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Early Reaction to Novell's Copyright Claims and Linus' Statement
Tuesday, December 23 2003 @ 06:09 PM EST

Well, who'd a thunk it? It seems Laura DiDidio is wrong about something.

A new survey shows that companies they surveyed don't care two hoots about indemnification for Linux or about yesterday's SCO threats either. Linux deployment is not slowing.

What is interesting in the InternetNews story is that, after quoting Ms. DiDidio's earlier words on how vital indemnification would be to enterprise users, it reports that of the companies just surveyed, half say they checked with their attorneys and the attorneys said that the GPL offers all the protection needed.

Now you know I'm not just whistling Dixie here on Groklaw. The GPL really is powerful. It's just that the SCO gang doesn't understand the GPL and so all their strategies and analyses suffer from a fatal flaw.

Here are the facts about the latest survey:

Evan Bauer, a principal research fellow with Robert Frances Group ( http://www.rfgonline.com ), said a just-completed survey the IT consulting firm conducted with 15 companies about Linux deployments suggests that cost-savings and the General Public License, or GPL, are trumping any concerns about SCO Group's claim of copyright infringement within parts of Linux.

"None [of the companies surveyed] have concluded they're liable in any way," he said. . . . About half of the companies in the survey, which is expected to be released in January, checked with their legal departments about any potential exposure to the issue. For example, if a court ruled in favor of SCO in finding that some parts of the Linux kernel were copyrighted, would companies running Linux have to pay SCO license fees?

"Many feel they are absolutely protected by the GPL [General Public License]," Bauer said, referring to the open source software license (also called GNU GPL) that details how the open source operating system software and its source code can be freely copied, distributed and modified.

Of course the GPL turns out to be only one protection available against copyright lawsuits. Reactions to Novell's copyright registration are starting to come in and they confirm what I thought. The fact that both SCO and Novell are claiming ownership of the code means that neither has clear ownership until a judge sorts it out. One attorney writes: "I agree with you that if SCO filed an infringement claim based on their claimed ownership of System V, then Novell could intervene in the litigation to argue that SCO doesn't have such rights in System V. Here's how another attorney, in an InfoWorld piece by IDG News Service's Robert McMillan, explains it:

The fact that both Novell and SCO have now registered as owners of the Unix copyright does not necessarily say anything about the validity of either company's claims, said David Byer, a partner with the patent and intellectual property group at Boston's Testa, Hurwitz & Thibeault, LLP, who is not involved in the dispute. Unlike the U.S. Patent and Trademark Office, the U.S. Copyright Office does not examine the validity of copyright claims. he said. "When you fill out a copyright registration, you're essentially declaring under penalty of perjury that you are the owner," he said. "If you tell them that you wrote it, they believe you."
Penalty of perjury, you say? That tells us that Novell didn't register without seriously considering whether they felt they could back up their claims. Stephen Shankland has more attorney reaction in Shankland's extremely thorough coverage of the significance of the Novell monkey wrench, as he calls it:
But Novell, which bought Unix from AT&T before selling a SCO Group predecessor at least some of the intellectual property in 1995, is disputing SCO's claims of Unix copyright ownership. Spokesman Bruce Lowry said Monday the U.S. Copyright Office has given Novell copyright registrations for 11 versions of System V Unix.

The copyright registrations by Novell, which is in the process of acquiring No. 2 Linux seller SuSE Linux, are "a pretty clear indicator there will be a litigation between Novell and SCO," said David B. Moyer, an attorney with Wineberg, Simmonds & Narita.

Novell's moves could throw a wrench into SCO's effort to sell Unix licenses to Linux users, a plan under which it's asking $699 to use Linux on a single-processor server, Radcliffe said. "Now basically these guys have got to go to court and prove they own the copyright. That takes a lot of the pressure off the Linux users," Radcliffe said.
And that's just Novell. What about Linus? He's claimed some of the files already as being his own work product. Paula Rooney with CRN saw Groklaw's articles and contacted Linus:
In an e-mail exchange with CRN, Torvalds, a fellow with the Open Source Development Labs, snubbed SCO's latest series of allegations as hollow and said the so-called violations relate to a group of simple header files, not significant IP.

"As you can see, it's basically something like five files, it's just that several of them are replicated for every single architecture out there," Torvalds wrote, pointing to the files listed on the letter. "And the thing is, those files don't even contain any code. They contain things like the error number lists--and, yes, we made the error numbers match with traditional Unix on purpose, since, for example, Linux/alpha wanted to be binary-compatible with OSF/1. Ask any programmer what this is, and he'll tell you it's just a C header file that gives symbolic names to static error numbers." . . .

According to the Groklaw Web site, which chronicles the legal aspects of SCO IP cases, Novell has registered for the copyrights on Unix System V 2, 3.0, 3.1, 3.2, 3.2/386, 4.0, 4.1, 4.1ES, 4.1ES/386, 4.2, and 4.2MP with the U.S. Copyright Office during the past four months. . . .

However, SCO's McBride said he is not intimidated by the legal backlash from key Linux vendors and that the company is serious about filing a copyright infringement case against a Linux customer no later than mid-February.

He claims SCO will crush Novell's copyright claims as fraudulent. He also claimed that SCO's rights to Unix under the DMCA will prevail over the GPL.

EWeek says McBride is now claiming SCO will "legally pursue all companies that contribute to or use Linux." That's a lot of companies. He has his work cut out for him there, particularly with deployments booming. The InternetWeek article says Federated Department Stores -- you know, Bloomingdales and Macy's and such -- say they intend to increase their Linux deployment:
Christopher Dudley, an operating vice president for Federated Department Stores (which was not a part of the survey), echoed the sentiment, but also clarified the role that Linux is playing in the retail company's networks.

"Despite the SCO/IBM legal issues we are continuing to look into further deployments of Linux into some of our core business areas including www.macys.com and www.bloomingdales.com," he said, referring to Web sites of the respective department stores that Federated also owns.

With annual sales of more than $15.4 billion, Federated currently operates more than 450 stores in 34 states, Guam and Puerto Rico. Within that structure Federated currently runs a small number of Linux-based servers. And Dudley also pointed out that the company also runs a large number of proprietary, Unix-based servers from Sun, HP, and IBM.

"The dispute hasn't really yet become a factor in our Linux deployment strategy. As with most companies today, we continue to aggressively pursue cost-saving areas. Linux fits in this space. That, coupled with our direction to make the lower-level operating system components of the infrastructure a commodity currently makes Linux a powerful tool in support of our business," he said.

The eWeek article clarifies why SCO sent letters to their own licensees:
By the end of January, McBride said, companies using Linux have three choices: 1) Cease and desist any use of Linux; 2) obtain a license from SCO to use Linux at $699 per CPU (the licensing fee to go up to $1,399 at some time in the future); or 3) continue to use Linux, and lose all rights to the company's Unix license and face SCO in court.
He forgot a fourth option, and the one I'd pick if I received such a letter: 4) Cease and desist any use of UNIX from SCO. So now legal users of UNIX are not allowed to use Linux? Steven J. Vaughan-Nichol's reacts to this startling news with a fairy tale about "The Little SCO That Cried Wolf":
SCO has shouted so long that when businesses and analysts alike hear them, they say, "Oh, that SCO... They're just crying wolf, and we'll pay no more attention to them from here on."

Excuse my fractured fairy tale, but I think that's exactly what is happening to SCO. Many people assumed that the DoS attack had been faked. It wasn't. So now, SCO can be completely in the right and still not taken seriously.

Personally, I don't think SCO has a leg to stand on in its copyright cases, but I do know one thing: By constantly playing up its threats, SCO has become a company that has cried wolf too often. The latest threat was that anyone who uses Unix legally can't use Linux.

Even people I know who used to take SCO seriously, have gotten weary of SCO's ever expanding claims. They want real proof. If SCO has another intellectual property customer besides Microsoft and Sun, they want to know who it is. In short, they want SCO to stop crying wolf and show some fur, some teeth, something more than an eternal cry of the grievances and victimization.

If not, well, companies that cry wolf too often eventually run into real wolves--perhaps Novell's counterclaims on SCO's Unix copyrights?--and that's the end of them.

McBride was directly asked about Groklaw's article reporting that Novell had filed for copyrights on System V:
Finally, McBride responded to a report that Novell Inc. was still pursuing its own copyright claims on Unix. "Novell is desperate," McBride said. "SCO has produced documents that say we own the Unix copyrights. Let me be real clear: SCO acquired all rights for Unix and UnixWare, includes copyrights. We see this as a fraudulent notice." McBride added that SCO sees Novell as being "all hat, no cattle".
Speaking of desperate, here's a look at SCO's next quarter financial prospects:
UNIX products and services are expected to represent the majority of consolidated first quarter revenue. Revenue from SCOsource licenses is expected to be minimal in the first quarter as the company finalizes license agreements with vendors and continues to implement its intellectual property license initiative, officials said.
More details on who got the letters and how they are likely feeling about them is in PCPro[reg. req'd]:
In letters sent to the some 6,000 Unix licencees, SCO is demanding that such companies provide written evidence that the software has been used strictly under the terms of the licence. Aside from showing they have not allowed Uix code to be contributed to Linux, SCO is also seeking evidence that these companies told each employee and contractor their obligations concerning the licensed code, and didn't let anyone else use the code, either - especially anyone else in terrorist harbouring nations such as Syria, Iran, North Korea or Cuba. All this, and more, by the end of January.

These UNIX licensees include 41 companies of the Fortune 100, and as such, large corporates will find this no easy task. If they fail, SCO reserves the right to withdraw the Unix licence and demand that the companies stop using the software.

I think I've figured out why SCO is doing this. Maybe they just don't want any customers, so they can concentrate full throttle on their core business: litigation. If that's the plan, they appear on the right path to achieving their goal. Of course, admitting to the press that you are trying to force companies to stop using Linux might leave one open to tort claims, but who's counting?

Maybe Judge Sue Robinson in Delaware, one hopes?


  


Early Reaction to Novell's Copyright Claims and Linus' Statement | 501 comments | Create New Account
Comments belong to whoever posts them. Please notify us of inappropriate comments.
Early Reaction to Novell's Copyright Claims and Linus' Statement
Authored by: snorpus on Tuesday, December 23 2003 @ 06:46 PM EST
It shouldn't surprise regular Groklaw readers to learn that the GPL is powerful. After all, it's the U.S. Copyright Law, with a few extra freedoms (if you follow the rules).

---
73/88 de KQ3T

[ Reply to This | # ]

The letters to the licensees
Authored by: skidrash on Tuesday, December 23 2003 @ 06:53 PM EST
At the same time that SCO Group asks for "certification" they slip
the derivative works thin into the same letter.

They have a habit of doing that, conflating one dubious claim with an outrageous
property grab.

For instance in the PR conference after they registered the UNIX copyrights they
said "we registered the UNIX copyrights, now people owe us for using
Linux."

That letter sounds like SCOG is asking all the licensees to agree (implicitly)
with SCO Group's position that SCO Group owns "control rights" to
any code the licensees wrote that may have touched SCO code in any way.

The letter asks for certification which may flow from the AT&T contracts
then tacks on the derivative works claims.

[ Reply to This | # ]

Early Reaction to Novell's Copyright Claims and Linus' Statement
Authored by: brenda banks on Tuesday, December 23 2003 @ 06:58 PM EST
surprise
as usual didio is wrong
hehehehehe
maybe eventually she will get a clue


---
br3n

[ Reply to This | # ]

Did IBM get a letter?
Authored by: Anonymous on Tuesday, December 23 2003 @ 07:01 PM EST
If IBM got a letter as a licensee wouldn't that mean that SCO recognized IBM as
being a licensee and therefore their unilateral "termination" of
IBM's Unix license was null and void?

[ Reply to This | # ]

Early Reaction to Novell's Copyright Claims and Linus' Statement
Authored by: jam on Tuesday, December 23 2003 @ 07:06 PM EST
If I ran a company that licensed UNIX code, and got letters like that, I'd
seriously consider whether it was still necessary to have the license, and look
for other options. Of course, that may not be possible, depending on the use of
that, but I'd definitely switch to linux as much as possible if I was using any
of SCO's products.

[ Reply to This | # ]

Pursue all companies?
Authored by: Anonymous on Tuesday, December 23 2003 @ 07:07 PM EST
Only if Baystar, et al, allow it. Think they will?

Prediction: When IBM wins its lawsuit, Darl is gone.

[ Reply to This | # ]

Early Reaction to Novell's Copyright Claims and Linus' Statement
Authored by: mikebmw on Tuesday, December 23 2003 @ 07:11 PM EST
EWeek says McBride is now claiming SCO will "legally pursue all companies
that contribute to or use Linux."

This looks like another reason for Red Hat to continue their suit.

[ Reply to This | # ]

Behold the power of the GPL
Authored by: k12linux on Tuesday, December 23 2003 @ 07:14 PM EST
:) I found these couple of tidbits in the GPL license text:

From section 7: If you cannot distribute so as to satisfy simultaneously your obligations under this License and any other pertinent obligations, then as a consequence you may not distribute the Program at all. For example, if a patent license would not permit royalty-free redistribution of the Program by all those who receive copies directly or indirectly through you, then the only way you could satisfy both it and this License would be to refrain entirely from distribution of the Program.

To me this would mean that as soon as SCO claims there is protected and "non-free" content in Linux, they may no longer distribute Linux at all... even if they actually did own the protected content. At least not without licensing the content in a royalty-free way.

Also section 7: It is not the purpose of this section to induce you to infringe any patents or other property right claims or to contest validity of any such claims; this section has the sole purpose of protecting the integrity of the free software distribution system, which is implemented by public license practices.

The GPL expressly states it is not intended to be used to side-step patent or other property (including copyright) rights.

From section 5: You are not required to accept this License, since you have not signed it. However, nothing else grants you permission to modify or distribute the Program or its derivative works.
and From section 4: You may not copy, modify, sublicense, or distribute the Program except as expressly provided under this License.

So again, SCO has NO rights to copy, modify or distribute any version of Linux unless they accept the terms of the license. If they do not accept the license, nothing gives them any right to distribute Linux. This would mean that they are in violation of the copyright rights of every linux author who contributed original code.

---
- k12linux

[ Reply to This | # ]

DiDio shows her ignorance yet again
Authored by: Anonymous on Tuesday, December 23 2003 @ 07:16 PM EST
>> Laura DiDio, senior analyst for The Yankee Group, has called IBM's
stance on the issue a "disservice" to the Linux and open source
community. "For Linux to take its place alongside UNIX, Windows, and
NetWare in the enterprise, it must be worthy in both a business and
technological sense. That means strong indemnification," DiDio wrote in a
research note about the issue. <<

A careeful reeading of DiDio's statement shows that she has not even a clue as
to what's going on in the enterprise.

It makes one wonder why the Yankee Group continues to employ a person who is
doing so much damage to their credibility.

[ Reply to This | # ]

Indemnification from SCO?
Authored by: Anonymous on Tuesday, December 23 2003 @ 07:25 PM EST
"What is interesting in the InternetNews story is that, after quoting Ms. DiDio's earlier words on how vital indemnification would be to enterprise users, it reports that of the companies just surveyed, half say they checked with their attorneys and the attorneys said that the GPL offers all the protection needed."

When this is ended and it has been established that SCO does not have any rights on Linux (ie. a ploy to push up share value or whatever),
can all these companies claim indemnification from SCO for the costs of their legal fees, lost time, etc.?

IANAL. So, is there someone who can answer that?

CCS

[ Reply to This | # ]

The most eloquent dismissal
Authored by: Anonymous on Tuesday, December 23 2003 @ 07:27 PM EST
This is the most eloquent dismissal of SCO's claims I can think of.

The people who live in the real world are simply ignoring SCO and getting on
with their lives.

[ Reply to This | # ]

Early Reaction to Novell's Copyright Claims and Linus' Statement
Authored by: pooky on Tuesday, December 23 2003 @ 07:34 PM EST
Interesting that Darl's scope of whom SCOG will sue keeps changing, now by the
day. Originally it was just IBM, then it was Linus Torvalds (for about a week),
then large users of Linux, then Unix users who don't return SCOG's audit
letter, then all users of Linux, now anyone who uses, contributes to, or
distributes Linux.

I wonder if Darl knows how many companies he just threatened with a lawsuit?
Maybe 20,000 or more?

And he better check his facts and with his lawyer because I'm sure even Boies
will tell him SCOG can't sue anyone over copyright infringements until they
work out the problem with Novell, because if they go to court with the ownership
in doubt the case at best will be put on hold or have Novell dragged into it
1st, at worst will be outright tossed by a Judge as having no basis. [Ianal]

I'm pretty sure they can't sue any end users under anything but copyright law
since users didn't contribute any trade secrets into Linux.

Darl's rambling is getting quite desperate, I wonder if SCOG is about to blow
up in January, seems to be a lynch pin date for SCOG, lots of things happening
then including the end of the time frame for SCOG to sue an end-user or 13 or
give us an excuse as to why they can't. Also significant things in IBM case
happen at end of January...

-pooky

---
IANAL, etc...

[ Reply to This | # ]

What effect does the copyright dispute have?
Authored by: Jude on Tuesday, December 23 2003 @ 07:36 PM EST
SCO knows that Novell is disputing SCO's ownership of Unix copyrights.

1) What happens if SCO tries to sue a Linux user for copyright infringment
before the dispute with Novell is settled?

2) SCO supposedly just send a bunch of DMCA notifications. Are these notices
improper because of the dispute? Could SCO get in trouble for sending them?

[ Reply to This | # ]

Early Reaction to Novell's Copyright Claims and Linus' Statement
Authored by: John on Tuesday, December 23 2003 @ 07:36 PM EST
Laura Didio is wromg about something? I thought she was wrong just about
everything! :^)

---
JJJ

[ Reply to This | # ]

"Novell is Confused"
Authored by: pfusco on Tuesday, December 23 2003 @ 07:37 PM EST
Just posted on the Mercury News is the following from Stowell:

"SALT LAKE CITY - Two Utah companies are battling over ownership of the copyrights to the Unix operating system for computers.

Novell Inc. of Provo said it believes it owns the copyrights for Unix, and it has applied for and received copyright registrations.

"In our opinion, Novell is confused," responded Blake Stowell, a spokesman for Lindon-based SCO Group.

SCO claims it paid $100 million to Novell eight years ago for Unix along with the copyrights - which Stowell said Novell didn't register until July.

"If Novell is claiming we paid them $100 million, and we didn't get the copyrights, I'm not sure what we got," Stowell said Tuesday. "To do what they are doing is outright fraud. You don't take over $100 million from someone, and then claim that you never sold them anything."

"They're trying to frustrate our business," Stowell added

This is just too much, they know we and many others have seen the documents and have researched them... Sco will die fighting to its last lie"

---
only the soul matters in the end

[ Reply to This | # ]

Early Reaction to Novell's Copyright Claims and Linus' Statement
Authored by: Anonymous on Tuesday, December 23 2003 @ 07:38 PM EST
Interesting: After making a big song and dance about how Linux vendors' lack
of indemnification leaves customers open to lawsuits from copyright holders...

... SCO threatens to sue their own customers.

So much for their indemnification, eh?

[ Reply to This | # ]

Didio wrong?
Authored by: the_flatlander on Tuesday, December 23 2003 @ 07:41 PM EST
Thank you Grawlaw quote database. That does for all those "analysts" what refrigerator magnets did for Jean Dixon. (Makes 'em look silly a few months down the road.)

Didio said:

Again, this varies according to which piece of code you're reviewing. Clearly with so many different versions extant, that span decades, there are millions of lines of code. The Yankee Group as well as the other analyst firms and members of the press, were only shown small portions of a few pieces of code. In my case, I saw Unix System V, version 4.1. Incidentally, this particular code is from the early 1980s, and hence predates Linus Torvalds' first Linux code
You don't suppose, do you, that they showed her the header files? I mean that's unlikely that she'd have fallen for that, eh? What with all her expertise as a hard-core coder and all....

[at their option, the reader may herein assume a nasty, gratitously rude term for Ms. Didio]!!

I understand she's been quite taken aback at the out pouring of scorn. I'd always heard that if you didn't want to be stared at you should avoid putting on a show. Maybe no one ever told her that.

TFL

No sir, I didn't put any error handling routines in that code, that would be a vioaltion of SCO Group's IP rights; you'll need to get a license from them before my software can tell you that your diskette is read only.

[ Reply to This | # ]

Early Reaction to Novell's Copyright Claims and Linus' Statement
Authored by: ddever on Tuesday, December 23 2003 @ 07:44 PM EST
McBride is now claiming SCO will "legally pursue all companies that
contribute to or use Linux."

----------------------------------------------------------

In my wilder days, I was at a night club when a scrawny guy who was falling down
drunk tried to pick a fight with a much larger, and obviously not plastered
guy.

The larger guy kept trying to shrug the smaller guy off, which only elicited
louder and more passioned epitaths from the drunkard. At this point, others in
the night club pointed out to the idiot that he should calm down and leave the
big guy alone.

This caused the scrawny little drunk guy to begin flailing his arms about
shouting, "I'll whip all of ya'll!".

I'm now wondering if that little guy's name was Darl McBride...

[ Reply to This | # ]

Early Reaction to Novell's Copyright Claims and Linus' Statement
Authored by: RSC on Tuesday, December 23 2003 @ 07:45 PM EST
Has anyone noticed that the SCOX price seems to have flatted over the last
couple of months, even with all this FUD?

Does anyone elsa thing that the markets are starting to understand that the FUD
is only a market manipulation?

Just a thought.

RSC

---
----
An Australian who IS interested.

[ Reply to This | # ]

Is The SCO Group distributing Linux?
Authored by: dmomara on Tuesday, December 23 2003 @ 07:46 PM EST
Both at SCOforum Las Vegas and in European partner briefings, SCO has
persistently touted its "Smallfoot" Point of Sale architecture,
claming that it is "based on Unixware technology".

See:

pl.caldera.com/2003forum/keynotes/hunsaker_hughes_roadmap_final_files/frame.htm

As late as March of this year, however their PoS white paper speaks of this as
"Retail Hardened Linux for Point of Sale".

See:

www.caldera.com/retail/SCOLinuxForPOSWhitepaper.pdf

Has SCO in the absense of developers and Technology Officer been able to migrate
their framework for this project from linux to Eunuchsware? Or is the basis for
this "unix technology" a small number of header files containing for
the most part non-expressive elements? More things that will have to be
explained in the counterproceedings.

[ Reply to This | # ]

Explanation of Header files
Authored by: snorpus on Tuesday, December 23 2003 @ 07:48 PM EST
And Linus wrote:

"'As you can see, it's basically something like five files, it's just that several of them are replicated for every single architecture out there,' Torvalds wrote, pointing to the files listed on the letter. 'And the thing is, those files don't even contain any code. They contain things like the error number lists--and, yes, we made the error numbers match with traditional Unix on purpose, since, for example, Linux/alpha wanted to be binary-compatible with OSF/1. Ask any programmer what this is, and he'll tell you it's just a C header file that gives symbolic names to static error numbers.' . . .

Any even moderately complex program is written as a collection of functions (aka sub-routines). It is essential to the proper operation of the program that each function follows the same set of rules, and that all have a common understanding of what various definitions mean.

One way to accomplish this would be to have, at the beginning of each source code (*.c) file, literally hundreds or thousands of lines that define these rules and definitions. The problem that arises is that if, for whatever reason, the programmers decide to change a rule or definition, each source code file making up the program (and there could be thousands of these) would have to be modified.

And so "header files" (*.h) were invented. Changes made to header files are automatically propogated to all source code files that depend upon them, the next time the source code is compiled.

For example... there are about two dozen functions (and several defined constants) in C that deal with standard input and output (keyboard, screen, disk files). Rather than having to write (and maintain) the forty or fifty lines of these definitions in every source code file, I can simply write at the beginning of the file:

#include < stdio.h >

Many of the decisions as to what integer to use for which message came from either POSIX, the US or International C Standards, or simply (documented) usage. For example, successful execution of a function is commonly represented (in Unix, Linux, DOS and probably most operating systems) by setting the return code value to EXIT_SUCCESS, which is normally represented by 0.

I would be much more likely to believe SCO's claim if it related to the implementation of non-trivial algorithms. There are only so many ways to implement tolower().

Scheduling algorithms, dispatching algorithms, sorting, garbage collection... These are areas where code theft would be more likely to be apparent.

---
73/88 de KQ3T

[ Reply to This | # ]

This goes to the counter claims
Authored by: sam on Tuesday, December 23 2003 @ 07:57 PM EST
The counter claims (Lanham Act) in the IBM counter suit are all well and good,
but by the time it gets that far, SCO will have no assets.

Can any legally minded person tell me what it would take to also go after Canopy
assets, assuming there has been collaboration at best, conspiracy at worst in
guiding and directing SCO's actions?

After all, Canopy owns 43% of SCO. You can be sure they are calling the shots or
at least tacitly approving every step SCO takes.

[ Reply to This | # ]

$100m -> $3b
Authored by: Anonymous on Tuesday, December 23 2003 @ 07:59 PM EST
"If Novell is claiming we paid them $100 million, and we didn't get the
copyrights, I'm not sure what we got," Stowell said Tuesday. "To do
what they are doing is outright fraud. You don't take over $100 million from
someone, and then claim that you never sold them anything."

seems to me that the market (broadly speaking, not the stock market) understood
the value of what novell had to sell, which was why it went for $100m rather
than $3b.

[ Reply to This | # ]

Early Reaction to Novell's Copyright Claims and Linus' Statement
Authored by: MyPersonalOpinio on Tuesday, December 23 2003 @ 08:12 PM EST

Regarding the letters to Unix Licensees, can SCO really unilaterally revoke a license for failure to produce a negative evidence? I would think that some constructive evidence of infringement coming from SCO would be required instead.

When buying a license, you are a customer and acquire rights to what you purchased. I seriously doubt that being treated like a criminal and subject to the doctrine of "guilty until proven innocent" would be upheld by any sane court of law.

It would be great if somebody can post a template letter that basically expresses "We received your letter but don't agree that SCO is entitled to its request or to license revokation for this reason"

SCO just wants to rewrite too many things, history, law, the US constitution, common sense...

[ Reply to This | # ]

is this famous last words?
Authored by: brenda banks on Tuesday, December 23 2003 @ 08:13 PM EST
http://biz.yahoo.com/ap/031223/novell_sco_5.html

"If Novell is claiming we paid them $100 million, and we didn't get the
copyrights, I'm not sure what we got," Stowell said Tuesday"

hehehe they dont know what they bought?


---
br3n

[ Reply to This | # ]

My reaction to mcbride
Authored by: carlos on Tuesday, December 23 2003 @ 08:27 PM EST
I cannot even get outraged at McBride anymore. It took me half an hour to read
these few paragraphs because I had to stop an laugh after each paragraph. I
used to give McBride some benefit of the doubt and wonder if he has an ace up
his sleeve. I cannot give him the benefit of the doubt with a straight face.

How about if he just sues everyone who had anything to do with writing any C
code. Now, McBride will be upset, I actually guessed what his next move will
be.

All of SCO's cases had better get thrown out of the courts and McBride placed
under psychiatric evaluation for his own good ... before IBM's lawyers eat him
alive.

I believe this is now a fate accompli. We are now just watching how the show
ends. I will be glad to say "good riddance" and "kiss my
grits" to McBride.

carlos

[ Reply to This | # ]

Early Reaction to Novell's Copyright Claims and Linus' Statement
Authored by: Anonymous on Tuesday, December 23 2003 @ 08:44 PM EST
Only in the last couple days have I started reading Groklaw consistently. I am
an open source user, contributor, and firm believer in its value.

It is clear to me (and possibly you) that the claims made publicly by SCO thus
far (as opposed to the secret ones) are without merit. BUT, how is the rest of
the world to know that? "SCO says it owns some files. Those same files
appear in linux. Looks like somebody stole them."

One would think that if they were honestly looking to resolve the situation in
good faith, they would establish their claim legally, and follow up with
licensing agreements with linux vendors (establish partnerships). Or, perhaps
request that the linux kernel have the infringing bits removed. Again, it seems
clear to me that SCO is being dishonest about the whole thing, but why should it
be obvious to other people?

I don't have a legal staff. Yet, I see the show they are putting on in the
media. What if it wasn't IBM they were attacking first? What if SCO was
attacking a much smaller company or individual without the resources to fight
such a battle? Even in the face of Novell's actions, SCO continues its rampage
seemingly undaunted by the rediculousness of its actions. Are there any legal
protections against this type of behavior on the part of SCO?

[ Reply to This | # ]

Theft of IP
Authored by: Anonymous on Tuesday, December 23 2003 @ 08:44 PM EST
is the ONLY reason that anyone would want to kill the GPL
for, or am I wrong?

[ Reply to This | # ]

There is some truth to his words...
Authored by: Anonymous on Tuesday, December 23 2003 @ 08:48 PM EST
"terrorist harbouring nations such as Syria, Iran, North Korea or
Cuba"

O Yea! I am glad we got that one covered. He forgot also Saudi Arabia and
Pakistan. And Lebanon. Wait, that was Syria.

Making some progress! :))

[ Reply to This | # ]

I've been trolled...
Authored by: the_flatlander on Tuesday, December 23 2003 @ 09:15 PM EST
Darl says: "Novell is getting desperate."

Really? Why? Is Novell in some sort of trouble I was not aware of? Have they,
say, just threatened to sue the only folks still giving them money? Or have
they gotten involved in a bitter legal struggle with an intractable foe more
than ten times their size? Or have they outraged a whole community of people
who until a few months ago had never even heard of them? Have they measured
their relevancy to the market by the number of press releases they have made?

Yo! Darl! What planet do you *think* you're on? Man you should be suing your
dealer, he sold you some nasty, nasty stuff.

TFL

If chance should ever set you down between a SCO Group exectutive and say, a
penguin, you'll move towards the penguin just to have some one pleasant to talk
to.

[ Reply to This | # ]

OT - Very Interesting
Authored by: Anonymous on Tuesday, December 23 2003 @ 09:22 PM EST
elcorton is the handle of a newcomer on the Yahoo Scox board. He showed up
after the recent conference call - you know, the "good morning Darl, great
quarter" conference call. His early posts imply that he is a seasoned
trader with a long position in SCOX, and coming to terms with the fact that his
money is riding on a criminal syndicate rather than a technology company.

Here is his most recent post:

McBride's options
by: elcorton
Long-Term Sentiment: Strong Sell 12/23/03 08:19 pm
Msg: 75370 of 75384

The suicidal weakness of the earnings call yesterday, as well as the timing of
the call and the market action that preceded it, led me to speculate that the
fund managers are preparing for an early exit in the form of a supply-driven
short squeeze. This raised the question of what is in it for SCO management, and
in particular for McBride. I have to admit that I hadn't looked at the details
of his compensation package, and I was under the impression that his options
didn't vest until he had presided over four consecutive profitable quarters.
But going back to the April 2003 proxy statement, we find on page 9 (under the
heading "CEO Compensation"):

"In recognition of the leadership and guidance Mr. McBride brings to the
Company, he was granted 600,000 options to purchase shares under the Company's
1999 Omnibus Stock Incentive Plan. Of the options granted to Mr. McBride,
400,000 options vest 25% after one year with the remaining 75% vesting at 1/36th
per month thereafter, until fully vested. Of the remaining 200,000 stock options
granted to Mr. McBride, 50,000 options will vest one year from the date of the
Company's first profitable quarter (as long as that profitable quarter is
before Q4 of fiscal year 2003) and the remaining 150,000 options will vest one
year from the date the Company achieves four consecutive quarters of
profitability (as long as the fourth quarter is before Q4 of fiscal year
2004)."

McBride was hired in June 2002, so he now has 150,000 vested options with an
exercise price of less than 1. The same document shows that he owned no shares
of SCOX, and since no insiders have bought any shares since then, he still owns
none. If SCOX were to go out next week in a final orgy of wash trades and short
recalls with a high of, say, 20, McBride could walk away with about $3M. He may
be planning to eke that out with personal litigation against Canopy and perhaps
others, as in his mysterious settlement with IKON in 1998. Maybe not all he had
hoped for, but still not a bad haul for 18 months of work.

This is not a prediction, just a request for comments from those who know more
than I do.

[ Reply to This | # ]

Early Reaction to Novell's Copyright Claims and Linus' Statement
Authored by: dodger on Tuesday, December 23 2003 @ 09:28 PM EST
"If Novell is claiming we paid them $100 million, and we didn't get the
copyrights, I'm not sure what we got," Stowell said Tuesday.

TAKE NOTE - BAYSTAR, ROYAL CANADIAN BANK, ROYCE ASSOCIATES, DAVID BOIES. Your
main PR man says they forked out 100 million and he doesn't know why. Wouldn't
you prefer that he quote contracts and say why that money was well spent;
perhaps that that was the basis of the last 8 years of business? But not a big
loud "duhhhhhhh".

I don't have to make him sound like a first class, grade A Idiot.

[ Reply to This | # ]

Humor: LOTR as told by SCO
Authored by: Sunny Penguin on Tuesday, December 23 2003 @ 09:31 PM EST
One suit to blind them all.

---
Norman

[ Reply to This | # ]

What about SUN and MS?
Authored by: Anonymous on Tuesday, December 23 2003 @ 09:31 PM EST
Can we get clarificaiton that those letters were sent to both SUN and MS?

Why? Because I do not see Sun dropping lInux in favor of their own Unix impl as
Linux is outselling in both their own hardwware and other hardware where Sun
gets the serv contract...

I do not see MS dropping their support of specific opensource libraries to
placate SCO Group..their play with MS.Net depnds on their limited support of
libraries and contributions to Linux even if they are veery extremely indirect
at the moment..

just my 2 cents

Fred Grott
ShareMe Technologies-The Mobile Future
http://www.jroller.com/page/shareme/Weblog

PS...us Java develoeprs have been hoping to see soemone force SUn to open up to
opensourcing java ..this may be the start of that sequence of moves..

[ Reply to This | # ]

Early Reaction to Novell's Copyright Claims and Linus' Statement
Authored by: John on Tuesday, December 23 2003 @ 10:04 PM EST
No Brenda! McBride would then claim IP rights to wings and feathers and sue all
the birds! (including Tux even though he can't fly)

:)

---
JJJ

[ Reply to This | # ]

Suggestion for Darl and Friends
Authored by: Anonymous on Tuesday, December 23 2003 @ 10:11 PM EST
Wherever you're going from here, it should be somewhere
they DON'T have an extradition treaty with the US for white
collar crimes.
The sooner the better.

Grimski

[ Reply to This | # ]

Lexmark Case and DCMA Rulemaking
Authored by: John Goodwin on Tuesday, December 23 2003 @ 10:15 PM EST
The relevant stuff is here copyright.gov around page 172, section 21. "Proposed exemption: Reverse engineering for interoperability and the Static Control proposals"

Lots of relevant discussion.

Text of DCMA, for ref. also at copyright.gov

[ Reply to This | # ]

Early Reaction to Novell's Copyright Claims and Linus' Statement
Authored by: T. ProphetLactus on Tuesday, December 23 2003 @ 10:58 PM EST
The Day of Dumping draws nigh. Hot potato!

TPL

[ Reply to This | # ]

Early Reaction to Novell's Copyright Claims and Linus' Statement
Authored by: jeanph01 on Tuesday, December 23 2003 @ 11:11 PM EST
I think that we are again seeing a new episode of
welovethescoinformationminister.org !

[ Reply to This | # ]

McBridge and others explained!
Authored by: kberrien on Tuesday, December 23 2003 @ 11:14 PM EST
First Suspected U.S. Mad Cow Case Found - Assoc. Press

The farm near Yakima, Wash., where the cow originated, has been quarantined as officials trace how the animal contracted the disease and where its meat went.

http://story.news.yahoo.com/news?tmpl=story&u=/ap/200 31224/ap_on_he_me/mad_cow&cid=541&ncid=716

To heck with the SEC, we need the Agriculture Department and FDA in Utah, FAST!

...end slashdot'esq post Happy Holidays all!

[ Reply to This | # ]

Early Reaction to Novell's Copyright Claims and Linus' Statement
Authored by: Anonymous on Tuesday, December 23 2003 @ 11:16 PM EST
Tips to the U.S. government:

1. Confiscate Darl McBride's passport. Now.
2. Investigate Microsoft and SCO's relationship. SCO is suicidally performing
Microsoft's wet dream.
3. Pass legislation so abuse like SCO's cannot happen again.

[ Reply to This | # ]

Early Reaction to Novell's Copyright Claims and Linus' Statement
Authored by: NicholasDonovan on Tuesday, December 23 2003 @ 11:17 PM EST
<br>
McBride: "Novell's Desperate.."


Hey Darl... How does this grab you for being desparate...
YOUR CASE!

In short you have none. The files you sited as being 'SCO's Intellectual
Property' are in fact unique works.


These header files are standard POSIX type files which will look very similar on
most operating systems.
SCO Execs...You picked the wrong enemy kids.
SCO has already lost the case IMHO.

As a guy who leads a software company, I can tell you we've have coded very
similar header files with no help from Darl & Co.

In fact just to throw a proverbial (unfortunately not real) punch in Daryl's
face, here is the code for BSD-Unix ioctl.h
Note: I removed the comments in front to save room... We all know who coded
these and it's not from SCO's intellectual property barn. :-)
Standard xBSD Style ioctl.h
--------------------------

* @(#)ioctl.h 8.6 (Berkeley) 3/28/94
*/
#ifndef _SYS_IOCTL_H_
#define _SYS_IOCTL_H_
#include
/*
* Pun for SunOS prior to 3.2. SunOS 3.2 and later support TIOCGWINSZ
* and TIOCSWINSZ (yes, even 3.2-3.5, the fact that it wasn't documented
* nonwithstanding).
*/
struct ttysize {
unsigned short ts_lines;
unsigned short ts_cols;
unsigned short ts_xxx;
unsigned short ts_yyy;
};
#define TIOCGSIZE TIOCGWINSZ
#define TIOCSSIZE TIOCSWINSZ
#include
#include
#include
#include
extern int ioctl (int fd, unsigned long request, void *argp);
#if 0 /* Hector commented these out */
#ifndef _KERNEL
#include
__BEGIN_DECLS
int ioctl __P((int, unsigned long, ...));
__END_DECLS
#endif /* !_KERNEL */
#endif /* !_SYS_IOCTL_H_ */
/*
* Keep outside _SYS_IOCTL_H_
* Compatability with old terminal driver
*
* Source level -> #define USE_OLD_TTY
* Kernel level -> options COMPAT_43 or COMPAT_SUNOS or ...
*/
#if defined(USE_OLD_TTY) || defined(COMPAT_43) || defined(COMPAT_SUNOS) || \
defined(COMPAT_SVR4) || defined(COMPAT_FREEBSD)
#include
#endif
#endif

-----------------------------

Now for all you brainiacs at SCO...here is the code for Linux ioctl.h

* linux/ioctl.h for Linux by H.H. Bergman.
*/
#ifndef _ASMI386_IOCTL_H
#define _ASMI386_IOCTL_H
/* ioctl command encoding: 32 bits total, command in lower 16 bits,
* size of the parameter structure in the lower 14 bits of the
* upper 16 bits.
* Encoding the size of the parameter structure in the ioctl request
* is useful for catching programs compiled with old versions
* and to avoid overwriting user space outside the user buffer area.
* The highest 2 bits are reserved for indicating the ``access mode''.
* NOTE: This limits the max parameter size to 16kB -1 !
*/
/*
* The following is for compatibility across the various Linux
* platforms. The i386 ioctl numbering scheme doesn't really enforce
* a type field. De facto, however, the top 8 bits of the lower 16
* bits are indeed used as a type field, so we might just as well make
* this explicit here. Please be sure to use the decoding macros
* below from now on.
*/
#define _IOC_NRBITS 8
#define _IOC_TYPEBITS 8
#define _IOC_SIZEBITS 14
#define _IOC_DIRBITS 2
#define _IOC_NRMASK ((1 << _IOC_NRBITS)-1)
#define _IOC_TYPEMASK ((1 << _IOC_TYPEBITS)-1)
#define _IOC_SIZEMASK ((1 << _IOC_SIZEBITS)-1)
#define _IOC_DIRMASK ((1 << _IOC_DIRBITS)-1)
#define _IOC_NRSHIFT 0
#define _IOC_TYPESHIFT (_IOC_NRSHIFT+_IOC_NRBITS)
#define _IOC_SIZESHIFT (_IOC_TYPESHIFT+_IOC_TYPEBITS)
#define _IOC_DIRSHIFT (_IOC_SIZESHIFT+_IOC_SIZEBITS)
/*
* Direction bits.
*/
#define _IOC_NONE 0U
#define _IOC_WRITE 1U
#define _IOC_READ 2U
#define _IOC(dir,type,nr,size) \
(((dir) << _IOC_DIRSHIFT) | \
((type) << _IOC_TYPESHIFT) | \
((nr) << _IOC_NRSHIFT) | \
((size) << _IOC_SIZESHIFT))
/* provoke compile error for invalid uses of size argument */
extern int __invalid_size_argument_for_IOC;
#define _IOC_TYPECHECK(t) \
((sizeof(t) == sizeof(t[1]) && \
sizeof(t) < (1 << _IOC_SIZEBITS)) ? \
sizeof(t) : __invalid_size_argument_for_IOC)
/* used to create numbers */
#define _IO(type,nr) _IOC(_IOC_NONE,(type),(nr),0)
#define _IOR(type,nr,size) _IOC(_IOC_READ,(type),(nr),(_IO C_TYPECHECK(size)))
#define _IOW(type,nr,size) _IOC(_IOC_WRITE,(type),(nr),(_I OC_TYPECHECK(size)))
#define _IOWR(type,nr,size) _IOC(_IOC_READ|_IOC_WRITE,(typ
e),(nr),(_IOC_TYPECHECK(size)))
#define _IOR_BAD(type,nr,size) _IOC(_IOC_READ,(type),(nr), sizeof(size))
#define _IOW_BAD(type,nr,size) _IOC(_IOC_WRITE,(type),(nr) ,sizeof(size))
#define _IOWR_BAD(type,nr,size) _IOC(_IOC_READ|_IOC_WRITE,
(type),(nr),sizeof(size))
/* used to decode ioctl numbers.. */
#define _IOC_DIR(nr) (((nr) >> _IOC_DIRSHIFT) & _IOC_DIRMASK)
#define _IOC_TYPE(nr) (((nr) >> _IOC_TYPESHIFT) & _IOC_TYPEMASK)
#define _IOC_NR(nr) (((nr) >> _IOC_NRSHIFT) & _IOC_NRMASK)
#define _IOC_SIZE(nr) (((nr) >> _IOC_SIZESHIFT) & _IOC_SIZEMASK)
/* ...and for the drivers/sound files... */
#define IOC_IN (_IOC_WRITE << _IOC_DIRSHIFT)
#define IOC_OUT (_IOC_READ << _IOC_DIRSHIFT)
#define IOC_INOUT ((_IOC_WRITE|_IOC_READ) << _IOC_DIRSHIFT)
#define IOCSIZE_MASK (_IOC_SIZEMASK << _IOC_SIZESHIFT)
#define IOCSIZE_SHIFT (_IOC_SIZESHIFT)
#endif /* _ASMI386_IOCTL_H */
---------------
Yo Darl..... I guess he can't hear me... let's try again....
Hey Idiot! Do you notice a difference? The sys refs, defines etc. are
different.

There is no similarity moron.
You LOSE!

In the words of my friends from SuSE...
HAVE A LOT OF FUN!
I know I will seeing you in prison stripes and/or broke when this is all over
with.

Computer - $790.00
Monitor - $440.00
High Speed Line - $120.00 month
Seeing the biggest idiot in IT today get his walking papers? PRICELESS
For everything else there's Linux.

Nick

[ Reply to This | # ]

Why SCO is forcing their customers to prove compliance
Authored by: tuwood on Tuesday, December 23 2003 @ 11:37 PM EST
In all seriousness is there a chance IBM may have, in a way, forced them to do
this.

In INTERROGATORY NO. 2: and INTERROGATORY NO. 3: I am interpretting that IBM is
asking SCO to identify who has or had rights to the Unix code and what efforts
have been taken to maintain it's secrecy.

I think it would be very difficult for SCO to prove in court that any companies
who have rights to their code did or did not contribute it to Linux so they are
making them "swear" that they didn't. Then in their dream world
they could tell the judge that everyone else swears their customers didn't do
it so it had to be IBM. :-)

The interrogatories can be viewed at:
http://www.groklaw.net/article.php?story=20031206151020872

<disclaimer>
I am just a linux geek, so I may be mis-interpretting the Interrogatories.
</disclaimer>

ps. PJ, Your site rocks! :-)

Tony

[ Reply to This | # ]

Early Reaction to Novell's Copyright Claims and Linus' Statement
Authored by: wvhillbilly on Tuesday, December 23 2003 @ 11:40 PM EST
SCO is a bunch of fleas floating down a river yelling, "Open the
drawbridge!" IBM is gonna put the Raid on them and that's going to be
the end of SCO.


---
What goes around comes around, and it grows as it goes.

[ Reply to This | # ]

Early Reaction to Novell's Copyright Claims and Linus' Statement
Authored by: Anonymous on Tuesday, December 23 2003 @ 11:50 PM EST
You can see this often at the end of the day with SCOX:

Bid: 0.04 x 100
Ask: 892.00 x 100

What the hell is that about? 4c bid and $892 ask? Is this some sort of stock
manipulation?

[ Reply to This | # ]

Software is Streaming Binary Content
Authored by: John Goodwin on Wednesday, December 24 2003 @ 12:59 AM EST
The case SCO vs. Torvalds, which will be tried in the Geek press if not ever in a courtroom, has nothing to do with "copying files from Unix to Linux"--it is not clear if SCO believes this. If they do, they will lose on the facts. But maybe there is a case they should be making, or will make behind the smoke screen they are throwing up now. That case has to do with the Unix ABI, the DMCA, and whether binary interoperability is an "access method" that is protected from circumvention.

They need the ABI because without it, or similar IP (which *must* be Copyright, as often argued), they have no infringement. This is not a straight DMCA case--"you defeated my access mechanism". It is a "you defeated an access mechanism in order to infringe, in a way that is not simple Reverse Engineering to promote interoperability" case. The infringing is needed to cut off the Reverse Engineering exemption that defeated Lexmark. Specifically, it is needed to show Linux goes beyond interoperability and into copyright violation.

So this case, and maybe the IBM one, is about infringement. The claim is that SCO IP tied up in the ABI (which includes the API by reference, as an implementation detail thereof), despite the widespread and freely availability of Unix specifications, its teaching in schools and so forth, under *some* condition when implemented leads to an infringement that taints Linux so as to require a license from SCO.

From the desk of the Register of Copyrights, as quoted in my post above.

[[The purpose of this rulemaking is to determine whether the prohibition on circumvention has adversely affected users "in their ability to make noninfringing uses under this title of a particular class of copyrighted works."]]

[[7. Proposed class: Public domain works or works distributed without restriction.

The commenters addressing open source and open access works provided absolutely no information in support of their requests. ... What the comments relating to public domain works appear to have overlooked is that if a work that is entirely in the public domain is protected by an access control measure, the prohibition on circumvention will not be applicable. Section 1201 only applies to "a work protected under this title" [title 17]. A wholly public domain work is, therefore, no longer protected under title 17 and any protection measures on such a work do not implicate section 1201(a)(1).]]

So if the GPL is really equivalent to Public Domain (charitable intent, as discussed earlier on Groklaw)

[[Although the "digital" version of a work may prevent certain noninfringing uses of that particular copy, that fact alone does not justify an exemption if other versions are unrestricted.]]

In other words, exemption is not required to *enable* non-infringing uses. (If Linux could be non-infringing in using the ABI, given proper access to the information required to construct the ABI, it is not up to an exemption process [or the courts?] to help it get that access.)

Mr. Register says, if you can buy it in the market "freely" that is free enough. The Register cites VHS videos of Public Domain works (which are themselves protected by copyright and not freely redistributable of course, and cost several cans of beer too) as enough to quash complaints about locking up the Public Domain behind access restrictions. Savor that one, as it relates to legal principle, Linux, and Unix. Will the same principle used by the Register of Copyrights be used in court one day, in a similar context, i.e. not Register's exemption process, but Linux's "rights" at law?

Jumping ahead:

23. Proposed Exemption: Conversion of data file formats and source code

[[A few commenters submitted comments relating to source code or data file formats. These comments, however, were at times more difficult to decipher than encryption algorithms. For example, one proposal sought to exempt source code, because it was asserted that source code rendered into binary form effectively encrypts the source code.

.... The vague Red Hat situation appears to implicate the distribution of information about a technology or component that would enable circumvention rather than the act of circumvention itself.]]

So Red Hat was worried the DMCA might stop them from fixing insecure binaries locked up behind the DMCA, and wanted a specific exemption to allow them to get at the source, even if protected by an "access restriction". The Register of Copyrights decided they were worried about releasing the security information, i.e. the exemption was for information *about* access technology (hey, like ABI standards!), and not worried about circumventing an access control to read the source. I think the Copyright office was confused. This is going to come back and kick us. Think about it: information *about* access is not what DMCA exemptions can be about. No special protection for the freely available ABI standards then. That availability is irrelevant to this case--the existence of implementations, and the right to have this, is what is material.

[[Additionally, in regard to reverse engineering, security flaws, encryption research, etc., the commenter must also provide enough information for the Register to analyze whether an existing statutory exemption is capable of resolving the adverse effect to a noninfringing use.]]

Complaining about adverse effects is not enough--you need to argue for a noninfrining use. Is the Linux ABI non-infringing? This has nothing to do with the history of source code, or the availability of standards, or the openness thereof. It has to do with the action of cross-compiling code on Linux so it runs under UnixWare, or running apps compiled on UnixWare under Linux. It has everything to do with the right to implement the Unix ABI in any form; i.e., Is interoperability permitted under 1201(f), when the work not only is independent as to the source code base, but *requires* header information that is part of the ABI in one form or another, even with the addition of different algorithms and implementations? Error code numbers and signal numbers, copied exactly per the standard--are precisely the bone of contention. The F/OSS community says "one has only to look at the file to see it is a different implementation of the same ABI, and only copied the parts of the ABI every implementor has to implement verbatim"; SCO says "precisely". Calling each other stupid and criminal does not meet the *potential* threat. (Though not having a crystal ball or even an X10 in the SCO boardroom, I can't prove that SCO is going to take this line in the courtroom, of course.)

[[Finally, in regard to the commenter’s designation of a class: "source code – human readable description and/or definition of the behavior of a computer program that can be transformed into a format executable by computer hardware but effectively unreadable by humans" – it is unclear exactly what the commenter’s argument is. To the extent that the argument alleges that the rendering of source code into object code is, in itself, encryption, this argument appears flawed. At a minimum, the commenter must address this assertion in a factual context, taking into account the statutory definition of a technological measure that "effectively controls access to a work", and also taking into account the existing statutory exemptions that create specific limitations on the exempted circumvention activity.]]

This, I think, will be a weak point for SCO. Can an access control be as fully documented as the Unix ABI and still "effectively control access" to the IP? Probably. But there is an ambiguity between the IP behind the access control, and the IP accessed. There is no there there. Once you defeat the access control (run SCO programs on Linux using an allegedly infringing ABI implementation) you have infringed the IP. This is a theory of "self-copyrighting access control interfaces", to defeat which is simultaneously to infringe (because the well-know HOW of the access *is* the IP). Ladies and Gentlemen of Groklaw, I present the Catch 22 Access Restricted ABI of the future. We could interoperate, but then I'd have to SCO you.

[[It would also appear that to the extent that such a file format is unreadable, and to the extent that the file format is the product of a “computer program,” one may be able to utilize the reverse engineering exemption in §1201(f) in order to access the information for which one has lawful access.]]

All great stuff except for that last "for which one has lawful access". That's what this case is about guys!

[[Unfortunately, the commenter has provided insufficient information to make that determination. In the absence of the identification of a verifiable or likely adverse effect, such an exemption does not appear to be warranted.]]

But unlike the commentator who didn't get his exemption, SCO *will* claim an adverse effect-- running SCO software on Linux, using an allegedly infringing implementation of their copyrighted ABI. Linux, to interoperate, must be a derivative work of Unix (of course it is, SCO says: it runs Unix programs. You don't get more "derivative" than that, whatever the history of source files).

Now for the meaty one: the Lexmark case, which prompted a proposal for exemption propsed by Static Control.

This is already too long--I'll hit just a few points of interest.

Toner cartridges without the "access control" were available--so the program binaries *could* have been copied. But the Register says that the infringement *doesn't* matter for the Reverse Engineering defense of 1201(f). All that matters is whether there *could have been* a non-infringing way to do it. That is, if Static Control *could have* reverse engineered the programs and created a clean-room clone, then the fact that all they might have cheated and just copied (a clear infringement?) is irrelevant.

Say what? Even if Linus *had* copied the code, it wouldn't matter as far as the Reverse Engineering defense is concerned. That's why this case cannot be about the history of source code files. All that matters, for the defense, is whether the task *could have been done* without infringement. That's why the ABI is so critical. If a non-infringing clean room implementation is possible (independent of the history of Linux files), then Linux has an defense in 1204(f).

[[Whether there was or was not infringement is irrelevant to our inquiry; the only question is whether Static Control could have accomplished what it set out to do without infringing.]]

The rub is whether any non-infringing clean-room implementation of the Unix ABI is possible, given the necessity of "copying" error numbers and signal codes and ioctl codes, to match exactly the Unix ABI. That's why SCO *must* argue direct interoperability (going the extra step beyond iBCS to ensure SCO Unix ELF binaries run on bare Linux) is infringing. Without that, they have no case. [Ergo, they have no case, says the gallery].

There is an amusing (?) minor point, that publishing the interfaces might eliminate the safe harbor of Reverse Engineering!--perverse thought that. The Register dismisses it: [[Similarly, as Professor Ginsburg pointed out, if merely making information available denied the applicability of §1201(f) for creating interoperable works to foster competition, this “clever strategy” would be capable of undermining a significant goal of the provision. ... A canon of statutory construction is to favor an interpretation that would avoid an absurd result.]]

Will the courts hold this too? If not, then the availability of the ABI standard would cut off the Reverse Engineering defense--no need to reverse engineer. Just implement and infringe.

So refute me already.

[ Reply to This | # ]

OT: (Sort of...)
Authored by: brian on Wednesday, December 24 2003 @ 01:07 AM EST
In all this SCO bru-ha-ha rings one loud and clear
statement made by one and all...."We are here to see to
the needs of our investors"...

Now, I don't know anything about investments since I live
paycheck to paycheck and can't even balance my own
checkbook. Having said that, since it is the investors
that are making SCOs actions possible (funding thier
further litigation) shouldn't the investors be held to
some accountability?

I'll broaden this. Should the only risk an investor takes
in backing a company financially be a financial one if the
company is doing wrong? What I'm getting at is the RBC
connection. Can RBC et. al. have their feet held legally
to the fire so to speak?

B.

---
#ifndef IANAL
#define IANAL
#endif

[ Reply to This | # ]

The jury ?
Authored by: Anonymous on Wednesday, December 24 2003 @ 02:33 AM EST
I really wanted to ask, how is the jury picked ? I mean, if the jury consists of
people who know absolutely nothing about programming, copyright, gpl, patents,
or just generally ignorant of most computer related issues, how can such a bunch
of people possibly be trusted with this ? If SCO gets to pick people to be in
the jury, won't they pick computer ignorant ones ? What if there is a just one
of those typical bullies who just says something like : "Well.. let's
just kick that communist bastard out and go to lunch !" or something
equally ludecrous ? I'm sorry about asking stupid questions, but please kindly
explain this process to me.

[ Reply to This | # ]

Early Reaction to Novell's Copyright Claims and Linus' Statement
Authored by: Anonymous on Wednesday, December 24 2003 @ 03:18 AM EST
Here is The CNET
take...http://msn.com.com/2100-1104_2-5132215.html?part=msn&subj=ns_2543&
;tag=mymsn

[ Reply to This | # ]

Putting SCO back on the lead
Authored by: Anonymous on Wednesday, December 24 2003 @ 03:28 AM EST
This is getting to the stage where SCO is just doing what is known in the UK as
'vexatious litigation'.

Someone who is already in litigation with SCO should add into a court motion for
an order against SCO a requirement that SCO does not initiate proceedings or
even threaten proceedings without prior approval from the court.

They are no more than a public nuisance and should be dealt with as such.

[ Reply to This | # ]

Why did Novell wait so long?
Authored by: Anonymous on Wednesday, December 24 2003 @ 03:33 AM EST
The SuSE and Ximian deals?

[ Reply to This | # ]

GROKLAW on Novell Website
Authored by: JMonroy on Wednesday, December 24 2003 @ 05:27 AM EST
Wow... I was kind surprised when I saw a reference to GROKLAW on Novell's web
site. Go to the following page and scroll down. You'll see a link.

http://www.novell.com/linux/

It's just a link to a web page featured on GROKLAW.

Regardless, I think it's oddly interesting... ;-)

[ Reply to This | # ]

Does not owning a copyright give you the right to licence it?
Authored by: Anonymous on Wednesday, December 24 2003 @ 06:11 AM EST
If it is found that Novell does own the copyright what happens to the licences
that Sun and M$ bought ?

Can you licence something you don't own ?

Interesting thought if Novell were to GPL something that M$ has to use.


Another Interested Australian

[ Reply to This | # ]

Truly Commical.
Authored by: Anonymous on Wednesday, December 24 2003 @ 06:27 AM EST
That Darl Geezer reminds me of that Iraqi Minister, you know the Commical Alley
one.

Was it deffiance or just stupidity?

[ Reply to This | # ]

Speaking of Delaware...
Authored by: dcs on Wednesday, December 24 2003 @ 06:34 AM EST
...how goes the Red Hat case? I'm surprised we are not seeing ANY movement from
there!


---
Daniel C. Sobral

[ Reply to This | # ]

Art Project!! SCO Error codes....
Authored by: Anonymous on Wednesday, December 24 2003 @ 06:34 AM EST
I can see the future now....and it looks like THIS:

Mike A.

[ Reply to This | # ]

Timing of the cases
Authored by: Anonymous on Wednesday, December 24 2003 @ 07:03 AM EST
Isnt SCOs quarter ending on 31st Jan 2004? So they time the 'copyright
violation case' in mid-February, and probably co-inciding with the conference
call on the results of the quarter, to take away the attention of analysts from
the 'really nasty' financials of that quarter.

[ Reply to This | # ]

This is only a distraction from the real assault.
Authored by: Anonymous on Wednesday, December 24 2003 @ 07:43 AM EST
Darl Is not the Enemy, only his puppet.

Palladium and the Trusted Computer spells the end of GPL and Free Linux.

http://www.cl.cam.ac.uk/%7Erja14/tcpa-faq.html

Ignore at your perril.






[ Reply to This | # ]

Early Reaction to Novell's Copyright Claims and Linus' Statement
Authored by: Anonymous on Wednesday, December 24 2003 @ 07:51 AM EST
http://www.anerispress.com/wltsim/

absolutely brilliant, thanks to the above poster for bringing it to my
attention.

[ Reply to This | # ]

It's the ABI, Not the API...
Authored by: Anonymous on Wednesday, December 24 2003 @ 08:34 AM EST
After reading all the posts here, I've had time to think
about this, and re-read that letter VERY carefully. Forget
Darls mad spinning. Forget Linus actually wrote the file.
Read the letter only.

Pay attention to the context of "Verbatim Copying". They
DON'T say the WHOLE file was copied verbatim. And they say
MANY, not all ABI's are infringing. They stipulate that
AT&T gave away the rights to the API when it was
standardised (i.e. what SIGKILL is and how it should be
handled). What they are arguing is that the specific AT&T
UNIX implementation of the API as an ABI is copyright (i.e.
SIGKILL = 7). That's right, they're claiming copyright
infringement on the "7" part of that line, nothing else.
While 7 on it's own may be considered trivial and
un-copyrightable, the numbering scheme AS A WHOLE may not
be. That's also why there's no .c files or real code. For
this line of argument, it's all they need.

This is actually VERY clever. The standards do indeed
define the API, but not the ABI, they deliberately leave
the numerical values as an implementation issue. Linus, in
saying that he deliberatly wrote most error numbers to be
the same has in fact (in SCO's twisted world) actually
ADMITTED to deliberately violating their copyright. It's
probably EXACTLY what they wanted him to say. This opens
the way for SCO to argue that whole DMCA circumvention
line.

Of course, as we have seen in the last few days, the courts
are starting to frown on such creative uses of the DMCA,
but watch this as a new avenue for SCO to actively pursue.
This will be a VERY important point of argument, right up
there with the Derived Works in importance for the future
of the industry.

We were all so busy laughing at the absudity of the claim
that we didn't notice that someone in Boies' mob had
actually done something clever enough to earn some of that
fat paycheque...

John.

[ Reply to This | # ]

Early Reaction to Novell's Copyright Claims and Linus' Statement
Authored by: Anonymous on Wednesday, December 24 2003 @ 09:08 AM EST
POSIX doesn't fully define the error codes (they don't define the numbers). So
errno.h is posix + some sco stuff + impelmentation,
SCO then argue that they 'copied' the ABI. But posix ctype.h definition fully
defines linux ctype.h, so there could be no sco stuff there

[ Reply to This | # ]

SCO Issues New 'Comedy of Errors' (Pun intended)
Authored by: Anonymous on Wednesday, December 24 2003 @ 09:43 AM EST
From: ARTICLE published Tue Dec 23, 8:14 PM ET.

[SCO] now is requiring thousands of Unix licensees to verify in writing that they have not violated source-code agreements.

Actually, that's not what the letter is asking them.

These actions by SCO, owner of the Unix operating system....

SCO is not the OWNER of the UNIX OS. Please stop saying that.

In the new letter, which is being sent to a select number of enterprises, SCO identifies some 90 copyrighted application binary interface (ABI) files in Unix that must be removed from Linux, Stowell said.

90 files? Actually, it is 71 files in their letter....(many of which are duplicates) Where do they get 90? Must be an error.

In May, SCO sent a missive to all Fortune 1000 companies advising them that they could be liable for using Linux software.....

Really? Why would they send a letter to ALL Fortune 1000 companies? Does every Fortune 1000 company use Linux? I think that is an error.

Failure to certify full compliance gives SCO the right to terminate the agreement and require the licensee to discontinue use of the software.

Actually, failure to certify does not give SCO any rights, as far as I can tell. Also, recipients of the letters, should they chose to react to them at all, have several options: They can ignore the letter, they can drop SCO as a vendor, they can switch over to Linux, they can rewrite the error message listings, they can pay SCO a licensing fee or a combination of any of the above. The article fails to mention the fact that no-one has proven copyright ownership of anything yet.

[The Dec. 5th court] ruling, in large part, prompted the latest action by SCO, said Yankee Group analyst Laura DiDio. "As the deadline approaches, they have to show what copyrights were violated. SCO is letting people know they are getting more serious about this issue and that they feel they have a strong position," she told NewsFactor.

That contradicts SCO's claim that the copyright letters are 'totally independent' of the IBM case, and it's outcome. Laura, like the rest of us, seems to be having difficulty keeping all the accusations straight. If these letters are independednt of the IBM case, then the court deadline should have no influence on this at all. Perhaps they "are getting more desperate about this issue"?

...the moves by SCO are sure to draw further ire from the Linux community, as well as some hand-wringing by the businesses targeted that may be forced to remove the code in question and somehow replace it.

Hand-wringing? Oh, come on. A less biased article would have chosen 'uncertainty' or 'concern' as a better choice of words. And who says they have to 'somehow replace' it? Even SCO says there are licensing options!

"Overall, though, what SCO is doing is not a bad thing. They are getting proof that users are abiding by the law," said DiDio.

Not a bad thing? When in the history of contemporary business has a company sent threatening letters out to ALL of its customers right before Christmas asking them to CERTIFY that they, and everyone who works for them, and anyone who ever has worked for them in the past 8 years, have never done something they thought was legal in the first place?

If SCO sends out 6000 of these letters, I would like to know just how many come back certified. I am guessing not very many.

The article also shows its true colors when it fails to get a counterpoint or comment from anyone on the other side of the arguement. It, like so many before it, comes across as one-sided.

Mike A.

[ Reply to This | # ]

Lose-Lose Situation...
Authored by: OmniGeek on Wednesday, December 24 2003 @ 09:58 AM EST
SCO has been ordered to disclose allegedly infriging code to IBM. In light of
these farcical "DMCA" letters, they have two really bad options with
regard to this discovery:

1) SCO include the "65 files" in the material produced, showing the
judge they're claiming stuff that has been proven not to be theirs at all, and
providing IBM with ammunition to show their lack of credibility; or

2) SCO do NOT include the "65 files", showing the judge they're
lying to SOMEONE about what they're claiming to own (their public statements
ARE admissible, and IBM WILL bring this gem into court), and further damaging
their credibility.

Either way, SCO take a hit in the credibility department. I wonder if they will
still think the brief stock-price bump they got out of this stunt was worth the
cost...

---
My strength is as the strength of ten men, for I am wired to the eyeballs on
espresso.

[ Reply to This | # ]

Poor SCO
Authored by: lpletch on Wednesday, December 24 2003 @ 10:15 AM EST
Poor SCOX

[ Reply to This | # ]

SCO doesn't argue Novell's reading of the agreement
Authored by: dkpatrick on Wednesday, December 24 2003 @ 10:41 AM EST
If you read the reply SCO sent to Novell in September
(http://www.novell.com/news/press/archive/2003/12/sco.pdf) SCO doesn't refer to
the language in the Novell/SCO agreement to prove their point. Instead they've
taken the same tack they have with IBM: "go read the documents because you
read them wrong".

Is SCO lazy or wrong? It seems to me that a lawyer responding to Novell's claim
would reply with chapter-and-verse to defend their position. Lack of same would
imply that SCO knows Novell is right.

[ Reply to This | # ]

OT: Dont plug your PC to the web - xmas advice from Microsoft
Authored by: Anonymous on Wednesday, December 24 2003 @ 11:02 AM EST
I am not sure whether I should laugh or cry. The Independent has this article about Microsoft's Christmas advice.

[ Reply to This | # ]

Early Reaction to Novell's Copyright Claims and Linus' Statement
Authored by: Kai on Wednesday, December 24 2003 @ 11:09 AM EST
This may not be entirely on topic but I think this is classic:
SCO Group Disputes Novell Copyright Claim (of course, what else would we expect
?)
http://abcnews.go.com/wire/Business/ap20031223_2037.html

...one of my favourite quotes:
"If Novell is claiming we paid them $100 million, and we didn't get the
copyrights, I'm not sure what we got," Stowell said Tuesday. "To do
what they are doing is outright fraud. You don't take over $100 million from
someone, and then claim that you never sold them anything."

Ummm, righto, pot...kettle...black.

[ Reply to This | # ]

SCOG Letter to UNIX Licensees - what are they up to?
Authored by: pooky on Wednesday, December 24 2003 @ 11:38 AM EST

http: //www.caldera.com/scosource/unix_licensee_letter_20031218.pdf

Is SCOG trying to find another way to sue users? I am certainly not an industry expert, but on the surface this letter looks to me like an attempt by SCO to generate another reason to sue users of Linux. Look at all of the requirements the licensee has to meet in 30 days from receiving this letter. Here’s the brief summary.

Must provide list of all machines running SCO products including location, type, and serial number.
Not running Linux binary code derived Linux 2.4
Employees and Contractors have at all times SCO products in confidence
Notified each employee and contractor appropriately that SCO products have to be kept in confidence.
Evidence that you have properly notified employees and contractors, specifically any NDAs or employee policy statements governing this area.
No employees or contractors with access to SCO products have used it for others or allowed use by others.
No employees or contractors have exported SCO products to restricted nations.
No employees or contractors have disposed any part of SCO products to Linux or anything else.
No employees or contractors have assigned or any part of SCO products under the GPL.

That’s a huge amount of work for even a small company. Lets start with the statement at the end of the letter:

“If you fail to make, or are unable to make, a full and complete certification as required above within 30 days of receipt hereof, SCO may pursue all legal remedies available to it including, but not limited to, license termination rights.“

So what SCOG is saying is that if you do not fully comply with the request made in the letter, in the timeframe specified, they may institute legal action against you. This would include a request for items that SCOG is not entitled to by the software agreement as quoted in the letter but are making based on their claim to own code in Linux.

Next, SCOG asks for a mountain of certification work. They want a statement attesting that the licensee 1) Doesn’t run Linux 2.4 or any code derived from it, 2) Has held SCO IP in confidence and has informed contractors they must hold SCO IP in confidence, and must provide evidence to prove proper notification 3) has not exported or employed a contractor that has exported SCO IP to a restricted nation 4) has not contributed any SCO IP to Linux or employed a contractor that has exported SCO IP to Linux.

This would mean that any licensee that is actively testing with Linux or in process of converting systems to Linux cannot truthfully comply with this request.

So to sum things up, if you received this letter, you now have to assemble your NDA you made your contractors sign with apparently must contain language that protects SCO’s IP, employee policies purporting same, contact every contractor you had working on your UnixWare or OpenServer software project and make them attest in writing to a subset of the above list, and then generate a letter to SCO with a signature and evidence attached. You need to have cotractors certify to you so you can certify to someone else regarding their behavior don't you?

Besides the fact that many companies, especially smaller ones, may not have an NDA for contractors to sign or an employee policy written well enough to comply with SCOG’s demand, the document would seem to be open to interpretation by SCOG as to whether it meets the requirement they lay down. This would seem to require the licensee to use a lawyer to draft the response. That takes time and money.

Then you have to contact every contractor you had and make them certify in writing to you they comply with the above. Besides the fact that this is a crap shoot at best, this also takes considerable time and money, and if you have a lot of contractors, it may be practically impossible to achieve this within the timeframe laid out by SCOG.

This also means that you cannot have employed IBM contractors, if you have, you cannot comply with the letter’s request, since IBM is accused by SCOG of copying portions of a SCO product into Linux. It doesn’t matter that the case isn’t resolved yet, SCOG says IBM has done this and you are certifying to SCOG.

Oh, and you also have to assemble a complete list of every single computer you have running your SCO licensed product including where it is located (I assume they mean an address, not the department the system is in), the model type, and serial number of the system. That will take considerable effort for many small and medium sized companies and any large ones that don’t have a bulletproof asset tracking system.

This request would seem to be both inappropriate and over burdensome for a licensee to comply with. Beside the fact that SCOG is demanding compliance with something I don’t think the contract states they are entitled to demand, the request is broad and requires great attention to detail to comply with, and would seem that even a small company might take nearly 30 days to comply with the request. Then add it they sent it out on the 18th of December, a week before Christmas and two weeks before New Years, when employees are very likely to take vacation time. This fact might actually cut the real time to comply down to 20 days or less.

It’s possible that SCOG just didn’t think this through before doing it, but it is also be possible that this is a blatant attempt to ENSURE non-compliance. SCOG is then at liberty to either give the company more time to comply or to, as they say, pursue the licensee with all legal remedies available.

I would read this as the invention of another reason to sue an end-user of Linux, especially one who has also licensed a SCO product. This appears to purport that SCOG could terminate your license, send you a cease-and-desist notice to immediately stop using SCOG products, and then sue you when you can’t comply with that request because systems critical to your business are running on a SCO product. This would avoid copyright litigation altogether with a licensee, wouldn’t it? I think SCOG has just created a pool of about 6000 companies that are potentials for litigation under contract law, not copyright law. A good way to continue expanding litigation when Novell has yanked the proverbial carpet out from under your feet!

-pooky

---
IANAL, etc...

[ Reply to This | # ]

This is the norm ... but the horse is out of the barn
Authored by: dkpatrick on Wednesday, December 24 2003 @ 12:09 PM EST
SCO is asking the customer to do all the things they should have asked when the
product was originally delivered. Their list of demands is consistent with what
any company will ask their customer to track when proprietary and confidential
material is delivered to them.

However, SCO can't go back and arbitrarily change the condition of their
license agreement with the customer by holding them to a legal requirement they
didn't set out originally.

Any customer who tries to answer this has rocks in their head. If they feel
obliged to respond it should be along the lines "If you persist in this
effort we will be forced to look at alternative solutions to SCO's
offerings".

[ Reply to This | # ]

Early Reaction to Novell's Copyright Claims and Linus' Statement
Authored by: T. ProphetLactus on Wednesday, December 24 2003 @ 12:47 PM EST
"By the end of January, McBride said, companies using Linux have three choices: 1) Cease and desist any use of Linux; 2) obtain a license from SCO to use Linux at $699 per CPU (the licensing fee to go up to $1,399 at some time in the future); or 3) continue to use Linux, and lose all rights to the company's Unix license and face SCO in court."

==============

So I guess if your business uses other "SCO" products and finds it impractical to give up using the linux they supplied you with (Caldera?) in 30 days or less ('course you really can't use Caldera now because of their possible GPL violations anyway) they will revoke your Unixware license too, and you are just pretty screwed for ever having met these guys.

Absolute customer relations genius!

They have found a way to make businesses want to lose BOTH their Unixware *and* Linux offerings! Gosh, what's left? Sun and Microsoft products? Hell, if I were Sun or MS, I would have PAID GOOD MONEY for a move like this on SCO's part....no, wait...

TPL

[ Reply to This | # ]

  • Caldera! - Authored by: Anonymous on Wednesday, December 24 2003 @ 01:01 PM EST
  • Restraint of trade? - Authored by: Anonymous on Wednesday, December 24 2003 @ 02:37 PM EST
The SCO Group's "DMCA" notice: Stretching "ex post facto" beyond the limit.
Authored by: dmomara on Wednesday, December 24 2003 @ 01:38 PM EST
Do we have a group of predatory litigationists attempting to ascribe to congress
the making of unconstitutional acts?

Is congress enacting unconstitutional laws for the benefit of non individual
entities to the criminalization of law abiding citizenry, thereby creating
"Bills of Attainder" at the behest and to the entire benefit of
corporate interests?

Please enlighten me as to how I am misinterpreting the DMCA and SBCEA, I see
them as firmly against the founding principles for reasons well beyond the
trivialities of Eldred v. Ashcroft.

[ Reply to This | # ]

Souce code licensees, NOT customers...
Authored by: kuwan on Wednesday, December 24 2003 @ 02:12 PM EST

I've read in a lot of the comments about SCO going after it's UnixWare & OpenServer customers. This is not the case. Their letter to UNIX Licensees is for source code licenses , not for UnixWare or OpenServer licenses. Take a look again at their press release and note the following highlighted in bold:

Under the terms of SCO's System V UNIX contracts, the company has commenced issuing written notice to thousands of licensees requiring each licensee to provide written certification that it is in full compliance with their UNIX source code agreement, including certification that such licensee is not using proprietary UNIX code in Linux, has not allowed unauthorized use of the licensed UNIX code by its employees or contractors, and has not breached confidentiality provisions relating to the licensed UNIX code.

Being that these licenses are for source code I find it strange that the original agreement is for a "Designated" number of CPUs.

One other thing that I'd like to throw out there. Back when AT&T licensed UNIX to just about everyone there were a lot of Universities that took out source code licenses. The Universities then used the source code in class to teach their students about operating systems and other things, which was approved of by AT&T. Many Universities improved upon the code (Berkley) and then gave it back to AT&T and others.

So what I'm saying is, SCO's request will be impossible to fulfill for any University that took out a source code license. UNIX has been widely taught at Universities for over 20 years and was by no means confidential, as SCO would now like people to think. These Colleges would have to identify nearly every computer science student for the last 20 years to comply with SCO's request. And how could students be expected to not use the "methods and concepts" that they went to school to learn?

Hopefully the rest of the world will soon understand how ridiculous SCO's current demands are of their UNIX licensees. Who knows, maybe their UnixWare and OpenServer customers are next.

[ Reply to This | # ]

Early Reaction to Novell's Copyright Claims and Linus' Statement
Authored by: Brent on Wednesday, December 24 2003 @ 02:14 PM EST
Ya know, I was thinking about a statement once made by (MS) Steve Ballmer about
the GPL being 'viral' in that MS believed that any code that 'touched'
GPL'd code then had to be made GPL'd and free, etc.

Step 1 - A unix company makes claim that it's IP was taken ilegally and put
into Linux.

Step 2 - After all is said and done, the Unix company gets beaten in the courts,
in part, because itself had contributed unix code under the GPL

Step 3 - MS now has FUD to backup it's original claim - "See!?! We told
you the GPL was viral - look what happend to SCO! They lost all their valuable
IP!"

Add to this that MS has donated money to SCO (or 'bought a unix license' as
they put it, and I should think this might be plausible. Or maybe I'm just in
a conspiracy mood today.

--Brent

[ Reply to This | # ]

Abstraction, Comparison, Filtration--the Movie
Authored by: John Goodwin on Wednesday, December 24 2003 @ 02:15 PM EST
Here is a presentation of cases pertaining to case law that is highly relevant to SCO's claims against Linux. Yes, as an anonymous contributer pointed out Mitel v Iqtel looks quite relevant to the error codes question.

power point presentation, Uconn.edu

[ Reply to This | # ]

AFC Analysis meets the Unix ABI
Authored by: John Goodwin on Wednesday, December 24 2003 @ 03:05 PM EST

Is the Unix ABI Copyrightable? Has it been infringed? [leave aside, for the
moment, whether SCO hold the copyright or someone else like Novell or an
industry group)

1. A is for Abstraction

Easy. The "ABI" files have been identified. Maybe they are the API
and not the ABI, but the files claimed to be infringing have been identified and
they contain sequences of numbers representing error codes, signal codes, and
numbers used in I/O control system calls. They contain implementations of
certain functions and macros required by the C standard library and POSIX.

2. F is for Filtration

-- F1. included ideas (merger doctrine--expression and idea is not separable).

The "ABI" spec. has error codes, signal codes and so forth. The
alleged files include implementations of these ideas.

-- F2. necessary expression (Scene a faire).

The error codes *could* be chosen differently, unless interoperability is the
goal. The meat of the case will be here--is interoperability legitimate? If
so, then the error codes and signal values and so forth are dictated. If
interoperability means source compatibility and not binary compatibility, then
implementing the exact codes is not necessary, since interoperability could be
achieved without this, but at some cost to efficiency.

Basically, can one legally build a Unix-clone that runs Unix binaries without
"translating" the ABI via some mechanism like iBCS? Here is where
the DMCA argument will plug in.

So, are error codes (list of numbers, not the ENOTFOUND symbols in the
standards, copyrightable?)

-- Public Domain

I don't think either Unix or Linux or the standards are "Public
Domain". Maybe POSIX is, in effect, but not the exact assignment of error
codes.

3. C is for Comparison

Substantial similarity. Yes as to error codes. The point is that if something
is Copyrightable it must be original. The macro and function implentations are
clearly original, so they cannot be the focus of infringement.

Conclusion: the ABI, if we can call errno.h that really, is copyrightable in
principle (but maybe lapsed long ago by the facts). Clearly there is some
industry intent to make all Unix-like systems interoperable via standardized
APIs and ABIs, and these sorts of things have been protected in the past. If
there is any case here, it is at the filtration stage, specifically
"necessary expression".

Did Linus choose his error codes because he had to, to achieve a legitimate end
of interoperability, or to acheive an end that infringes? Basically, for Linux
to be infringing, it has to be illegal to make a functional duplicate of
UnixWare that interoperates at the binary level.

If that claim is true (and it is SCO's only possible claim), then they have
raise TCO for proprietary Unix to the point it is not sustainable. Linux will
be obliged to make itself incompatible with Unix, so the only choice for SCO's
customers will be to accept higher development costs for UnixWare or abandon
UnixWare for a sanitized Linux.

If SCO wins, they lose.

[ Reply to This | # ]

Timing for State consumer protection?
Authored by: bbaston on Wednesday, December 24 2003 @ 04:16 PM EST
PJ and GrokLaw-yers,
It really is sad that my next week will be spent preparing a legal defense against SCO and Darl McBride. I've gotten some preliminary legal advice, but what I need now is the open-source community's input. *NOT* legal input, just thoughts and ideas, and how you think my pursuing this activity, and its success or failure, might affect the GPL, copyright, my customers, etc.
I own a computer consulting business which has installed Linux servers, desktop stations, gateways, security and firewall, Internet gateway, etc. My business is incorporated in Arkansas, and I hold all shares. Right now, I'm the only full-time employee. There are no known issues that would cause concern even in event of a full audit (MS, SCO, etc.).
Since 2003, Linux on the Desktop has become common, and I expect to continue with entire small-business conversions from Windows to Linux in 2004.
Personally, I operate at least 6 networked Linux computers in my home and office, and I am responsible for (very roughly) 24 other Linux installations through consultancy, just in 2003. I'm a small potato and my company seldom has much money and has only token assets.
Yet, according to Darl McBride, I am threatened with severe financial outlays for infringement. If, for example, licensing was my settlement, even that $21,000 would put me under.
Basis for the charges? Fraud, extortion, unfounded consumer threats, that hasn't been decided yet. My status for the State is as a consumer and/or as a computer business dependent on customer goodwill and GNU/Linux. I will do the initial discussions, etc., with state and local government agencies, postponing my lawyers fees until I have a very good plan.
Goal of this activity is to protect my rights and my livelihood, so long as I perceive this to be in the FOSS community interest (especially, not harmful to the FOSS cause.
800-482-8982 is the Arkansas Attorney General Consumer Hotline. Though laughingly out-of-date, the above account name link lists my business web site.
So that's the deal. #1 thing to see is if PJ and participants believe this thread should go elsewhere for this input, in which case I will certainly concur. #2 is "is this a good idea or bad idea for any of us"?

---
Ben B
-------------
IMBW, IANAL2, IMHO, IAVO,
imaybewrong, iamnotalawyertoo, inmyhumbleopinion, iamveryold,

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Lawyers
Authored by: Anonymous on Wednesday, December 24 2003 @ 04:55 PM EST
I came across this article in give you some idea of how the lawyer's think
http://www.malawyersweekly.com/feature.cfm
It will only be available till the 28th

Jack

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Early Reaction to Novell's Copyright Claims and Linus' Statement
Authored by: Anonymous on Thursday, December 25 2003 @ 07:28 AM EST
I've been thinking of a list of the problems SCO faces in attempting to get
licenses for the header files. This incomplete list is just what I've been able
to come up with so far by thinking it over in my spare moments. Additions are
welcome.

1. SCO needs to prove actual copying was done from the Unix source code SCO
claims ownership of to Linux, which they will have a difficult time doing since
it looks like Linus Torvalds wrote at least some of the files

2. They need to go to court against Novell to prove they own the copyrights on
those Unix files before they can file a lawsuit against anyone

3. Caldera/SCO did nothing for years as the files have been distributed by
countless Linux companies and used by countless users, so they forfeit any
ability to collect damages. They either knew about it or were grossly negligent
for not knowing what was going on and protecting their rights

4. Caldera/SCO distributed these files under the GPL in their own desktop and
server Linux products for years, and from at least mid-May to this day,
knowingly distributed them under the GPL as part of their kernel source

5. Unless end users are actually distributing Linux kernel source code, they are
not liable for copyright infringement

6. Even if Linux companies or end users are guilty of copyright infringement, it
was unintentional and SCO cannot get attorney fees or punitive damages for
unintentional infringement, only actual damages

7. Even if SCO proves actual copying took place, SCO needs to prove to a court
that those header files are actually worth something and that they've been
injured in some substantial way to collect actual damages. If the content of the
files comes directly from the Open Group's POSIX/Single Unix Specification or
from NIST/FIPS documents, it is nearly worthless. To claim that they're worth
$699 or $1399 per CPU is blatant fraud and/or extortion.

8. It's possible that these header files were placed into the public domain by
AT&T's failure to put copyright notices on them

9. It's possible the content of the header files came from BSD, which is a
legal source

10. It's possible Caldera themselves released these header files under the BSD
license when they released the ancient versions of Unix

11. SCO executives claimed earlier this year that the ABI code wasn't illegal,
so alleged infringers can argue promissory estoppel

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Early Reaction to Novell's Copyright Claims and Linus' Statement
Authored by: Anonymous on Thursday, December 25 2003 @ 08:07 AM EST
An informative post by larryblunk is here.

http://lwn.net/Articles/64478/

Somrthing else I've been thinking about is how SCO could prove that the Linux
kernel binary you're using was built from the header files they claim ownership
of. Considering that header files are mostly defined constants, small macros,
and function declarations, and any actual code in the macros could potentially
be obfuscated by GCC optimizations when it's turned into machine language
(meaning: different source instructions could be turned into the same assembly
instructions), how could anyone prove that you didn't do a clean implementation
of those files from any number of available clean and unencumbered BSD or public
domain copies of the files and rebuild your kernel from the clean headers?

Futhermore, would making copies of only the kernel binary files even be
considered copyright infringement? Would OEMs or end users of Microsoft
products be liable for copyright infringement if a Microsoft developer illegally
copied some code into headers used to build a Microsoft product like Windows or
Office?

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Early Reaction to Novell's Copyright Claims and Linus' Statement
Authored by: Anonymous on Tuesday, December 30 2003 @ 12:46 AM EST
I hope Novell proves that once again SCO is full of dung.
One thing that concerns me though, SCO's letter clearly says UNIX. However
according to the transcript of the SCO v. IBM lawsuit Mr. McBride claims the
suit is over Unixware and clearly states that UNIX is not involved. Huh?
So which is it? Novell could really blow things out of proportion and release
the code for UNIX that it does hold the copyright to. Wouldn't that be
interesting!

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