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OSIA POSITION PAPER ON SCO VS IBM AND OTHERS PUBLISHED
Wednesday, May 26 2004 @ 12:15 PM EDT

OSIA POSITION PAPER ON SCO VS IBM AND OTHERS PUBLISHED

AUSTRALIA, MAY 26. 2004

OSIA, Australia's Open Source industry body, has prepared a position
paper which outlines our analysis of the current state of the SCO vs IBM
and related court cases. Our aim is to provide a concise overview for
Australian organisations who are either using or considering the
adoption of Linux. We also provide recommendations to these
organisations, in case they are approached by SCO.




In March 2003, Caldera Systems Inc., trading as The SCO Group, filed
suit against IBM in the Salt Lake County District Court, claiming
that IBM engaged in unfair competition with SCO by misusing and
misappropriating SCO's proprietary software and incorporating the same
software into open source software (specifically Linux). SCO also
alleged that IBM induced, encouraged and enabled others to commit the
same acts.

"The SCO suit has attracted considerable interest and media attention,
particularly from open source software advocates, and those considering
the adoption of open source software," stated OSIA spokesperson Con
Zymaris. "Open Source Industry Australia has produced this position
paper to help distill the current status of what is, to casual observers,
a complex case, often made murkier by SCO constantly changing its claims
and allegations."

Within the position paper, we demonstrate that:

1) SCO launched this lawsuit as a cynical share-price pump and dump
exercise.

2) Unless proven, there is no infringing code in Linux.

3) SCO has dropped the key argument in its case against IBM.

4) SCO's claims that companies such as Computer Associates have bought
its Linux Intellectual Property (IP) Licenses are false.

5) Linux does not infringe on any SCO IP with respect to Application
Programming Interfaces (API).

6) Linux does not infringe on any SCO IP with respect to Application
Binary Interfaces (ABI).

7) SCO's case will fail because it cannot prove it owns any Unix
copyrights nor can it prove that any infringing Unix code is in Linux

8) The AutoZone and Daimler-Chrysler defendants were not sued for using
Linux.

9) Microsoft is the only reason that SCO is still in business.

Open Source Industry Australia believes that Australian enterprises and
individuals using Linux should continue to do so, and that SCO's threats
are no barrier to the ongoing adoption of the operating system.

All of SCO's attempts to offer any proof of misappropriated source code,
which would lend some credence to their year-long claims, have been
proven false. SCO have dropped the 'trade secrets' aspect of their
court case against IBM , showing weakness in their previous arguments.
Finally, Novell has produced evidence which indicates that SCO doesn't
even own the intellectual property purportedly inserted into Linux.

OSIA also suggest that any Australian organisation which is approached
by SCO, seeking money for the use of Linux, ask the following questions:

1) For what specific code am I being requested to pay a licence fee?
Please provide the file names and line numbers of the offending code.

2) Can you prove that you own this code?

3) Can you disprove Novell's claim of ownership?

4) Can you prove that you did not make this code available under the
terms of the GNU General Public Licence, which confers upon me the
right to run the code without restriction?

5) Why should I pay you anything before you have won your court case
against IBM?

The full position paper is available online here:

http://www.osia.net.au/content/download/361/1616/file/osia_sco_position_paper.pdf

- - -

About Open Source Industry Australia

OSIA is the industry body for Open Source within Australia. We exist to
further the cause of Free and Open Source software (FOSS) in Australia
and to help our members to improve their business success in this
growing sector of the global Information and Communication Technology
(ICT) market.

http://www.osia.net.au/

Spokesperson/Contact: Con Zymaris
Phone: 03 9621 2377
Fax: 03 9621 2477
Email: conz@cyber.com.au


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

Open Source Industry Australia

Position Paper on SCO vs IBM and others

For Immediate Release





Media Contact: Con Zymaris
Phone: +61 3 9642 2377
Email: conz@cybersource.com.au

Copyright notice: OSIA grants you the following rights on this document:
1. You are free to re-distribute it as widely as you wish, as long as it remains intact. 2. You are also free to use within your works, small segments of the document under a fair-use clause.

____________________________________


Background

In March 2003, Caldera Systems Inc., trading as The SCO Group, filed suit against IBM in the Salt Lake County District Court 1, claiming that IBM engaged in unfair competition with SCO by misusing and misappropriating SCO's proprietary software and incorporating the same software into open source software (specifically Linux). SCO also alleged that IBM induced, encouraged and enabled others to commit the same acts.

The SCO suit has attracted considerable interest and media attention, particularly from open source software advocates, and those considering the adoption of open source software. Particularly worrying are SCO's threats to sue users of the Linux operating system unless they acquired a licence from SCO – a situation that SCO states has come to pass with suits against DaimlerChrysler 2 and car parts maker AutoZone Inc., but as we shall see below, this is not the reality. 3

Open Source Industry Australia has produced this position paper to help distil the current status of what is, to casual observers, a complex case, often made murkier by SCO constantly changing its claims and allegations.

Disclaimer

Open Source Industry Australia (OSIA) is not a legal service nor does it proclaim legal expertise. We are producing the following documentation as a statement of position and opinion on the topic in question. The information contained herein represents OSIA's initial commentary and analysis and has been obtained from sources believed to be reliable. Positions taken are subject to change as more information becomes available and further analysis is undertaken. OSIA disclaims all warranties as to the accuracy, completeness or adequacy of the information. OSIA shall have no liability for errors, omissions or inadequacies in the information contained herein or for interpretations thereof.

Executive Summary

Key points:
1) SCO launched this lawsuit as a cynical share-price pump and dump exercise
2) SCO has dropped the key argument in its case against IBM.
3) SCO's claims that companies such as Computer Associates have bought its Linux Intellectual Property (IP) Licenses are false.
4) Unless proven, there is no infringing code in Linux
5) Linux does not infringe on any SCO IP with respect to Application Programming Interfaces (API)
6) Linux does not infringe on any SCO IP with respect to Application Binary Interfaces (ABI)
7) SCO's case will fail because it cannot prove it owns any Unix copyrights nor can it prove that any infringing Unix code is in Linux
8) The AutoZone and Daimler-Chrysler defendants were not sued for using Linux 9) Microsoft is the only reason that SCO is still in business.

Open Source Industry Australia believes that Australian enterprises and individuals using Linux should continue to do so, and that SCO's threats are no barrier to the ongoing adoption of the operating system.

All of SCO's attempts to offer any proof of misappropriated source code, which would lend some credence to their year-long claims, have all been proven false 4. SCO have dropped the 'trade secrets' aspect of their court case against IBM 5, showing weakness in their previous arguments. Finally, Novell has produced evidence which indicates that SCO doesn't even own the intellectual property purportedly inserted into Linux. 6

To any Australian organisation which receives any request for licence payment from The SCO Group, we recommend that you do not respond in any way, seek legal advice , taking this document to your lawyer, and also submit the received documentation from SCO as evidence to the Australian Competion & Consumer Commission (ACCC.) Complaints to the ACCC can be registered here: http://www.accc.gov.au/content/index.phtml/itemId/54217/fromItemId/3634

To put this whole situation into a non-technical perspective, we view the claims made by The SCO Group as akin to a complete stranger knocking on your office door one day, demanding rent in arrears for a portion of your office. You have had no dealings with this stranger beforehand, and he offers you no proof whatsoever that he actually owns what he says he owns. He does, however threaten to sue you if you don't pay.

In essence, we see SCO's actions, of demanding money from organisations that they have no business dealings with, for property which has not been proven to be theirs, akin to conduct not condoned by Australia's Trade Practices Act (1974). As such, we commend all current and future Linux users to act accordingly, by lodging complaints with the ACCC and doing nothing to engage SCO .

Key Points

1) SCO launched this lawsuit as a cynical share-price pump and dump exercise

A decade ago, the original Santa-Cruz Operation (SCO) had a viable business selling x86 based UNIX servers. Linux and other free source UNIX implementations, like FreeBSD, essentially did this role better and cheaper. With time, the original SCO was sold to a company which had been in essence, a competitor from that Linux space, Caldera. Unlike successful Linux companies, like Suse and Red Hat however, Caldera wasn't performing well in the growing Linux marketplace. It is at this point, more than likely, that Caldera decided to hitch its fortunes to the business model of lawsuits, hoping to generate enough momentum through legal threats, to raise its stock price in expectation of either a one in a million jackpot win or an acquisition from one of the lawsuit targets.

When SCO launched this cynical attack against Linux (via IBM,) it's share price was idling at around US$1.00 7. A mere nine months later, at the height of its media-blitz and just before the industry started to realise that SCO had no case, the share price had reached $18.00. This constitutes a 1,700% growth factor. For a company like SCO to make such a share price gain using a real business model, rather than filing spurious lawsuits, it would have had to have grown revenues and profits by at least an order of magnitude. Instead,we have an ailing company, now almost universally loathed in the ICT industry, with revenues falling around 8% ever quarter 8, and haemorrhaging cash rapidly. Even its gamble to con Linux users into paying for licences which they do not need has failed. To date, the SCOSource Linux Intellectual Property Licence has brought in a mere $20,000. 9

2) SCO has dropped the key argument in its case against IBM


SCO has dropped its original complaint that IBM had inserted SCO trade secrets into the Linux source code. 10 Specifically:

“In response to the Court's Order, SCO abandons any claim that IBM misappropriated its trade secrets, concedes that SCO has no evidence that IBM improperly disclosed UNIX System V code, and acknowledges that SCO's contract case is grounded solely on the proposition that IBM improperly disclosed portions of IBM's own AIX and Dynix products, which SCO claims to be derivatives of UNIX System V"

At this point, SCO's suit against IBM claims only copyright infringement for continuing to distribute AIX (IBM's own proprietary UNIX implementation, not at all related to Linux) after SCO had terminated its licence to the AT&T UNIX code, the termination of which rested upon IBM's alleged code insertion into Linux. The current breach of copyright has nothing to do with Linux, and was the most substantial component of SCO's original complaint. It also very likely means that SCO has terminated IBM's AIX licence without cause, but once again, this doesn't relate to Linux and Open Source at all.

3) SCO's claims that companies such as Computer Associates have bought its Linux Intellectual Property (IP) Licenses are false

SCO has claimed that several companies have purchased SCOSource Linux Intellectual Property Licences, presumably in an attempt to show that other parties accept the legitimacy of their claims. However, the companies identified to date have denied this; for example, Computer Associates claims that it unintentionally acquired the licences as part of a breach of contract settlement with the Canopy Group Inc., a major investor in SCO. 11 Chief architect of CA's Linux Technology Group, Sam Greenblatt, specifically disavows any endorsement of SCO's actions:

“To represent us as having supported the SCO thing is totally wrong . . . We totally disagree with [Darl McBride's, SCO CEO] approach, his tactics and the way he's going about this”. 12

Specifically, CA claims that:

“SCO has twisted a $40 million breach-of-contract settlement that CA paid last summer to the Canopy Group, SCO's biggest stockholder, and Center 7, another Canopy company, and has turned it into a purported Linux license. As a 'small part' of that settlement, [CA's] Barrenechea said, CA got a bunch of UnixWare licenses that it needed to support its UnixWare customers. SCO, he said, had just attached a transparent Linux indemnification to all UnixWare licenses and that is how SCO comes off calling CA a Linux licensee.” 13

Another claimed licencee, Leggett and Platt, can also find no record of their ever having bought a SCOSource licence. 14

The one firm (EV1) which did indeed purchase a SCOSource Linux Intellectual Property Licence, web-hosting company has already regretted it, with their CEO Robert Marsh telling reporters at ComputerWorld:

“Would I do it again? No. I'll go on the record as saying that," Marsh said. "I certainly know a lot more today than I knew a month ago, in a lot of respects." 15

4) Unless proven, there is no infringing code in Linux

SCO has consistently been unable or unwilling to provide details of the Linux code which they claim infringes their copyright – this, despite the fact that SCO must have access to the UNIX source code they purport to own, and everyone has access to the Linux source code, making comparison quite easy. Instead, SCO has demanded access to IBM's Dynix/PTX source code – which IBM supplied – and the AIX source code – which it did not.

In fact, the presiding judge in the SCO vs. IBM case, Judge Brooke Wells, as actioned SCO repeatedly to specify the infringing code., requests which SCO has repeatedly failed to comply with. 16 SCO now have until April 19th, 2004 to show this supposedly infringing code. As was recently reported in the Salt Lake Tribune:

“Meantime, both sides face an April 19 deadline to provide each other with source codes and related correspondence. However, it is SCO's provision of evidence to back its UnixLinux claims that could prove critical. If SCO fails to satisfy the court, the case -tentatively scheduled for April 2005 -- could be thrown out.” 17

5) Linux does not infringe on any SCO IP with respect to Application Programming Interfaces (API)

An Application Programming Interface (API) is the specification that a programmer is provided to access an underlying operating system or system library. It consists of functions, procedures, and methods, defined in a particular programming language (in both UNIX and Linux, this is the C programming language.) An API provides source code compatibility with an underlying class of platform. 18

SCO claims that because the function calls that Linux offers to application programmers are in many cases identical to those which originated in AT&T UNIX, that Linux is an infringing derivative of the AT&T code.

This is a very simple argument to demolish. The API which specifies UNIX was donated by UNIX's owners, Novell to The Open Group 19, In fact, this organisation and not SCO, is also the owner of the UNIX name and trademark (“UNIX® is a registered trademark of The Open Group in the USA and other countries.”)

The Open Group owns and maintains this standard UNIX API, branding it their Single Unix Specification. The Open Group explicitly states that anyone can implement this API without any copyright concerns, and clearly status so on their website:

“Q. Does an operating system have to be derived from AT&T/SCO code to meet the Single UNIX Specification?

A. No. As the owner of the UNIX trademark, The Open Group has separated the UNIX trademark from any actual code stream itself, thus allowing multiple implementations. Since the introduction of the Single UNIX Specification, there has been a single, open, consensus specification that defines the requirements for a conformant UNIX system.”

SCO's claims that the header files which are found within Linux infringe on SCO IP is also an incorrect statement. As Bruce Perens states:

“The header files in question were released for the public to implement without a copyright encumbrance on five separate occasions in all.” 20

These included:

(a)AT&T's release for the ANSI C Language Standard.

(b)AT&T's release for the U.S. Government POSIX standard.

(c)The USL v. BSDI court case of the early 1990's, in which AT&T's Unix System Labs was found not to have a defensible copyright interest in UNIX. Thus, UNIX was in the public domain.

(d)The transfer of the Unix definition to the Open Group.

(e)The release of earlier AT&T UNIX implementations under the BSD license by Caldera (which now calls itself SCO) in 2002.

This information is all on the public record. SCO's attempts at claiming Linux's API infringes on their IP will therefore fail.

6) Linux does not infringe on any SCO IP with respect to Application Binary Interfaces (ABI)

An Application Binary Interface (API) is somewhat equivalent to an API but deals in compiled binary compatibility for a specific CPU computing environment. The original Santa Cruz Operation was a participant in a collaborative effort, which included IBM, SGI, HP and various Linux firms. This collaborative effort resulted in the creation of extensions to the UNIX System V ABI for the IA64 (Itanium) architecture. The document which defines this standard, is available from Intel. 21 In section 1.1 of this document, appears the following statement:

“This document is the result of consensus among operating system vendors intending to provide UNIX and UNIX workalike operating systems on the IA-64 architecture. The vendors participating in this effort include Intel, Sun Microsystems, SCO, IBM, SGI, Cygnus Solutions, VA Linux Systems, HP, and Compaq.”

Therefore, SCO, in concordance with other vendors who had an interest in ensuring conformance and interoperability of their platforms, agreed to make this specification open and public to all. In fact, the Caldera/SCO website still makes the following assertion:

“You should seriously consider the benefits of building your products in conformance with the binary compatibility specification that matches your intended market.” 22

and also this statement:

“The benefit of using an ABI is that the same binary distribution of your product runs on systems from many vendors, rather than having to be ported and compiled separately for each system. You can sell each shrink-wrapped unit into a significantly larger market than would otherwise be the case.”

From a lengthy investigative article on this topic (by Frank Sorenson et al), we present the following selection:

“As we have already seen, according to the Linux A.B.I. homepage, Christoph Hellwig, working for Caldera, developed and wrote the linux-abi patches to allow the Linux kernel to run UnixWare and other foreign binaries. The entries in the ChangeLog show Christoph Hellwig as the principal maintainer of the patches, and the patch releases were announced by him as well (for example, 2.4.14 kernel and 2.4.15 kernel)." 23

So, far from being protective or exclusionary of its portion of the ABI specification/IP, SCO strongly encouraged all vendors and platform providers to make use of it. In fact, they also (through Caldera/SCO employees) knowingly contributed code to Linux (under the LGPL) to make sure this happened. This means that all Linux users can proceed to use this code as they have always done, with impunity.

7) SCO's case will fail because it cannot prove it owns any UNIX copyrights nor can it prove that any infringing Unix code is in Linux

SCO's copyright case seems likely to fail on at least two points:

a) Novell Inc. asserts that when it sold its UNIX System V business to SCO in 1995, the asset purchase agreement did not transfer the copyrights and patents, and has stated, in a letter to SCO President and CEO Darl McBride:

“We believe it unlikely that SCO can demonstrate any ownership interest whatsoever in those copyrights. Apparently, you share this view, since over the last few months you have repeatedly asked Novell to transfer the copyrights to SCO, requests that Novell has denied”.

b) As far as anyone can determine – bearing in mind SCO's inability to definitively identify source code files and line numbers – the lines of code transferred to Linux are not part of the original AT&T System V source code, but instead are extensions to that system which were in fact written by IBM, or by employees of Sequent, a company that IBM acquired in 1994. However, SCO's case is that such additions are a derived work, and that therefore SCO owns rights to all such work. However, in 1985, AT&T specifically clarified its Software Agreements to “assure licensees that AT&T will claim no ownership in the software that they developed – only the portion of the software developed by AT&T” 24, and AT&T's successors in interest – be that SCO or Novell – are bound by the terms of this licence.

8) The AutoZone and Daimler-Chrysler Defendants were not sued for using Linux

In short, both companies were in fact sued for essentially being SCO clients. According to Linux community leader, Bruce Perens :

“SCO's suit against AutoZone is related to AutoZone's alleged use of Unixware compatibility software for Linux previously released for free on the net by Caldera, before they stopped being a Linux business. SCO claims that AutoZone had old applications that ran on Unixware and could not be recompiled. This is unusual, in that most Linux users will not be moving software that they can't recompile. Caldera, now SCO, gave that compatibility software away for years, so they're going to have a very hard time showing that AutoZone didn't have a right to use it. A former AutoZone lead software engineer contradicts that the compatibility libraries were used at all. 25”26

Daimler-Chrysler were not sued for being a Linux user. SCO sued because Daimler-Chrysler was a Unix source-code licencee, but refused to certify that its use of the Unix operating system was in accordance with the terms of the licensing that SCO offered 27

As we have probably demonstrated, it is not in any organisation's best interests to have business dealings with SCO, as SCO seems to sue their clients more than anyone else.

9) Microsoft is the only reason that SCO is still in business

Most Linux industry observers believe that one of the major motive forces behind SCO's ability to undertake this attack on Linux and Linux users is Microsoft.

Microsoft, very early on in the proceedings, decided to licence SCO's UNIX Intellectual Property 28. It is still unclear what Microsoft intends to do with this licenced IP, as the UNIX software technology which SCO has the right to resell, is now essentially a legacy platform, all but defeated in the marketplace by Linux. It is very unlikely that Microsoft itself could use this technology, even in their own Microsoft Services for Unix (SFU) software product. Instead, SFU in fact makes extensive use of GPL-based and BSD-based Free and Open Source software. 29

There has been no suggestion to date that SFU uses any SCO licenced UNIX technology at all. 30,31 Microsoft purportedly paid around $15 million 32 to acquire a licence for this software which it is unlikely to ever use. Furthermore, Microsoft has been selling SFU for years. Why would it decide it needed to pay SCO for a licence only when SCO launched an attack on Linux, post March 2003?

The most likely conclusion we can draw from this activity, is that Microsoft understood that SCO had a need to be propped up financially, and Microsoft's payment was the fastest way to ensure that SCO could cause as much damage (or threat of damage) as possible to Linux''s growing reputation as the standard industry computing platform.

Additionally, some months after this direct cash injection, Microsoft also co-ordinated, in what has become the biggest Watergate-style scandal in recent ICT industry history, for an investment company to arrange an additional US$50 million of funding to SCO. 33 This investment vehicle, called BayStar Capital has additional links to Microsoft. Wired magazine recently reported the following on BayStar capital:

“BayStar Capital is a private equity fund that makes direct investments in privately held and publicly traded companies. One of BayStar's largest investors, according to BayStar (PDF), is Vulcan Capital, the private investment vehicle of Paul Allen. Allen co-founded Microsoft with Bill Gates, and is the second-largest Microsoft shareholder after Gates.” 34

Make of this what you will. What is probably obvious to any informed observer, is that an investment of that magnitude, injected after SCO had started to lose out in the public relations war against the Linux industry, is a very poor investment. In fact, that investment of $50 million is worth less than half that amount now, a mere few months later, making investment into SCO a poor decision. So, if direct financial gain wasn't at the heart of this transaction to inject money into SCO, what was?

Recommendations

Open Source Industry Australia advises any company approached by SCO demanding payment of licence fees for Linux systems, to first consult their legal advisors, taking this position paper along, and to also take the matter up with the ACCC as indicated earlier.

We note that based on our research, various well informed governments around the world have decided to not respond to SCO at all.

If your legal advisors do decide to respond, ensure that they seek the following answers from SCO :

1) For what specific code am I being requested to pay a licence fee? Please provide the file names and line numbers of the offending code.

2) Can you prove that you own this code?

3) Can you disprove Novell's claim of ownership?

4) Can you prove that you did not make this code available under the terms of the GNU General Public Licence, which confers upon me the right to run the code without restriction?

5) Why should I pay you anything before you have won your court case against IBM?




__________________
1 Caldera Systems, Inc. v International Business Machines Corporation. See http://www.sco.com/scosource/complaint3.06.03.html
2 The SCO Group, Inc v DaimlerChrysler Corporation. See http://www.sco.com/iplawsuit/DCComplaint.pdf
3 The SCO Group, Inc v AutoZone, Inc. See http://www.sco.com/iplawsuit/AZComplaint.pdf
4 http://www.perens.com/SCO/SCOSlideShow.html
5 http://www.groklaw.net/article.php?story=20040209231214944
6 http://www.novell.com/news/press/archive/2003/05/pr03033.html and http://lwn.net/Articles/67050/
7 http://finance.yahoo.com/q/bc?s=SCOX&t=2y&l=on&z=m&q=l&c=
8 http://biz.yahoo.com/ibd/040402/tech_1.html
9 http://biz.yahoo.com/ibd/040402/tech_1.html
10http://www.groklaw.net/article.php?story=20040206175445975
11Computerworld Australia, 5/3/2004. See http://www.computerworld.com.au/index.php?id=1162635813&fp=16&fpid=0
12IDG News Service and Tech-World, 5/3/2004. See http://www.techworld.com/news/index.cfm?fuseaction=displaynews&NewsID=1151
13http://www.groklaw.net/article.php?story=20040304231541412&query=computer+associates
14http://www.techworld.com/news/index.cfm?fuseaction=displaynews&NewsID=1151
15http://www.computerworld.com/governmenttopics/government/legalissues/story/0,10801,91671,00.html
16http://news.com.com/2100-7344_3-5114689.html and http://www.groklaw.net/article.php?story=20040303182840400#c90191
17http://www.sltrib.com/2004/Apr/04062004/business/154471.asp
18http://www.linuxworld.com/story/39051.htm
19http://www.opengroup.org/
20http://www.linuxworld.com/story/44020.htm
21ftp://download.intel.com/design/Itanium/Downloads/24537003.pdf
22http://ou800doc.caldera.com/DIFFS/_ABI_Conformance.html
23http://www.groklaw.net/article.php?story=20040130235310123
24“AT&T $echo”, August 1985, AT&T Software Sales and Licensing, Greensboro. p.5 See http://www.novell.com/licensing/indemnity/pdf/08_1985_echo.pdf
25http://yro.slashdot.org/comments.pl?sid=99137&cid=8452800
26http://east.perens.com/SCO/March2004.html
27http://www.midrangeserver.com/tlb/tlb030904-story03.html
28http://insight.zdnet.co.uk/software/linuxunix/0,39020472,2134917,00.htm
29http://www.oreillynet.com/cs/user/view/cs_msg/31358
30http://www.pcworld.com/news/article/0,aid,53943,00.asp
31http://www.deadly.org/article.php3?sid=20030927090008
32http://www.technewsworld.com/perl/story/31252.html
33http://www.eweek.com/article2/0,4149,1547662,00.asp?kc=EWRSS03119TX1K0000594
34http://www.wired.com/news/business/0,1367,62544,00.html?tw=wn_tophead_

  


OSIA POSITION PAPER ON SCO VS IBM AND OTHERS PUBLISHED | 121 comments | Create New Account
Comments belong to whoever posts them. Please notify us of inappropriate comments.
Corrections here please
Authored by: Anonymous on Wednesday, May 26 2004 @ 12:25 PM EDT

[ Reply to This | # ]

URLs and other topics here please
Authored by: Anonymous on Wednesday, May 26 2004 @ 12:27 PM EDT

[ Reply to This | # ]

OSIA POSITION PAPER ON SCO VS IBM AND OTHERS PUBLISHED
Authored by: Anonymous on Wednesday, May 26 2004 @ 12:28 PM EDT
I believe the street term for this is "three snaps in the shape of a
Z".

WHAM.

[ Reply to This | # ]

Technical innacuracy in the original
Authored by: DFJA on Wednesday, May 26 2004 @ 12:28 PM EDT
"4) Can you prove that you did not make this code available under the terms
of the GNU General Public Licence, which confers upon me the right to run the
code without restriction?"

I think they should make it clearer that the GPL _does_ put restrictions on you
if you re-use the code, in that you can't then re-release the code under a
different licence.

This aside, I think they have made a very worthy contribution to debunking the
SCO-FUD, at least in Australia. I would like to see similar actions in other
parts of the world too.

Well done!

---
43 - for those who require slightly more than the answer to life, the universe
and everything

[ Reply to This | # ]

OSIA POSITION PAPER ON SCO VS IBM AND OTHERS PUBLISHED
Authored by: Anonymous on Wednesday, May 26 2004 @ 12:39 PM EDT
Open source community is taking a more and more aggresive move on SCO. Of course
SCO will not be long to stay from now, but beware of Microsoft all the time.
They are not going to let go their puppet easily (Check out SCO's stock price
recently).

[ Reply to This | # ]

OSIA POSITION PAPER ON SCO VS IBM AND OTHERS PUBLISHED
Authored by: Nick_UK on Wednesday, May 26 2004 @ 12:49 PM EDT
WOW. Good old Oz :)

Nick

[ Reply to This | # ]

OSIA POSITION PAPER :in a couple words, "Thanks Mate"
Authored by: icebarron on Wednesday, May 26 2004 @ 12:52 PM EDT
Finally someone has put all the cards on the table on each count of the sco hit
charade. My compliments to the folks in Australia. Only they seem to be able to
perfect the art of "taking the piss" on the lowlifes sco/canopy/m$.
Today I am proud to call all Aussies friend....

To code or not to code...there is no question!

Dan

#include <IANAL>
#include <IANAPL>
#include <Die-sco-fever>

[ Reply to This | # ]

This is not a legal document.
Authored by: Anonymous on Wednesday, May 26 2004 @ 12:58 PM EDT
This is nothing more than open source PR, so why post it in its entirety on
Groklaw?

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OSIA POSITION PAPER ON SCO VS IBM AND OTHERS PUBLISHED
Authored by: SoundChaser on Wednesday, May 26 2004 @ 01:03 PM EDT
Actually, they missed something in this paper. There were four licenses under
the SCOSource scheme. The fourth was a utility company that purchased the
license to keep themselves out of the limelight, if I recall correctly. They've
made very few comments about the purchase.

Of course, it still means that making $20,000 from two legitimate license
purchases in a year must be rather dis-heartening for SCO, and points to a
definite lack of believability to their claims. :)

[ Reply to This | # ]

Letters between Novell and SCO
Authored by: Anonymous on Wednesday, May 26 2004 @ 01:25 PM EDT
Specifically I'm looking for the one I think they're talking about in 7a
above, but wasn't there a site that had copies of all the letters that
have gone between Novell and SCO? I can't find it now... can someone
point me to it? Thanks much.

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I've got four words for them...
Authored by: Erbo on Wednesday, May 26 2004 @ 01:30 PM EDT
They Shoot, They Score!

This document should be disseminated as widely as possible, as a prophylactic to the piles of steaming FUD coming out of Lindon, Utah. Well done, mates!

(PJ: Better make sure your red dress is back from the dry-cleaners!)

---
Electric Minds - virtual community since 1996. http://www.electricminds.org

[ Reply to This | # ]

Linux a 'waste of money', says top MS exec
Authored by: tleps on Wednesday, May 26 2004 @ 01:32 PM EDT
This showed up yesterday,, not sure if you have all seen it yet.

Go here - it's about the Asian market...

http://www.techworld.com/opsys/news/index.cfm?NewsID=1615

sorry, just got up, don't feel like making tags at the moment. Hopefully you
all know how to copy & paste ;)

More FUD from MS.

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The SCOvAZ action mistated again!?
Authored by: Anonymous on Wednesday, May 26 2004 @ 01:33 PM EDT
I keep running into the idea that the AZ action is about the Unixware compatibility libraries. Here it is again!

    “SCO's suit against AutoZone is related to AutoZone's alleged use of Unixware compatibility software for Linux previously released for free on the net by Caldera, before they stopped being a Linux business. SCO claims that AutoZone had old applications that ran on Unixware and could not be recompiled. This is unusual, in that most Linux users will not be moving software that they can't recompile. Caldera, now SCO, gave that compatibility software away for years, so they're going to have a very hard time showing that AutoZone didn't have a right to use it. A former AutoZone lead software engineer contradicts that the compatibility libraries were used at all.

The FIRST AMENDED COMPLAINT filed by SCO includes the following language.

    19. The Copyrighted Materials include protected expression of code, structure, sequence and/or organization in many categories of UNIX System V functionality, including but not limited to the following: System V static shared libraries; System V dynamic shared libraries; System V inter-process communication mechanisms including semaphores, message queues, and shared memory; enhanced reliable signal processing; System V file system switch interface; virtual file system capabilities; process scheduling classes, including real time support; asynchronous input/output; file system quotas; support for Lightweight Processes (kernel threads); user level threads; and loadable kernel modules.

    20. On information an belief, parts or all of the Copyrighted Material has been copied or otherwise improperly used as the basis for creation of derivative work software code, included one or more Linux implementations, including Linux versions 2.4 and 2.6, without the permission of SCO.

This is a pretty directed statement that the action is based on the SystemV copyrights and are related directly to the Linux kernel 2.4 and 2.6.

A claim based on the Unixware compatibility software would be based not on the SystemV copyrights, but SCO's own copyrights for the compatability libraries. As I understand it, those were developed by SCO themselves. Also, such libraries are used as a distinct interface layer and are not part of the kernel at all.

Am I off base with this one? It is getting to be a great source of confusion, especially appearing in a document like this on.

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They missed one
Authored by: pscottdv on Wednesday, May 26 2004 @ 01:41 PM EDT
The paper is pretty good, but they seem to have missed another important point
which is that SCO has been distributing the as-of-yet-unspecified disputed code
*themselves* under the GPL for a long time.

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OSIA POSITION PAPER ON SCO VS IBM AND OTHERS PUBLISHED
Authored by: kedens on Wednesday, May 26 2004 @ 01:52 PM EDT
I was looking at Novell's financial information on http://finance.yahoo.com
ticker symbol novl. They still have a negative earnings per share even though
they are doing better. I aquired the student upgrade version of Suse Linux 9.1
which as you know is now owned by Novell. I think it would be a good idea if as
many of us as could support Novell and their push into Linux by purchasing a
copy of Suse Linux 9.1
Not only would this help open source and Novell , but I have to say that this is
my favorite version of any distrobution ever and it uses the new Linux 2.6
kernel :-)

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Well, this proves that more than Groklawyers are reading Groklaw!
Authored by: ray08 on Wednesday, May 26 2004 @ 01:58 PM EDT
There are numerous (4) references back to here. I am convinced that the word is
really getting out now, to the likes of IBM, RH, DC, AZ lawyers, newspapers and
other publications. I'm also certain that Darl, BS, Boys, M$ et al. also read
Groklaw!

Hey PJ, think it's helping?

And a big welcome to Judge Kimball!

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OSIA POSITION PAPER ON SCO VS IBM AND OTHERS PUBLISHED
Authored by: Anonymous on Wednesday, May 26 2004 @ 01:59 PM EDT
My wife is from Australia and I can tell you from *cough* personal experience
that these folks are masters of - shall we say - cutting to the chase. It's
quite satisfying to see the Aussie rapier-like linguistics applied to this case.

[ Reply to This | # ]

OSIA POSITION PAPER ON SCO VS IBM AND OTHERS PUBLISHED
Authored by: ExcludedMiddle on Wednesday, May 26 2004 @ 02:02 PM EDT
Instead, SCO has demanded access to IBM's Dynix/PTX source code – which IBM supplied – and the AIX source code – which it did not.
Not quite. IBM did release the AIX source. Just not the code wasn't part of the working versions. And then SCO still didn't find anything. Then they signed an affidavit afterwards claiming that their discovery production on that topic was complete. That's a key point of the case that's hard to explain in a paper like this, but means everything to the summary judgement that has the best chance of killing this quickly.

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Baystar-Vulcan-Paul Allen is news
Authored by: kawabago on Wednesday, May 26 2004 @ 02:25 PM EDT
I hadn't seen that connection actually defined before, it was just assumed.

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Groklaw
Authored by: the_flatlander on Wednesday, May 26 2004 @ 02:30 PM EDT
And, I note the footnotes refer to Groklaw about five times. Including
reference to a "lengthy investigative article on this topic (by Frank
Sorenson et al)."

Nice going PJ! And Newsome! (And et al!) Providing ammunition to the folks
willing to use it. Well done.

The Flatlander

So, what's the difference between Darl and a common, run-of-the-mill horse
thief? [shrug] Darned if I can tell.

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    OSIA POSITION PAPER ON SCO VS IBM AND OTHERS PUBLISHED
    Authored by: Anonymous on Wednesday, May 26 2004 @ 02:59 PM EDT
    SCO launched this lawsuit as a cynical share-price pump and dump exercise.
    C'mon, OSIA. Quit beating around the bush and tell us what you really think.

    [ Reply to This | # ]

    Repairing Copyright
    Authored by: Anonymous on Wednesday, May 26 2004 @ 03:12 PM EDT
    Here is a very interesting and insightful article titles The state of copyright activism.
      One of the great hopes I had while I researched and wrote Copyrights and copywrongs (New York: New York University Press, 2001), a cultural history of American copyright, during the late 1990s was that copyright debates might puncture the bubble of public consciousness and become important global policy questions. My wish has come true. Since 1998 questions about whether the United States has constructed an equitable or effective copyright system frequently appear on the pages of daily newspapers. Activist movements for both stronger and looser copyright systems have grown in volume and furor. And the U.S. Supreme Court ruled in early 2003 that the foundations of American copyright, as expressed in the Constitution, are barely relevant in an age in which both media companies and clever consumers enjoy unprecedented power over the use of works.

    [ Reply to This | # ]

    Has anyone noticed that SCO is now towing the baystar line?
    Authored by: Franki on Wednesday, May 26 2004 @ 03:59 PM EDT
    SCO have almost totally shut up in public, compare this to two months ago when
    you really couldn't shut them up..

    I really don't think baystar expected SCO to return the money or change
    management, they just wanted SCO to stop making fools of themselves in public
    and giving material to IBM/REDHAT/NoVELL/DC/AZ to use in court.

    The best way to do that, is to ask for your money back, ask for a change in
    managemnet, two huge asks that SCO would never go for, and tell them to stop
    speaking rubbish to the press..

    That's age old psychology, ask for something you have no chance of getting, and
    then ask for something you actually wanted, in this case having SCO shut their
    dumb mouths..

    SCO knows it can't do the first two, and feels more abliged to do the last one..
    (The order is wrong in this case, but I don't think that makes much difference
    to the effect.)

    And SCO fell for it, which means in the very least, the execs at Bay$tar are
    smarter then Darl and co. (not that this is saying anything of significance).

    regards

    Franki

    [ Reply to This | # ]

    OT: Open Source-style newsreporting?
    Authored by: Loki on Wednesday, May 26 2004 @ 05:14 PM EDT
    http://www.cnn.com/2004/LAW/05/25/hilden.google/index.html

    Article commenting on Google's immunity from factual liability claims.
    Interesting excerpt below:

    A decentralized news service

    For instance, suppose, for a moment, that someone set up a loose linking of
    freelance writers across the country. Turf would be divided among the writers by
    agreement, according to geography or topic. Writers would be automatically paid
    a modest income by users who accessed their sites, but would individually remain
    more or less judgment proof.

    No corporate entity would exist, with deep pockets for plaintiffs to go after.
    There would no central server that could be shut down. The network's articles
    could be automatically promoted through search sites such as Google, and reader
    interest alone would ensure their dissemination, because Google's formula would
    promote popular articles to the top of Google search results.

    Couldn't that loose linkage of freelancers provide riskier -- and often, more
    exciting -- coverage than a traditional media company? And couldn't the writers,
    as a group, collectively make greater profits because of the lack of need for
    lawyers, and the lack of liability risk?

    It seems somewhat surprising -- given the prevalence of underground comic books
    and newspapers in the pre-Internet era -- that such an "underground"
    news service does not exist already. Perhaps bloggers' disinclination to limit
    themselves by geography or topic, to report "straight" news, or to
    ensure their content is accessible to strangers, is the reason.

    At least for now, this kind of freelance network may be far off, or
    impracticable to organize. But the legal advantage of avoiding corporate-funded
    sites, and working through a combination of individual sites and
    corporate-funded search engines, will doubtless be exploited one way or
    another.

    [ Reply to This | # ]

    (9) sounds biased
    Authored by: r1chard on Thursday, May 27 2004 @ 01:18 AM EDT

    Get rid of the obvious anti-microsoft bias, even if it is
    true.

    Most managers I have worked for would read the executive
    summary, be left pondering on point 9, and think "Linux
    zealots, always out to get for Microsoft..." and would
    probably dismiss the entire document at that point based
    without every reading the details.

    Remember your audience - you are not preaching to the
    converted.

    RG

    [ Reply to This | # ]

    Give him a break ....
    Authored by: Anonymous on Thursday, May 27 2004 @ 08:05 AM EDT
    .... He is referring to the $699 fee you must pay to SCO to use it.

    [ Reply to This | # ]

    A good first draft...
    Authored by: Anonymous on Thursday, May 27 2004 @ 01:14 PM EDT
    This is a good first draft; when can we expect a revised and edited final copy?

    Seriously, when you're trying to make an argument you can't afford to not proofread (and have someone else proofread) your paper. This paper puts forward some good points, but it does so with poor style and structure.

    • There are numerous grammatical and style errors.

      Such statements as "Unless proven, there is no infringing code in Linux," are ambiguous. Does this mean that there has been no proof of infringing code in Linux, or that there may be infringing code but it has not yet been proven?.

      Another example is "As we have probably demonstrated, it is not in any organisation's best interests to have business dealings with SCO, as SCO seems to sue their clients more than anyone else." The use of the word "probably" in this sentence undermines the whole arguemnt. The authors should be reinforcing their arguments with more active language, not water them down with passive "probablies."

    • Rhetoric and innuendo are used to make points.

      Rhetorical questions should be avoided when making arguments, since they only provide support for those beliefs the reader already holds. Innuendo often comes across as snide or mean-spirited and lowers the reader's opinion of the writer (and therefore his argument).

    • The paper is poorly organized.

      There is a "Recommendations" section without a summarizing "Conclusions" section first. While there is an executive summary, there is no "Introduction" that lays on in more detail what arguments will be made, and how. The meat of the paper is hard to follow, as paragraphs frequently try to put across more than one idea at a time. For example, arguments are often made in parentheses ("(IBM's own proprietary UNIX implementation, not at all related to Linux)").

    • Colloquial language is used.

      In comments and forums, such language is fine. I can refer to myself in the first person here, and can give anectodal evidence and such with no problems. But when one is producing a formal paper intended to argue a point seriously, one cannot use such informal tones or language.

    • The paper seems to be confused about who its target audience is.

      Some points are made without any supporting arguments or references ("The current breach of copyright has nothing to do with Linux, and was the most substantial component of SCO's original complaint. It also very likely means that SCO has terminated IBM's AIX licence without cause, but once again, this doesn't relate to Linux and Open Source at all.") *We* know why the AIX license has no bearing on Linux, but we are not the target audience; the people who OSIA wants to read this paper are those who are not familiar with the case. It may seem silly to have to justify even simple statements such as the one above, but it is necessary if you're trying to convince someone to believe your argument.

    To illustrate these points, contrast these two sets of paragraphs. The first is from the paper, and has many of the above flaws.

    As we have probably demonstrated, it is not in any organisation's best interests to have business dealings with SCO, as SCO seems to sue their clients more than anyone else.

    9) Microsoft is the only reason that SCO is still in business

    Most Linux industry observers believe that one of the major motive forces behind SCO's ability to undertake this attack on Linux and Linux users is Microsoft.

    Microsoft, very early on in the proceedings, decided to licence SCO's UNIX Intellectual Property 28. It is still unclear what Microsoft intends to do with this licenced IP, as the UNIX software technology which SCO has the right to resell, is now essentially a legacy platform, all but defeated in the marketplace by Linux. It is very unlikely that Microsoft itself could use this technology, even in their own Microsoft Services for Unix (SFU) software product. Instead, SFU in fact makes extensive use of GPL-based and BSD-based Free and Open Source software.

    versus
    As we have demonstrated, it is not in any organisation's interest to have business dealings with SCO.

    9) Microsoft is supporting SCO to undermine Linux

    Many Linux industry insiders [ref] believe that Microsoft is the major force behind SCO's ability to sustain its attacks on Linux and Linux users.

    One reason for this belief is that, shortly after SCO commenced its lawsuit against IBM, Microsoft decided to purchase one of SCO's Unix Intellectual Property Licences [28]. It is unclear why Microsoft would needed to purchase a license to software that is considered by many in the technology industry to be obsolete. Microsoft provides a software product called Services For Unix (SFU) that allows Unix software to run on its various Windows platforms; however, this product is based on modern Unix software, making extensive use of GPL- and BSD-licensed Free and Open Source programs. It is very unlikely that Microsoft would find the technology licenced from SCO useful.

    I could go on, but I'm sure if you made it this far you've caught my drift here. This paper makes some good points. It has a noble goal, to educate companies so they can protect themselves from SCO. However, it's presentation and style are really quite poor, and detracts from its arguments.

    Cheers!

    [ Reply to This | # ]

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