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| It is DMCA Section 1202 and More - Exh. A: Dec. 19th Letter From SCO to Lehman |
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Tuesday, February 17 2004 @ 09:21 PM EST
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Here is one of the letters Red Hat has sent to the judge, attached to its Motion. It is the December letter from SCO to Lehman. Sure enough, it's the DMCA Section 1202. But that isn't all.
They have two claims: first, they are trying to say that the ABI files come verbatim from Unix System V, which they assert is a serious violation of their rights. Second, they say their copyright notices, which under the BSDi settlement they say are supposed to be on the ABI files, are not properly on the files. How they know what is in the settlement when they told IBM and the judge in discovery, IIRC, that they don't have a copy of it, is a mystery. However, the solution isn't so simple as just putting the proper notices on the files, my pretty.
They are the copyright holder, they say, and they never gave permission for their copyrighted code to be released under the GPL, although they acknowledge that they were "improperly distributed under the GPL", evidently by their butler. Or Miss Scarlett, with a mouse, in the drawing room. At any rate, it wasn't *them*. Somehow it just happened and now, as copyright holder, they demand their immediate removal.
These files were supposed to have USL / SCO copyrights attached. The result, which they call "UNIX Derived Files", may not be used in any GPL distribution without the copyright holder's permission. That would be SCO, and they clearly say that their affirmative consent "has not been obtained and will not be obtained". So there. Take that.
They think they are being mighty clever, I guess. Cunning, you might even say. The Big Bad Wolf would like to blow Linux's house down. They hint they have more code in their back pocket that they will spring on Linux in due time. I think, however, they will find they are mistaken about the code, as time will reveal, as well as about whether they released the ABIs under the GPL, not to mention their unique "legal theory" about how it works. Then there is the big question: does Novell actually own the copyrights on Unix System V instead of SCO? More on all this later, after I get all the Red Hat documents transcribed.
I am working from GIFs and BMPs and in part from RTFs from scanned documents. In some cases you will see brackets, which just means I guessed about what the word probably was but the line was cut off at the margin. <b>UPDATE:</b> I have the PDF now and have made corrections and removed the brackets. You can get the PDF also: http://www.groklaw.net/pdf/docket-30-high.pdf and http://www.groklaw.net/pdf/docket-30.pdf. The first is the high resolution copy.
What does it all mean? If you are asking my opinion, SCO is dumb as dirt about code and they never did pass my remedial GPL classes. If this is their best shot, I'd say the game is over. That may be why Lehman's reply, which I will do next, is essentially, don't contact us further. Talk to Red Hat. Once again, the GPL is their Achilles Heel, and it will be their downfall. I would personally like to thank Richard Stallman and the FSF for inventing it for just such a rainy day as today.
*******************************************************
SCO
December 19, 2003
Richard Fuld
Chairman & CEO
Lehman Brothers Holdings, Inc.
[address]
Re: The SCO Group, Inc. ("SCO")
Dear Mr. Fuld:
In May 2003. SCO warned about enterprise use of the Linux operating system in violation of its intellectual property rights in UNIX technology. Without exhausting or explaining all potential claims, this letter addresses one specific area in which certain versions of Linux violate SCO's rights in UNIX.
In this letter we are identifying a portion of our copyright protected code that has been incorporated into Linux without our authorization. Also, our copyright management information has been removed from these files. These facts support our position that the use of the Linux operating system in a commercial setting violates our rights under the United States Copyright Act, including the Digital Millennium Copyright Act. We are notifying you of these facts so you can take steps to discontinue these violations. We believe these violations are serious, and we will take appropriate actions to protect our rights. No one may use our copyrighted code except as authorized by us. The details of our position are set forth below. Once you have reviewed our position, we will be happy to further discuss your options and work with you to remedy this problem.
Certain copyrighted application binary interfaces ("ABI Code") have been copied verbatim from the UNIX System V code base and contributed to Linux for distribution under the General Public License ("GPL") without proper authorization and without copyright attribution. While some application programming interfaces ("API Code") have been made available over the years through POSIX and other open standards, the UNIX System V ABI Code has only been made available under copyright restrictions. AT&T made these binary interfaces available in order to support application development to System V-based operating systems and to assist System V licensees in the development process. The System V ABl's were never intended or authorized for unrestricted use or distribution under the GPL in Linux. As the copyright holder, SCO has never granted such permission. Nevertheless, many of the ABIs contained in Linux and improperly distributed under the GPL, are direct copies of UNIX System copyrighted software code.
Any part of any Linux file that includes the copyrighted binary interface code must be removed. Files in Linux version 2.4.21 and other versions that incorporate the copyrighted binary interfaces include:
include/asm-alpha/errno.h
include/asm-arm/errno.h
include/asm-cris/errno.h
include/asns-i386/ernno.h
include/asm-ia64/errno.h
include/asm-m68k/errno.h
include/asm-mips/errno.h
include/asm-mips64/errno.h
include/asm-parisc/errno.h
include/asm-ppc/errno.h
include/asm-ppc64/errno.h
include/asm-s390/errno.h
include/asm-s39Ox/errno.h
include/asm-sh/errno.h
include/asm-sparc/errno.h
include/asm-sparc64/errno.h
include/asm-x86 _64/errno.h
include/asm-alpha/signal.h
include/asm-arm/signal.h
include/asm-cris/signal.h
include/asm-i386/signal.h
include/asm-ia64/signal.h
include/asm-m68k/signal.h
include/asm-mips/signal.h
include/asm-mips64/signal.h
include/asm-parisc/signal.h
include/asm-ppc/signal.h
include/asm-ppc64/signal.h
include/asm-s390/signal.h
include/asmn-s390x/signal.h
include/asm-sh/signal.h
include/asm-sparc/signal.h
include/asm-sparc64/signal.h
include/asm-X86 _64/signal.h
include/linux/stat.h
include/Iinux/ctype.h
lib/ctype.c
include/asm-alpha/ioctl.h
include/asm-alpha/ioctls.h
include/asm-arm/ioctl.h
include/asm-cris/ioctl.h
include/asm-i386/ioctl.h
include/asm-ia64/ioctl.h
include/asm-m68k/ioctl.h
include/asm-mips/ioctl.h
include/asm-mips64/ioctl.h
include/asm-mips64/ioctls.h
include/asm-parisc/ioctl.h
include/asm-parisc/ioctls.h
include/asm-ppc/ioctl.h
include/asm-ppc/ioctls.h
include/asm-ppc64/ioctl.h
include/asm-ppc64/ioctls.h
include/asm-s390/ioctl.h
include/asm-s390x/ioctl.h
include/asm-sh/ioctl.h
include/asm-sh/ioctls.h
include/asm-sparc/ioctl.h
include/asm-sparc/ioctls.h
include/asm-sparc64/ioctl.h
include/asm-sparc64/ioctls.h
include/asm-x86_64/ioctl.h
include/linux/ipc.h
include/linux/acct.h
include/asm-sparc/a.out.h
include/linux/a.out.h
arch/mips/boot/ecoff.h
include/asm-sparc/bsderrno.h
include/asm-sparc/solerrno.h
include/asm-sparc64/bsderrno.h
include/asm-sparc64/solerrno.h
The code identified above was also part of a settlement agreement entered between the University of California at Berkeley and Berkeley Systems Development, Inc. (collectively "BSDI") regarding alleged violations by BSDI of USL's rights in UNIX System V technology. The settlement agreement between USL and BSDI addressed conditions upon which BSDI could continue to distribute its version of UNIX, BSD Lite 4.4, or any successor versions. One condition was that BSD retain USL copyrights in 91 files (the "UNIX Derived Files"). A complete listing of the UNIX Derived Files is attached. The ABI Code identified above are part of the UNIX Derived Files and, as such, must carry USL / SCO copyright notices and may not be used in any GPL distribution inasmuch as the affirmative consent of the copyright holder has not been obtained, and will not be obtained, for such a distribution under the GPL.
Use in Linux of any of ABI Code or other UNIX Derived Files code identified above constitutes a violation of the United States Copyright Act. Also, distribution of copyrighted code identified above as part of a source or binary distribtion of Linux, with copyright management information deleted or altered, violates the Digital Millenium Copyright Act ("DMCA") codified by Congress at 17 U.S.C. Section 1202. DMCA liability extends to those who have reasonable grounds to know that a distribution (or re-distribution as required by the GPL) of the altered code or copyright information will induce, enable, facilitate, or conceal an infringement of any right under the DMCA. In addition, neither SCO nor any predessor in interest has ever placed an affirmative notice in Linux that the copyrighted code in question could be used or distributed under the GPL. As a result, any distribution of Linux by a software venfor or a re-distribution of Linux by an end user that contains any of the identified System V code violates SCO's rights under the DMCA, insofar as the distributor knows of these violations.
As stated above, SCO's review is ongoing and will involve additional disclosure of code misappropriation. Certain UNIX code, methods and concepts, which we also claim are being used improperly in Linux, will be produced in the pending litigation between SCO and IBM under a confidentiality order.
Thank you for your attention to these matters.
Sincerely,
THE SCO GROUP, INC.
By: _________________________
Ryan E. Tibbitts
General Counsel
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| Authored by: nik on Tuesday, February 17 2004 @ 10:15 PM EST |
Didn't USL and BSD settle because there was a strong indication that most or all
of USL's copyrights would be delcared invalid if the case went to trial?
If so, that would seem to (on it's own) hole SCO's ship below the waterline (for
about the 20th time)[ Reply to This | # ]
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| Authored by: kberrien on Tuesday, February 17 2004 @ 10:15 PM EST |
Let me just ask, to make sure my memory is correct.
Not only did old/new SCO release these ABI files under the GPL, but didn't THEY
even not include the copyright registrations as well?
[ Reply to This | # ]
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| Authored by: Anonymous on Tuesday, February 17 2004 @ 10:18 PM EST |
I could only find one:
Any part of any Linux file that includes the
copyrighted binary interface co[de] must be removed. Files in Linux version
2.4.21 and other versions that incorporate t[he] copyrighted binary interfaces
include:
So all TSG is doing is demanding that these files be
removed, and any code that contains these copyrighted files be removed? I guess
I'll have to see the remaining items before passing judgment, but that seems
like the most rational demand TSG has made. Never mind that the Linux community
demanded proof and these specifics, oh, almost a year ago, so that any
validly offending code could be removed.... [ Reply to This | # ]
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| Authored by: bobn on Tuesday, February 17 2004 @ 10:20 PM EST |
| Aren't some of these (errno.h in particular) not even the same as the sysV
files, per Linus Torvalds?
In that case, no pissible theory of coyright
makes it SCO's. [ Reply to This | # ]
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| Authored by: brenda banks on Tuesday, February 17 2004 @ 10:24 PM EST |
"The code identified above was also part of a settlement agreement
enter[ed] between the University of California at Berkeley and Berkeley Systems
Development, Inc. (collectively "BSDI") regarding alleged violations
by BSDI of USL's rights in UNIX System V technology. The settlement agreement
between USL and BSDI address[ed] conditions upon which BSDI could continue to
distribute its version of UNIX, BSD L[ite] 4.4, or any successor versions. One
condition was that BSD retain USL copyrights in [missing word] files (the
"UNIX Derived Files"). A complete listing of the UNIX Derived Files
[is] attached. The ABI Code identified above are part of the UNIX Derived Files
and, [as] such, must carry USL / SCO copyright notices and may not be used in
any GPL distribution inasmuch as the affirmative consent of the copyright holder
has not been obtained, and will not be obtained, for such a distribution under
the GPL."
kind of funny they can quote from something they have no access to or did we
just catch them in another lie
<gasp>
---
br3n
irc.fdfnet.net #groklaw
"sco's proof of one million lines of code are just as believable as the
raelians proof of the cloned baby"[ Reply to This | # ]
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| Authored by: Anonymous on Tuesday, February 17 2004 @ 10:26 PM EST |
| See the reason's why SCO's ABI claims will fail here. [ Reply to This | # ]
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| Authored by: Anonymous on Tuesday, February 17 2004 @ 10:27 PM EST |
Correct me if I am wrong but not only does the linux kernal contain these
headers but so does thousands of programs? most of these are standard c headers.
One would have to question if borland/inspire are going to be the next on the
sco hit list.[ Reply to This | # ]
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| Authored by: Anonymous on Tuesday, February 17 2004 @ 10:30 PM EST |
What kind of idiot do you have to be, to wave threats at a financial house while
you're in the middle of a stock manipulation scam?
Seriously, even if the case had some merit, they could hardly choose a worse
target. Won't Lehman Bros. be just the folks to alert the SEC to possible
shenanigans (through inside connections, which would presumably reach ears that
Groklaw doesn't?)
Won't Lehman Bros. be just the sort of people that the trade press listen to,
when deciding whether to say "strong buy" or "strong sell?"
Isn't Lehman the sort of company that gets noticed, even when tech companies
(even IBM!) are safe to ignore?
What madness is this? How could they possibly have chosen their adversary any
more foolishly? I'd think someone like Lehman could be more dangerous than
IBM. IBM may have an army of lawyers, but Lehman Brothers know securities
issues and have the clout to say "we smell fraud" and expect action to
ensue... Don't they?
I'd certainly not want to risk finding out if I were making decisions for SCO.
[ Reply to This | # ]
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| Authored by: Anonymous on Tuesday, February 17 2004 @ 10:30 PM EST |
| Uh, PJ, why are you reporting the DMCA angle as news when this letter appears to
be identical to the DMCA letter you already reported on two months
ago?
http://www.groklaw.net/article.php?story=20031222161942627
(By the way, in that article the "Dear Linux User" was mistakenly
transcribed as "Dear Unix Licensee" (which was the salutation from the other SCO
letter released that week).) [ Reply to This | # ]
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| Authored by: Anonymous on Tuesday, February 17 2004 @ 10:34 PM EST |
The more of this I see the more it angers me. I just about can't take any more
of this stupidity. Will someone put a sock in Darl's mouth already? I think we
also need to start digging for more of a Microsoft connection. It wouldn't
surprise me one bit to find out Bill & Steve are pullin' the strings buying
time for Longhorn. Paying off the leaders of a dying company to try and dirty up
the good Linux name just makes too much sense to me.[ Reply to This | # ]
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| Authored by: Ruidh on Tuesday, February 17 2004 @ 10:37 PM EST |
No, of course not. They told IBM they don't have a copy.
I can just imagine the look on a judge's face when SCO tells then they don't
actually have a copy of the settlement agreement that their case relies on.
After Linus demolished their copyright infringement argument, I can't imagine
that this is what they are going to reveal when and if they do get around to
suing an "end user".[ Reply to This | # ]
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| Authored by: dtidrow on Tuesday, February 17 2004 @ 10:38 PM EST |
| Linus has stated publically that he wrote errno.h for Linux from scratch,
and it wasn't copied from any other Unix derivative. IIRC, many of the numbers
don't match up with standard Unix. [ Reply to This | # ]
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| Authored by: Anonymous on Tuesday, February 17 2004 @ 10:47 PM EST |
Baldrick always had a cunning plan, but I cannot recall a single episode where
Black Adder availed himself. It seems that Daryl has been listening a little too
closely to Baldrick....[ Reply to This | # ]
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| Authored by: mflaster on Tuesday, February 17 2004 @ 11:01 PM EST |
Is there a statute of limitations on these types of claims?
In other words, if the supposed copying was introduced into errno.h 15 years
ago, can SCO wait until they get widely distributed, and then complain to
everyone? Or do they have to first complain soon after the copyright violation
occurs?
Despite the fact that SCO claims that 2.4 is bad, and 2.2 is good - most of
these files haven't changed in forever.
Mike
[ Reply to This | # ]
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| Authored by: Anonymous on Tuesday, February 17 2004 @ 11:02 PM EST |
This may be paranoid but this seems like an effort to destroy Ray Noorda. His
money is still tied up in canopy group? It is being mismanaged? get the Canopy
group in such stupid dire circumstances that they will be decimated and hence
also Mr. Noorda... Bill Gates wins.
[ Reply to This | # ]
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| Authored by: Anonymous on Tuesday, February 17 2004 @ 11:13 PM EST |
Do we know when and by whom the copyright notices were stripped? Was it Caldera
under R. Love? Was it Santa Cruz Operations because they didn't think they
needed to be there? Was it some inadvertant thing from some BSD distro? More to
the point, were they ever there?
The agreement on the copyright notices was reached, but was the plan ever
implemented, ie, were the copyrights ever placed on the files? Isn't it true
that all we know about the settlement agreements just second-hand information
about a sealed court case.[ Reply to This | # ]
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| Authored by: Ruidh on Tuesday, February 17 2004 @ 11:33 PM EST |
I can probably think of a half dozen defenses without tryong, but the one that
seems the most potent to me is called the law of the case. In brief it means
that a party to a suit is bound by the decisions made by other courts which have
had their appeals exausted.
SCO, as a sucessor in interest to USL, is bound by the decisions of the USL v.
BSDi case. Specifically the ruling by the judge in that case that header files
are not copyrightable. I don't see how SCO can escape that ruling.
[ Reply to This | # ]
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| Authored by: Anonymous on Tuesday, February 17 2004 @ 11:43 PM EST |
| The names of the constants are, of course, part of the Posix standard e.g. here
. So presumably SCOG are claiming copyright on the actual numeric
values, since they're not defined by POSIX. IANAL, but (given Linus's
statement he didn't copy the USL files) isn't this covered by Sect. 1201 (f)
Reverse Engineering exception of the DMCA?
[ Reply to This | # ]
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| Authored by: Anonymous on Wednesday, February 18 2004 @ 12:01 AM EST |
So SCO still thinks they have copyrighted code in Linux.
Suppose for a moment that they do. (As I understand the law -- and of course
IANAL -- it may not matter that Linus typed some of these files in from scratch;
if it duplicates what's in the copyrighted code, then it could be in
violation.)
But exactly what is covered in copyright? The text of the file, yes. But is
the association of certain macros numbers and numeric values copyrighted?
Suppose instead of
#define EPERM 1
we have
#define EPERM 0x01
or even
const static int EPERM = ~(0xFF) | 0x01
(It may not be ANSI C, but I think this works under GCC -- though I haven't
tried it, and IANACC :-)
Bottom line: We replace the header files -- late, yes, but we strip out all the
old, claimed headers. Remove anything tainted by SCO's claims. Ditch the
syntax, but keep the semantics.
So does copyright cover semantics?
[ Reply to This | # ]
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| Authored by: wvhillbilly on Wednesday, February 18 2004 @ 12:09 AM EST |
Question: Does SCO think they can copyright individual program instructions, or
individual lines of code, out of context with the whole?
---
What goes around comes around, and it grows as it goes.[ Reply to This | # ]
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| Authored by: Anonymous on Wednesday, February 18 2004 @ 04:08 AM EST |
as lehman seem to be redhat users, there is no proof that they have the linux
source installed, as you can install redhat without installing the kernel
source. this means to me, sco is claiming copyright even for the binary version
of the kernel.
as errno.h, one file that they claim they have the copyright, just defines
numbers which are converted from cpp, so
i=EPERM
gets i=1
which ends up in asm code ala
move #1, [adressofi]
so how can a number violate someones copyright?
if so, i'll from now on will request the copyright of the number 64...
DOH!
#define ENONET 64
too late :)[ Reply to This | # ]
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| Authored by: brendthess on Wednesday, February 18 2004 @ 06:19 AM EST |
| How they know what is in the settlement when they told IBM and the judge in
discovery, IIRC, that they don't have a copy of it, is a
mystery.
Actually PJ, their documentation does not say anything about
this, and IBM didn't actually ask for this. As I noted previously in this
post, "Think it through. SCO may not have “The pleadings, deposition
transcripts and deposition exhibits from UNIX System Laboratories, Inc. (“USL”)
suit against BSD”, but could still have the [settlement] on file
somewhere."
Thus, SCO may be telling nothing but the truth here, since I
can't find anywhere that IBM actually requested the Settlement itself. (Of
course, I could be wrong...) ---
I am not even vaguely trained as a lawyer.
Why are you listening to me? [ Reply to This | # ]
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| Authored by: Anonymous on Wednesday, February 18 2004 @ 08:23 AM EST |
This is the copyright section of errno.h from FreeBSD.
The remainder of the header block consists of the (4
clause) BSD license as well as RCS info for FreeBSD.
* Copyright (c) 1982, 1986, 1989, 1993
* The Regents of the University of California. All
rights reserved.
* (c) UNIX System Laboratories, Inc.
* All or some portions of this file are derived from
material licensed
* to the University of California by American Telephone
and Telegraph
* Co. or Unix System Laboratories, Inc. and are
reproduced herein with
* the permission of UNIX System Laboratories, Inc.
OK, who owns this file? Do the Regents have primary
ownership with an acknowledgement that USL has some
copyright interest in it? Do they both own it? Is the USL
copyright even legally valid (since it was added by terms
of a settlement and not when the work was created)?
Also, I though TSC told Magistrate Wells there is no SYSV
code in Linux ... [ Reply to This | # ]
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| Authored by: Anonymous on Wednesday, February 18 2004 @ 12:28 PM EST |
Possibly the reason for noting the BSDi/USL Settlement is not to ding the victim
for not following it, but to "inform" them that the code has been
striped of its "Copyright Management Information" so that the victim
can no longer claim innocent infringement.
I suspect one reason SCOG wants to hit on commercial users is that they can
claim loading Linux on new corporate machines constitutes distribution, which
combined with the above might get them the 1202 voilation SCOG is trying to
create.
[ Reply to This | # ]
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| Authored by: old joe on Wednesday, February 18 2004 @ 01:02 PM EST |
Right so SCO is telling us the BSD settlement required BSDi and UCB to add
copyright notices to these files.
What else did the settlement require?
We know UCB and BSDi continued to distribute these files, with the copyright
notices added so we can presume ATT/USL/Novell gave UCB and BSDi a license to
distribute these files.
There must be a pretty good chance that even if SCOG win all they will get is an
injunction to stop Linux distributing these files UNTIL THEY ADD THESE COPYRIGHT
NOTICES.
How long would it take to add these notices? 10 minutes?
Anyone want to write a macro to add such a notice to these files?[ Reply to This | # ]
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| Authored by: pyrite on Wednesday, February 18 2004 @ 01:40 PM EST |
the files in Linux have a much shorter history than the files in System Five.
System Five is descended from a long line of errno.h files, with changes
throughout the course of the several decades. The files in Linux have had no
such evolution. Anyone who takes a look at those files will see that they are
different.
There is no way on earth (and I have not seen the code) that those files can be
verbatim. It's just completely impossible. Well, maybe not completely, but it's
extremely unlikely that there is any similarity whatsoever.
Unless, of course, someone goes into the System Five errno.h file and changes it
to match. That's the only way. Maybe one of these discoveries it will be SCO
that will have to produce all versions of System V, and then we will see exactly
how those Linux files got into their code.
Bad, bad SCO.
[ Reply to This | # ]
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