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The DaimlerChrysler Complaint - as text
Wednesday, March 03 2004 @ 08:27 PM EST

Thanks to JeR, we have the complaint in the SCO v. DaimlerChrysler case. Original is here as PDF.

Update: Exhibit A [PDF], the agreement between AT&T and DaimlerChrysler is now here as text. Exhibit B [PDF], SCO's December 19, 2003 "Dear UNIX Licensee" letter, is here as text.

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

STATE OF MICHIGAN

IN THE CIRCUIT COURT FOR THE COUNTY OF OAKLAND

________________________________________________

THE SCO GROUP, INC.,
a Delaware corporation,

Plaintiff,

vs.

DAIMLERCHRYSLER CORPORATION,
a Delaware corporation,

Defendant.

____________________________________________________

COMPLAINT AND JURY DEMAND

Case No. 04- -CK

____________________________________________________

BARRY M. ROSENBAUM (P26487)
Attorney for Plaintiff
[address, phone]

____________________________________________________________

NOW COMES Plaintiff, The SCO Group, Inc. (“SCO”) by and through its attorneys, Seyburn, Kahn, Ginn, Bess & Serlin, P.C., and Boies, Schiller & Flexner LLP, and for its Complaint against Defendant DaimlerChrysler Corporation (“DC”) alleges as follows:

Introduction

1. SCO is the exclusive licensor of software licenses for the UNIX operating system. These software licenses are agreements that restrict the permitted use of the UNIX operating system. To help insure compliance with the restrictions on such permitted use, the licenses include a monitoring and reporting mechanism designed to detect (and thus deter) violations of those agreed limits. Specifically, the licenses require licensees to certify their compliance with those restrictions. Like all provisions in the license, these reporting and monitoring provisions exist only because they have been agreed to by the licensee.

2. SCO has requested that DC provide the contractually required certification that DC is complying with the terms of its UNIX technology license. SCO has thus asked DC to certify--as contractually it must-- that its use of UNIX technology is within the agreed parameters of permitted use established by the license.

3. DC agreed to and accepted the terms of its UNIX license. DC has received very substantial benefits as a result of entering that license and DC has never challenged the validity of that license.

4. Nevertheless, DC has refused to provide the contractually required certification of compliance that SCO requested. DC has in fact refused even to respond to SCO’s request. It would be irrational and contrary to DC’s self-interest for DC to violate the license’s certification requirement’s in this way unless DC was also violating the license’s limits on permitted use of UNIX technology, precluding DC from certifying compliance.

5. By refusing to provide the certification that the license requires as a means of enabling SCO to monitor compliance with, and thus protect, the rights that DC agreed to respect, DC has compelled SCO to institute this litigation to secure a judicial remedy.

Parties, Jurisdiction and Venue

6. Plaintiff SCO is a Delaware corporation with its principal place of business in the County of Utah, State of Utah.

7. Defendant DC is a Delaware corporation with its principal place of business in the County of Oakland, State of Michigan.

8. This Court has subject matter jurisdiction over SCO’s Complaint because the amount in controversy exceeds the sum of Twenty-Five Thousand ($25,000.00) Dollars and/or is otherwise within the equitable jurisdiction of this Court.

9. Venue is properly situated in Oakland County, Michigan because DC has a place of business in Oakland County.

Background Facts

10. UNIX is a computer software operating system. Operating systems serve as the link between computer hardware and the various software programs (known as applications) that run on the computer. Operating systems allow multiple software programs to run at the same time and generally function as a “traffic control” system for the different software programs that run on a computer.

11. In the business-computing environment for the Fortune 1000 and other large corporations (often called the “enterprise computing market”), UNIX is widely used.

12. The UNIX operating system was originally developed by AT&T Bell Laboratories (“AT&T”). After successful in-house use of the UNIX software, AT&T began to license UNIX as a commercial product for use in enterprise applications by other large companies.

13. Over the years, AT&T Technologies, Inc., a wholly owned subsidiary of AT&T, and its related companies, licensed UNIX for widespread enterprise use. Pursuant to a license with AT&T, various companies, including International Business Machines, Hewlett-Packard, Inc., Sun Microsystems, Inc., Silicon Graphics, Inc., and Sequent Computer Systems, became some of the principal United States-based UNIX vendors, among many others.

14. These license agreements place restrictions on the valuable intellectual property developed by AT&T, which allow UNIX to be available for use by others while, at the same time, protecting AT&T’s (and its successor’s) rights.

15. Through a series of corporate acquisitions, SCO presently owns all right, title and interest in and to UNIX and UnixWare operating system source code, software and sublicensing agreements, together with copyrights, additional licensing rights in and to UNIX and UnixWare, and claims against all parties breaching such agreements.

16. During the past few years a competing, and free, operating system known as Linux has been transformed from a non-commercial operating system into a powerful general enterprise operating system.

17. Linux is a computer software operating system that, in material respects, is a variant or clone of UNIX System V. According to leaders within the Linux community, Linux is not just a “clone,” but is intended to displace UNIX System V.

FIRST CAUSE OF ACTION
(Breach of Contract/Declaratory Judgment)

18. Plaintiff incorporates and re-alleges paragraphs 1 - 17 above.

19. SCO is the successor to AT&T under that certain Software Agreement originally executed by and between AT&T and Chrysler Motors Corporation designated as SOFT-01341 (the “DC Software Agreement” or the “Agreement”). The DC Software Agreement specifies the terms and conditions for use of authorized distributions of UNIX System V source code, including modifications and derivative works based thereon, by Defendant. The DC Software Agreement is attached hereto as Exhibit “A.”

20. With respect to the scope of rights granted for use of the System V source code under Section 2.01 of the DC Software Agreement, Defendant received the following rights in UNIX:

[A] personal, nontransferable and nonexclusive right to use in the United States each Software Product identified in the one or more Supplements hereto, solely for Licensee’s own internal business purposes and solely on or in conjunction with Designated CPUs for such Software Product. Such right to use includes the right to modify such Software Product and to prepare derivative works based on such Software Product, provided that any such modification or derivative work that contains any part of a Software Product subject to this Agreement is treated hereunder the same as such Software Product. (Emphasis added.)

21. Defendant agreed in §2.06 of the DC Software Agreement to the following restrictions on use of the Software Product (including System V source code, derivative works and methods based thereon):

No right is granted by this Agreement for the use of Software Products directly for others, or for any use of Software Products by others . . . .

22. Defendant agreed in §7.09 of the DC Software Agreement to the following restrictions on transfer of the Software Product, including resulting modifications or derivative works of UNIX System V:

[N]othing in this Agreement grants to Licensee the right to sell, lease or otherwise transfer or dispose of a Software Product in whole or in part.

23. Defendant agreed under §7.05(a) of the DC Software Agreement to the following restrictions on confidentiality of the Software Product:

Licensee agrees that it shall hold all parts of the Software Products subject to this Agreement in confidence for [SCO]. Licensee further agrees that it shall not make any disclosure of any or all of such Software Products (including methods or concepts utilized therein) to anyone, except to employees of Licensee to whom such disclosure is necessary to the use for which rights are granted hereunder. Licensee shall appropriately notify each employee to whom any such disclosure is made that such disclosure is made in confidence and shall be kept in confidence by such employee.

24. Consistent with these restrictions, in § 2.05, Defendant also agreed to account to SCO on an annual basis regarding its use of System V software licensed pursuant to the Software Agreement. Specifically, § 2.05 provides as follows:

On [SCO’s] request, but not more frequently than annually, Licensee shall furnish to [SCO] a statement, certified by an authorized representative of Licensee, listing the location, type and serial number of all Designated CPUs hereunder and stating that the use by Licensee of Software Products subject to this Agreement has been reviewed and that each such Software Product is being used solely on such Designated CPUs (or temporarily on back-up CPUs) for such Software Products in full compliance with the provisions of this Agreement. (Emphasis added.)

25. Section 2.05 of the Software Agreement is designed to insure compliance by DC “with the provisions of this Agreement,” and to do so by supplying a monitoring mechanism that prevents and deters violations of the Software Agreement.

26. By letter dated December 18, 2003, SCO requested that DC provide the writing required under § 2.05 certifying that DC was “in full compliance with the provisions of [the Software Agreement].” Although DC should have been in a position to produce such a compliance certification on shorter notice, SCO’s letter requested that the required certification be provided within 30 days of receipt of that letter. (The SCO December 18, 2003, letter is attached hereto as Exhibit “B”).

27. DC has refused to comply with its obligations under § 2.05 of the Software Agreement. Specifically, DC has refused even to respond to SCO’s request for the contractually required compliance certification within 30 days, or at any time since. DC has thereby refused to state that it is not now violating its obligations under the Software Agreement, and DC has refused to state that it has not in the past been violating its obligations under the Software Agreement. DC has refused to provide such a certification even though it is also one of DC’s express obligations under the Software Agreement to provide such a certification.

28. On information and belief, DC’s refusal to certify that it is not violating the DC Software Agreement is also based, in part, on DC’s use of UNIX technology, in violation of the DC Software Agreement, in migrating its installed base to the Linux operating system.

29. It would be irrational and contrary to DC’s self-interest for it to continue to withhold the requested certification and thereby violate the Software Agreement’s reporting requirements if DC were not also violating the Software Agreement’s non-reporting, core substantive requirements.

Prayer for Relief

Plaintiff respectfully requests that the Court:

Enter an order that DC has violated § 2.05 of the Software Agreement by refusing to provide the certification of compliance with the “provisions” of that Agreement;

Enter an order declaring that DC has not complied with, and instead has violated, the provisions of the Software Agreement with which § 2.05 required DC to certify compliance;

Enter an order permanently enjoining DC from further violations of the DC Software Agreement; and

Issue a mandatory injunction requiring DC to remedy the effects of its past violations of the DC Software Agreement; and

Award damages in an amount to be determined at trial; and

Enter judgment in favor of Plaintiff together with costs, attorneys’ fees and any such other or different relief that the Court may deem to be equitable and just.

Jury Demand

SCO demands trial by jury on all issues so triable.

Respectfully submitted,

SEYBURN, KAHN, GINN,
BESS AND SERLIN, P.C.

By: ________________________________________
Barry M. Rosenbaum (P26487)
Attorneys for Plaintiff
[address, phone]

Stephen N. Zack, Esq.
Mark J. Heise, Esq..9
Co-Counsel for Plaintiff
Boies, Schiller & Flexner LLP [address,phone]

Robert Silver
Boies, Schiller & Flexner LLP
Co-Counsel for Plaintiff
[address, phone]

Dated: March 3, 2004


  


The DaimlerChrysler Complaint - as text | 366 comments | Create New Account
Comments belong to whoever posts them. Please notify us of inappropriate comments.
The DaimlerChrysler Complaint - as text
Authored by: penhead on Wednesday, March 03 2004 @ 09:08 PM EST
SCO is the exclusive licensor of software licenses for the UNIX operating system

What ever happened to SCO being the "owner of Unix and related copyrights"?

Maybe Linus is right after all; they know they don't own anything at all :)

[ Reply to This | # ]

The DaimlerChrysler Complaint - as text
Authored by: Anonymous on Wednesday, March 03 2004 @ 09:11 PM EST
Isn't this against the license. They are asking to validate the use of the
license, but then they through in 17 and 18. How can they then say the company
is invalidating the license with that agreement?

[ Reply to This | # ]

The DaimlerChrysler Complaint - as text
Authored by: Anonymous on Wednesday, March 03 2004 @ 09:16 PM EST
One wonders why SCO did not provide the certificate.

Bet it was not lost in the mail or the dog ate it...

Any bets that Novell told DC to ignore SCO, allow SCO to file for the breach,
and then...BOOM -- things will get **REALLY** interesting?

Very curious..

[ Reply to This | # ]

Slightly OT - IBM and (potential) pals?
Authored by: Anonymous on Wednesday, March 03 2004 @ 09:18 PM EST
Reading through the complaint here, much of the so-called "facts"
section looks awfully familiar. Much of it has been responed to, at length, by
IBM. ...granted, that case is still under litigation but...

How much partnership is allowed in situations like this where the interests of
companies in seperate litigation coincide? Is DC and/or Autozone allowed to
call up IBM and say, "Hey, can you share your thoughts on how to respond to
these things? Anything we ought to point out, harp on, destroy SCO with?"
Or are they limited to following the IBM court filings and possibly borrowing
arguments and language from those?

I can see where this sort of thing could become abusive, especially where a
bunch of plaintants gang up on one defendant with coordinated cases. Is there
any law or rule against it? Or is it common practice?

I have no idea - so I'm asking.

-K

(Two filings, a ruling, an earnings statement, and a teleconference in the space
of eight hours. It's going to take me a week to really catch up. ;_; )

[ Reply to This | # ]

Could Novel Step In?
Authored by: Anonymous on Wednesday, March 03 2004 @ 09:20 PM EST
Given the nature of this complaint, I wonder if it is possible for Novel to step
in and waive the requirement for DC to certify?

[ Reply to This | # ]

The DaimlerChrysler Complaint - as text
Authored by: rand on Wednesday, March 03 2004 @ 09:20 PM EST
So...it all boils down to "They flatly refused and we know it because we
sent them a letter and they didn't write back." The term
"refused" is repeated seven times, but I don't see that they tried any
other means of communications, like a friendly phone call, email, visit by the
hit-squad, etc.

Let's hope for SCOG's sake (Ok, let's hope not) that they kept the Certified
Mail Return Receipt Requested receipt. Anybody recall it The Letters went out
certified?



---
carpe ductum -- "Grab the tape" (IANAL and so forth and so on)

[ Reply to This | # ]

The DaimlerChrysler Complaint - as text
Authored by: Anonymous on Wednesday, March 03 2004 @ 09:24 PM EST
"thee licenses require licensees to certify their compliance with those
restrictions"

Can you still be a licensee if you are no longer a client. When you stop using
a product, and thus are no longer a client are you still a licensee. I
understand that they are still bound not to use, disclose, etc. If you are no
longer using it, why do you have to certify that you are following the license?

[ Reply to This | # ]

The DaimlerChrysler Complaint - as text
Authored by: vonbrand on Wednesday, March 03 2004 @ 09:31 PM EST
I just can't see how DC could violate the license by using preciousss IP they were given for their internal use to move their own stuff for their own internal use from SCO Unix to Linux.
The rest is a fishing expedition, just like the IBM one. With the same flimsy "all your code belongs to us" base, even.
Also, I see DC is an AT&T licencee. As such, Novell is surely in position to step in here?

[ Reply to This | # ]

The certification letter
Authored by: Anonymous on Wednesday, March 03 2004 @ 09:35 PM EST
I'm guessing here, that the certification that SCO sort, is the 18 December letter which is on their site:

http://www.thescogroup.com/scosource/unix_licensee_letter_2003121 8.pdf

The full purported quote from the agreement, that SCO uses to require certification in this letter is:

On [SCO's] request, but not more frequently than annually, Licensee shall furnish to SCO a statement, certified by an authorized representative of Licensee, listing the location, type and serial number of all Designated CPUs hereunder and stating that the use by Licensee of Software Products subject to this Agreement has been reviewed and that each such Software Product is being used solely on such Designated CPUs (or temporarily on back-up CPUs) for such Software Products in full compliance with the provisions of this Agreement.


However SCO's letter, seems to be requesting the licensee/victim to provide far more than the above paragraph requires. Include all sorts of additional qualifications and requirements, and even supporting evidence that these additional qualifications/requirements have been met.

Specifically, first it asserts rights over the licensee's and other UNIX vendor's code:

The Software Product thus includes more than the base System V release licensed by you. Software Products also includes: (a) the UNIX software release based on UNIX System V prepared by your UNIX vendor and (b) modifications to, or derivative works based on, any UNIX product made by you.

And next it makes a whole set of demands over all of this code, which do not seem to match the agreement:

Accordingly, SCO requires written certification by your authorized representative under Para. 2.04 within 30 days of receipt of this letter. Such written certification must include statements that:

1. You are not running Linux binary code that was compiled from any version of Linux that contains our copyrighted application binary interface code ("ABI Code") specifically identified in the attached notification letter.

2. You, your contractors and your employees have, to your knowledge, held at all times all parts of the Software Products (including methods and concepts) in confidence for SCO.

3. You have appropriately notified each employee and contractor to whom you have disclosed the Software Products, and taken steps to assure that such disclosure was made in confidence and must be kept in confidence by such employee or contractor. Please provide evidence of your compliance with this obligation. This evidence may include, but not be limited to, nondisclosure agreements, employee policies or manuals, or other such evidence of compliance.

4. Neither you nor your contractors or employees with access to the Software Products have contributed any software code based on the Software Product for use in Linux or any other UNIX-based software product.

5. Neither you nor your contractors or employees have used any part of the Software Products directly for others, or allowed any use of the Software Products by others, including but not limited to use in Linux or any other UNIX-based software product.

6. Neither you nor your contractors or employees have made available for export, directly or indirectly, any part of the Software Products covered by this Agreement to any country that is currently prohibited from receiving supercomputing technology, including Syria, Iran, North Korea, Cuba, and any other such country, through a distribution under the General Public License for Linux, or otherwise.

7. Neither you nor your contractors or employees have transferred or disposed of, through contributions to Linux or otherwise, any part of the Software Product.

8. Neither you nor your contractors or employees have assigned or purported to assign any copyright in the Software Products to the General Public License, or otherwise, for use in Linux or another UNIX-based software product.

Are they surprised more than 50% (even according to Darl) did not respond at all? They are simply not entitled to almost of any of this information.

[ Reply to This | # ]

The DaimlerChrysler is rude
Authored by: Anonymous on Wednesday, March 03 2004 @ 09:36 PM EST
This complaint boils down to “They didn't answer our letter.” It seems the
appropriate legal response is not this over the top request for an injunction. A
more appropriate response would be to sue for compliance. It's hard for to
imagine what damage SCO suffered by the failure of DC to respond.

[ Reply to This | # ]

Where is Novell? Answer they already responded
Authored by: Anonymous on Wednesday, March 03 2004 @ 09:43 PM EST
Continuing from previous post about the certication letter

See Novell to SCO, December 23rd 2003,

http://www.novell.com/licensing/indemnity/pdf/12_23_03_n-sco.pdf

And SCO to Novell, January 7th 2004,

http://www.novell.com/licensing/indemnity/pdf/1_7_04_sco-n.pdf

[ Reply to This | # ]

The DaimlerChrysler Complaint - as text
Authored by: Anonymous on Wednesday, March 03 2004 @ 09:52 PM EST
"27. ... DC has refused even to respond to SCO's request for the contractually required compliance certification within 30 days..."

Describing the certification as 'contractually required' here is assuming facts not in evidence.

-AIB.

[ Reply to This | # ]

Contractual Time to Certify?
Authored by: chrisbrown on Wednesday, March 03 2004 @ 10:10 PM EST
SCO mailed the letter to DC on December 18, 2003 and has not yet received a
reply. Did the original license REQUIRE a specific time from request to certify
until the certification is provided? SCO themselves seem to have had problems
providing information during the holidays. Perhaps DC needs time to scrounge
through closets, storage sheds, warehouses, and lake bottoms to find all the old
386 PC's that still SCO's products still on them. Come-on now, 90 days have'nt
even passed yet, but that SCO jumps to the (libelous?) conclusion that
Daimler-Chrysler MUST be guilty because they couldn't come up with the requested
information with specificity. By extension the same logic would seem to imply
that SCO is GUILTY of a SCHEME as described in IBM's counter-claim because SCO
has not yet provided the proof that they are not!

[ Reply to This | # ]

It's all just getting TOO funny
Authored by: rand on Wednesday, March 03 2004 @ 10:13 PM EST
Check out SCO Group's SCO Source webpage and see if you can figure out which racke t they're running these days.

---
carpe ductum -- "Grab the tape" (IANAL and so forth and so on)

[ Reply to This | # ]

Item 15.....Confused ?
Authored by: Hygrocybe on Wednesday, March 03 2004 @ 10:16 PM EST
Pardon my confusion, but Item 15 is almost unbelieveable unless you add the
statement that 'We believe that we own the copyrights etc.' because they fail to
note that SCO's ownership of any copyrights to UNIX is now the subject of a
court dispute with Novell.......which company incidentally seems to have an
excellent case for proving that what SCO got was the right to market UNIX but
nothing else.

To me, Item 15 reads almost like an outright lie to the court.....but then I am
not a lawyer so fine points of law and how to get away with not telling the
truth, the whole truth and nothing but the truth sometimes escape me. And of
course, no doubt I am wrong....well in SCO's eyes anyway.

---
Blackbutt, Australia

[ Reply to This | # ]

Overheard: Uncle Scooge to the Linusians
Authored by: Anonymous on Wednesday, March 03 2004 @ 10:17 PM EST
"How 'bout them apples, Grockeys? DC and AZ in one day! If you thought
IBM had us on the ropes, think again. We are still here until you pay up. End
users beware, your day is coming, you may be next!

"You can pay a few hundred now for peace of mind or pay your lawyers a few
hundred thousand to tell us no.

"Tell IBM, RH, and Novell to name a price I won't laugh at and this will
all go away.

"We're not going anywhere. We'll be doing this in a year while your sales
are flat and Windows fly higher. Time for you scribblers to be reasonable. Pay
the piper and get on with your lives."

[ Reply to This | # ]

The DaimlerChrysler Complaint - as text
Authored by: Steve Martin on Wednesday, March 03 2004 @ 10:19 PM EST

It would be irrational and contrary to DC’s self-interest for DC to violate the license’s certification requirement’s in this way unless DC was also violating the license’s limits on permitted use of UNIX technology, precluding DC from certifying compliance.

Is it just me, or is there something vaguely McCarthy-ish about this sentence? (For our non-American readers, Google for "Senator Joseph McCarthy".) Isn't SCO saying "if you were innocent, you wouldn't mind responding to our request; you declined, therefore you must have something to hide!"

And on this they base yet another legal challenge? Has the entire American legal system gone stark raving bonkers??

---
"When I say something, I put my name next to it." -- Isaac Jaffee, "Sports Night"

[ Reply to This | # ]

The DaimlerChrysler Complaint - as text
Authored by: risacher on Wednesday, March 03 2004 @ 10:40 PM EST
I find this to be very odd. According to the complaint, DC was an AT&T licensee. But they're not a UNIX vendor - they were an end user. So back in the days that you needed an AT&T source license to run UNIX, DC bought one.

What was the last hardware platform that you needed an AT&T source license for? The VAX-11? It's not inconceivable that a big company like DC might still have a legacy VAX-11 running, but it's not super likely either. Does DC still consider themselves a current AT&T licensee?

If not, what are the odds that DC is still using copies of UNIX that require an AT&T license? I would think that any current UNIX use at DC would be Solaris, AIX, or even Unixware -- for which they would have bought licenses from the vendors of those OSes, not AT&T. According to Open Sources, 4.3BSD-Tahoe was the last UNIX before you could get the Networking Release 1 without a AT&T license, and that document talks about running on the Vax-11 and the Power 6/32. If DC is still using that stuff, it's time to modernize, guys.

So I suspect that DC hasn't used their AT&T license in a long time. Or am I totally misunderstanding the situation? If DC isn't using an AT&T supplied UNIX any more, why would they bother responding to SCO? From their perspective, they probably don't consider themselves an AT&T licensee any longer.

[ Reply to This | # ]

The DaimlerChrysler Complaint - as text
Authored by: Anonymous on Wednesday, March 03 2004 @ 10:42 PM EST
So if they provide the certificate now, what happens ? Does the case get thrown
out ?

[ Reply to This | # ]

There's No Case
Authored by: dmscvc123 on Wednesday, March 03 2004 @ 10:59 PM EST
Well almost no case assuming everything SCO says is true and Novell doesn't step
in. From SCO's own compliance letter:
"SCO will not allow UNIX Licensees to make any improper use of the Software
Products, including the use of the Software Products to assist development of
Linux. 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."

DC terminated it's Unix license, so basing a lawsuit on a contract that has been
terminated isn't going to go very far. The only issue would be transfering the
IP, but there's no obligation to respond to SCO's letters.

I must say that it is very amusing that SCO is again dragging IBM and Red Hat
into this:
http://computerworld.com/softwaretopics/os/linux/story/0%2C10801%2C75294%2C00.ht
ml

[ Reply to This | # ]

SCOG Will Drive Everyone To Use Open Source
Authored by: Anonymous on Wednesday, March 03 2004 @ 11:07 PM EST
SCOG has proven beyond a doubt that proprietary software is too much of a
business risk to allow serious consideration for the future. It is an obsolete
business model that opens users to frivolous legal suits.

If your business licenses proprietary software, your vendors will waste your
time, inflate their license fees, lock you into an endless cycle of required
upgrades and patches, did I say waste your time?, make your computers
crash, and then sue your for billions of dollars if you kick them out.

Any knowledgeable business executive would strictly limit proprietary
software in their organization. Just look at the object lesson that SCOG
teaches the world.

If you sign just one proprietary software license, you could be sued without
specifics with years of long, drawn out legal fighting. Even if you win, you
have already lost so much. SCOG might end of proprietary software as it
exists today.

[ Reply to This | # ]

I don't think SCO is very bright
Authored by: Night Flyer on Wednesday, March 03 2004 @ 11:10 PM EST
Two points:

DaimlerChrysler is German. They must know what happened with SCOGmbh in Germany.


They also have good, competent lawyers in Germany and the US. (I hope
DaimlerChrysler chooses to challenge SCO in court.)

Either SCO has a better case than I think, or they aren't too bright.

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

My Clan Motto: Veritas Vincit: Truth Conquers

[ Reply to This | # ]

The DaimlerChrysler Complaint - as text
Authored by: tredman on Wednesday, March 03 2004 @ 11:12 PM EST
Line 16.
Line 17.
Line 28.

Linux is mentioned only three times (it's past eleven PM here, I might have
missed one) in the entire document.

How long will it be before Darla and the other little rascals start making this
about Linux, at least in the media? A few days? A week? Probably as soon as
he realizes that commenting on this case doesn't violate the gag order that
Judge Wells put on him in the IBM case.

Tim

[ Reply to This | # ]

  • Gag order - Authored by: Anonymous on Wednesday, March 03 2004 @ 11:17 PM EST
The DaimlerChrysler Complaint - as text
Authored by: Anonymous on Wednesday, March 03 2004 @ 11:15 PM EST
Seems like the quote I've seen numerous time on here is becoming more and more true.

Only an idiot fights a war on two fronts. Only the heir to the throne of the kingdom of idiot would fight a war on twelve fronts.

Here's the SCO version:
Only an idiot like Darl fights in court on two fronts. Only the heir to the throne of a company of idiots would fight in court on twelve fronts.


[ Reply to This | # ]

The DaimlerChrysler Complaint - as text
Authored by: Anonymous on Wednesday, March 03 2004 @ 11:15 PM EST
This is my first posting on Groklaw. So please bear with me.

I used to work within DaimlerChrysler with the Unix support group in the
Technical Computer Center at the Jeep Truck Engineering Center in Detroit. It is
located on Plymouth Rd. near Schafer. I would say the lifeblood of DCX North
America does not come from Auburn Hills, but rather this obscure place they call
Jeep Truck Engineering, a former engineering facility of American Motors. The
TCC department manager used to come over from Auburn Hills and sit next to me
and we
would talk about Linux and Microsoft. Everyone in the TCC at JTE used to know me
as the Linux fanatic and the Bill Gates/Microsoft hater. And I had the honor to
particapate in a Linux Research group. It was THE only one in the entire DCX
North American Operations at the time. We met once a month in Auburn Hills for
about 8 months. It was intense. The first few Linux PCs had SuSE 5.3 and 6.4. I
was right there.
And I have been following SCO and have my opinions about them and what stupid
things they are doing in the computer industry in regards to Linux and Open
Source software. And now it comes full circle with this action from SCO and it's
publicity. Wow. That hits close to home. I reflect on those days and I can say,
I was there! But I have been long forgotten.

The DC agreement is a complicated piece of work. I don't know if it is specific
with SCO, or if it is done through other vendors like IBM and SGI. They also
have a similar type of agreement with Microsoft. Microsoft sued then Chrysler
Corp one time because they changed the system.ini file in Windows 95. SCO is
suing them, not necessarily for Linux, but because they are slow in responding
to SCO inquiry. They have ALWAYS been slow to respond to those types of things.
They say, "so what. We have an agreement. It's covered." SCO is just a
bit
anxious now. SCO is just turning what is normally a regular oversight into
something big that they claim needs to be dealt with. I think DCX doesn't even
realize why SCO is doing this to this extent.

This could be more than just about Linux. DCX uses Catia on AIX and Irix
throughout the entire design process. Catia and AIX come from IBM. Irix from
SGI. And SGI has stepped up their usage of Linux. They use Red Hat. See the
connections. SCO is beating up a sloth. Unless you are talking about mergers,
changes do not happen very fast at DCX.

From what I read in the complaint, it looks as if SCO is going to try to prove
that it took code from it's commercial products and placed it in it's freeware
products. And you know they didn't, but if SCO claims that code from System V is
in Linux, you might as well say they did.

[ Reply to This | # ]

SCO just signed their own Death Warrant
Authored by: Cam on Wednesday, March 03 2004 @ 11:28 PM EST
DC is also Mercedes. German Ccompany!? They have already been given the
smackdown there. Hello !

These guys really are clueless!

[ Reply to This | # ]

The DaimlerChrysler Complaint - as text
Authored by: Anonymous on Wednesday, March 03 2004 @ 11:55 PM EST
"15. Through a series of corporate acquisitions, SCO presently owns all
right, title and interest in and to UNIX and UnixWare operating system source
code, software and sublicensing agreements, together with copyrights"

Uh, I'm not sure Novell would agree with this.

[ Reply to This | # ]

And they call the GPL viral?
Authored by: Anonymous on Wednesday, March 03 2004 @ 11:59 PM EST
It'll be interesting to see if the end effect of all SCO's warmongering is the
opposite of what they might have expected. Rather than proving any viral danger
of the GPL, they seem to be proving the opposite, that using proprietary
software puts a company at risk. You used to run your POS terminal software on
SCO? Now you're not? You must be using SCO libraries! You're tainted! You
had an agreement with AT&T 20 years ago? Now you're using products from a
number of vendors that were based on AT&T code? You're tainted! You must
be hiding something if you don't let the proprietary dog bark around your ankles
and demand documentation.

Who sounds like McCarthy, banging on the podium and brandishing a list of names?
SCO. Who runs around accusing people of witchcraft, saying they speak with the
devil and all the while eyeing the nice plot of land they'll leave once they're
dead? SCO.

Who wants to deal with a company like that? No one. They make Stallman look
reasonable.

[ Reply to This | # ]

The DaimlerChrysler Complaint - as text
Authored by: Anonymous on Thursday, March 04 2004 @ 12:00 AM EST
16. During the past few years a competing, and free, operating system known as Linux has been transformed from a non-commercial operating system into a powerful general enterprise operating system.

17. Linux is a computer software operating system that, in material respects, is a variant or clone of UNIX System V. According to leaders within the Linux community, Linux is not just a “clone,” but is intended to displace UNIX System V.

Am I missing something? As far as I can tell, Linux has nothing to do with what DC is being accused of. Was this just thrown in to mislead the press?

Also, if there is Unix code in Linux, then DC can't be sued for using Linux, because DC has a Unix license!

[ Reply to This | # ]

Hah. . .
Authored by: Anonymous on Thursday, March 04 2004 @ 12:01 AM EST
1. SCOG is *not* the exclusive licensor of Unix. In this case SCOG is, at
best, an agent for Novell.

2. DC was correct in not responding to the SCOG certification letter in that,
as posted on Groklaw, the certification which SCOG demanded was far and away
more than what was in the contract.

3. AT&T's $ echo newsletter of a few years ago *clarified* derivitive
works. Hence, DC is basically off the hook on that as well.

It appears that SCOG is crying wolf when it should not be.

krp

[ Reply to This | # ]

Vindictive
Authored by: RedBarchetta on Thursday, March 04 2004 @ 12:03 AM EST
There appears to be a vindictive nature regarding SCO's lawsuit targets.

Dahmler-Chrysler is a German corporation. SCO obviously doesn't like the
Germans because they were, to paraphrase another post, "smacked down"
already by the German justice system.

The AutoZone has several vindictive angles:

1) They are a RedHat customer - SCO sues them to really piss-off RedHat
management.

2) They went with IBM to migrate to Linux - ignoring SCO even after they tried
to fanagle a deal.

3) AutoZone ignored SCO (like hundreds of others), so SCO, being the pouting
baby's, sued them to "show 'em up." (Reminds me of Glenn Close and
Michael Douglas - "I WON'T be ignored!")

All in all, it sounds like a bunch of elementary school-children running the
show at SCO.

[ Reply to This | # ]

Does anyone else find it strange that...
Authored by: kanegs on Thursday, March 04 2004 @ 12:08 AM EST
During the conference call they said that out of respect for the Judge Wells in Utah thay won't comment on specifics of the cases SCO is filing in Michigan and Arizona.

Also, why is SCO suing a New York company in Utah but they're suing a Michigan company in Michigan and an Arizona company in Arizona? Surely DC does business in the state of Utah? And there must be an AutoZone somewhere in Utah as well.

[ Reply to This | # ]

The DaimlerChrysler Complaint - as text
Authored by: Anonymous on Thursday, March 04 2004 @ 12:11 AM EST
I thought this was an interesting observation (by a fellow anonymous
reader, but not me), and I'd like to see further
educated comments, so I'm reposting it as it originally appeared in this
thread:

http://www.groklaw.net/
comment.php?mode=display&sid=20040303182714835&title=The+D
aimlerChrysler+Complaint+-
+as+text&type=article&order=&pid=90094

<i>The AT&T license states that you only have to keep the code secret

until the code becomes publicly aviable (7.06a). Any version of the
code that DC licensed has already been made public by Novell or
oldSCO. Thus, they can freely do what ever they want with code and
also the license no longer applies to them!</i>

[ Reply to This | # ]

Again I have to ask .. What's Missing ?
Authored by: DMF on Thursday, March 04 2004 @ 12:20 AM EST
Like anything to do with Linux?

The complaint makes no allegations about the use of Linux within DC, or about how that conflicts with SCOG's rights. All it does is say that DC did not meet the reporting requirement, which has nothing to do with Linux.

This is a clever PR trick. The letter implies that DC may be violating the license by using Linux, but the complaint only references the request for a certificate of compliance, which certificate is detailed in the agreement. SCOG leaves it to observers to draw the inference (undoubtedly with a lot of help from SCOG mouthpieces), but there is nothing in the complaint about it.

[ Reply to This | # ]

The DaimlerChrysler Complaint - as text
Authored by: Anonymous on Thursday, March 04 2004 @ 12:22 AM EST
However DC may fare in this case, this is not a case about Linux.

The complaint mentions Linux only a few times, mostly to acknowledge its existence as a competing operating system. Its only explicit relevance to the complaint in paragraph 28, which is rather muddled (and probably deliberately so):

28. On information and belief, DC’s refusal to certify that it is not violating the DC Software Agreement is also based, in part, on DC’s use of UNIX technology, in violation of the DC Software Agreement, in migrating its installed base to the Linux operating system.
This wording is artfully clumsy and ambiguous. It seems to hint that Linux contains UNIX technology, although other readings are possible. There is certainly no explanation of how DC's migration to Linux violated the Software Agreement.

In any case, any alleged misbehavior by DC was tied to the Software Agreement. Any Linux user who didn't sign such an agreement cannot have violated it.

The usual disclaimer: I am not a lawyer.

Scott McKellar
http://home.swbell.net/mck9/sco/

[ Reply to This | # ]

If I was using SCO UNIX, I would be looking for other options
Authored by: Night Flyer on Thursday, March 04 2004 @ 12:37 AM EST
In years past I worked for a large multinational, and we received letters like
this from vendors now and then.

Usually we were too busy to pay attention to them unless the letter was
accompanied by a work order from someone quite high up in the company. To do an
audit of hardware and software corporate-wide internationally is a pain in the
butt in quiet times. At year-end? No way... Year-end stuff, invoicing,
inventory, payroll change-overs..., actually we were annoyed that we usually
worked through the "Christmas break" while marketing people were at
home partying.

If DC didn't respond to these intrusive requests outside of the terms of the SCO
software contract, I understand. I know more than a tiny bit about IT, and it
is unclear to me how to answer the SCO request (based on "The Certification
Letter" post above) even if I wanted to. To comply to the spirit of the
request would be a horrifically large internal project requiring, amongst other
things, interviewing past employees about NDA, reviewing all software that may
or may not have been customized, searching "the ancient-files
warehouse".
----------------------------
And exactly how does SCO expect to ever get repeat or increased business from DC
after this lawsuit, (whether they win, lose or draw)?

DC is in the business of making vehicles, not spending time in court arguing
about Linux/UNIX issues.

---------------------------------------
My Clan Motto: Veritas Vincit: Truth Conquers

[ Reply to This | # ]

The DaimlerChrysler Complaint - as text
Authored by: minkwe on Thursday, March 04 2004 @ 12:38 AM EST
"[A] personal, nontransferable and nonexclusive right to use in the United States each Software Product identified in the one or more Supplements hereto, solely for Licensee’s own internal business purposes and solely on or in conjunction with Designated CPUs for such Software Product. Such right to use includes the right to modify such Software Product and to prepare derivative works based on such Software Product, provided that any such modification or derivative work that contains any part of a Software Product subject to this Agreement is treated hereunder the same as such Software Product. (Emphasis added.)"

interesting!

---
Just my 0.02€ contribution to the floccinaucinihilipilification of SCO.

[ Reply to This | # ]

OT: Eric Raymond has internal SCO email?
Authored by: cfitch on Thursday, March 04 2004 @ 01:01 AM EST
Hey all, if this is a duplicate, then ignore it. Eric Raymond just added Halloween X to his website: Halloween X: Follow The Money He claims that a whistle blower from SCO sent it to him. In it, a large money trail traces back to Microsoft. Take a look...

[ Reply to This | # ]

Ev1Servers - disputes SCO claim of $1m payment
Authored by: Anonymous on Thursday, March 04 2004 @ 01:50 AM EST
http://news.netcraft.com/archives/2004/03/04/ev1s_marsh_disputes_scos_7_figure_p
ayment_claim.html

"I would discount ANY reports or quotes of a 7 figure cash payment as has
been reported," Marsh wrote in a post on the company's customer forum.
"We did agree to a one time payment, however we did not agree to pay a 7
figure cash payment as reported in the media."

Blake Stowell, SCO's director of public relations, told eWeek Monday that
EV1Servers "didn't pay full retail price on each server, but the deal was
still worth seven figures all together for SCO." Similar quotes attributed
to SCO appeared in Network World, Information Week and ComputerWorld, and the
figure has been repeated widely in online forums discussing the deal.

[ Reply to This | # ]

Follow the money
Authored by: Anonymous on Thursday, March 04 2004 @ 02:48 AM EST
I didn't know where to put this.
It appears there has been a leak of a SCO internal
document showing the real role of Microsoft in all of
this, if it is legitimate. If so there is far more money
coming from Redmond than we thought, and it is also seems
more central than we were willing to say (whatever
suspicions we may have had.)

http://www.opensource.org/halloween/halloween10.html

[ Reply to This | # ]

MS SCO connection...blown *wide* open
Authored by: Anonymous on Thursday, March 04 2004 @ 02:56 AM EST
source

[ Reply to This | # ]

Bring them on
Authored by: Anonymous on Thursday, March 04 2004 @ 04:10 AM EST
The more SCO "outs" these companies that have been using linux, the
more case studies there will be for those selling linux. The more tool for
selling, the stronger it gets.

Did Microsoft really pay 100 million to tell the world linux has traction in the
enterprise?

[ Reply to This | # ]

The DaimlerChrysler Complaint - as text
Authored by: gbl on Thursday, March 04 2004 @ 04:44 AM EST
OK we have two points on the graph and there's a trend :-)

If you ever licensed SCO software and migrated to Linux you are on their hit
list. And top of that list must be McDonalds.

What's the chance that McDonalds attack lawyers have already been unchained and
right now are being fed raw meat to get them in the mood for a good scrap?

---
If you love some code, set it free.

[ Reply to This | # ]

Two totally unrelated thoughts
Authored by: coolmos on Thursday, March 04 2004 @ 04:47 AM EST
Could it be that David Boies picked AutoZone and DaimlerChrysler, not because
these are the best cases for SCO, but because HE would benefit the most ?

And second, if the Halloween X document is real, there is at least ONE person
with some ethics sense in SCO.

---
A 699 license ? Is that the US variant of the Nigerian 419 scam ?

[ Reply to This | # ]

Follow the money
Authored by: skuggi on Thursday, March 04 2004 @ 04:51 AM EST
This is interresting!

http://www.opensource.org/halloween/halloween10.html

-Skuggi.

[ Reply to This | # ]

A friend's comment on Halloween X
Authored by: Anonymous on Thursday, March 04 2004 @ 05:26 AM EST
UNBELIEVABLE. Not that M$ were sponsoring the anti-Linux case as you talked
about months ago but the sheer scale of it!!! US$100m so far, of which only
US$30m has been spent so far, directly engineered by M$ through 3rd party
companies.

Once the originals get subpoena-ed, which surely they must, the DoJ anti-trust
division will be jumping up and down. The wheels of justice may grind
exceedingly slow but this seems as clear-cut an example as you can possibly get
of monopoly abuse. The question then becomes, where will corporate Linux be
used by the time M$ get clobbered (will they need to return the money???? in
which case they would be already be some $US15m down with little or no prospects
of refinancing (it would be an ENORMOUS gamble by a venture-capital group).

My impression is that the forces driving the widespread adoption of linux are
classic market supply/demand ones which in the long-term are unstoppable in
modern economies. In the short-term, though, they could definitely slow Linux
creep which won't help my CV any but that's just me overly focussing on the
small picture :)

Perhaps the final solution, so to speak, will be global recognition of the GPL
and, by extension, the Linux kernel. Once all the FUD has disappeared (20
minutes after the FINAL ruling), a vast swathe of IT companies may switch
en-masse to Linux with a raft of other companies offering corporate support
packages. The future's bright, the future's a black and white penguin!!

Now if we can just move away from crappy Intel x86 boxes, we'll be in
business.................

[ Reply to This | # ]

Re: Halloween X
Authored by: Anonymous on Thursday, March 04 2004 @ 05:38 AM EST
I would be *very* careful about this document.

It seems very suspicious that the day after Darl slates 'propaganda' against his
company appearing on websites, this just happens to be sent to ESR?

Wouldn't this be perfect bait?

[ Reply to This | # ]

The DaimlerChrysler Complaint - as text
Authored by: Anonymous on Thursday, March 04 2004 @ 05:39 AM EST
To me SCO's action is financial fraud as their license is fraud from my
perspective. I don't know how crappy the US legal system is but why has a
company to respond to a business letter that forces it to declare something.

Would be funny. I write letter to The SCO group where I ask them to provide
evidence that they don't infringe on my Intellectual Property.

I believe troughout Europe we shall report the offence to the police so that the
state authorities can have a look at Sco's Claims and the management will be
held responsible.

It would be very helpful if Groklaw or the IBM lawyers could provide a draft to
file a criminal lawsuit in the EU states against selling licenses there.

[ Reply to This | # ]

OT: Chris Sontag in Freudian slip?
Authored by: Anonymous on Thursday, March 04 2004 @ 05:57 AM EST
From The Salt Lake Tribune:

"Everything we've been doing legally has been slow and methodical, giving ample time for people to respond [and] be educated on the issues," he said. "We're not rushing, this is just the time frame we have been working all along."

So, what about the stuff you have been doing illegally?

[ Reply to This | # ]

OT: Leaked SCO memo may indicate huge MS payoff
Authored by: Anonymous on Thursday, March 04 2004 @ 06:02 AM EST

Eric S. Raymond just posted to NewsForge, the following:

A SCO Group insider has leaked an internal company memorandum discussing its relationship with Microsoft, and it reveals that SCO is apparently collecting a lot bigger payoff from attacking Linux than anybody knew.

http://trends.n ewsforge.com/trends/04/03/04/0733231.shtml

The above link simply directs web surfers to ESR's "Halloween X: Follow The Money" document.

[ Reply to This | # ]

Am I blind? What does this have to do with Linux?
Authored by: Jude on Thursday, March 04 2004 @ 06:05 AM EST
Maybe I need more coffee, but I've read that complaint twice and I see no
connection to Linux other than the apparently pointless mention of it in
background facts (16) and (17). This complaint looks to me like nothing more
than pure Unix license compliance dispute.



[ Reply to This | # ]

The DaimlerChrysler Complaint - as text
Authored by: Anonymous on Thursday, March 04 2004 @ 06:14 AM EST
My guess is that the "7 figures" was including the decimal places.
i.e. 20,000.26

Voila! Seven figures

[ Reply to This | # ]

The DaimlerChrysler Complaint - as text
Authored by: Anonymous on Thursday, March 04 2004 @ 06:31 AM EST
Another point could be that they feel they have little or nothing to lose
because they know they'll be out a job soon. So why prolong the inevitable? Drop
a bomb like this and finish the whole thing off.

[ Reply to This | # ]

Halloween X: too good to be true?
Authored by: MacUser on Thursday, March 04 2004 @ 06:45 AM EST

Let's not get carried away. Hoaxes and trolls are a fact of life. PJ's policy of publishing only verifiable information has proved right again and again. If this turns out to be a fabrication, the allegations against SCOG and MS would be hugely libellous. There are people who'd like to see Groklaw discredited; no reason to help them.

[ Reply to This | # ]

A bit OT: Some humor
Authored by: Jude on Thursday, March 04 2004 @ 06:55 AM EST
Get a load of This article at The Inquirer.

It points out SCO's apparent habit of trying to distract the press from bad news with legal shenanigans.
The funny part is the line right after the words "abjectly stupid members of the press" in the second paragraph.

[ Reply to This | # ]

A fascinating Laura DiDio quote in Salt Lake Tribune
Authored by: trevmar on Thursday, March 04 2004 @ 07:00 AM EST
http://www.sl trib.com/2004/Mar/03042004/business/144544.asp

Yankee Group analyst Laura DiDio said SCO has created "a crazy situation. It's either a bold bet-the-company move [to add lawsuits] or a suicide gambit," she added. "Right now, the majority of the industry views it as the latter."

Actually, the whole article was pretty well balanced. It only failed to see through the Autozone complaint as essentially being a contract dispute. But the DC complaint was reported well.

[ Reply to This | # ]

The DaimlerChrysler Complaint - as text
Authored by: pajamian on Thursday, March 04 2004 @ 07:02 AM EST
Okay, I just have to say it...

ROFLMAO!!!

Okay, quick comparison here ... IBM revenues for year 2002 is approx $81.2
billion (http://www.ibm.com/annualreport/2002/fr_cfs.htm), DaimlerChrysler is
approx $158.8 billion
(http://www.daimlerchrysler.com/dccom/0,,0-5-7155-1-12898-1-0-0-0-0-0-8-7155-0-0
-0-0-0-0-0,00.html). As if IBM weren't a big enough target, now they want to go
after what is probably the biggest automobile manufacturer in the world with
thier hands in everything else imaginable as well? At this rate who will they
be suing next? Are there any companies with $300 billion revenue?

Also, is it just coincidence that they are going after such a major German
company since Germany has struck such a huge blow to SCO with the gag order? Is
this some kind of twisted revenge by trying to hit the German economy via a
lawsuit?

[ Reply to This | # ]

Software lock-in - ala Microsoft
Authored by: publius_REX on Thursday, March 04 2004 @ 07:03 AM EST
This has probably been pointed out 40 beelyun times by
now, but the DC and AZ suits look like SCOG attempts to
lock-in SCOG customers: you migrate - we sue. Did they
learn this from Billy G, their puppet master ?

[ Reply to This | # ]

King Lear-the Fool.
Authored by: JustFree on Thursday, March 04 2004 @ 07:20 AM EST
Sorry. I forgot to login.

We do not know what SCO's plans are, and should not have to speculate. “The
OpenGroup holds the UNIX trademark and decides who can call their OS UNIX.” .
Everybody who has done some reading over the past year knows that the is a very
significant difference between Unix and UNIX.

“Through a series of corporate acquisitions, SCO presently owns all right, title
and interest in and to UNIX and UnixWare operating system source code, software
and sublicensing[sic] agreements, together with copyrights, additional licensing
rights in and to UNIX and UnixWare, and claims against all parties breaching
such agreements.” This is false. How can they state this? SCO knows how to
twist the truth.

It appears that SCO tells the truth like the Fool in King Lear. They find some
relevant facts, and twist it into a form that makes them into Saints.

“SCO is the exclusive licensor of software licenses for the UNIX operating
system.” I can not hide my glee. Who is the OpenGroup? What happened to BSD. It
looks like SCO bought them, or the companies that have controlling interest in
BSD.

“Operating systems allow multiple software programs to run at the same time.”
This statement seems strange. I may just be nit-picking. It appears that SCO
failed Operating Systems 101.

SCO may just be looking for a windfall.

[ Reply to This | # ]

OT: Computer Associates
Authored by: Anonymous on Thursday, March 04 2004 @ 07:32 AM EST
not sure if this has been posted yet.

"Computer Associates has licensed The SCO Group's Intellectual Property
Licence for Linux.

Two other companies, natural gas supplier Questar and manufacturer Leggett &
Platt have also signed up, bringing the total number of publicly announced
licensees to four."


http://www.computerweekly.com/articles/article.asp?liArticleID=128865&liArti
cleTypeID=1&liCategoryID=2&liChannelID=28&liFlavourID=1&sSearch=
&nPage=1

[ Reply to This | # ]

OT : More Idiots signed!!!
Authored by: Greebo on Thursday, March 04 2004 @ 07:37 AM EST
Just seen this Story.

Seems like Computer Associates have also bought the License, along with EV1, Questar, and Leggett & Platt.

It seems there's no end to the number of people dumb enough to fall for this.

But for Computer Associates to fall for it - unbelievable!

Greebo

---
-----------------------------------------
Recent Linux Convert and Scared Cat Owner

[ Reply to This | # ]

Is this for real?
Authored by: phrostie on Thursday, March 04 2004 @ 07:39 AM EST
http://www.opensource.org/halloween/halloween10.html
"Halloween X: Follow The Money
3 Mar 2004
Excuse me, did we say in Halloween IX that Microsoft's under-the-table payoff to
SCO for attacking Linux was just eleven million dollars? Turns out we were off
by an order of magnitude — it was much, much more than that.

The document below was emailed to me by an anonymous whistleblower inside SCO.
He tells me the typos and syntax bobbles were in the original. I cannot certify
its authenticity, but I presume that IBM's, Red Hat's, Novell's, AutoZone's, and
Daimler-Chryler's lawyers can subpoena the original.

Explanatory comments are interspersed in green serif font.. Particularly
noteworthy bits of the original are in red."

---
=====
phrostie
Oh I have slipped the surly bonds of DOS
and danced the skies on Linux silvered wings.
http://www.freelists.org/webpage/snafuu

[ Reply to This | # ]

The DaimlerChrysler Complaint - as text
Authored by: Anonymous on Thursday, March 04 2004 @ 07:45 AM EST
http://www.computerweekly.com/articles/article.asp?liArticleID=128864&liArti
cleTypeID=1&liCategoryID=2&liChannelID=28&liFlavourID=1&sSearch=
&nPage=1

'SCO spokesman Blake Stowell had little to say on the ruling. "The judge
ruled that there are a few items that SCO needs to provide, but then she goes on
for about five or six pages or so on items that she's now asking IBM to provide
SCO with," he said. Stowell declined to comment further on the matter.'

LMAO. The judge says "SCO, basically, you provide everything" and
"IBM you provide this part of this request, that part of that request, all
of this request and these bits."

And in some alternate universe that's good for SCO?

[ Reply to This | # ]

The DaimlerChrysler Complaint - as text
Authored by: pooky on Thursday, March 04 2004 @ 07:48 AM EST
Okay, SCO's entire complaint against DC is that they didn't comply with their
obligation to certify compliance, therefore SCO is entitled to damages and an
injunction? One line of this suit mentions linux as a cause of action:

"28. On information and belief, DC’s refusal to certify that it is not
violating the DC Software Agreement is also based, in part, on DC’s use of UNIX
technology, in violation of the DC Software Agreement, in migrating its
installed base to the Linux operating system. "

So what SCO is really saying here is that we'll sue you for migrating from SCO
UNIX to Linux. I suppose next they will claim DC's custom applications are a
"derivative of UNIX" and cannot be ported because that violates the
software agreement.

I can't wait to see what DC and AutoZone come back with.

-pooky

---
Veni, vidi, velcro.
"I came, I saw, I stuck around."

[ Reply to This | # ]

Don't look at the source code or your brain will be tainted.
Authored by: leguirerj on Thursday, March 04 2004 @ 07:53 AM EST
Seems like the common thread from this is that once a Unix Licensee has the
System V source code in their possession, that they are from that time forward
inhibited from using any (including methods or concepts utilized therein) System
V version of Unix in any other alternate unix.

This reminds me of the Microsoft source leak on the internet a few weeks ago
with the warnings about don't look at the code or your brain will be tainted.

I am an engineer, even though my MSEE was heavy in Digital and Classical control
theory, I find my self programming in unix more and more. I am using those
"(including methods or concepts utilized therein)" in my work, and I
have never seen any System V source code, only from books I've bought from
Amazon.

It would be hard to become an engineer or programmer or scientist, let alone
work as one if the knowledge that one has can not be used by more that one
employer or for themselves. It would also be difficult to become one in the
first place if all knowledge (including methods or concepts utilized therein)
were resticted in some form.

This intellectual property idea is going to far.
Sorry for the ramble, but I am getting extremely frustrated with all this chains
on the brains IP stuff

[ Reply to This | # ]

The DaimlerChrysler Complaint - as text
Authored by: Anonymous on Thursday, March 04 2004 @ 07:58 AM EST
I just found this on linked from Linux Today

"Halloween X: Follow The Money
3 Mar 2004

Excuse me, did we say in Halloween IX that Microsoft's under-the-table payoff to
SCO for attacking Linux was just eleven million dollars? Turns out we were off
by an order of magnitude — it was much, much more than that.

The document below was emailed to me by an anonymous whistleblower inside SCO.

...

There you have it. A hundred million funnelled from Microsoft to SCO, of which
they have $68.5 million left. Their 10Qs reveal that every other line of cash
inflow is statistical noise by comparison. The brave new SCOsource business
model is now clear: sue your customers, shill for Microsoft, kite your stock,
and pray you stay out of jail.

" end quote.

I don't the proper way to bring this up. But this should really be looked into.

yodaone

[ Reply to This | # ]

Computer Associates named as SCO licensee
Authored by: Anonymous on Thursday, March 04 2004 @ 08:26 AM EST
Hi everyone.

See article at www.computerweekly.com

---- snip ----

Computer Associates has licensed The SCO Group's Intellectual Property Licence for Linux.

Two other companies, natural gas supplier Questar and manufacturer Leggett & Platt have also signed up, bringing the total number of publicly announced licensees to four.

---- snip ----

[ Reply to This | # ]

The DaimlerChrysler Complaint - as text
Authored by: Anonymous on Thursday, March 04 2004 @ 08:36 AM EST
The reason DC blew off SCO is in the legal letters that Novell posted on their
web site at http://www.novell.com/licensing/indemnity/legal.html

Novell told SCO that they believe their requirement for certification "is
unwarranted and that it is designed less to protect legitimate intellectual
property or contractual rights and more to harass customers."
Novell then goes on to direct "SCO immiediately to withdraw its demands for
certification from licensees under SVRX licenses,"

Hmmmm....

Kevin

[ Reply to This | # ]

Possible M$ Connection on the Reg
Authored by: penfold on Thursday, March 04 2004 @ 08:44 AM EST
Very interesting reading at The Register.

---
Blood from a turnip? That's easy! Try getting SCOX to produce evidence!

[ Reply to This | # ]

The DaimlerChrysler Complaint - as text
Authored by: Anonymous on Thursday, March 04 2004 @ 08:56 AM EST
Reading the complaint and having listened to Darl I came away with the 'feeling'
that SCO's take on things is that if you develop an application to run on Unix,
any Unix, then they (SCO) have the rights to that code.... Maybe I'm misreading
things but I'm left with that distinct impression.

[ Reply to This | # ]

The DaimlerChrysler Complaint - as text
Authored by: Len on Thursday, March 04 2004 @ 09:00 AM EST
Where can I see copies of Exhibit A and Exhibit B. Findlaw's search tools don't
seem to help.
Thanks

[ Reply to This | # ]

Nuisance Suits
Authored by: Anonymous on Thursday, March 04 2004 @ 09:01 AM EST
Don't these just seem like nuisance suits? It won't be about Linux, but they'll
find something to sue you with if you don't pay their protection fees.

[ Reply to This | # ]

  • Nuisance Suits - Authored by: Anonymous on Thursday, March 04 2004 @ 09:28 AM EST
  • Nuisance Suits - Authored by: Anonymous on Thursday, March 04 2004 @ 09:36 AM EST
The DaimlerChrysler Complaint - as text
Authored by: Peter H. Salus on Thursday, March 04 2004 @ 09:10 AM EST

On the basis of the March 2/3 activity, I think that
GROKLAW commentators are missing a point.

Let's assume that SCOF and its legal team aren't total
idiots. In that case, they are *expecting* to lose in
some jurisdiction (perhaps all), but they are planning
appeals. In that case, AutoZone and DaimlerChrysler
are good choices.

There are currently four suits filed by SCOG:
RedHat
IBM
AutoZone
DaimlerChrysler
The RedHat suit was filed in Delaware, the 3rd District;
IBM was filed in Utah, the 10th District; AutoZone was
filed in Nevada, the 9th District; and DaimlerChrysler was
filed in Michigan, the 6th District.

I think SCOG is attempting the make the various cases/appeals merger-proof.
Moving from Circuit Court to
Court of Appeals is easy; merging jurisdictions is not.

My guess is that SCOG will avoid the 1st and 2nd Districts
(New England and New York) as well as California.

If I'm right, the next filings will be in the SE or the
Northern Mid-West. Anyone for a company in Atlanta or
Minneapolis?

---
Peter H. Salus

[ Reply to This | # ]

OT: BBC coverage
Authored by: Anonymous on Thursday, March 04 2004 @ 09:31 AM EST
Groklaw gets a name check in their most recent (inaccurate) news story:
http://news.bbc.co.uk/2/hi/technology/3528641.stm
At least the link to groklaw is a step in the right direction.

Also (http://news.bbc.co.uk/2/hi/technology/3532009.stm):
"By contrast the creators of Bagle and MyDoom seem intent on enrolling
infected machines into a network of remotely controllable PCs that can be used
to forward spam or act as a launch pad for other viruses."

[ Reply to This | # ]

What's needed to get an Anti-Trust investigation of Microsoft/SCO?
Authored by: Anonymous on Thursday, March 04 2004 @ 09:33 AM EST
How much evidence is needed before subpeonas can fly?

Lies under oath => jail.

[ Reply to This | # ]

The DaimlerChrysler Complaint - as text
Authored by: sbungay on Thursday, March 04 2004 @ 10:01 AM EST
IMHO their "Basic Facts" are somewhat disconnected from the kernel
of the complaint. The complaint is purportedly about the licence and an alleged
breaking of it's terms by a customer. The list of facts is more of a 'history
according to SCO', and does not seem to relate to the actual 'reason' for the
action. For example how does the fact that Linux is a free (as in freedom) and
competetive product fit in here? Perhaps their customers use QNX too? Or *GASP*
Windows!
Most of their whine is how they've been usurped by Linux and IMHO is pathetic.
If they can't take the heat of competition then perhaps they should stop
pretending to be a chef and get the heck out of the kitchen. The Linux community
is busy creating culinary delights for hungry customers.

---
Programmer: A red eyed mumbling mamal that converses with inanimate objects.

IANAL IAAP

[ Reply to This | # ]

OT: MS connection
Authored by: Anonymous on Thursday, March 04 2004 @ 10:05 AM EST
I'm sorry for the OT. I just finished reading the email
presented at Linuxtoday that implicates MS. If it is true,
things are really in sad shape in this country. Much worse
than I originally thought. I recall last year that Ballmer had cashed in $1.2
Billion in MS stock, purportedly for
reinvestment purposes. Think about that amount. What could
you NOT buy?

[ Reply to This | # ]

SCOG Cannot Sue Linux Users For Using Linux
Authored by: Anonymous on Thursday, March 04 2004 @ 10:12 AM EST
The SCOG cannot sue Linux users for using Linux. The judge would dismiss
the suit.

The SCOG has sued and will sue licensees of AT&T UNIX and UNIXWARE. This
might signal the current Canopy Group business strategy. SCOG puts all
proprietary software vendors in a bad spot.

The SCOG public statements are disinformation. They continue to fail to sue
anyone based on IP infringement by Linux.

All Linux users can relax a bit now.

This global community is witnessing a paradigm shift. SCOG is threatening
the current proprietary software business model while validating the GPL and
the utility of a software commons in OSs and utility SW like compilers,
interpreters, and DBMSs.

There is plenty of room for proprietary software along with OSS. But the time
when evil SW vendors could lock in their customers in order to extort licenses
and financial windfalls is passing. Thank God!

[ Reply to This | # ]

The DaimlerChrysler Complaint - as text
Authored by: Anonymous on Thursday, March 04 2004 @ 10:18 AM EST
In paragraph 28, SCO is cliaming that DC, who has a source code license for
UNIX, is using that technology to migrate to Linux. Assuming that is true, it
will be exceptionally messy wading through all of the source code.

If DC created a customized version of UNIX or tied their apps closely to UNIX
based upon UNIX source code, and now DC is moving to Linux... well...
differentiating UNIX souce, DC derivate works, and Linux source will be like
separating a mountain of peanut butter and jelly all swirled together.

David Boise and Kevin McBride will be drooling over the billable hours needed
for the discovery process alone. Microsoft might need to sign up for some more
SCOsource licenses pretty soon to keep SCO afloat.

[ Reply to This | # ]

Case starts off with a falsehood on the first line.
Authored by: stevew on Thursday, March 04 2004 @ 11:00 AM EST
1.SCO is the exclusive licensor of software licenses for the UNIX
operating system.



What about BSD and varients thereof??? SCO is defienatly not the exclusive
licesor of UNIX. This statement is false and SCO knows it!!! SCO never had or
ever will have exclusive rights to license UNIX.

[ Reply to This | # ]

[OT] "The" Mike Anderer?
Authored by: Anonymous on Thursday, March 04 2004 @ 11:00 AM EST

Did some Google-ing, and found this regarding a "Mike Anderer":

http://news.com.com/2100-1001_3-200420.html
Note: I did not form this as an HTML link, as I do not have permission to link, so copy paste in your browser to see the full article.

"It's hard to find a large corporation interested in it. Anybody with any scars in this business doesn't want to be the first to do anything," commented Mike Anderer [emphasis mine], vice president of systems integration at Ikon Office Solutions , a large international integrator. "Right now it's kind of a manufacturing and standards war. In a year or two it might be a viable product."

I only posted this here as "Ikon Office Solutions", if my recall is correct, is where Darl McBride used to work, and Darl won sort of settlement from. Again, if my recall is correct.

Looks like more research, because, if the article "Mike Anderer" and the e-mail "Mike Anderer" are the same person, there is definitely a connection with Darl and possibly others at TSG.

[ Reply to This | # ]

This could get thrown out EASILY :-)
Authored by: ricketts30 on Thursday, March 04 2004 @ 11:24 AM EST

SCO, in their introductory remarks make the following justification for the Jurisdiction of the case

Parties, Jurisdiction and Venue

6. Plaintiff SCO is a Delaware corporation with its principal place of business in the County of Utah, State of Utah.

7. Defendant DC is a Delaware corporation with its principal place of business in the County of Oakland, State of Michigan.

8. This Court has subject matter jurisdiction over SCO’s Complaint because the amount in controversy exceeds the sum of Twenty-Five Thousand ($25,000.00) Dollars and/or is otherwise within the equitable jurisdiction of this Court. 9. Venue is properly situated in Oakland County, Michigan because DC has a place of business in Oakland County.

Now, can anyone tell me how not returning a license audit form is costing SCO in excess of $25,000.00 dollars?

[ Reply to This | # ]

Theoretical Question: Class Action Lawsuit
Authored by: Hyrion on Thursday, March 04 2004 @ 12:44 PM EST
At what point can SCOG have raised enough concern for the end user that a class
action lawsuit can be brought forward under similar grounds as Red Hat's suit?

I'm curious what the impact would be if, say, 250,000 end users sign a petition
to get Red Hat's suit moving forward, or maybe those individuals speak with
Moglen pertaining to maybe starting up a lawsuit on the following grounds:
a) SCOG has repeatedly claimed Linux contains their IP.
b) SCOG now has 4 lawsuits they instigated on those grounds.
c) The individuals involved in the suit do NOT want SCOG's IP.

Just curious, trying to figure out maybe some way to get things moving forward
again. This bit with IBM certainly feels like a step backwards.


---
There are many kinds of dreams. All can be reached if a person chooses. - RS

[ Reply to This | # ]

Why not just answer like this?
Authored by: Anonymous on Thursday, March 04 2004 @ 01:13 PM EST
Maybe I'm missing something here. Obviously, IANAL, so I may not understand all the nuances of this complaint. But it looks like Daimler Chrysler could respond with something along the lines of this:

Your honor,

In response to the Plaintiff's letter, we undertook an audit
of our use of the Software Products subject to the license
agreement. The results of that audit are now available, and
have been made available to the plaintiffs in addition to
being presented here.

In accordance with §2.05 of our license agreement, here is
the list of Designated CPU's on which we are running the
licensed Software Products, listing CPU location, CPU type and
CPU serial number:

CPU Serial Number: _______________
Mode/Type: _____________
Location: _________________________
          _________________________

CPU Serial Number: _______________
Mode/Type: _____________
Location: _________________________
          _________________________

CPU Serial Number: _______________
Mode/Type: _____________
Location: _________________________
          _________________________

CPU Serial Number: _______________
Mode/Type: _____________
Location: _________________________
          _________________________

CPU Serial Number: _______________
Mode/Type: _____________
Location: _________________________
          _________________________

CPU Serial Number: _______________
Mode/Type: _____________
Location: _________________________
          _________________________

Further, I certify that Daimler Chrylser's use of the
Software Products is in full compliance with the terms of
our license agreement with AT&T and its successor The SCO
Group.

_____________________________
(Daimler Chrysler Officer)

It seems like that fully meets the requirements of the license agreement, and The SCO Group would have what they are entitled to.

Isn't this all that is required to settle this entire lawsuit?

I also wonder how exactly The SCO Group can say that it has been harmed by an amount in excess of $25,000 by Daimler Chryslers failure to answer their letter within 30 days.

(Sorry for the duplicate post. I posted something like this earlier, further down the tree, but I didn't see any responses. I've been thinking about it some more and thought maybe more people would see it at the top level)

--
John Galt
IANAL

[ Reply to This | # ]

Establish the authenticity of Halloween X
Authored by: Anonymous on Thursday, March 04 2004 @ 01:14 PM EST
PJ should post a new story about Halloween X. But, instead of calling it
automatically valid and posting it as a 'scoop,' the call should be for the
Groklaw crowd to apply the 'many eyes' approach and to attempt to find evidence
either validating or invalidating the authenticity of this supposed 'leaked
memo.'

I personally don't think it's wise to rely exclusively on ESR for this. He has
done some great work, but he also has a tendency to shoot off his mouth and toot
his own horn.

[ Reply to This | # ]

Using Scologic I can figure the next PR gimmik
Authored by: kbwojo on Thursday, March 04 2004 @ 01:36 PM EST
I can see the next TSG press release now.

TSG has indicated that its next round of lawsuits will be against hard drive and
cd-burner manufacturing companies because their products are enabling people to
infringe TSG's IP in Linux. A TSG represetative has said "These devices
allow people to store, copy, and transfer our infringed IP. As far as that goes
we might as well tell you that we believe IBM is behind all of this. We think
that IBM has encouraged these companies to make these devices widely available
so that Linux could be copied easier, allowing it to spread faster and undercut
our product!". The TSG rep also indicated that their next target could be
none other than the makers of paper and ink.


disclaimer: Even though this seems to coincides with the current logical
thinking at TSG and could be something that one would expect to see from TSG,
this is intended to be humor and is in no way a respresentation of any real
events.

[ Reply to This | # ]

The DaimlerChrysler Complaint - as text
Authored by: minkwe on Thursday, March 04 2004 @ 01:48 PM EST
DC could as well respond like this:


"Your honor, we don't know these fellas, we have no contract with them. We
receive lots of junk mail and we just thrash those that are not registered and
does not come from our business associates. We are not convinced that they own
what they claim to own. They did not demonstrate to us that they are successors
in interest for AT&T, the company we have a contract with.

We respectfully ask that you drop this frivolous suit, or at least ask this SCO
fellas, whoever they are, to demonstrate that they own such rights, and that it
is not the subject of a dispute before we even consider responding to it"


If somebody steps on your lawn and claims that they are your landlord, and want
to inspect the premises according to your lease agreement what do you do? Don't
they have to first identify themselves and prove that they have the rights the
claim? I think you'll be right to refuse entry, even if he asked politely. What
if he gave you an ultimatum to let him in within 10 minutes?

---
Just my 0.02€ contribution to the floccinaucinihilipilification of SCO.

[ Reply to This | # ]

Cancel the contract
Authored by: danelray on Thursday, March 04 2004 @ 02:40 PM EST
Normally, the vendor just cancels the functionality of the software when the the
client violates the contract, especially for non-payment. And the client
normally converts all their application data to another product just before
cancelling the contract. No client with resources will tolerate a vendor who
attempts illegally to force a sole-source relationship, as SCO is attempting in
the manner of Micro$oft. THAT is what this suit is ALL ABOUT. Another
"organized crime" effort in the name of "capitalism".

Yes, SCO controls the distribution of a very limited set of software. Copying
or cloning that code would be inappropriate and inept.

Concepts drive value in software development. At best, cloning code can
temporarily accelerate the process. The developers then lose general concepts
and become dependent on a particular implementation. The open-source movement
is very flawed for using Unix-like terminology and for coding the same
base-language as Unix. ALGOL and/or other concept-oriented languages should be
used as the "primal tongue". Does IBM still use PL/S? I would
welcome porting an object-oriented version of PL/S to PC's and workstations to
replace C and C++. Many concepts are better expressed there. C and C++ create
obfuscatory illusions that they are superior.

All these concepts that SCO claims are "extensions to their UNIX
distribution" such as advanced journallng should be in IBM's truly advanced
operating systems. These are generic concepts. If I were IBM, I would have
ported the concepts to a wholly-owned IBM system before contemplating placing
any of them in any version of a competitor's OS. Then port the tested version
as an isolated add-on to the competitor's OS, provided that the competitor signs
off that the IP is sole property of IBM. The connection with ANY competitor is
tenuous at best. SCO and others seem to deny that IBM is an OS maven. IBM
wholly owns many operating systems.

The accusations from SCO amount to accusing IBM of embedding these concepts into
AIX. To do so would make SCO's code non-maintainable. That would label IBM's
management incompetent. Of course, I am assuming that SCO issued updates to the
code. Without updates, the SCO code has almost no value at all. Did IBM accept
the code without updates from SCO? When did SCO stop providing updates for IBM?
During Project Monterrey, did IBM suddenly realize they were providing a free
ride for SCO? JOINT VENTURES require VERY CAREFUL PROTECTION OF INTELLECTUAL
PROPERTY. The burden here is on SCO, assuming the OS maven called IBM provided
virtually all the INTELLECTUAL PROPERTY. Unlike a book, commercial software
requires timely updates. IBM has a permanently paid-up license from Novell
days. That STILL DOES NOT IMPLY that IBM has unlimited distribution rights to a
particular version of the Novell source code. In fact IBM passed on the deal
because that right was omitted from the contract, the one SCO's predecessor
signed. Novell retained VETO POWER over all licensing of its UNIX VERSION.



---
danelray

[ Reply to This | # ]

The DaimlerChrysler Complaint - as text
Authored by: Anonymous on Thursday, March 04 2004 @ 05:50 PM EST
SCO got this far ignoring truth and reality, why start now...

[ Reply to This | # ]

Copyright license versus contract
Authored by: gdt on Thursday, March 04 2004 @ 06:25 PM EST

If the ATandT UNIX license is a copyright license can't DC have the actions of the licensor tested as "reasonable"? (I'm not sure what the US mechanism for this is, in Australia it is the Copyright Tribunal).

Surely 30 days to examine every PC in the company that might dual-boot Linux is an unreasonable request in itself? Let alone that the effort may be of no consequence if other courts rule against SCO?

[ Reply to This | # ]

The Complaints
Authored by: rsteinmetz70112 on Friday, March 05 2004 @ 10:18 AM EST
IANAL But ...

Expect motions to remove to Federal Court ( differant citizenship, copyright,
patent issues) and motions to consolidate (essentially the same issues in all
cases). Alternately there could be motions to delay until the other cases are
decided.

That would be fun. A real three ring circus.

SCO is trying to make the suits differant enough to survive the motions and
forum shopping trying to find a sympathetic judge.

[ Reply to This | # ]

Michgan Links and Dates ...
Authored by: Anonymous on Friday, March 05 2004 @ 02:44 PM EST
PenguiCon

April 16th-18th, 2004
Novi, MI - (Southern) Oakland County

http://www.penguicon.org

With this SCO/DCX litigation, it will be a hot seat! I wouldn't doubt if Daryl
shows up.

- and -

Detroit Free Press - Oakland County - Michigan (no show here yet)

http://www.freep.com/index/locoak.htm

[ Reply to This | # ]

#15 - already debunked from original IBM complaint
Authored by: PeteS on Sunday, March 07 2004 @ 10:52 AM EST
Eric Raymond co-authored the OSI Position paper on the original complaint.

In that complaint, we have:

Paragraph 2.Through a series of corporate acquisitions, SCO presently owns all right, title and interest in and to UNIX and UnixWare operating system source code, software and sublicensing agreements, together with copyrights, additional licensing rights in and to UNIX and UnixWare, and claims against all parties breaching such agreements. Through agreements with UNIX vendors, SCO controls the right of all UNIX vendors to use and distribute UNIX. ”

In this complaint, we have:

15.

Through a series of corporate acquisitions, SCO presently owns all right, title and interest in and to UNIX and UnixWare operating system source code, software and sublicensing agreements, together with copyrights, additional licensing rights in and to UNIX and UnixWare, and claims against all parties breaching such agreements.

Highlighting mine.

These statements are identical within the italicized text!

So let's see what ESR et. al had to say on this:

SCO/Caldera misrepresents the scope of its rights over Unix

SCO/Caldera alleges (Paragraph 57):

“ Through a series of corporate acquisitions, SCO presently owns all right, title and interest in and to UNIX and UnixWare operating system source code, software and sublicensing agreements, together with copyrights, additional licensing rights in and to UNIX and UnixWare, and claims against all parties breaching such agreements. Through agreements with UNIX vendors, SCO controls the right of all UNIX vendors to use and distribute UNIX.”

SCO/Caldera neglects to mention that those rights had been substantially impaired before its acquisition of the ancestral Bell Labs source code. There was a legal action in 1992-1993, in which Unix Systems Laboratories and Novell (SCO/Caldera's predecessors in interest) sued various parties including the University of California at Berkeley and Berkeley Systems Design, Inc. for alleged copyright infringement, trade secret disclosures, and trademark violations with regard to the release of substantial portions of the 4.4BSD operating system.

The suit was settled after AT&T's request for an injunction blocking distribution of BSD was denied in terms that made it clear the judge thought BSD likely to win its defense. The University of California then threatened to countersue over license violations by AT&T and USL. It seems that from as far back as before System V Release 4 in 1985, the historical Bell Labs codebase had been incorporating large amounts of software from the BSD sources. The University's cause of action lay in the fact that AT&T, USL and Novell had routinely violated the terms of the BSD license by removing license attributions and copyrights.

The exact terms of final settlement, and much of the judicial record, were sealed at Novell's insistence. The key provisions are, however, described in Twenty Years of Berkeley Unix: From AT&T-Owned to Freely Redistributable, [McKusick99]. Only three files out of eighteen thousand in the distribution were found to be the licit property of Novell (and removed). The rest were ruled to be freely redistributable, and continue to form the basis of the open-source BSD distributions today.

Ten years ago — at a time when Linux was in its infancy — the courts already found the contributions of other parties to what is now UnixWare to be so great, and Novell's proprietary entitlement in the code so small, that Novell's lawyers had to settle for a minor, face-saving gesture from the University of California or walk away with nothing at all.

If the current lawsuit proceeds, justice requires that the court and settlement records in the AT&T-vs.-Berkeley lawsuit be unsealed, with a view to determining the degree to which SCO/Caldera's IP claims are nullified by the results.

This history is well-known in the open-source community, and helps explain why SCO/Caldera's claim that ownership of the historical Bell Labs code gives it substantial rights over other Unixes such as AIX is regarded among old Unix hands with near-universal disdain. Some of the court documents, including the 1993 ruling, are now available on the web.

If, as SCO/Caldera says, it inherited AT&T/USL/Novell's rights to Unix, it also inherited the res judicata that there are many sources of code and engineering experience in the Unix design tradition entirely independent of AT&T/USL/Novell's intellectual property. And that, seven years before IBM's behavior with respect to AIX and Linux became an issue, AT&T/USL/Novell's proprietary stake in at least one leading-edge Unix was already so diluted in comparison with the contributions it had received from elsewhere that said stake could scarcely be said to exist at all.

SCO/Caldera would, for understandable reasons, prefer that the courts remain ignorant of the history, outcome, and implications of the BSD lawsuit. But, of course, it bears directly on SCO/Caldera's claim in Paragraph 92: “Rather, IBM is obligated not to open source AIX because it contains SCO's confidential and proprietary UNIX operating system.”

The implied theory here is that “SCO's confidential and proprietary UNIX operating system” encompasses the entirety, or at least a preponderance, of the AIX code, including those portions related to enterprise scalability issues; and that SCO/Caldera therefore may exercise ex post facto control, even for anti-competitive purposes, over IBM's use of Unix in its normal course of business.

In fact, SCO/Caldera's complaint relies on confusing three separate scopes of control. One: those rights that pertain to the SCO shared libraries mentioned early in the complaint (paragraph 36 and following) only to disappear from the exposition shortly afterwards.

Two: those rights entailed in SCO/Caldera's ownership of the SCO OpenServer codebase.

Three: putative rights entailed in SCO's ownership of the historical Bell Labs source code (Unixware). Since IBM's AIX is well known to contain large portions of Berkeley code (towards which IBM has by all accounts met its license obligations), SCO/Caldera's theory is at best extremely dubious. In other words, to prove its right to relief SCO/Caldera will need to show that whatever code IBM gave to the open-source community was neither legally obtained by both IBM and old SCO from a common source nor independently developed.

And, on top of all this, it now appears that SCO's claim to own the Unix intellectual property was a deliberate and conscious lie on the part of SCO's management. On 28 May 2003 Novell stated that SCO owns neither the patents nor the copyrights to the Unix source code. A patent search verifies at least the former claim.

Finally, SCO's claim that it controls the right of all UNIX vendors to use and distribute UNIX flies in the face of the many perpetual and irrevocable licenses that AT&T, Novell and SCO itself it has sold to IBM, Sun, Hewlett-Packard and other Unix vendors.

So SCOG has simply copied from it's original complaint without thinking through the fact that even it's preamble arguments have been brought into serious doubt at best and thoroughly discredited at worst.

---
Today's subliminal thought is:

[ Reply to This | # ]

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