature of plaintiff's rights, including but not limited to
whether and how the code or other material derives from UNIX.
CS:...And we know specifically which version was copied, and the licensee from
SCO, who licensed that particular version, it all matches up, the fact points
are all there. It's not some old, ancient version of UNIX, it was a particular,
significantly newer version of UNIX that was copied. We can tell because the
kind of the "DNA analysis" of how each version changes over time...
SCO RESPONSE TO INTEROGATORY NO 12:
In addition to the General Objections, SCO notes that it has not received
responsive discovery from IBM that would allow it to fully answer this question
because part of this information is peculiary within the knowledge of IBM. In
addition, SCO objects to this question as overly broad and unduly burdensome,
and on the basis that is seeks information neither relevant nor calculated to
reasonably lead to the discovery of admissible evidence insofar as it requests
the indentity of source code and other material in Linux contributed to Linux by
parties other than IBM or Sequent. Subject to and without waiving these
objections, as it pertains to SCO's rights involving IBM's contributions, SCO
incorporates its answers to its revised and supplemental answers to
Interrogatory Nos. 1 and 2.
I can stand a liar it's an inconsistant liar that upsets me.
---
How do 99% of lawyers manage to graduate in the bottom 1% of their class?[ Reply to This | # ]
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Authored by: snorpus on Tuesday, December 02 2003 @ 10:08 PM EST |
From the Linux Show Transcript:
Host: How do you prove this in a
court of law, I mean no offense Steve, but when I talk to lawyers it doesn't
seem like they have these bigger pictures involved, and you guys have picked
David Boies, who is one of the top lawyers in the world. But, how do you go
about convincing (even though he lost his case with Al Gore), how do you go
about convincing and proving to people who are not computer people, people who
are not coders that this [??] exists. I wonder if this is difficult or. .
.
SJH: Two words: expert witnesses. And if they are believable, then
the judge or jury are going to accept it from one or the other.
------------------
This really is what is wrong with the
"interview" or "panel" format. It doesn't lend itself to making counter
arguments. The transcript continues on to other topics. SJH simply says
"expert witnesses", and it appears the discussion is over.
If I were
following up, I would ask about expert witnesses such as Dan Ritchie, Donald
Kernighan, Ken Thompson... I'd ask about prior implementations for various
algorithms from Alan Perlis, Donald Knuth, and (what the hell) Alan Turing...
I'd ask about OldSCO employees being major contributors to Linux... and even
knowing that NewSCO Mgmt will deny knowing anything about it, what about SCO
continuing to distribute Linux with the (alleged) SCO IP well after SCO sued
IBM.
Finally, I think I'd inquire about the availability of kool-aid in the
SCO compound... Even the most brain-dead of my students know it's not a great
idea to sue the corporation that holds the largest patent portfolio related to
computing in the world...
73 de KQ3T
[ Reply to This | # ]
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Authored by: Anonymous on Tuesday, December 02 2003 @ 10:09 PM EST |
The most missed, and unasked question, of SCO folk in all interviews, is related
to the actions and lack of actions by SCO/Caldera agents... and what this
history is, or has been!
SCO/Caldera, a self described principle of Linux IP, had both management and
agents, of SCO/Caldera, that were deep, deep, deep, into all aspects of LINUX
development, sales, distibution, promotion, etc... AND all under the watchful
eyes of Linux's GPL.
SCO/Caldera, via intent or acquiescense, had agents (actual, apparent,
ostensible, and even implied) that were distributing and creating Linux GPL's
code. WHY IS NO INTERVIEWER ASKING SCO ABOUT THIS! THIS IS THE KEY PART TO THE
CASE!
In SCO's case..., how can the kettle call the pot black?
FACT: SCO's entire company has a long and complicated history of giving and
being involved in every aspect of LINUX!
Besides the BSD history facts, and the fractured history of UNIX facts..., THIS
one single FACT (the facts about SCO's agents, with all it's factual
evidence),
...IS SCO/Caldera's biggest problem !!!!
It is a monkey that they wish were not on their back!
AND, it is a monkey that they can not ever get off of their back!
Where are journalists that can ask the tough and most important questions?
Dear SCO,
One way for a business to commit suicide is to not control the actions of
employees and/or control the actions of those with apparent or ostensible
authority... to the point where it gets out of hand!
Best regards,
Observant
SCO, as far as their interest is concerned (and their interest is only a
seemingly simple claim on IP that they may or may not own, as a product)...,
well lets just say that SCO's handling of their UNIX IP assest, let things get
out WAY out of hand.
A lack of previous action by SCO is the reason why any 3rd party innocent
customers, that obviously had SCO/Caldera's 100% LINUX use approval previously
from SCO/Caldera felt that they could acquire LINUX with no problems (due to
SCO/Caldera's actions that took on the appearance of acquiescence, and, by the
very existence and actions of SCO’s actual, apparent and/or ostensible authority
enabled agents, in the LINUX area that SCO and all of SCO’s agents, were 100%
involved in…, covering all the aspects of LINUX (distribution, use, development,
etc), for a long time before any LINUX user used any kind of SCO claimed IP)!
Anyway, SCO develped LINUX, distributed LINUX and let others distribute LINUX
without a peep of objection meaning that any soon to be sued LINUX user (if you
can believe that SCO will sue users) ...these innocent 3rd party
users/customers, CAN NOT now BE HARMED by SCO, while SCO scrambles, and while
SCO attempts to try to correct their own "lack of control of their agents
(actual, apparent, ostensible, via ACQUIESCENCE, even ivolving Estoppel, etc)
and their IP asset related mistake(s)".
SCO has a history of making some HUGE IP assest related mistakes! The
SCO/Caldera history is a case study in a company that has made huge IP asset
mistakes, ... and they have hired a high profile lawyer to try to reverse the
facts related to those mistakes!
If anything, SCO is guilty of not having a working system of checks and balances
in place FOR YEARS AND YEARS! This problem was evident from top management down
to programmers who where contributing code to LINUX... and SCO can not now make
any innocent 3rd party PAY for SCO’s own mistakes! SCO was developing LINUX and
distributing LINUX and they can not run from that FACT, and they can not run
from their previous knoledge of Linux's GPL. They had too many agents involved
in LINUX from the top of the company to the very bottom of the company to say
that SCO/Caldera did not know or approve of what they were doing with LINUX.
Important things to remember:
1 - SCO's evidence of code ownership in LINUX, and their ownership of 100%
UNIX, is shown to be false at the entire of the GROKLAW site..., and, from the
information on this site: http://www.opensource.org/sco-v s-ibm.html
2. - Today, SCO, should not be allowed by any court to harm any current LINUX
(or AIX ) customer, as ALL products contain IP, and software is not unique to be
different legally than any other product that a consumer would acquire- it is
apparent that the consumer protection related LAW says so!
SCO's involvement all aspects of developing and selling LINUX and where the
words Estoppel, ACQUIESCENCE, Agents, Authority, apparent or ostensible
authority/agents, etc... apply and becomes important to this case! ANY innocent
3rd party user or distributor of LINUX can not be harmed NOW by SCO today (or
maybe for anytime in the future as well)! Why, simply because SCO can not run
and hide from their own AGENTS past history with LINUX!
3. SCO is more than knee deep in the GPL's waters... and that is a fact they
can never get away from!
[ Reply to This | # ]
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Authored by: jwoolley on Tuesday, December 02 2003 @ 10:23 PM EST |
A minor nit:
There's plenty of Open Source GPL products that are
also available with commercial licenses. Apache is one.
For the
record, Apache is not licensed under the GPL. The Apache Software License is
much more similar to the BSD license than to the GPL. Actually it's that fact
that allows Apache (or derivatives thereof) to be distributed under proprietary
software licenses commercial entities (IBM, Covalent, etc).
Cliff
Woolley
Apache HTTP Server Project [ Reply to This | # ]
|
- The Linux Show's Town Hall Meeting Transcript - Authored by: D. on Tuesday, December 02 2003 @ 10:49 PM EST
- The Linux Show's Town Hall Meeting Transcript - Authored by: Wol on Wednesday, December 03 2003 @ 03:41 AM EST
- The Linux Show's Town Hall Meeting Transcript - Authored by: minkwe on Wednesday, December 03 2003 @ 06:28 AM EST
- The Linux Show's Town Hall Meeting Transcript - Authored by: Steve Martin on Wednesday, December 03 2003 @ 06:35 AM EST
- The Linux Show's Town Hall Meeting Transcript - Authored by: Anonymous on Wednesday, December 03 2003 @ 09:11 AM EST
- The Linux Show's Town Hall Meeting Transcript - Authored by: wharris on Wednesday, December 03 2003 @ 12:08 PM EST
- Question: "in" - Authored by: lpletch on Wednesday, December 03 2003 @ 06:33 PM EST
- Question: "in" - Authored by: Anonymous on Wednesday, December 03 2003 @ 07:41 PM EST
- Question: "in" - Authored by: Anonymous on Wednesday, December 03 2003 @ 10:53 PM EST
- Question: "in" - Authored by: Anonymous on Thursday, December 04 2003 @ 05:36 AM EST
- Question: "in" - Authored by: Anonymous on Thursday, December 04 2003 @ 08:02 AM EST
- Question: "in" - Authored by: Anonymous on Thursday, December 04 2003 @ 10:23 AM EST
- Question: "in" - Authored by: Anonymous on Thursday, December 04 2003 @ 11:55 AM EST
- Question: "in" - Authored by: Anonymous on Thursday, December 04 2003 @ 12:52 PM EST
- Question: "in" - Authored by: Anonymous on Thursday, December 04 2003 @ 10:27 PM EST
- Question: "in" - Authored by: sjohnson on Thursday, December 04 2003 @ 03:24 AM EST
- Question: "in" - Authored by: Anonymous on Thursday, December 04 2003 @ 08:54 AM EST
- Question: "in" - Authored by: Steve Martin on Thursday, December 04 2003 @ 06:04 AM EST
- Question: "in" - Authored by: gleef on Thursday, December 04 2003 @ 04:05 PM EST
- Question: "in" - Authored by: lpletch on Friday, December 05 2003 @ 05:53 PM EST
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Authored by: gumout on Tuesday, December 02 2003 @ 11:34 PM EST |
CS: Let me go ahead and make a comment on that because I think that Steve
brings up an interesting point. You're speaking actually to the, more of the
non-literal kind of versions of copyright infringement, where it's not the
direct line-by-lines, which is the majority of copyright cases that actually go
to trial end up being these very esoteric, "well, it was the methods, and
the concepts and the structures and the sequence of this body of copyrighted
work used." We have a substantial body of those non-literals which we have
evidence and will present appropriately in court, but we also have literal
copyright infringement where the line-by-line code was copied.
Since the literal code examples blew up in their face, Sontag is blowing smoke
about non-literal "methods, concepts and structures" which are
mentioned in the Abstraction-Filtration-Comparision test that is the standard
for copyright infringement in the Tenth Federal Circuit. What Sontag fails to
mention is that because of the doctrines of merger, scenes a fair and public
domain, there exists virtually nothing in UNIX beyond the low level code
abstraction that constitutes original expression. ESR expounded upon this in
his reply to the original SCO-IBM complaint. Even identical source code does not
constitute infringement if it's the only efficient way to code a particular
task. The overall structure of Linux is dictated by the public domain POSIX
standard. Other than the original AT&T source code there is virtually
nothing original in System V Unix.
Sontag's attempt to blow esoteric strength FUD is pathetic strength
whining.
---
How do 99% of lawyers manage to graduate in the bottom 1% of their class?[ Reply to This | # ]
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Authored by: emebit on Tuesday, December 02 2003 @ 11:48 PM EST |
CS: [...] A lot of the other issues, in terms of IT issues we've
identified, took a lot longer for us to be able research and uncover. It's not .
. . in a way you're talking about 7 million lines of code or more, and going
through all that is like looking for needles in a haystack in some
cases.
So what 7+ million lines of code is he talking about?
Including comments, blank lines, makefiles, documentation, etc. One version of
Linux I looked at (2.5.69) has a grand total of 5685543 lines.
[ Reply to This | # ]
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Authored by: Anonymous on Wednesday, December 03 2003 @ 01:41 AM EST |
I'm confused. Quite some time back I speculated that SCOX might have already
started selling licenses for the FSF binutils, in much the same way that they
intend to license the use of the Linux kernel.
Chris Sontag made vague allegations like "We're not talking about the
Linux kernel that Linus and others have helped develop. We're talking about
what's on the periphery of the Linux kernel.-- 2003-04-28
Microsoft's press releases said that SCO approached them with an IP claim,
everyone seemed to deny it was about the FSF binutils distributed with SFU:
"SCO approached us a couple of months ago, and they had a valid IP claim,
and, as we do quite regularly, we agreed to a broad IP license with SCO and as
such have stepped out of the fray," said Alex Mercer, a Microsoft
spokeswoman, in Redmond, Wash.
In the last month, SCO, of Lindon, Utah, has made a number of moves, charging
that IBM, Linux and many of SCO's own customers are violating SCO's Unix IP.
Mercer said it was not Microsoft's intent to exploit the IP license as a way to
fund SCO's campaign against IBM and Linux—which SCO is suing for $1 billion—and
against Linux. "There is absolutely no correlation between the IBM suit
and our IP license with SCO," she said.
Furthermore, Microsoft's agreement is not an admission that the company and its
Services for Unix product violated SCO's IP but rather is a pre-emptive move to
avoid possible complications, said Mercer. Details about the financial value and
conditions of the Microsoft-SCO deal are confidential, and Mercer declined to
say whether Microsoft is contemplating other deals with SCO."
http://www.eweek.com/article2/0,3959,1109246,00.asp
Today Steven J. Vaughan-Nichols reported:
"Could Microsoft come out with its own Linux distribution? It sure could.
There's nothing in the GPL to stop it. And in fact, SCO CEO Darl McBride told
me at November's CDXPO in Las Vegas that Microsoft's second licensing payment
to his company was for the rights to incorporate Services for Unix (SFU) into
its operating systems."
http://www.eweek.com/article2/0,4149,1400161,00.asp
He seems to mistakenly feel that LKP can be moved to Windows:
"I want SFU. It's one of Microsoft's best software offerings, and the
upcoming version, 3.5, looks darn good, too.
It also looks good to me as a possible way to host Linux on top of Server 2003.
Sound impossible? It's not. Before SCO decided it wasn't a Linux company, it
offered Linux Kernel Personalities (LKP), which boiled down to Linux virtual
machines that ran on top of UnixWare, so we already know you can run Linux on
top of another operating system."
Of course you can't do LKP without an underlying Unixware kernel. But it does
make me wonder what that license was really for. Nothing in Microsoft's portion
of SFU violates SCO's copyrights. If Microsoft can license the whole Unixware
kernel for it's half of the SUN MS $15 million, why wasn't IBM's $10 million
enough? Nah! Maybe this was a Unixware for FSF clean-up license after all.
Anybody else have any ideas?[ Reply to This | # ]
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Authored by: Anonymous on Wednesday, December 03 2003 @ 03:02 AM EST |
Sontag says
We have shown source code, we have shown examples of
our intellectual property
violations, we've talked about
the derivative works, over a million lines of code, that IBM
and Sequent and others have contributed into Linux that has been identified,
and we
don't hear much about that. We've also shown some of
the examples of literal copyright
infringement, and those
examples have been either ignored or quickly removed and said,
"Oh, there's no more problem".
BULL. The only example
of line by line copying was of the malloc routine in IA64. This was not
copyright infringement because the code was public domain. It had been removed
months before SCO turned to the Dark Side because it was stupid to have a
separate malloc for a separate architecture, not because of SCOs bank robber
analogy. The code didn't give any magic powers to the linux
kernel.
They also showed BSD code which was similar to Linux (BSDi
packet filter), claimed it was theirs, and claimed it as an example of copying
with obfuscation. They backpeddled later when Perens nuked that claim and said
it was a just an example of their code analysis, which sucessfully showed that
there were similarities. This idiotic statement works against them, because it
shows that their code analysis can produce false positives. But you didn't see
Sontag talking about this.
SCO seems to latch on to facts, then make
them out to sound like something else. This is a pattern with them.
Every day
they piss me off more and more.
[ Reply to This | # ]
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Authored by: Anonymous on Wednesday, December 03 2003 @ 03:53 AM EST |
Christoph Hellwig comments from comp.unix.sco.misc
Most of
that stuff is also bullshit. The folks in IBM LTC that work
onm the kernel are
mostly ex Sequent, not ex AIX folks. Now
Sequent also had a SVR4 source license
for Dynix/PTX, but in fact
most of the scalability changes in SVR4.2 SM / ES
actually come from
Sequent! (Just take a look at the Authors of the VFS and VM
design
documents for SVR4.2 ES / MP).
AIX OTOH was only developed with a SVR3
source license up to AIX4,
and neverless the actual kernel does not resemble
SVR3 or SVR4 at
all, and although I'm not sure I think they even only used it
for userland
not the kernel.
AIX5L (that project Monterey) had additional
components licenses from
SCO UnixWare like procfs or bfs - but IBM has very
strict policies
that the AIX5 and Linux groups basically don't communicate. For
example
I was involved in the JFS/Linux project which is very similar to the
JFS2
in AIX5L because they're both based on JFS in OS/2 - when there were
bugs
found in the old OS/2 codebase they weren't able to inform the
AIX folks about
it or send patches. Similarly I wasn't able to get
information about the layout
used for Posix ACL on AIX when I started to
implement those for Linux.
IBM
isn't foolish..
Here
Other comments:
> >> It's a
pity that Caldera re-organized the SCO web pile. There was
> >> quite
a few pages in the Project Monterey section on what IBM was
> >>
expected to supply as their part of the deal. As near as I can
> >>
recall, IBM didn't provide any of the items they promised. Once IBM
>
>> had what they wanted, they neatly and unilaterally terminated the
>
>> agreement.
> >I heard rumours to that effect, along the lines of
SCO "producing"
> >the memory and I/O code while IBM was to add the high
availability
> >and compiler, along with porting applications.
>
>Mike
Find more on slas
hdot story[ Reply to This | # ]
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Authored by: Anonymous on Wednesday, December 03 2003 @ 03:59 AM EST |
As I understand it, to retain IP protection, you need to defend your IP, and
defending your IP means stopping the infringement. Failure to defend your IP
means you can potentially lose any legal protections your IP may have
had.
Time and again, the developer community has stepped up to say
"show us what it is, and we'll take it out," only to be met with silence from
SCOG.
Compare this to Xerox, who used to take out ads in Writer's Digest to
alert all authors that Xerox(tm) is a their registered trademark, and not a verb
to describe the act of photocopying, and not a noun to describe a
photocopy.
Does SCOG not realize that the developers are more than happy to
stop infringing in any case of IP infringement?
Oh, they know all
right:
"We feel very good about the evidence that is going to show
up in court. We will be happy to show the evidence we have at the appropriate
time in a court setting," McBride said. "The Linux community would have me
publish it now, (so they can have it) laundered by the time we can get to a
court hearing. That's not the way we're going to go."-- Darl McBride,
2003-05-01
That's seven months ago. So not only have they allowed
the infringement to continue, they are on record as being perfectly content to
allow it to continue, at least until it gets to court.
And if they weren't sure
that it would actually happen:
CS: ...we even have leaders in
the Linux community that have basically agreed that yes, that code should not,
that development process was flawed by that particular vendor, and that code
should not have been included, and that all future versions of Linux will have
that code pulled out. So in terms of showing the code, yeah, we've shown an
example, and the Linux community is trying to pull it out, but that doesn't
completely solve the problem, and we've many other examples that have to be
rectified as well. Some of which, I think, are substantial.
As a
matter of fact, it does fix the problem.
At first I though this would really
come into play only in the damages phase, if necessary, but after seven months
of failing to identify the infringing activity and property, in spite of having
complete access to the source tree, along with author credits, and manager
credits, and access to the developers mailing list, that sounds like a failure
to defend to me.
At this point, I really don't see how they can make any claim
to having defended their IP.
bkd[ Reply to This | # ]
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Authored by: Thomas Frayne on Wednesday, December 03 2003 @ 04:02 AM EST |
Here's a list:
1. "We have shown source code, we have shown examples of our intellectual
property violations, we've talked about the derivative works, over a million
lines of code, that IBM and Sequent and others have contributed into Linux that
has been identified, and we don't hear much about that."
The side letter and Amendment X say that the derivative works belong to IBM.
Sequent appears to have a similar side letter.
2. "We've also shown some of the examples of literal copyright
infringement, and those examples have been either ignored or quickly removed and
said, "Oh, there's no more problem".
The copyright infringement was done by whoever removed the copyright notice, and
that might have been SCO. It was a BSD-like notice, so SCO's IP was not
infringed. In fact, neither of the examples belonged to SCO. "Quickly
removed" is also a lie, since the code was removed before the SCO Forum
started, not because of any infringement, but because it was poorly written and
duplicated code already in the kernel. One of the examples, in fact, is
evidence that SCO removed a copyright notice.
3. "We have a substantial body of those non-literals which we have
evidence and will present appropriately in court, but we also have literal
copyright infringement where the line-by-line code was copied. And we know
specifically which version was copied, and the licensee from SCO, who licensed
that particular version, it all matches up, the fact points are all there.
"
All SCO gave IBM to answer the interrogatories was a list of modules, and the
version of SysV. When a GrokLaw member analyzed the modules, he found that a
simple grep command could produce that list.[ Reply to This | # ]
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Authored by: grouch on Wednesday, December 03 2003 @ 07:07 AM EST |
I'm confused. If "Host:" == Jeff Gerhardt and "JG:" ==
Jeff Gerhardt, then why are there several places where "Host" asks
or converses with "JG"?[ Reply to This | # ]
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Authored by: innot on Wednesday, December 03 2003 @ 08:30 AM EST |
JG: [...]I've got to be honest with you, the Open Source
Software Initiative sat down and they did a many-month-long, detailed analysis
comparing the various Linux kernels to System V system, and other than basic
noise from the standards of which software is developed and an awful lot of
preexisting open source code, such as the BSD code that you and I have talked
about before, there's not a whole heck of a lot that we have found in a complete
multi-month-long analysis.[...]
So I guess we can dismiss
all of the "literal copying", which SCO only claimed in the media, but not in
the lawsuit.
Strangly, this is the first time I have really seen someone
write about such a code comparison and its results. I am fairly sure, that many
people and companies with access to the SVR4 code have run similar test, e.g.
using the ESR tool, but so far I have not read any public announcement of the
results (not counting SGI, which just said their own contributions are
clean)
Reading all the statements from Sontag, I have the feeling that for
SCO everybody who has a motive (bring all the "enterprise features" of SVR4 into
Linux) and the means (access to Unix sourcecode) is automatically guilty of
stealing "valuable" Unix "IP".
Thomas
[ Reply to This | # ]
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Authored by: e.coli on Wednesday, December 03 2003 @ 08:55 AM EST |
I have to wonder since SCO is not showing anyone the code if in fact they have
appropriated GNU/Linux code into their version of Unix which would account for
many of the similarities (can you say Linksys)? The resulting legal issues would
be disasterous to their case.[ Reply to This | # ]
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Authored by: Alizarin on Wednesday, December 03 2003 @ 08:59 AM EST |
There's emails that have gone back and forth between many of the principles
involved with Linux talking about their disdain for patents and the, that whole
process and that they ignore it. I mean, that's a documented fact.
Just because you have disdain for principles or something involved
in a project you work on, does not mean that you'll flagrantly do the wrong
thing. I have a disdain for my boss, yet, I still work for him, and I still have
to do what he tells me to (within reason).
And a brief comment about the
"putting the source up to compare side-by-side" principle: There are only a few
ways to do certain things. For example, searching a linked list or adding up
numbers in an array. You can only do it efficiently (that's a key concept
IMO, since you can always do something in ugly speghetti code, but for an OS
efficiency and speed is the name of the game) a few ways before it all start
to look the same.
Overall it was interesting. There were some good
comments made.[ Reply to This | # ]
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Authored by: egan on Wednesday, December 03 2003 @ 09:59 AM EST |
JG: "...So if you're a software development company, sure you
can develop commercial software based on the Linux operating system. You just
need to be aware of the tools you're using and not use GPL
tools,...."
That last bit, i.e., "not use GPL tools", is misspoken I
believe. Just like you can run commercial software on top of Linux, you can use
GPL tools to develop commercial software, as long as GPL software is not
included in the product itself.
Just a clarification, but it was a rather
unfortunate thing to say in a public forum.
[ Reply to This | # ]
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Authored by: Anonymous on Wednesday, December 03 2003 @ 10:14 AM EST |
Once again we see that all of SCO's case is not ment to be won in court but
invented to be won on Wallstreet.
None of their comments are based on facts and their public statements arent even
similar to their court documents. You can very clearly see a pattern.
First,in ublic they create an amazing quantity of FUD with arguments that only a
knowledgible small group of people can prove totally wrong. Thus giving
journalists and the public the false impression that their case is strong and
their proof is undeniable.
And then in court, they basically deny having such strong proof and argue that
IBM should give them the means with witch they can build a stronger case. All in
a very obvious attempt at getting more time to continue the first part.
If the judge in this case has been following just a little of all this, I cannot
see how more time could be given. SCO tells the journalists it has mass amounts
of proof and tells the Judge more time is needed to get proof. So they HAVE to
be lying to someone. Is it the Judge or is it the public? If they lied to the
court, I can't see anything good comeing out of it for them (obviously). And if
the lied to the public, I can totally see IBM using it against them IN court to
force the issue.
Either way, they're screwed...
---
No guns, no bombs...just brains
The way it should be.[ Reply to This | # ]
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Authored by: shaun on Wednesday, December 03 2003 @ 10:51 AM EST |
This OT I know but this article shows a renewd industry interest in embedded
Linux systems. It even shows that those who aren't willing to look at things
more carefully may find themselves with out a job.
http://story.news.yahoo.com/news?tmpl=story&cid=620&e=3&u=/nf/200312
02/bs_nf/22780
--Shaun[ Reply to This | # ]
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Authored by: Thomas Frayne on Wednesday, December 03 2003 @ 01:13 PM EST |
Sorry, I accidently submitted this before I had finished writing
it.
Here's a list of SCO's lies and my responses. I mapped it to the
transcript by listing just the IDs of speakers I did not want to comment
on.
1. Host, DS, Host, SJH, Host, SJH, Host, JG, CS: "We have shown
source code, we have shown examples of our intellectual property violations,
we've talked about the derivative works, over a million lines of code, that IBM
and Sequent and others have contributed into Linux that has been identified, and
we don't hear much about that."
The side letter and Amendment X say
that the derivative works belong to IBM. Sequent appears to have a similar side
letter.
2. CS: "We've also shown some of the examples of literal
copyright infringement, and those examples have been either ignored or quickly
removed and said, "Oh, there's no more problem".
The copyright
infringement was done by whoever removed the copyright notice, and that might
have been SCO. It was a BSD-like notice, so SCO's IP was not infringed. In fact,
neither of the examples belonged to SCO. "Quickly removed" is also a lie, since
the code was removed before the SCO Forum started, not because of any
infringement, but because it was poorly written and duplicated code already in
the kernel. One of the examples, in fact, is evidence that SCO removed a
copyright notice.
3. Host, JG,Host, SJH: "When it comes to the
copyright side, now we have questions of, "Was protected code copied?"
Ordinarily, you don't prove copyright infringement, you don't get the
opportunity to prove it, by having direct evidence of copying. You prove it by
the fact that the accused party had access to the source code and that the
result is substantially similar to the protected source code. It certainly
sounds like, from the things we're hearing out of SCO, that it's substantially
similar, if not identical, and their burden is going to be to go back and show
that those similarities are not due to merely functionality, but due to the fact
that somebody saw or had in mind, at the time, the protected copyrighted code
when they wrote the Linux code."
He left out some important things that
need to be proven if SCO ever files a copyright claim against anyone. (Note that
SCO did not add copyright infringement to its claims against IBM, even after IBM
claimed that SCO violated IBM's copyrights and patents.)
SCO will have
to show for each alleged infringement that: (a) SCO owned the copyright; (b) SCO
did not license the copyright (e.g., GPL) for the use the alleged infringer made
of it; (c) the infringement was non-trivial, and was not fair use of the
copyrighted material. (Copyright law states that all uses of software that are
incidental to running the software are fair use.)
4. Host, SJH: "In
fact, that is likely to be the same kind of proof that, or more of less the same
kind of proof, they'd have to have on the contract side to show that they didn't
just have somebody who independently, without looking at the code that was under
wraps, write new code that was the same."
Recall that, under Amendment
X, IBM had the right to refer to SysV while IBM was writing its own code, as
long as it didn't copy the code.
5. Host,CS: "We have a substantial
body of those non-literals which we have evidence and will present appropriately
in court, but we also have literal copyright infringement where the line-by-line
code was copied. And we know specifically which version was copied, and the
licensee from SCO, who licensed that particular version, it all matches up, the
fact points are all there. "
All SCO gave IBM to answer the
interrogatories was a list of modules, and the version of SysV. When a GrokLaw
member analyzed the modules, he found that a simple grep command could produce
that list. The version number was determined by what verion had the closest
match to the set of files.
"It's not some old, ancient version of UNIX,
it was a particular, significantly newer version of UNIX that was copied. We can
tell because the kind of the "DNA analysis" of how each version changes over
time. And so, I just want to give that flavor, that there is a strong basis for
the position that we've taken, and we look forward to laying that all out, but
we're not going to lay out the whole case for the media, or...
As I
said, grep. The hearing on December 5 is to compel SCO to give IBM the detailed
claims that they have so far avoided giving for nine months. Not the evidence,
just the claims. They have given far more information in public than they have
given in court, and nowhere have they given enough information to specify what
the case is about.
6.CS: "We have a respect for the law, and we're
going to appropriately lay that all out."
Respect? Fraud, stock market
manipulation, unfair competition, lying about competitors, copyright
infringement, patent infringement, frivolous lawsuit, etc.
7. JG: "I'm
a little bit surprised to see you're not going to lay it out for the media,
because you seem to have been battling this case in the media quite a bit.
There's also some subtleties about copyright and intellectual property. Let's
take a case in point of one of your licensees, Sequent, as a case in point. Yes,
indeed, if there was a derivative work developed by Sequent, and there are
derivative works developed by Sequent, you do in fact own a copyright in the
source code, but you do not own intellectual property to the trade secrets and
methods by which they developed that software. If then, the people from Sequent
come along and develop very similar code, it's their right to because they own
those trade secrets and they own those methods. And so, there's going to be a
lot of these situations for you that are going to be next to impossible to prove
out. I've got to be honest with you, the Open Source Software Initiative sat
down and they did a many-month-long, detailed analysis comparing the various
Linux kernels to System V system, and other than basic noise from the standards
of which software is developed and an awful lot of preexisting open source code,
such as the BSD code that you and I have talked about before, there's not a
whole heck of a lot that we have found in a complete multi-month-long analysis.
I'd like to talk to the people -- you don't have to show me the code -- just let
me talk to the people, who did your analysis so we can compare notes. Maybe
we're wrong."
This is the best question on the transcript. It was
ignored, and JG never got around to asking it again. One correction. SCO does
not own Sequent's derivative work that was developed following the side letter's
restrictions. Sequent owns it.
8. Host,JG,Host,DS,CS: "It could've been
accidental, a process by which several developers worked on something, they were
testin something and didn't realize that code got into a production stream, but
the copyright notices were removed and [unintelligible] we even have leaders in
the Linux community that have basically agreed that yes, that code should not,
that development process was flawed by that particular vendor, and that code
should not have been included, and that all future versions of Linux will have
that code pulled out. So in terms of showing the code, yeah, we've shown an
example, and the Linux community is trying to pull it out, but that doesn't
completely solve the problem, and we've many other examples that have to be
rectified as well. Some of which, I think, are substantial. Derivative works, we
can argue about - when a derivative work is a completely substantially different
body of work. We also have a huge amount of case law regarding what is
derivative works in lots of different areas and trades. Copyrighted works, the
derivative of those copyrighted works, when they're using the methods and
concepts of that original work. There is afforded protection by
copyright."
Remember, the code that was pulled out was pulled out
before SCO made its presentation giving it as an example.
9. Host,
CS,Host,CS, Host,CS, Host, CS, Amy, Host, Amy, Host,JG: "So if you're a software
development company, sure you can develop commercial software based on the Linux
operating system. You just need to be aware of the tools you're using and not
use GPL tools, and you have to look at the way you're manipulating the operating
system. And if you do modify the operating system to run the software, then
yeah, you do have certain licensing issues you have to address."
Using
GPL tools has nothing to do with creating proprietary programs to run on Linux.
What you have to do for your proprietary program is to make sure that your
program is not tightly bound to a GPL'd program. Kernel calls and command
interfaces are ok; dynamic or static links are not.
10. DS, Host, DS,
Host,SJH: "And the problem in the open source world is that developers have been
extremely lax in worrying about title. They don't, in the simplest case, if you
have a small company and it's got some stringers that do a little bit of code
here and there. I mean, they don't even have written agreements to assign the
rights into the company, so they give an open source license GPL or otherwise to
what? To what they have, but that consultant or stringer can come along at any
time, and say, "What a second, you, Mister Licensee, are now an
infringer.""
If the stringer wrote the code, and the company wants to
own the copyright, it needs a written copyright assignment. Otherwise the
copyright belongs to the stringer. In this case, the Linux lead developers, who
are very careful about copyright ownership, for the kernel and many other
projects will not accept the patch until they have a written disclaimer of
copyright from the employer. The copyright owner can license it any way he or
she wants, including the GPL, or he can dual license it. If the GPL is chosen,
and the stringer comes back later, as SCO did, saying: "I changed my mind. You,
Mister Licensee, are now an infringer," the licensee can answer, "See you in
court."
11. Host, "CS: And that's probably a limitation that exists
with the... I mean, that's a very big problem with the development process in
Linux right now, is that there isn't good checks and balances
there.
JG: I would disagree with that. I would completely disagree with
that. There is a tremendous amount of peer review that goes on within the open
source marketplace that is extremely detailed, and I would venture a guess that
Microsoft and SCO, not the present SCO but the historical SCO, have been guilty
of far more code confiscation than the open source community. "
JG's
response is adequate. I think that we'll find that the present SCO is attempting
far more code confiscation than old SCO ever did.
12. Host, JG, Host, "
CS: Well, unfortunately, I think it's kind of the fox guarding the hen house
because many of the core people that are involved in that peer review of the IP
going into Linux have a very high degree of disdain for IP in general. There's
emails that have gone back and forth between many of the principles involved
with Linux talking about their disdain for patents and the, that whole process
and that they ignore it. I mean, that's a documented fact. That's out there. So,
we may have peer review, but it may not be a very effective peer review, because
like I said, it's like the fox guarding the hen house."
Linus requires
a statement that the work is orignal work before he will accept a patch. He
doesn't do patent searches, because they are too time consuming and expensive.
However, if a patch contains a major idea, its origin is checked more
thouroughly than that of a minor bug fix. If Linus is a fox, I want him guarding
my hen house. On the other hand, I would try to keep SCO as far from my hen
house as possible.
Our peer review is quite effective: SCO has been
proclaiming that we have stolen its IP for nine months now, and has yet to
provide a single example in court. Contrast that with the specific patent and
copyright claims that IBM made in its counterclaim.
In general, the
open source community dislikes the copyright and patent laws, but we are careful
to obey them, and we use copyrights very effectively to protect our IP. In patents, I argued that the open
source community should have its own patent portfolio for cross
licensing.
13. Host,SJH: "And, in fact, my understanding is that a lot
of the contributors to Linux have UNIX employment in their background with
companies that were under these various restrictive licenses, and where they
gained access to the source code, and even if they didn't have it on paper in
front of them when they were sitting down to do their Linux coding, and there
may be infringements there too, but that doesn't mean that Linux doesn't
infringe."
Copyright infringement happens when you copy, not when you
refer to the source material and then write from your own knowlege. If these
contributors have the right to look at the source and have the right to use
ideas gotten from it in their contributions, this kind of procedure is adequate
to avoid copyright infringement. Further, it is the plaintiff's job to prove
that this procedure was not followed. Finally, ATT is said to have treated the
side letter as a form clarifying the basic contract, that they sent to all their
licensees (including Sequent).
14. Host, " Male from Audience: Going
back historically... Let's roll the camera back, right, even before SCO got a
hold of System V, the issue around System V code being in Open Source is
historical, and what I point back to is BSD, for instance, was basically in
violation, and then it came out with BSD Lite. 4.4BSD came out of the University
and was basically stripped of all the System V things, that was settled and that
was done. And I'd like to hear. . .
CS: "I'd actually give you one
correction. Not all the System V code was stripped out. There a certain amount
of code that was joint copyright attributions had to be applied for Berkeley and
USL and AT&T. So there was a certain set of files for which the over, there
was this splitting, of Solomon splitting the baby, that some assets that had to
be held in common. But you're right there is a certain settlement that was made
for correcting a BSD-based solution."
Male in Audience: "I'm seeing
that correction seemed to go a lot more smoothly than this one. And I'd like
your opinion on what we can possibly learn from that historical event and what
separates that from this. "
If I remember right, Berkeley made minor
changes in 14 files and got a settlement from USL that acknowledged that
Berkeley owned the remaining BSD code. USL settled quickly after the judge
hinted that he was thinking of dismissing their case. The main reason for the
hint was the many instances of USL infringing BSD's copyrights.
The
similarities between the two cases are many. The differences: AT&T was big,
Berkeley small; SCO is small, IBM is big. I expect to see more similarities
after December 5, but one big difference: IBM won't settle short of terms that
will bankrupt SCO.
15. Host,DS,AW,SJH,Host, CS: "in a way you're
talking about 7 million lines of code or more, and going through all that is,
like looking for needles : a haystack in some cases."
There aren't that
many lines in the kernel, so he's probably adding up the versions SCO had to
look for.
16. SJH: "We have lay judges and lay juries, and you hit them
with sufficiently complex cases, and if you want to be pragmatic and cynical
about it, they'll do their best to understand it, but at some point they start
to have psychological reactions because they're human beings, and they believe
that somebody is feeding them a cleaner story than somebody else, and they end
up going that way. Some of what we're hearing is that it's going to be really a
black-and-white situation, you put the code up side-by-side. You don't have to
be technical to know it's the same. In the old days, in the copyright world,
there were things like map maker's tricks. There was no way for those things to
be there as artifacts, unless there had been copying, and SCO presumably will be
able to put the code side by side, and say "there's just no reason that
everything is going to line up this way if someone did it innocently -- couldn't
happen."
JG: "Again, I'd have to disagree with you. Although I agree
from the standpoint that expert witnesses is going to be what decides this,
putting the code side-by-side is helpful, but is it ironclad? No. Without the
genealogy of that code along with it, it really doesn't tell the judges a whole
heck of a lot. And a lot of this code that is absolutely identical has its
heritage from BSD. We have seen that when we have done side-by-side code
analysis, and I wish we had evidence to the difference, but..."
CS:
"That's the same burden you have, even in a music copyright, you have to
separate protectable from the unprotectable. And I'll agree with Jeff that
genealogy also has to be factored in, but I'm not sure where he's looking at his
genealogy because some of what he's attributing to BSD is not appropriate, and
even some of BSD has ended up in Linux without appropriate attribution, and all
of that is a problem."
SCO pretends that if side by side comparison
shows similarities, that proves code was copied illegally from SysV. He leaves
out the requirement to show that SCO owns the source of the copy, and did not
license the copy. The remark about BSD is a red herring, since SCO can only
control the use of its BSD code by the BSD license. I am sure the remedy for an
accidental infringement caused by removing the copyright notices would be "Put
them back in".
[ Reply to This | # ]
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Authored by: Anonymous on Wednesday, December 03 2003 @ 01:34 PM EST |
IT shop with major customers (AT&T, Fedex, British Airways, American
Express, etc.) completes migration to Linux:
http://searchenterpriselinux.techtarget.com/originalContent/0,289142,sid39_gci93
9584,00.html?track=NL-301
[ Reply to This | # ]
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Authored by: gumout on Wednesday, December 03 2003 @ 01:47 PM EST |
CS: I'd actually give you one correction. Not all the System V code was
stripped out. There a certain amount of code that was joint copyright
attributions had to be applied for Berkeley and USL and AT&T. So there was a
certain set of files for which the over, there was this splitting, of Solomon
splitting the baby, that some assets that had to be held in common. But you're
right there is a certain settlement that was made for correcting a BSD-based
solution.
Darl McBride also mentioned missing copyright attributions.
So what?
Copyright attributions are described in The Copyright Act USC 17 sec 401(b) ...
no way on this planet is a copyright attribution an original work.
In some cases removing a copyright attribution is evidence of willful intent,
but not a violation of the Copyright Act.
Linux users and distributors are not parties to the USL v BSDI settlement. If
Mcbride wants to start a contractual pissing contest with BSD developers, I
suspect they would relish the opportunity to point out all the missing BSD
attributions in Sys V source code.
---
How do 99% of lawyers manage to graduate in the bottom 1% of their class?[ Reply to This | # ]
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Authored by: brenda banks on Wednesday, December 03 2003 @ 03:40 PM EST |
http://www.siliconvalley.com/mld/siliconvalley/business/columnists/gmsv/7404506.
htm
"Note to IBM attorneys: Do yourselves a favor and go read Groklaw:Found
over on Groklaw is some rather interesting investigative research that suggests
SCO willingly contributed to the development of enterprise-enabling features of
Linux. Groklaw's report is far too detailed to outline here, but it's great
reading for anyone interested in the SCO/IBM debacle, particularly IBM's legal
team."
hehehehe
way to go PJ and all
---
br3n[ Reply to This | # ]
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Authored by: kurt555gs on Wednesday, December 03 2003 @ 04:12 PM EST |
During the M$ trial, Bill Gates continually lied, and infuriated the judge.
As soon as there was a ruling, he cryed "The judge was biased" throw
out
the findings.
I really wonder if this isn't the plan with SCO.
How could you possibly lie as much as they do and not expect to be
eaten alive.
---
* Kurt *
[ Reply to This | # ]
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Authored by: Anonymous on Wednesday, December 03 2003 @ 06:28 PM EST |
That didn't seem to go very well. The premise that there was copyright
infringement seemed to be accepted by all sides and the comparison to illegal
music sharing went unchallenged. Also, why did we say that Sequent's code is
owned by SCO?[ Reply to This | # ]
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Authored by: Anonymous on Friday, December 05 2003 @ 06:39 AM EST |
> the law of derivative works needs a clearer analysis.
See "VI.A. Source Code and Derivative Works" and
"VI.D.4. Derivative Works and Compilations" at
www.digital-law-online.com.
regards,
alexander.
[ Reply to This | # ]
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Authored by: Anonymous on Saturday, December 06 2003 @ 12:29 PM EST |
How no body talk about this, I will do:
"oh, just show us the code,
and we'll go ahead and remove it, and there'll be no more problem", is the
example of a bank robber who robs a bank and now has the posse in hot pursuit
behind him. Makes a swing back around past the bank and throws the money bags
back into the bank and says, "Hey, no harm, no foul". There is a problem, there
has been damages and [unintelligible] occurred, and we intend to get justice.
If I rob the bank, and I get back the money, I will have just some
days or months in prision or someting like that.
But If some ones else robs
the bank and I get back the money, wy I will go to prision? or pay for that?, no
I will have a reward by the bank and I will get Press and TV coverage, I will be
a hero!!!
That's what the Opensource/Free Software comunity want to do, they
don't stole any code.
***
One question I'm doing a lot of time ago...
If
the contributions where outside of USA, Is this aplicable or not?
remember
that many of the source code in Linux and free/opensource software come from
outside the USA.
Mauricio Flores Olmos
From Mexico[ Reply to This | # ]
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