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SCO's 12/19 Letter to Lehman Compared with Generic 12/19 "Dear Unix Licensee" Letter |
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Tuesday, February 17 2004 @ 11:33 PM EST
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Here is the December 19 letter to Lehman Brothers, compared with the generic December 19th "Dear UNIX Licensee" letter, thanks to the creativity of Groklaw member Hykin. The blue is new material in the Lehman letter, and the red text is edited out of the UNIX Licensee letter and does not appear in the Lehman letter. It's helpful in several ways, one of them being that it shows what the missing words likely are in the Lehman Brothers letter. So... there wasn't just one form letter sent to everyone, after all. UPDATE: The files that we thought were dropped were not. I have the PDF now and we can read it clearly. There were a couple of other tweaks, so be sure to note the changes.
An alert reader notes that SCO told IBM in discovery that there was only one form letter sent to all. It appears they spoke with forked tongue. Here is the relevant part of the discovery document:
IBM:
(2) the letters SCO sent to UNIX licensees, Linux end-users and Fortune 1500
companies regarding Linux and/or AIX, or any responses it received to such
letters;
SCO:
(2) "The letters SCO sent to Unix licensees, Linux end-users and
Fortune 1500 companies regarding Linux and/or AIX, or any responses it received
to such letters.” Regarding the letters sent in May and December 2003,
there is only the form letter, which obviously you have downloaded from SCO's
website, and the distribution list. There are not copies of all 1500 letters
that were sent out. The form letter was previously produced at Bates
1269622-1269623. In addition, to the extent you want the distribution list used
for the mail merge, we can provide this as well.
The December letter was created after the documents were collected from SCO, so
it would not have been in production. Again, although you already have a copy of
the form letter, we will provide it if you want it.
Regarding the responses to each of these letters, SCO will check to see if it
received any responses to the May letter. To the extent it has received
responses to the December letter, those responses obviously were received after
documents were collected from the client. To the extent you want these
responses, we can collect those documents and provide them to you as they are
kept in the ordinary course of business. See what happens when you try to hide from so many eyeballs?
***********************************************************
SCO
December 19, 2003
Richard Fuld
Chairman & CEO
Lehman Brothers Holdings, Inc.
[address]
Re: The SCO Group, Inc. ("SCO")
Dear Unix Licensee 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 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 our copyrighted
UNIXSystem 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 restriction. AT&T made these binary interfaces
available in order to support application development to System V-basedUNIX
operating systems and to assist System VUNIX licensees [in] the development
process. The System VUNIX ABI'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 our 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/asm-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-s390x/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/asm-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/linux/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
enter[ed] between the University of California at Berkeley and Berkeley
Systems Development, Inc. (collectively "BSDI") and UNIX Systems Laboratories, Inc. 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, including certain "UNIX Derived Files"; which includes the ABI Code. 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 is 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. Distribution of the copyrighted ABI Code, or
binary code complide using ABI code, Also, distribution of copyrighted code identified above as part of a source or binary distribution of Linux, with copyright management
information deleted or altered, violates the Digital Millennium
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 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 predecessor 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 vendor or a
re-distribution of Linux by an end user that contains any of the
identified UNIXSystem 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
disclosures 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: Nivuahc on Wednesday, February 18 2004 @ 12:18 AM EST |
Dang PJ. Get some sleep eventually.
Thanks for everything you do!
---
SCO-Logic: If you lie about something long enough, people will eventually
believe it. And if they don't believe it, you aren't yelling loud enough.[ Reply to This | # ]
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Authored by: captainhaddock on Wednesday, February 18 2004 @ 12:18 AM EST |
Did you mean to misspell "Millennium" in the letter? You might want to
insert another [sic] if SCO's lawyers can't even spell the name of the law
they're using correctly.[ Reply to This | # ]
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Authored by: Anonymous on Wednesday, February 18 2004 @ 12:21 AM EST |
Wow, it's wonderful to see all those deleted "our" and "our
copyrighted" phrases with respect to UNIX. They have actually deleted their
claim of copyright on the UNIX system from their own pro forma letter. This is
very telling and has got to be useful information to those being persecuted by
SCO. This should make for some really interesting questions in court.[ Reply to This | # ]
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Authored by: Anonymous on Wednesday, February 18 2004 @ 12:31 AM EST |
I've logged out because I feel too ignorant to present this question cognito.
What is this tin foil hat stuff that is often referred to? Is this a technical
or literary allusion?
flame-proof, ignorant and ...
anonymous[ Reply to This | # ]
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- SCO Saga essential jargon, let me in on it - Authored by: Anonymous on Wednesday, February 18 2004 @ 12:35 AM EST
- SCO Saga essential jargon, let me in on it - Authored by: Anonymous on Wednesday, February 18 2004 @ 12:35 AM EST
- SCO Saga essential jargon, let me in on it - Authored by: Tomas on Wednesday, February 18 2004 @ 12:42 AM EST
- SCO Saga essential jargon, let me in on it - Authored by: Anonymous on Wednesday, February 18 2004 @ 12:53 AM EST
- SCO Saga essential jargon, let me in on it - Authored by: Anonymous on Wednesday, February 18 2004 @ 12:57 AM EST
- Re tinfoil hats - - Authored by: Anonymous on Wednesday, February 18 2004 @ 12:59 AM EST
- SIGNS!! - Authored by: rikvanjak on Wednesday, February 18 2004 @ 06:43 AM EST
- Older than that - Authored by: Anonymous on Wednesday, February 18 2004 @ 01:37 PM EST
- thanks from parent poster LoL - Authored by: Anonymous on Wednesday, February 18 2004 @ 01:05 AM EST
- Pets too - Authored by: Anonymous on Wednesday, February 18 2004 @ 01:10 AM EST
- SCO Saga essential jargon, let me in on it - Authored by: Anonymous on Wednesday, February 18 2004 @ 02:37 AM EST
- SCO Saga essential jargon, let me in on it - Authored by: Tomas on Wednesday, February 18 2004 @ 03:01 AM EST
- Tin foil hat use - Authored by: Anonymous on Wednesday, February 18 2004 @ 11:14 AM EST
- SCO Saga essential jargon, let me in on it - Authored by: Anonymous on Wednesday, February 18 2004 @ 04:55 PM EST
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Authored by: Anonymous on Wednesday, February 18 2004 @ 12:38 AM EST |
Didn't SCO assert to IBM that the letters were all the same apart from the
addressee information?
http://www.groklaw.net/article.php?story=20040210170358999
IBM:
(2) the letters SCO sent to UNIX licensees, Linux end-users and Fortune 1500
companies regarding Linux and/or AIX, or any responses it received to such
letters;
SCO:
(2) "The letters SCO sent to Unix licensees, Linux end-users and
Fortune 1500 companies regarding Linux and/or AIX, or any responses it received
to such letters.” Regarding the letters sent in May and December 2003,
there is only the form letter, which obviously you have downloaded from SCO's
website, and the distribution list. There are not copies of all 1500 letters
that were sent out. The form letter was previously produced at Bates
1269622-1269623. In addition, to the extent you want the distribution list used
for the mail merge, we can provide this as well.
The December letter was created after the documents were collected from SCO, so
it would not have been in production. Again, although you already have a copy of
the form letter, we will provide it if you want it.
Regarding the responses to each of these letters, SCO will check to see if it
received any responses to the May letter. To the extent it has received
responses to the December letter, those responses obviously were received after
documents were collected form the client. To the extent you want these
responses, we can collect those documents and provide them to you as they are
kept in the ordinary course of business.
[ Reply to This | # ]
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Authored by: Anonymous on Wednesday, February 18 2004 @ 12:54 AM EST |
Is there any way for that sealed agreement to be opened to clear up this
issue about copyright notices?
Berkeley is no longer in the UNIX
distribution business. Neither is ATT. Yet here we are embroiled in a legal
dispute with one party claiming that items hidden in this sealed agreement -- an
agreement that they can't have seen -- are the basis for their sending these
letters out to end-users.
Can either of the judges in the SCO/IBM case
unseal these darned documents? It'd sure be nice to know just what files were
involved. (My guess is that SCO is attempting to re-take ownership of the stuff
that the judge in the BSD/ATT case had declared to be, essentially, in the
public domain. Not that anything SCO attempts would surprise me any more.)
[ Reply to This | # ]
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Authored by: OK on Wednesday, February 18 2004 @ 12:56 AM 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") and UNIX Systems Laboratories, Inc.
regarding alleged violations by BSDI of USL's rights in UNIX System V
technology.
Are you saying that they dropped and UNIX
Systems Laboratories, Inc. out of this statement? It does not make
sense without it. It makes it sound like it's talking about the settlement
between University of California at Berkeley and Berkeley Systems Development,
Inc.
It's also interesting to find the change from "is" to "are" in
The ABI Code identified above are... and other grammar quirks overall.[ Reply to This | # ]
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Authored by: Anonymous on Wednesday, February 18 2004 @ 01:50 AM EST |
Why the four cornering? []
krp[ Reply to This | # ]
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Authored by: Anonymous on Wednesday, February 18 2004 @ 01:54 AM EST |
I have given this some thought. IMHO this is equal to Hitler's
opening a second front with russia. this had to be a mistake on the soc's part.
of all the corp. to pick on, the Lehman Bros.
And the Best Part I love, is that Lehman brushes it off like a knat. What does
this tell the Stock Market World. Much less reloading Red Hat's guns for them
and forcing a showdown.And with the Judge looking at this a tad different, that
has put the sun in McBride's eyes. (and you all thought he was on drugs, it's
just a case of being SnowBlind)
And this is the case I want to see, it's not about who has true ownership of
unix, it's about show us the code, prove it. This really backs The SCO into a
room with only one out, thru The Red Hat Door.[ Reply to This | # ]
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Authored by: RealProgrammer on Wednesday, February 18 2004 @ 02:26 AM EST |
Wow, so sometimes they claim ECOFF and sometimes they don't. ECOFF is an
obsolte executable format that came (I think) from the WangHo Really Fast Abacus
Company in about 350 B.C.
I'm going to look at this again in the morning. Oh, it is morning.
---
(I'm not a lawyer, but I know right from wrong)[ Reply to This | # ]
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Authored by: Anonymous on Wednesday, February 18 2004 @ 02:33 AM EST |
BERLIN, Germany - Feb. 17, 2004 -- The netfilter/iptables project
(http://www.netfilter.org/) announces out-of-court settlement with Allnet GmbH
(http://www.allnet.de/) on Allnet's infringing use of copyrighted
material.
Full press release at http://lwn.net/Articles/71418/
An
interesting angle is the company involved is in Germany. Maybe they did not want
to take changes arguing that German laws make GPL invalid, but probably it was
because they understood that complying with the not too onerous requirements of
GPL was much cheaper than any court fight, and moreover would avoid generating
bad will towards the company. Nice that they also agreed to contribute to
European free software organizations.
[ Reply to This | # ]
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Authored by: blacklight on Wednesday, February 18 2004 @ 04:03 AM EST |
The 12/19 SCO Group letter to Lehman Brothers contains two material omissions:
(1) their copyrights claim is under a cloud; (2) excluding USL as a party of the
BSD settlement, even though the SCO Group claims to be the of interest to USL.
By 12/22, the fact that Novell had (re)-registered its UNIX codebase copyrigts
claim was all over the trade press, so the omission of the word
"copyrights" indicates an awareness and some sort of concession to
reality that Novell had done that. However, the SCO Group defeats itself when it
continues to press its copyrights cliam with respect to the ABI files.
The fact that the SCO Group claims to be the successor of interest to USL
conflicts with its response to one of the IBM interrogatories that it does not
have records of the BSD settlement, if I understand correctly.[ Reply to This | # ]
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Authored by: dirkoid on Wednesday, February 18 2004 @ 07:46 AM EST |
Aren't include/asm-i386/errno.h, lib/ctype.c and include/linux/ctype.h the same
files that Linus specifically stated he authored? Doesn't that mean that in
addition to all of their other problems with copyright and ownership they (SCOG)
are claiming ownership of his work? I can't believe with everything written SCO
wouldn't at least drop those three files from the list as questionable. Perhaps
they should be reading Groklaw a little more thoroughly;-) Of course I'm also
delighted they don't as it should be more fun for us that way.[ Reply to This | # ]
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Authored by: Anonymous on Wednesday, February 18 2004 @ 10:04 AM EST |
Could somebody with access to the original of the Red Hat/Lehman letter please
check, in case it's a transcription error.
In the "settlement" paragraph, "USL" and "BSDI"
are carefully defined, then about half way down "BSD" appears without
definition - I assume it's meant to be the same as "BSDI", but perhaps
it has some other significance.[ Reply to This | # ]
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Authored by: Anonymous on Wednesday, February 18 2004 @ 10:59 AM EST |
"....binary code complide using ABI code...."
I think that
should read "compiled", but was not sure if that was our error or SCO's.
Excellent work!! I thought that seeing the ommission of words like "our" is very
interesting - almost as if they are trying to word the letter in such a way as
to say..."well, we never said we owned it.."
Mike A.[ Reply to This | # ]
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Authored by: the_flatlander on Wednesday, February 18 2004 @ 12:34 PM EST |
[more evidence] "will be produced in the pending litigation between SCO and
IBM under a confidentiality order"
Oh, man. How funny is that? We can't tell you more about the violations we are
claiming because it's *confidential*.
Ummmm... who, exactly, marked it confidential?
Ah, that would be the SCOundrels.
Oh. So, ah, they are bound by their own request not to tell people what the
proof of their claim is?
Yes.
Are we done yet?
The Flatlander
---
Sola lingua bona est lingua mortua[ Reply to This | # ]
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Authored by: GLJason on Wednesday, February 18 2004 @ 12:51 PM EST |
Well this is pretty easy if the company just uses a binary distribution and
doesn't use the source code (might be unlikely). If binary only, SCO would have
to show what binary code is the same as in UNIX SYSV. Since these files are
mostly defines with values and very simple macro declarations, they are
uncopyrightable. Even if SCO could somehow get a court to say the header files
are copyrightable, there is no way the code they were compiled with would be as
there would only be compiled code for the macros that were used (surely a value
from a define used in "mov $143, %%EAX" isn't copyrightable as it
isn't even the whole instruction, just the value). Also, simple macros like
_isnumeric() which would only create a few processor instructions wouldn't be
copyrightable. Both because there is so little actual code to prove expression
and because there are so few ways to do those things.[ Reply to This | # ]
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Authored by: Anonymous on Wednesday, February 18 2004 @ 01:01 PM EST |
So, what exactly would SCO eventually ask for in a judgement against someone
like Lehman for a couple of header files?[ Reply to This | # ]
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Authored by: Anonymous on Wednesday, February 18 2004 @ 01:05 PM EST |
I just posted a comparison of this letter to the way this letter is
quoted in the follow-up of January, and there are even more differences.
They are generally slight (grammar) but is still interesting.
It would
appear that when they were cutting & pasting the quotes to go into the
January letter to Lehman Brothers, that they cut from a third version
which doesn't match any of the others. Also, they appear to be quoting from a
letter which more closely resembles the original "form" letter than what was
actually sent to Lehman Brothers. You would think that if you were going to
quote from a letter already sent, that you would actually QUOTE it verbatim.
Instead you look sloppy.
It is intersting to note that they ommitted
one very important sentence in the follow-up "quote" :"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 our UNIX System copyrighted software code."
This helps to raise
the question - how many modifications can you make to the same letter and still
claim to the courts in discovery that it is the same form letter? What
might they have changed in other letters? Can IBM reasonably ask to have all the
different versions if they can show that SCO has been making changes to them?
Mike A.[ Reply to This | # ]
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Authored by: jmaurer on Wednesday, February 18 2004 @ 05:15 PM EST |
I've had a look at the PDF, and couldn't help noticing that there are three
copies of the 19 Dec 2003 letter, each subtly different.
The first letter is
directly after Red Hat's motion and starts with "Unix Licensee, ...". The
second is after the 16 Jan 2004 letter to Mr. Fuld, it has the date centered and
has no opening phrase. The third is after the 16 Jan 2004 letter to Mr. Beyman,
it has the date centered and has a "Dear Mr. Fuld:". It might be interesting to
find out if those three letters have any other discrepancies, and how those
differ wrt. the form letter on SCO's web site.
As a first step, may I
suggest that someone with a decent OCR program transcribe these three "19 Dec
2003" letters?
May I also suggest to SCO that they reconsider their document
management?
Jens Maurer [ Reply to This | # ]
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Authored by: Anonymous on Wednesday, February 18 2004 @ 05:32 PM EST |
from Slashdot...
And then we're looking in stdio.h, and then stdlib.h, and ustat.h, utmp.h,
zlib.h, tux.h, hesiod.h!!! And then odbcinst.h, random.h, utime.h, umsdos_fs.h!
And reboot.h, reiserfs_fs.h, irda.h, and errno.h!!! All the way to the kernel
source code!
Yyyyyyyyyyyyyyyyyyyyeeeeeeeeeeeeeuuuuuuuuuuuuuughh hhhhhhhhhhhhhhhhaaaaaaaa!!!
[ Reply to This | # ]
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Authored by: Anonymous on Wednesday, February 18 2004 @ 08:20 PM EST |
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...
This is from the paragraph just
after the list of files. When was there a settlement between UCB and BSDi? Or
has Tibbits found yet another way of demonstrating SCOG's lack of intellect, as
well as its lack of intellectual property?
I've tried to log in, but even
though mathfox thinks I should be, the website thinks I'm not logged in. I'm
not real fond of being anonymous...
--TheRealBill [ Reply to This | # ]
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Authored by: Anonymous on Thursday, February 19 2004 @ 12:28 AM EST |
> ...neither SCO nor any predecessor in interest has ever placed an
affirmative notice in Linux that the copyrighted code in question could be used
or distributed under the GPL.
Except for the fact that SCO themselves explicitly DISTRIBUTED all of this
inside the Linux kernel, licensed under the GPL.
Oh, wait, GPL is invalid. Phew... ;-)
How stupid can those people at SCO get?[ Reply to This | # ]
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Authored by: old joe on Thursday, February 19 2004 @ 06:15 AM EST |
This letter claims that UCB and BSDi agreed to add ATT copyright notices to 17
files. What else was agreed in this settlement?
Well we know that BSDi and UCB continued to distribute these files after the
agreement. This suggests that, as part of the settlement, ATT/USL/Novell agreed
these files could be distributed under the BSD license terms.
The terms of this agreement to distribute these files would seem to be quite
important.
One other point. Novell was a party to this agreement. So was the University of
California and BSDi. All these companies still exist (though BSDi has changed
names twice). If they all agree that the terms of the agreement can be made
public will that be enough to make it so?[ Reply to This | # ]
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