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A Tall Tale About ELF - by Frank Sorenson, Dr Stupid and PJ
Thursday, July 22 2004 @ 08:51 PM EDT

Ah, SCO, SCO, SCO. This latest prank... Where to begin to unravel the latest brainstorm, the claim that ELF belongs to them, that Linux is using it illegally, and that it's the mortar holding the entire kernel together? I am smiling just typing this.

Here is what the ELF story is about, according to a Linuxworld article by Maureen O'Gara:

"In 1995, the year Novell sold Unix to the Santa Cruz Operation, an industry group calling itself the Tool Interface Standard Committee (TISC) came up with a ELF 1.2 standard and to popularize it and streamline PC software development granted users a 'non-exclusive, worldwide, royalty-free license' to the stuff, effectively putting it in the public domain, SCO says.

"SCOsource chief Chris Sontag, the SCO VP in charge of the company's hate-inducing IP push, claims TISC, which folded immediately after the spec was published, exceeded its rights even though both Novell and the old SCO - as well as Microsoft, IBM and Intel - were on the committee."

OK. ELF. Here we go. After all the research we have done, here are the conclusions I reach. First, ELF isn't mortar. It's not even in the kernel. It's interface stuff. It's not the only interface one might use, and in fact it replaced a prior interface, so it isn't essential for Linux to keep breathing and life to go on. It'd be annoying but not at all impossible to replace it.

Second, if TISC overstepped its authority, that is between SCO and SCO, because oldSCO was involved, oldSCO being a member of TISC.

Third, I don't believe they own it.

Fourth, Linux is not unique in using ELF.

Fifth, this is getting silly.

Let me explain, please, how I reached those conclusions.

Here's what the TISC document [PDF], regarding ELF version 1.2, told the world they were intending and what the world could do with ELF:

"This Executable and Linking Format Specification, Version 1.2, is the result of the work of the Tool Interface Standards (TIS) Committee--an association of members of the microcomputer industry formed to work toward standardization of the software interfaces visible to development tools for 32-bit Intel Architecture operating environments.

"Such interfaces include object module formats, executable file formats, and debug record information and formats. The goal of the committee is to help streamline the software development process throughout the microcomputer industry, currently concentrating on 32-bit operating environments. To that end, the committee has developed specifications--some for file formats that are portable across leading industry operating systems, and others describing formats for 32-bit Windows * operating systems. Originally distributed collectively as the TIS Portable Formats Specifications Version 1.1, these specifications are now separated and distributed individually.

"TIS Committee members include representatives from Absoft, Autodesk, Borland International Corporation, IBM Corporation, Intel Corporation, Lahey, Lotus Corporation, MetaWare Corporation, Microtec Research, Microsoft Corporation, Novell Corporation, The Santa Cruz Operation, and WATCOM International Corporation. PharLap Software Incorporated and Symantec Corporation also participated in the specification definition efforts. This specification like the others in the TIS collection of specifications is based on existing, proven formats in keeping with the TIS Committee's goal to adopt, and when necessary, extend existing standards rather than invent new ones.

"About ELF: Executable and Linking Format The Executable and Linking Format was originally developed and published by UNIX System Laboratories (USL) as part of the Application Binary Interface (ABI). The Tool Interface Standards committee (TIS) has selected the evolving ELF standard as a portable object file format that works on 32-bit Intel Architecture environments for a variety of operating systems. The ELF standard is intended to streamline software development by providing developers with a set of binary interface definitions that extend across multiple operating environments. This should reduce the number of different interface implementations, thereby reducing the need for recoding and recompiling code. . . .

"The TIS Committee grants you a non-exclusive, worldwide, royalty-free license to use the information disclosed in this Specification to make your software TIS-compliant; no other license, express or implied, is granted or intended hereby.[emphasis added]

Of course, SCO knows this, or has every reason to know it, but it is all about the August 4th IBM hearing, and their desperation to find something they can put under the judge's nose in Utah to make him reject IBM's partial summary judgment motion. They apparently can't show any significantly infringing code in Linux after pawing through IBM's things -- that's all they would have to do to block this motion is show infringing code or any real facts in dispute -- so instead at the 11th hour, they have come up with this list, which they hope will do the trick, claiming (without providing any details publicly -- are they tired of the community quickly tearing their arguments to shreds?) that the TISC committe overstepped its authority. Bingo. Fact in dispute, a claim of infringing code, they hope. It's not actually in the kernel, but maybe a nontech judge won't notice the fine points. Quoting from the Declaration of one of their new attorneys, John Harrop:

"Comparison of Source Code"

"72. In addition to the foregoing, SCO reasonably expects that further comparisons of source code will permit SCO to present evidence in opposition to IBM's Tenth Counterclaim. Examples of facts from discovery to date that show copying of material from UNIX into Linux include (i) substantial similarity of the Read-Copy-Update ('RCU') routine in Linux to a routine in UNIX; (ii) copying of UNIX System V init (SYS V init) code in Linux version 2.6; (iii) substantial similarity of the user level synchronization (ULS) routines in Linux and similar routines in UNIX; (iv) copying of SCO's UNIX System V IPC code in Linux 2.4.20; (v) copying of SCO's copyrighted UNIX 'header and interfaces' in Linux; and (vi) copying of SCO's UNIX Executable and Linking Format (ELF) codes in Linux. (Gupta Decl. ¶¶ 3-86.) The foregoing evidence demonstrates copying from UNIX into Linux -- and is probative even if SCO is not seeking to assert copyright in the foregoing material. SCO has not retained a testifying expert on copyright issues; SCO has filed only a relatively narrow copyright claim in this action and did so only in February 2004. Such an expert would testify to the relative importance of the foregoing materials in Linux."

Once again, they would like more time. Groklaw has already addressed the ridiculous claims to header files. You might like to add to what we wrote on ABI files this case, Mitel v. Iqtel, pointed out to me by an anonymous reader:

"We have extended this traditional copyright doctrine to exclude from protection against infringement those elements of a work that necessarily result from external factors inherent in the subject matter of the work. For computer-related applications, these external factors include hardware standards and mechanical specifications, software standards and compatibility requirements, computer manufacturer design standards, industry programming practices, and practices and demands of the industry being serviced.See Gates Rubber, 9F.3d at 838; Computer Assocs. Int’l, Inc. v. Altai, Inc., 982 F.2d 693, 709-10 (2d Cir. 1992); Plains Cotton Coop. Assoc. v. Goodpasture Serv., Inc., 807 F.2d 1256, 1262 1635](5th Cir. 1987) (declining to extend protection to a computer program where the similarities between the plaintiff’s and defendant’s programs were dictated by “the externalities of the cotton market” and by other “market factors”); see also 4 Melville B. Nimmer & David Nimmer, Nimmer on Copyright Section 13.03[F] [3], at 13-130-141 (1997) [hereinafter Nimmer]. Because these factors concern functional aspects of a work, the scenes a faire doctrine plays a particularly important role in ensuring that copyright rewards and stimulates artistic creativity in a utilitarian work “in a manner that permits the free use and development of non-protectable ideas and processes” that make the work useful. Computer Assocs., 982 F.2d at 711."

By the way, you can find US Court of Appeals for the Tenth Circuit opinions (that's the circuit for Utah) here for 1995-1997; here or here for thereafter; all circuits and the Supreme Court here. All are searchable by keywords, as well as by names of the parties.

What is new is the claim about ELF. They are scraping the bottom of the barrel now. They are facing a real moment of truth, both in the IBM case and in AutoZone. If there is no infringing Linux code to save them, what to do? What to do? Where to rustle up something in a hurry that might convince a judge that there are some facts that are really, really, truly, we mean it, at issue that must go to a jury, or some genuinely and significantly infringing code, so the judge doesn't grant summary judgment in the IBM case on their 10th counterclaim?

Then there is the stock story and they want the world to think they can prevail. So up spring new charges in their legal filings and in the news.

ELF was put in the public domain, but now SCO says the TISC, "which folded immediately after the spec was published, exceeded its rights." So Linux is bad because it used something that had been announced as something it not only could use, it was encouraged to use? The newSCO would like to unilaterally change its mind. The trouble is, aside from the flip-flop, it isn't their mind that needs to change. What do I mean?

It's true that Novell sold to Santa Cruz in September of 1995, and it's true that a version of ELF was released in May of 1995, but that wasn't the first release. Even if it had been, a release of ELF by Novell happened before the sale, not afterward, as you can see. Novell couldn't later sell more in September than what Novell then had to sell, and *ELF was already released*, as of May. Can you release something into the public domain in May and then sell it to Santa Cruz in September?

So SCO of today has problems. As a member of the TISC project, oldSCO obviously knew about the release and would have had no reasonable expectation of any proprietary ownership of ELF when they bought whatever they bought. That horse was already out of the barn.

Of course, SCO of today isn't actually the Santa Cruz of old, which is now Tarantella. Whatever they, SCO of today, eventually got, if they got anything, it doesn't appear it could have been ELF prior to the release, because the dates don't match. That's not even going into the Novell-SCO dispute over copyrights.

How do I know it's all a sudden brainstorm and not some devilish trump card they've been hiding up their sleeve all along? Aside from the fact that it's not a brainstorm (it is devilish, of course), how about this for evidence? The Linuxworld article said this:

"SCO also claims 'substantial similarity' between the Read-Copy-Update (RCU) routine in Linux 2.6.5 and Linux patches and SCO's copyrighted work, specifically SVR4.2 MP."

SCO only registered their copyright in SVR4.2 MP on June 29th of this year. Our own Rand McNatt was the eagle eye who spotted their new registration. (He was the first one who spotted the Novell copyrights when they registered, too. So he's on a roll.) Here is the info:

TX-5-972-097 (COHM)
Title: UNIX System V release 4.2MP.
Note: Printout (20 p. source code) only deposited.
Claimant: SCO Group, Inc.
Created: 1992
Published: 22Dec92
Registered: 29Jun04
Date in © Notice: notice: 1990
Author on © Application: computer program: UNIX Systems Laboratories, Inc., employer for hire.
Previous Related Version: Prev. reg. 1992, TXu 510-028, et al.
Claim Limit: NEW MATTER: rev. computer program.

So, what do you think? Can they sue retroactively? If this was something they had in mind for some time, would they have forgotten to register this until June 29 of 2004? They at least should have done so when they registered their other copyrights last year (the ones that are in dispute in the Novell matter). Did they not notice until now that Novell registered the copyright for 4.2 MP back on September 22, 2003? Or didn't they care until recently? Or are they just the Keystone Kops of IP?

I asked Frank Sorenson and Dr Stupid to help me explain a bit more about ELF, from a tech and an historical perspective. I put in research and some legal bits. A number of Groklaw folks contributed research, and it is indeed, as always, a group project. But Frank and Dr Stupid did the lion's share, and it is their article. I think it will help you to see it is foolish to claim that ELF was released improperly or that it belongs to SCO today.

Here is the article itself:


A Tall Tale About ELF
~by Frank Sorenson and Dr Stupid

In several recent filings, The SCO Group references the declaration of Sandeep Gupta, a sealed document, to support their claims that their source code comparison has shown "copying of material from UNIX into Linux", including "copying of SCO's UNIX Executable and Linking Format (ELF) codes in Linux."

What is ELF, and what are SCO's claims regarding ELF? Where did ELF come from, and how do these claims impact Linux? Are SCO's claims over ELF a concern to Linux? In this article, we will attempt to answer some of these questions.

While we don't really know what was said in the Gupta declaration, a recent article in LinuxWorld reports that "SCO Claims Linux Lifted ELF":

"SCO Claims Linux Lifted ELF"

"In 1995, the year Novell sold Unix to the Santa Cruz Operation, an industry group calling itself the Tool Interface Standard Committee (TISC) came up with a ELF 1.2 standard and to popularize it and streamline PC software development granted users a 'non-exclusive, worldwide, royalty-free license' to the stuff, effectively putting it in the public domain, SCO says.

"SCOsource chief Chris Sontag, the SCO VP in charge of the company's hate-inducing IP push, claims TISC, which folded immediately after the spec was published, exceeded its rights."

What is ELF?

When starting a program, the operating system needs to make sure that the file is really the right type, and needs to know where in the file is the first instruction to be processed. ELF is a standard file-format in which program files carry with them certain information about themselves. ELF includes information about the correct processor type and where in the file the system should begin executing code, allowing the executable to be a self-contained package with the information necessary for its use. It also contains information allowing the code to be loaded into whatever free memory is available; this is important for the efficient use of memory.

ELF is one way in which the operating system can learn information about the files it processes. There are a number of standard formats that have been used in the various Unix-like operating systems, including COFF and a.out. In 1995, ELF was publicly made available in Linux, and, due to increased flexibility for programmers, was chosen as the default executable file format in Linux.

Additional reference information for ELF: [1] [2] [3]

Where Did ELF Come From?

Unix System Laboratories (USL) originally produced ELF for use with UNIX System V. ELF was formally set out by the ABI Coordinating Committee (ABICC), a part of Unix International. The ABICC was involved generally in standardization, as you can see from these posts and articles of the time: [1] [2] [3]

In 1993, several major players in the IT industry formed the Tool Interface Standard (TIS) Committee. The TIS Committee's bylaws stated its objectives were to foster standards and enable interoperability of development tools, preventing needless wheel reinvention.

Each company brought something to the table: in the case of USL/Unix International, that included ELF. The TIS committee released the ELF standard as an independent document in 1993 [Version 1.1 PDF], and 1995 [Version 1.2 PDF]. Both of the available releases of the ELF specification give a free worldwide license to use the information contained in the specification in order to make software TIS-compliant, effectively putting ELF in the public domain:

The TIS Committee grants you a non-exclusive, worldwide, royalty-free license to use the information disclosed in this Specification to make your software TIS-compliant; no other license, express or implied, is granted or intended hereby.

Here are posts from 1993 and from 1994 attesting to the availabilty of the specification.

The SCO Group's Claims

The SCO Group's filings claim that the TIS Committee overstepped its bounds when they released ELF in 1995.

By stating that the TIS Committee released the specification the same year as Novell sold certain assets to The Santa Cruz Operation, The SCO Group seems to imply that TISC released the specification after the change of hands. This is not correct, as Version 1.2 was released in March 1995, months earlier than the sale. In addition, the 1993 release of Version 1.1 was years before Novell and SCO (Santa Cruz Operation) even began talks.

Both The Santa Cruz Operation and Novell were represented on the TIS Committee when Version 1.2 was released in 1995.

TIS bylaws stated: "Any specification the Committee creates will be solely owned by the Committee." and importantly that TIS could only endorse a member's exisiting specification if "such party [granted] the Committee a fully paid-up worldwide, non-transferable, perpetual license under the copyrights in the TIS Specification to use, copy, display, publish, modify, create derivative works or have derivative works created and sublicense such specification."

So it is true to say that TIS would have needed Novell's consent in 1993 to endorse and release the ELF specification document under the licence it did.

However, Novell did not protest that TIS had overstepped its powers. In contrast, Novell sounded quite proud of the donation, as can be seen in this newsgroup posting by a Novell engineer:

"I'd like to point out here, that until Novell placed ELF in the public domain, this would not have been possible. There will be some other interesting announcements in this vein in the coming months. Stay tuned."

Intel and Sun both treated ELF as an open specification, all right for use with GCC and Linux:

"complete the procedure in Building the GCC C++* Compiler.....The next step in the process is to build the ARM Linux kernel..... You are now ready to build C and C++ applications... verify that the C compiler can correctly build ARM ELF executables."

"Executable and Linkable Format is a portable object file format supported by most UNIX® vendors. .... ELF helps developers by providing a set of binary interface definitions that are cross-platform, and by making it easier for tool vendors to port to multiple platforms"

In the links just given, Intel sees no problem with ELF being the format of choice on an ARM Linux platform, and Sun publishes ELF information and source code under a royalty-free licence. In fact, ELF became so widespread that the 86open group, another industry body (which included The Santa Cruz Operation and Sun), settled on it as the cross-platform format to adopt:

"The operating system vendors, one way or another, have chosen a common binary format -- the Linux ELF format, which is now supported on the systems of all the developers which originally joined 86open."

You Can Still Freely Get ELF from SCO -- Why?

You may recall previous Groklaw articles about the SCO's claims over the ABI, the latter still available from SCO's website and which contains the ELF specification. The ABI states that someone writing programs to compile, install, and run on systems compliant with the ABI must "compile source code into executable files with the formats and characteristics specified in the ABI."

That raises another issue. Can you copyright a standard? SCO cited the case, Gates Rubber v. Bando, in its Reply Memorandum re Discovery, (footnote 7 on page 20) and they are relying on it. It is a case that explains what is and what isn't considered covered by copyright in software code in that district. Here is what can't be copyrighted:

"The scenes a faire doctrine also excludes from protection those elements of a program that have been dictated by external factors. .... In the area of computer programs these external factors may include: ....software standards and compatibility requirements . . ."

Standards and compatibility requirements are excluded from copyright protection, according to the case SCO cited. ELF is exactly that.

Here is the full quotation from the case:

"(f)Scenes A Faire

"Under the scenes a faire doctrine, we deny protection to those expressions that are standard, stock, or common to a particular topic or that necessarily follow from a common theme or setting. Autoskill, 994 F.2d at 1494 (citing 3 Nimmer Section 13.03 [B] [4], at 13-70); Atari, 672 F.2d at 616 . Granting copyright protection to the necessary incidents of an idea would effectively afford a monopoly to the first programmer to express those ideas. Whelan, 797 F.2d at 1236-37; Landsberg v. Scrabble Crossword Game Players, Inc., 736 F.2d 485, 489 (9th Cir.),cert. denied, 469 U.S. 1037 (1984). Furthermore, where a particular expression is common to the treatment of a particular idea, process, or discovery, it is lacking in the originality that is the sine qua non for copyright protection. Feist, 111 S. Ct. at 1289.

"The scenes a faire doctrine also excludes from protection those elements of a program that have been dictated by external factors. See Plains Cotton Co-op Ass’n. v. Goodpasture Computer Serv., Inc., 807 F.2d 1256, 1262 (5th Cir.), cert. denied, 484 U.S. 821 (1987); Apple Computer, 799 F. Supp. at 1022-26. In the area of computer programs these external factors may include: hardware standards and mechanical specifications, see Manufacturer’s Technologies, Inc. v. Cams, Inc., 706 F. Supp. 984, 995 (D. Conn. 1989), software standards and compatibility requirements, Sega Enterprises Ltd. v. Accolade, Inc., 977 F.2d 1510, 1525-27 (9th Cir. 1993), computer manufacturer design standards, target industry practices and demands, see Plains Cotton, 807 F.2d at 1262, and computer industry programming practices, see Apple Computer, 799 F. Supp. at 1033. 3 Nimmer Section 13.03 [F][3][a]-[e], at 13-102.21 to 13-102.28."

What made ELF popular was that all the large companies got together and agreed on a specification and they all used it. Since then, everyone else, encouraged to do so for compatibility purposes, has taken the open format and used it. What is creative in this picture even if it had not been released into the public domain? You find most of the same core pieces in every format, EXE/DLL/PE (MS), COFF (pre-elf), NLMs (NetWare), or any of the other formats. Here's a page full of them.

The similarity stems from the functionality. Sometimes in software, there are only so many good ways to do something. That is one reason standards are not covered by copyright law in that district.

In fact, SCO's gABI even specifies values for Linux ELF executables to use. (Scroll down to the EI_OSABI section.)

SCO recently released UnixWare 7.1.4. To accompany this product you can obtain the UnixWare Open Source Toolkit, which includes the GNU "binutils" tools. This contains, among other things, the "readelf" utility and an ELF-enabled gcc—all shipped to you under the GPL.

Here are some links showing Caldera offering and promoting ELF in their products, distributed under the GPL, all of which are available from Google cache only. As usual, things are suddenly disappearing, so grab them while you can:

Linux Standard Base (LSB)

The Linux Standard Base (LSB) also references the ELF specification, with the blessing of both SCO (Santa Cruz Operation) and Caldera. The use of the ELF specification was a topic of discussion early in the LSB's history, including an LSB meeting in December 1999. The meeting's minutes indicate that Ralf Flaxa represented Caldera Systems, and Dave Prosser represented SCO. The SCO representative noted that a newer specification existed, which included 64-bit information, and promised to get a URL for the updated version.

Dave Prosser and Doug Beattie, both representing SCO, were present at a February 2001 meeting where the LSB's references to the ELF specification were examined. The minutes indicate Ralf Flaxa again represented Caldera, along with Johannes Pohlmann and John Terpstra (who had represented TurboLinux at the December 1999 meeting). Prosser and Beattie were tasked with, and delivered, the updated generic ABI (gABI) specification.

Groklaw interviewed Stuart Anderson, who worked on LSB, about this period. He said this:

"There were 3 version of the TIS published. 1.0 I'm not sure when, 1.1 in 1993, and 1.2 in 1995. Given this, I wouldn't say the group folded immediately after publication. Also, I note that both SCO and Novell were on the committee, so SCOsource could be said to have been effectively represented twice on the committee."

"SCO's representative participated in the LSB a couple of years ago. He was on phone calls, and even came to a couple of face to face meetings. The current drafts of the ABI on their website were snapshotted and published at the request of the LSB so that we would have a stable version to reference in our specification."

"You can see who attended which meeting by going through our meeting minutes which are available at http://www.linuxbase.org/talks/mindex.shtml. Upon a quick glance, I note that SCO was present at the Dec 12, 1999 meeting and via telephone for the Feb 26, 2001 meeting."

The gABI specification is duly referenced by the LSB, which also states:

"LSB-conforming implementations shall support an object file, called Executable and Linking Format (ELF) as defined by the System V Application Binary Interface, Edition 4.1, System V Application Binary Interface - DRAFT - 22 June 2000, System V Application Binary Interface - Intel386(tm) Architecture Processor Supplement, Fourth Edition and as supplemented by the Linux Standard Base and this document."

Tall Tale? You Decide.

The SCO Group's claims that TIS overstepped its bounds when releasing ELF as a public-domain standard do not appear to be supportable by the evidence. The 1993 and 1995 releases of ELF were before SCO (Santa Cruz Operation) obtained certain assets from Novell, and definitely long before SCO sold assets to Caldera (The SCO Group). The standard has been implemented numerous times since the public release. The SCO Group appears to be unilaterally changing their mind about a standard they and their predecessors in interest have embraced and promoted for over 10 years and which was released and is being distributed under the GPL by SCO themselves even today. And Linux "lifted" ELF? Don't you wish you could change history this easily? Unfortunately for SCO, the principals are still alive. And they remember.


  


A Tall Tale About ELF - by Frank Sorenson, Dr Stupid and PJ | 531 comments | Create New Account
Comments belong to whoever posts them. Please notify us of inappropriate comments.
Corrections Here, Please
Authored by: LHJ on Thursday, July 22 2004 @ 04:30 PM EDT

So that Groklaw can fix them. Thanks!

[ Reply to This | # ]

OT, Links, Updates here please
Authored by: LHJ on Thursday, July 22 2004 @ 04:33 PM EDT

So we can all keep up on events.

[ Reply to This | # ]

A Tall Tale About ELF - by Frank Sorenson, Dr Stupid and PJ
Authored by: blacklight on Thursday, July 22 2004 @ 09:27 PM EDT
If SCOG is true to form, SCOG will continue to repeat its fallacious claim with
respect to ELF until the moment of truth comes - at which point, they will drop
their ELF claim like a hot potato just as they dropped their trade secrets
allegation. In the meantime, our one task as the groklaw community is to make
sure that each of their technical claims is so shot through with lack of
credibility that it becomes their proverbial hot potato. With us around, SCOG
will find that reality is a harsh taskmaster.

[ Reply to This | # ]

A Tall Tale About ELF - by Frank Sorenson, Dr Stupid and PJ
Authored by: Anonymous on Thursday, July 22 2004 @ 09:28 PM EDT
So, even if this *were* true, what does this have to do with the IBM case? Are
they claiming that IBM is responsible for the inclusion of ELF format into
Linux?

[ Reply to This | # ]

A Tall Tale About ELF - by Frank Sorenson, Dr Stupid and PJ
Authored by: icebarron on Thursday, July 22 2004 @ 09:43 PM EDT
Once again I will reiterate..."mine the minds of the elders, in that you
will find riches". You cannot somehow warp back in time and change
information that is released as a public standard and turn it into a proprietary
lock out. To the sco group: get a life...


Peace to one and all

Dan

[ Reply to This | # ]

Thanks To All
Authored by: Anonymous on Thursday, July 22 2004 @ 09:47 PM EDT
Good job of research and an excellent explanation. As so often happens, you're
"heading them off at the pass." Groklaw strikes again!

Larry N.

[ Reply to This | # ]

A Tall Tale About ELF - by Frank Sorenson, Dr Stupid and PJ
Authored by: kberrien on Thursday, July 22 2004 @ 09:50 PM EDT
Can you release something into the public domain in May and then sell it to Santa Cruz in September?

Perhaps you can!

I think PJ just figured out what Blake has been complaigning about in the Novell issue... now we know what SCO paid that 100 million in stock for!

To be serious though, this is really, really sad. And as SCO goes down the tubes (I think we can definately say that is starting to actually happen - unless they fend off the 10th Counterclaim and gain some FUD momentum) they seem to be creating more evidence to be used against them in the Lanham Act charges. They are clearly tossing out groundless accusations and an effort to FUD/stock. Guess they figure if the ship is sinking....

Or can future events/statements (from the filling date) not be used?

[ Reply to This | # ]

Did the press get ELF claim quite right? Perhaps SCO's claim is slightly different
Authored by: Anonymous on Thursday, July 22 2004 @ 09:51 PM EDT
I am glad we are discussing this... (this is a longer version of a post that I made previously buried in some deeply nested discussion).

I think SCO would have an incredibly hard time proving that Novell, Santa Cruz Operation, Inc. exceeded their rights. I personally rather doubt this is their claim.

I think the press (unless they have seen the sealed documents) are relying on what they have seen in public filings and perhaps Stowell's mangled interpretations of filings (we've seen more than a few examples of that in the past).

Perhaps SCO's claims on ELF are not exactly what the press reports say?

Here is what I think their claim may be

(1) Go to www.x86.org/ftp/manuals/tools/elf.pdf (Version 1.2 of spec) or webster.cs.ucr.edu/Page_TechDocs/pfmt11.pdf (Version 1.1 of spec)

(2) Read page 2 of PDF in this document (either version), which contains the license (emphasis added):

The TIS committee grants you a non-exclusive, worldwide, royalty-free license to use the information contained in this Specification to make your software TIS-compliant; no other license, express or implied, is granted or intended hereby.


(3) Now if you assume...(a big assumption - but exactly the kind SCO would make IMHO! Remember it's no longer a trade secret, it's not patented, and copyright protections expression not ideas... but grant the assumption for a moment) -- that you need a license to use the information in the specification -- the license is only "to make your software TIS-compliant". And it specifically excludes other forms of license to the information in the specification ("no other license, express or implied, is granted or intended hereby")

(4) What is TIS-compliant? The clue is in the expanded version of TIS name: "Tool Interface Standards (TIS) Committee".

Go to page 3 of the PDFs and we have description of the committee's work (emphasis added), including:

to work toward the standardization of software interfaces visible to development tools for 32-bit Intel Architecture operating environments.

...

The goal of the committee is to help streamline the software development process


[to be fair I haven't and don't propose to read the entire specs myself, so perhaps there are other pages implying some broader purpose]

(5) Now if you combine the big assumption from point (3), the one that IMHO SCO would most likely make, the definition of what TIS-compliant means from point (4), and the plain text of the license from point (2), there are a number of things that would not be covered by the license:
  • Using ELF for purposes other than "standardization of software interfaces visible to development tools", e.g. loading an application by the operating system (e.g. Linux loading a wordprocessor or whatever)

  • Using ELF but not fully conforming to the TIS standard (note, the license in point 2 says to be "TIS-compliant"). I have no idea whether this may or may not apply to Linux, but I could envisage that there might be parts of the TIS standard that Linux doesn't support or fully comply with.

  • Using ELF on other environments than "32-bit Intel Architecture operating environments"


I really do think this is SCO's theory on ELF.

It is consistent with the press reports about SCO claiming that ELF not being properly released. However, it speculates the press reports are slightly wrong, and that the "not properly released", is in SCO's view, not by the TIS committee's mistake (etc), but by Linux developers exceeding the scope of the license (the big assumption in point (3)).

(Whereas the idea that ELF wasn't released at all or whatever isn't).

Of course:

(A) assumption in point (3) is a big hole, for SCO. I'm not sure that a license is required to use "information" for the reasons already standard.

(B) It's not clear to me that SCO would be the owner of ELF even if you grant assumption (3).

(C) part or all of this SCO theory (again even if you grant assumption 3), would be undermined if other TIS documents (or even this one, I haven't read it all!) grant broader rights than pages 2-3

(D) none of this explains, if ELF wasn't in SCO's prior responses to court orders on discovery, why they bring it up now.

(E) Even if ELF belongs to SCO. even if Linux developers exceeded the TIS license, even if a TIS license is necessary to use the ideas in ELF .... then even in this unlikely sequence of events, it seems to me there would be lots of potential defenses against a SCO claim such as potentially waivers, laches, estoppel, etc.


None of the above is meant to imply that SCO have a legitimate claim on ELF. I personally rather doubt that they do. But I at least think I understand the reasoning behind their claim.


Quatermass
IANAL IMHO etc.

[ Reply to This | # ]

A Tall Tale About ELF - by Frank Sorenson, Dr Stupid and PJ
Authored by: jm493 on Thursday, July 22 2004 @ 09:53 PM EDT
Can you copyright a standard?
This is too simple-minded a question.

The text of a standard can be copyrighted.

However, a program that implements a standard need not infringe upon the copyright. The scenes a faire exemption includes using the literal constants or whatever that the standard requires that you use to adhere to the standard.

[ Reply to This | # ]

When Did SCO First Raise This Issue?
Authored by: dmscvc123 on Thursday, July 22 2004 @ 10:05 PM EDT
If this was something that happened a decade ago, even if what SCO is saying is
100% true, wouldn't they be barred by Laches as well as distributing the code
themselves? Am I not mistaken, but wasn't ELF distributed by SCO after they
claim to have been pissed about this?

[ Reply to This | # ]

Some words come to mind.... Agents, Estoppel, Acquiecence, Manifestation of Consent, etc!
Authored by: Anonymous on Thursday, July 22 2004 @ 10:07 PM EDT
Search Groklaw for any of the above words...

Again, here are some comments from a Groklaw past (note that the same, regarding
these words, is JUST what SCO is running from)! SCO has some slippery lawyers.
AND it looks like SCO's lawyers a lacking in ethics. OR they are just dumb (not
stupid because they are making a fortune in legal fees and they are just praying
that August 4th does not end the waterfall of money that keeps falling their
way)!


-------------------------------------------------------
Manifestation of Consent - is also a problem for SCO and Forgent Authored by:
Anonymous on Monday, April 26 2004 @ 09:02 AM EDT

From:
http://www.nsulaw.nova.edu/faculty/syllabi/agency.authorityactual%20apparent.ppt


“A person manifests consent or intention through written or spoken words or
other conduct if the person has notice that another will infer such consent or
intention from the words or conduct.”

Apparent authority requires a “manifestation” from the purported principal to
the third party

The agent may make that manifestation, if so authorized
Two circumstances in which it applies:
- When one person appears to be an agent of another, even though no agency
relationship exists
- When an actual agent exceeds the scope of his or her authority (Note: apparent
authority and actual authority may co-exist, but in such circumstances, courts
typically rely on actual authority)

“Manifestation” may include “authority by position,” which relies heavily on
evidence of custom

Acquiescence
“(1) Acquiescence by the principal in conduct of an agent whose previously
conferred authorization reasonably might include it, indicates that the conduct
was authorized; if clearly not included in the authorization, acquiescence in it
indicates affirmance.
(2) Acquiescence by the principal in a series of acts by the agent indicates
authorization to perform similar acts in the future.”

“Apparent Authority” Revisited
“Apparent authority is the power to affect a principal's legal relations with
third parties held by an agent or other actor, when a third party reasonably
believes the actor has authority to act on behalf of the principal and that
belief is traceable to the principal's manifestations. When an agent holds a
position within an organization, or has been placed in charge of a transaction
or situation, a third party acts reasonably in believing that the agent has
authority to do acts consistent with the position the agent occupies absent
knowledge of circumstances that would lead a reasonable third party to inquire
into the existence, extent, or nature of the agent's authority.”

Anon's comment:
Manifestation of Consent is what has happened where SCO and Forgent's agents
allowed others, by acquiscense, to use the IP (via the GPL that SCO's agents
knowingly donated code to, or by standing by and allowing others to use their IP
with the understanding that it was a "standard" that they would be
using and not a proprietary IP).

------------------------------------------------
Also search Groklaw for any other Law of Agency related words... SCO has too
many old employees that did this and that... and some of them ran the company!
------------------------------------------------
"acquiesced" + loss of control of actual, apparent or ostensible
agents = ?
Authored by: Anonymous on Sunday, October 05 2003 @ 10:09 AM EDTF:UKW -

Hmmm,

"acquiesced" + loss of control of "actual, apparent or
ostensible agents" = "?"

Hmmm, Plus "good faith" arguements and the word
"Estopple" too!

Is this what protects innocent 3rd party LINUX users from SCO's harm NOW? For
this to be, the courts would have to say it first! Their is a history of the
courts backing innocent 3rd party consumers from a company that is guilty of
acquiescence and/or where the same company has a long history of a loss of
control of any of their actual, apparent, or ostensible agents!

If the court says that SCO acquiesced some of their (if any) UNIX IP to LINUX,
and if the court finds some lines of code that need to be rewritten (and it
needs to get rewritten) ... then, so be it!

All the time that these cases take to come to trial, all while the claimed to be
an IP principle SCO fails to act to legally attempt to stop or control all the
LINUX agents (by SCO attempting to try to shut down distribution of all LINUX-a
LINUX that still is not distributed with any SCO fee notice, disclaimer or
License notification "in the box"), ....is time (pending a court
ruling that says so) that innocent 3rd party LINUX users, that legally can
still
acquire and document their new LINUX acquistion dates, are doing so in good
faith! FACT: SCO is on record, to date, saying that SCO does not
"disapprove" of any NEW LINUX distribution being done - SCO has never
said otherwise!

SO - let's drink a toast to SCO's management, to SCO's legal team, to SCO's FUD,
to SCO not attempting to shut down distribution of LINUX, and to the words
"good faith, acquiesced, actual agents, apparent agents, and ostensible
agents"! Let us happily boot up our SCO endorsed, LINUS GPL'd version of
LINUX, and as legal LINUX users just wait out the storm!

[ Reply to This | # ]

  • You're right... - Authored by: Anonymous on Friday, July 23 2004 @ 10:27 AM EDT
  • Maybe, but.... - Authored by: Anonymous on Friday, July 23 2004 @ 03:49 PM EDT
What SCO might be thinking
Authored by: atul on Thursday, July 22 2004 @ 10:18 PM EDT
My theory is that they're basing their claims on the revisions made to the ELF standard since the Unix "IP" allegedly passed into their grubby little hands. (Some revision info here ). I expect SCO will argue that, while the base ELF standard may be unencumbered, the revisions belong to SCO, and they want to get paid.

I expect this is their argument. I don't think it'll hold water, though. For starters, SCO's gABI/ELF docs ( here )mention that ELF revisions go through an Intel-chaired committee. They aren't originated by SCO, and there's no indication that the originators are assigning their rights to SCO. Furthermore, the revised docs appear to carry the same license info as the original doc, with no mention of an exclusion for revised portions of the standard.

What's more, we can take a step back and ask just what sort of rights SCO is asserting here. Recall that there is legally no such thing as "IP", there's just copyrights, trademarks, patents, and trade secrets.

SCO has apparently not asserted that SysV's ELF code was pilfered into Linux. Since a copyright violation requires some verbatim copying, it can't be a copyright claim.

I've seen no indication that there are any trademarks around the term "ELF". Also, it's a pretty generic, descriptive term, not amenable to trademark protection anyway, so it can't be a trademark claim.

To be a patent claim, SCO would need to have some patents that might conceivably relate to ELF. They don't, so it can't be a patent claim.

To be a trade secret claim, SCO would need to show that ELF on Linux uses proprietary, non-public info belonging to SCO. Not only is the standard publicly available, SCO continues to distribute it themselves. So it's not a trade secret claim.

So what sort of infringement claim is SCO making? Only Darl knows for sure.

[ Reply to This | # ]

ELF pushers, I reckon
Authored by: rand on Thursday, July 22 2004 @ 10:21 PM EDT
Fantatic article, guys!

Until recently SCO Group aka Caldera International aka the Server Division of The Santa Cruz Organization was activly touting ELF and urging others to use it.

Here are some recently killed links*, along with the Google cache links:

http://stage.caldera.com/skunkware/emulators/lxrun/devt.html
"Ope nLinux includes support for libc5, ELF, and ..."

http://stage.caldera.com/skunkware/uw7/devtools/devtools.html
Welcome to the Skunkware 7 Development Tools section...[Skunkware = free/GPL software released by SCO]

http://docsrv.caldera.com:8457/en/Howto/Kernel/Kernel-HOWTO-12.html
ELF- HOWTO: ELF: what it is [The Linux Kernel HOWTO: Other relevant HOWTOs that might be useful]

http://caldera.com/support/docs/openlinux/1.1/base/app_pckg.html< br> [OpenLi nux] Software Packages Index...libelf, Library for manipulating ELF object files

http://www.caldera.com/support/docs/openlinux/1.1/base/what_is.html
Feat ures of the OpenLinux distribution of Linux include...
Caldera includes support for both ELF and a.out binary formats.

*Maybe I'm just paranoid, but it seems like SCOG has wiped or restricted any page which mentions the benefits of uning ELF in Linux. Thank goodness for Google cache!

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

[ Reply to This | # ]

A Tall Tale About ELF - by Frank Sorenson, Dr Stupid and PJ
Authored by: Stumbles on Thursday, July 22 2004 @ 10:24 PM EDT
Unfortunately for SCO, the principals are still alive. And they remember.

And that's why, no matter how many times SCOG changes their story for the media and in the courts, they are and have always been doomed.

---
You can tuna piano but you can't tuna fish.

[ Reply to This | # ]

ELF iin the Linux Kernel
Authored by: Anonymous on Thursday, July 22 2004 @ 10:25 PM EDT
>OK. ELF. Here we go. After all the research we have done,
>here are the conclusions I reach. First, ELF isn't mortar.
>It's not even in the kernel.

ELF *is* in the Linux kernel. It's part of the kernel
module loading code. Simply download a recent linux kernel
and look at files such as:

include/linux/elf.h
kernel/module.c
arch/i386/kernel/module.c

[ Reply to This | # ]

No infringing code in Solaris/hpux
Authored by: Anonymous on Thursday, July 22 2004 @ 10:36 PM EDT
Didn't TSG say that Solaris and HP-UX were non-infringing?
Ah yes, here it is:

"But SCO's McBride said that there are two companies he has no intention of
going after: Hewlett-Packard Co. and Sun Microsystems Inc. 'We have no problems
with Sun and HP with regards to infringement as both have honored the conditions
of their Unix license contracts and operated within these,' he said."

But these systems use ELF, so the story has definately changed since that quote
was given...

[ Reply to This | # ]

More SCO Confusions
Authored by: Simon G Best on Thursday, July 22 2004 @ 10:43 PM EDT

There seem to be some more SCO confusions in this latest issue.

The first thing that really caught my attention (and not just because it's highlighted in red) was this quotation from the TISC ELF document:-

The TIS Committee grants you a non-exclusive, worldwide, royalty-free license to use the information disclosed in this Specification to make your software TIS-compliant... [Emphasis mine.]

What area of IP law is relevant here? What's the basis for this licensing of use of "information"? Copyright would, of course, cover the "Specification", as it's a document, an expression. But the "information"? Did the authors misunderstand the scope of copyright?

I'm not at all surprised, though, that The SCO Group seem to think that copyright in an expression also means some sort of ownership of whatever it is, ideas or information, that's expressed.

The other thing I noticed is that The SCO Group's attorney, John Harrop, is quoted as having said, in his Declaration, "Examples of facts from discovery to date that show copying of material from UNIX into Linux include ... (vi) copying of SCO's UNIX Executable and Linking Format (ELF) codes in Linux."

Now, that sounds rather different to me. They're talking about "Executable and Linking Format (ELF) codes", which sounds like actual pieces of software, rather than a standard. Are they saying one kind of thing to the press, but something quite different to the court? Wow, wouldn't that be a surprise!

Seems we have a few, distinct things, all to do with ELF (including ELF itself), which are all getting confused and treated interchangeably by The SCO Group. There's: the ELF standard itself (which is information that's already been put into the public domain); the ELF specification (the document, in which copyright subsists, which expresses what the ELF standard is, and the vehicle through which that standard was put into the public domain); and ELF "codes" (which I take to mean software).

Well, those are my observations.

---
Open and Honest - Open Source

[ Reply to This | # ]

A Tall Tale About ELF - by Frank Sorenson, Dr Stupid and PJ
Authored by: msorrels on Thursday, July 22 2004 @ 10:58 PM EDT
Is it possible SCO is complaining not about the format being released, but
rather about the implementation of the format in Linux and Unix?

A format can be made public domain, but code that implements and works with that
format could be copyright protected (maybe if it was special/unique enough). It
is very likely that some "example implementation" code was also
generated around the time the ELF format was specified. This "example
implementation" code could have found itself into both Unix and Linux(and
lots of other ELF implementations). Since SCO can't remember what they did
yesterday, much less what some oldSCO/preSCO dev team did, it is possible they
have now found this code in both their Unix and Linux. Not having a clue where
it came from, they assume it's 100% theirs. Or it's possible the code dealing
with ELF is so generic and rigid that everyone's code looks about the same (in
this case it wouldn't even qualify for a copyright). Unless they point out
specifics though you really can't tell. Though it might be interesting to trace
all the various ELF parts in Linux, where they came from, who wrote them and how
they were built.

[ Reply to This | # ]

Can You Say "Latches"?
Authored by: Ruidh on Thursday, July 22 2004 @ 11:16 PM EDT
SCOX can't complain about the standard being released under such a permissive
license today nearly 10 years after that happened. SCOX has been distributing
Linux itself for as long as that. Since these claims haven't been made before
now, and SCOX has *certainly* been aware of the use of ELF in Linux, they should
be barred by the doctrine of Latches. Note that one of IBM's affirmative
defenses in its response and counterclaims is that some of SCOX's claims are
barred, in part, by latches.

I'm sure we'll see this mentioned in the reply brief which should be available
pretty soon now.

[ Reply to This | # ]

I think this is their last hurrah
Authored by: tangomike on Thursday, July 22 2004 @ 11:20 PM EDT
I don't know whether this is even admissable to the Aug 4 bun fight, or if
that's closed off. It doesn't matter, because as usual Groklaw has shredded it.
The fact that it's Ms. O'Gara who's making the noise tells us it's purely
intended to keep the stock scam going till the decision from the Aug 4 hearing.
Thanks to DCC and AZ, SCOX is going down. This is one last shot at making money
before the Aug 4 toilet flush.

Let's all wish/hope/pray (according to your beliefs, or lack thereof) that Judge
Kimbell is as expedicious as Judge Chabot. He does seem to be able to separate
the bull from its leavings.

BTW does anybody know if there's a minimum stock purchase for SCOX. At $4 or
less, I'd like a certificate for my wall. The frame will be the most expensive
part.



---
To The SCO Group - show us your cows.

[ Reply to This | # ]

A Tall Tale About ELF - by Frank Sorenson, Dr Stupid and PJ
Authored by: Totosplatz on Thursday, July 22 2004 @ 11:20 PM EDT

I have a very hard time believing there is any RCU code in any Sys-V UNIX; from claim # 72 shown above:

(i) substantial similarity of the Read-Copy-Update ('RCU') routine in Linux to a routine in UNIX;

and also from this quote:

"SCO also claims 'substantial similarity' between the Read-Copy-Update (RCU) routine in Linux 2.6.5 and Linux patches and SCO's copyrighted work, specifically SVR4.2 MP."

Can someone please explain how Sequent's patented RCU technology made it into SVR4.2 MP? Impossible!

More SCO-lies!

---
All the best to one and all.

[ Reply to This | # ]

A Tall Tale About ELF - by Frank Sorenson, Dr Stupid and PJ
Authored by: webster on Thursday, July 22 2004 @ 11:22 PM EDT
As soon as the ELF news broke the other day, it was linked here and then
promptly debunked in the comments, rather quickly and easily it seemed. Now it
has been further explained away more thoroughly and authoritatively.

Great work and reassuring. This is no threat to the Summary Judgment. They will
have to admit to the sequence of facts. This will destroy their claim. They
can't really deny what they weren't involved with.

---
webster

[ Reply to This | # ]

ELF in April 19 delivery to IBM
Authored by: Thomas Frayne on Thursday, July 22 2004 @ 11:24 PM EDT
Did SCOG deliver the appropriate information about ELF to IBM? I saw no
indication in SCOG's memos about discovery that it did, and IBM says that SCOG
did not deliver even one example of code in Linux that SCOG claimed infringed
SCOG's copyrights.

SCOG can lose the PSJ motion just as easily from proof that SCOG failed to
comply with the court order as from failure to identify prima faciae evidence of
copyright infringement in Linux. If SCOG had the evidence, but concealed it on
April 19, then the judge can bar them from presenting the evidence.

Since we don't know what IBM received on April 19, we have to infer it from the
statements made by SCOG and IBM. So far, it looks like IBM complied with the
court order, and SCOG did not.

If SCOG did comply with the court order, the question is: did they deliver prima
faciae evidence of copyright infringement in Linux? If so, the PSJ should be
denied. If not, the PSJ should be granted.

The issue of further discovery should not be considered until SCOG has complied
with the March court order and shown what evidence they have so far. As the
order stated, new discovery should be granted only if the evidence at this time
shows that new discovery is worth while.

[ Reply to This | # ]

Good article, but ...
Authored by: Anonymous on Thursday, July 22 2004 @ 11:47 PM EDT

Looking over the quote from the attorney's declaration, I think SCO may be officially saying something different than what they've told the press:

SCO reasonably expects that further comparisons of source code will permit SCO to present evidence ... Examples of facts from discovery to date that show copying of material from UNIX into Linux include ... (vi) copying of SCO's UNIX Executable and Linking Format (ELF) codes in Linux. ... The foregoing evidence demonstrates copying from UNIX into Linux ... even if SCO is not seeking to assert copyright in the foregoing material.

I'm reading that as: "we can find similarities, and we believe those similarities prove that copying occurred, although we won't say if that copying violates any of our copyrights."

Of course, there are other reasons that code may be similar, such as the need to follow a standard (cf. the Gates case).

[ Reply to This | # ]

This may stop the PSJ
Authored by: bobn on Friday, July 23 2004 @ 12:25 AM EDT
(ii) copying of UNIX System V init (SYS V init) code in Linux version 2.6; (iii) substantial similarity of the user level synchronization (ULS) routines in Linux and similar routines in UNIX; (iv) copying of SCO's UNIX System V IPC code in Linux 2.4.20;

These are probably nonsense, almost certainly being in ancient unix or some other already released stuff. But it will probably require some sort of expert testimony to rebut this - and that seems to me - IANAL - to mean that it needs a trial.

---
IRC: irc://irc.fdfnet.net/groklaw
the groklaw channels in IRC are not affiliated with, and not endorsed by, either GrokLaw.net or PJ.

[ Reply to This | # ]

A Tall Tale About ELF - by Frank Sorenson, Dr Stupid and PJ
Authored by: oldgreybeard on Friday, July 23 2004 @ 12:25 AM EDT
Here is the begining of part of the ELF processing routines in a recent version
of Linux

linux:/NEWUSR/src/linux-2.6.7 # cat /NEWUSR/src/linux-2.6.7/fs/binfmt_elf.c |
more
/*
* linux/fs/binfmt_elf.c
*
* These are the functions used to load ELF format executables as used
* on SVr4 machines. Information on the format may be found in the book
* "UNIX SYSTEM V RELEASE 4 Programmers Guide: Ansi C and Programming
Support
* Tools".
*
* Copyright 1993, 1994: Eric Youngdale (ericy@cais.com).
*/


Note the date and the copyright. Don't see SCO there do you?

Once again SCOx is out of luck, the Judge can apply known law to this and rule
without a jury. This claim will not prevent the PSJ.

[ Reply to This | # ]

A Tall Tale About ELF - History
Authored by: Anonymous on Friday, July 23 2004 @ 12:25 AM EDT
If I Remember Correctly, when ELF came out, there were many proprietary versions
of *nix and getting application developers was very expensive and difficult for
the vendors. Micro$oft was providing pressure from the bottom (starting to
nibble their lunch.) The proprietary *nix vendors had to do SOMETHING to get
applications on their systems or they were dead.

ELF was more a desperation gesture to work together and survive than anything
having to do with copyright or locking applications and competitors out.
Everyone embraced it because it helped preserve the *nix server market segment
for a few more years. In that light, I find the irony very thick.

I say *nix instead of the propper UNIX (tm) because several vendors, including
SCO, were not current on versions or variants.

The irony fell on me once, I was flat for a week. -- Pinky

[ Reply to This | # ]

It's all about the PSJ
Authored by: Anonymous on Friday, July 23 2004 @ 12:31 AM EDT
We can amuse ourselves by debunking whatever we think SCOX may be saying about
ELF, but for immediate purposes the debunking doesn't matter.

As PJ has pointed out, SCOX's immediate concern is to dodge the partial summary
judgement. To do that they need to produce some plausible evidence of
infringement. The evidence doesn't have to be any good. It's perfectly fine
for it to get shredded at Groklaw within hours. It can be errant nonsense.

What matters for now is for SCOX to raise any material issue of disputed fact,
something plausible enough that Judge Kimball cannot dismiss it on purely legal
grounds. As long as the purported evidence requires resolution by a jury, it
will have served its purpose, even if the jury laughs it out of the courtroom
later.

[ Reply to This | # ]

Looks like IBM is free to distribute ELF regardless
Authored by: kbwojo on Friday, July 23 2004 @ 12:33 AM EDT
Software Agreement - SOFT00015 (February 1, 1985)

7.06 (a) LICENSEE agrees that it shall hold all parts of the SOFTWARE PRODUCTS subject to this Agreement in confidence for AT&T. 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. If information relating to a SOFTWARE PRODUCT subject to this Agreement at any time becomes available without restriction to the general public by acts not attributable to LICENSEE or its employees, LICENSEE'S obligations under this section shall not apply to such information after such time.

[ Reply to This | # ]

SCO Engaging In Fraud
Authored by: dmscvc123 on Friday, July 23 2004 @ 12:37 AM EDT
Here's SysV's ABIs as well as SCO talking about work on ELF. Clearly they know
they are perpetrating a fraud on the court as their own website shows they have
full knowledge of what is going on as well as what they're making available:
http://www.caldera.com/developers/gabi/

Interestingly here's an SCO employee talking about work going on to put ELF on
Linux:
http://groups.google.com/groups?q=elf+linux+author:%40sco.com&hl=en&lr=&
amp;ie=UTF-8&scoring=d&as_drrb=b&as_mind=12&as_minm=5&as_min
y=1994&as_maxd=22&as_maxm=7&as_maxy=2004&selm=9407221542.aa20560
%40srv150a.sco.com&rnum=40

So it sounds like not only was SCO aware of ELF being put on Linux, they helped
do it!

[ Reply to This | # ]

What constitutes legitimate factual disputes?
Authored by: Bystander on Friday, July 23 2004 @ 01:25 AM EDT
Everyone realizes that SCO, by bringing up every little scrap of code they can
even remotely claim, simply wants to preserve its ability to go on an unbridled
fishing expedition through IBM's records. What isn't clear to me after months of
watching this case proceeed is whether the legal system provides any real
protection for defendents to prevent obvious cases of discovery abuse. For
instance, common sense would suggest that a charge of copyright infringement
requires that the plaintiff inform the defendent precisely what material is
claimed to be infringing, and to do so early in the case. Instead, SCO's
self-proclaimed strategy has been to obfuscate its charges for as long as
possible, all the while demanding that the defendent provide all conceivable
evidence to prove the plaintiff's case before it should be required to specify
what its case is really about.

In order to justify its wide-ranging discovery demands, SCO needs to show that
there are facts in dispute which a jury trial could resolve. One of my question
then, to anyone with the legal knowledge to answer, is what are the legal
requirements for facts to be legitimately in dispute? Surely there must be a
standard more stringent than simply a statement of disagreement? Especially in
the presence of physical evidence which heavily favors one side's position.

Using as an example Linux use of the ELF file format -- is it possible for IBM
to simply show that enough evidence already exists to make additional discovery
unnecessary? Could it be proven unnecesary because there could be no conceivable
dispute over facts raised by the results of additional discovery. Or must all
conclusions be delayed until the fact-finding phase, including discovery, is
concluded to its bitter end?

[ Reply to This | # ]

ELF: BSD vs UNIX
Authored by: mobrien_12 on Friday, July 23 2004 @ 01:34 AM EDT
Even in SCO's warped world, ELF can be used in any official UNIX derivative.

The real quesiton is, why does SCOG say that all the BSDs are ok when pretty
much every single one of them uses ELF now?

Just another case of SCOG saying one thing and contradicting themselves later.

[ Reply to This | # ]

All hat and no cows.
Authored by: mobrien_12 on Friday, July 23 2004 @ 02:20 AM EDT
"72. In addition to the foregoing, SCO reasonably expects that further
comparisons of source code will permit SCO to present evidence in opposition to
IBM's Tenth Counterclaim. Examples of facts from discovery to date that show
copying of material from UNIX into Linux include (i) substantial similarity of
the Read-Copy-Update ('RCU') routine in Linux to a routine in UNIX; (ii) copying
of UNIX System V init (SYS V init) code in Linux version 2.6; (iii) substantial
similarity of the user level synchronization (ULS) routines in Linux and similar
routines in UNIX; (iv) copying of SCO's UNIX System V IPC code in Linux 2.4.20;
(v) copying of SCO's copyrighted UNIX 'header and interfaces' in Linux; and (vi)
copying of SCO's UNIX Executable and Linking Format (ELF) codes in Linux. (Gupta
Decl. ¶¶ 3-86.) The foregoing evidence demonstrates copying from UNIX into Linux
-- and is probative even if SCO is not seeking to assert copyright in the
foregoing material. SCO has not retained a testifying expert on copyright
issues; SCO has filed only a relatively narrow copyright claim in this action
and did so only in February 2004. Such an expert would testify to the relative
importance of the foregoing materials in Linux."

Then, show us the code, line-by-line, with specificity. You know, like you were
ordered to by Magistrate Wells? Twice?

SCOG refused to comply with the court order, then stubbornly said that they had
complied. IBM said "fine, we'll go with what you've presented. Judge,
give us a ruling now, please."

Now SCOG is cornered by their own story and they are saying.. no wait give us a
little more time and we will really give you the evidence...

[ Reply to This | # ]

Groklaw confuses everone even futher
Authored by: Anonymous on Friday, July 23 2004 @ 02:44 AM EDT
Please. I'm just getting a bit irritated with this kind of sloppy use of
language and the confusion it sows - where the entire SCO argument is based on a
deliberate attempt to mix up the concepts of copyright and patents.

Since when do you have to "register a copyright"? One registers a
patent - not a copyright.

Copyrights do not have to be registered. In accordance with the Berne convention
copyright is vested in the original author and they can only be transfered in
writting.

How long are we going to keep on playing with this SCO word game?

[ Reply to This | # ]

Silly question I know....
Authored by: jmc on Friday, July 23 2004 @ 02:48 AM EDT
.... but if ELF is such a wonderful thing that SCO have the copyright of etc etc
why don't they use it in OpenServer???

(OpenServer uses COFF. Unixware uses ELF).

[ Reply to This | # ]

binutils GPL infringement by SCO?
Authored by: mjr on Friday, July 23 2004 @ 03:24 AM EDT
I wouldn't blame them if they didn't want to get involved, but wouldn't this
open the door for the FSF to sue SCO for infringing the binutils license, since
SCO seems to be claiming that licenses other than the GPL would be required for
doing ELF stuff?

[ Reply to This | # ]

Maybe OT, maybe on target
Authored by: scott_R on Friday, July 23 2004 @ 04:52 AM EDT
"The way that software is being produced and acquired is changing rapidly.
The availability of high quality software, often for no licensing costs and with
very user-friendly license terms, is challenging commercial companies producing
products in the same software category. This new type of software is called
either Free Software or Open Source Software (it will be referred to in this
document as Free/Open Source Software) and is being attacked by the incumbent
software product vendors as if it were a threat to the free market itself. The
software industry is actually going through a well-known free market process
that was first identified by the famed economist Joseph A. Schumpeter in 1942.
It is called the process of creative destruction."

http://software.newsforge.com/article.pl?sid=04/07/20/2053223

[ Reply to This | # ]

A Tall Tale About RCU
Authored by: rakaz on Friday, July 23 2004 @ 05:53 AM EDT
"SCO also claims 'substantial similarity' between the Read-Copy-Update (RCU) routine in Linux 2.6.5 and Linux patches and SCO's copyrighted work, specifically SVR4.2 MP."

This claim was a big surprise to me. First of all, this is very different from the claim that IBM was not allowed to release a version of RCU based on Dynix/ptx. This is something entirely different. SCO is claiming that Linux is infringing because the RCU patches are similar to their own SVR4.2 MP.

Why is it similar? Is it really infringing? The first question is actually pretty easy to answer. First of all a little bit about RCU. Read-Copy-Update is a technology that helps multi-processor systems to be more efficient. It was invented by Paul E. McKenney who worked at Sequent and after their acquisition, also at IBM. Sequent, with their Dynix/ptx operating system, pioneered multi-processor systems running on Unix, so it is not surprising that this technology was invented by a Sequent engineer. After IBM bought Sequent, they released RCU as a patch for Linux. If you look at the RCU patches IBM released, you can even plainly see that the Linux implementation is based on the Dynix/ptx implementation. So why is SCO claiming it looks like their own code? Well, it’s probably not their own code to which they compared it. It’s probably code they licensed themselves. Originally SVR4 did not have multi-processor capabilities. Again, it’s not surprising that they bought the knowledge from the company that pioneered this technology: Sequent. Sequent invented it and used it in their own Dynix/ptx operating system. Later on they also licensed the technology to USL, which used it in SVR4.2 MP. Then they created a Linux implementation which IBM gave away.

This is how a Novell press release for UnixWare 2.0 described it:

UnixWare 2's multiprocessing technology has been in development, testing, tuning, and optimization for Intel SMP platforms since 1991, when it was originally designed as SVR4 ESMP in cooperation with Sequent, Pyramid, and other industry leading SMP platform providers.

And this is how a Santa Cruz press release for the Monterey project described it:

This level of compatibility is possible because of the common kernel source code that DYNIX/ptx and UnixWare share in part as a result of joint development work between the two companies in 1993.

So, SVR4.2 MP used Sequent source code. Each of the RCU implementations come from the same source. Is it really so strange that they look alike? The problem is that this happened more than 10 years ago when SVR was still owned by USL. As this happened 3 companies ago, I really doubt SCO has a clue about where this code in SVR4.2 comes from. Something they already demonstrated with their Berkeley Packet Filter example.

[ Reply to This | # ]

The real question is what Novell intended, not SCO.
Authored by: Franki on Friday, July 23 2004 @ 06:12 AM EDT
This is all irrelevant.

Neither SCO1 or SCO2 were a stake holding party to the initial ELF release. That
is solely in Novell's court. (as evidenced by the previous ELF releases that
occurred before the Novell->SCO1 deal.)

That means SCO2 must be saying that "Novell" never intended to release
the TIS standards under a "free" license.

SCO are in no position to argue what Novell meant in releasing the Unix side of
the ELF standards, since they were not a party to it, and Novell
"owned" all of "UNIX" at the Time it was first released (and
the second time for that matter).

Also, since SCO have and are still releasing ELF software under GPL, and they
can't claim they didn't know about it, then they have either
"released" it under the GPL, or they are violating the GPL by
distributing it under that license.
Actually, if they know about it, and are still distributing it, then they have
released it under GPL, and that's assuming they had any right to
"release" it in the first place.)

But again, this is all irrelevant, SCO are not expecting this to succeed any
more then that rubbish with DC, and allot of the stuff they are doing with IBM.

They are throwing out anything they can think of to cast doubt in the judges
mind.. In no universe would this get though, but unless the Judge really
studies up on ELF, (or reads groklaw) then it "might" muddy up the
water enough to get the 10th counter-claim denied (or stayed.)

But, the fact that SCO are resorting to this bodes very well for Linux, because
it means that SCO has nothing else of significance to put forward. I mean nearly
anything they could say would have more "reality" then these obviously
fraudulent claims.

The problem is, that they still don't realise that there are thousands upon
thousands of programmers out there that know much more about UNIX then they do.
Because they were there back when it was all happening, as opposed to SCO2 who
came along later and just made up what they didn't know.
That's going to come back and bite then over and over again as this drags on.

regards

Franki







---
Is M$ behind Linux attacks?
http://htmlfixit.com/index.php?p=86

[ Reply to This | # ]

Shame, still doesn't pass the 'So What' Test.
Authored by: Anonymous on Friday, July 23 2004 @ 06:23 AM EDT
SCO have to show copying from System V to Linux of material to which they claim
copyrights (even if they have, and continue to, do the copying themselves). In
their brief they say,

'The foregoing evidence demonstrates copying from UNIX into Linux -- and is
probative even if SCO is not seeking to assert copyright in the foregoing
material.'

The facts they have to show in dispute in answer to IBM Counterclaim 10 are
copying of material to which they claim copyright.

So, you're the experts: is the claim of probativity, hand waving or hand
wringing?

Ian Al

[ Reply to This | # ]

A Tall Tale About ELF - by Frank Sorenson, Dr Stupid and PJ
Authored by: eggplant37 on Friday, July 23 2004 @ 08:02 AM EDT
SCO recently released UnixWare 7.1.4. To accompany this product you can obtain the UnixWare Open Source Toolkit, which includes the GNU "binutils" tools. This contains, among other things, the "readelf" utility and an ELF-enabled gcc—all shipped to you under the GPL.
Here we see again the hypocrisy in The SCO Group's actions. They release an Open Source Toolkit for use with their operating system software under the GPL, all while demeaning the GPL as invalid and unenforceable.

I wish these clowns would make up their minds. I've had friends who were terribly two-faced. They would say one thing to your face, then when you talked to another mutual friend, you'd hear the old, "You should have heard what James said about you the other day!!" speech. James (a figment of my imagination for examples sake) would then deny any such thing when confronted about it. The lies would become the major stop in continuing any kind of relationship with this person, and I'd soon avoid contact just so the lies would stop.

What needs to happen, and I know it won't very soon, is that we all need to ignore what SCO is saying. We know it's all lies, there's nothing of value in *anything* they say, and they're saying it only for the sensationalism and drama that they're looking to create. Again, it's the FUD factor. Let's toss the spin on something completely outside the IBM facts and hope no one notices the truth.

Well, Darl and Blake, we see right through you. You've both made utter fools of yourselves, your motives are transparent. Have fun. I know I will as I watch The SCO Group's little plan to make money through fear, uncertainty, doubt and the legal system comes to a crashing halt, and your company's stock price returns to penny stock market levels, exactly where it belongs. Where will it be next month? $3.50? Six months? $2? A year? Dead? Hah.

[ Reply to This | # ]

SCO's strategy is "trump summary judgement" not "win"
Authored by: gvc on Friday, July 23 2004 @ 08:08 AM EDT
SCO's approach seems tactical to me, not strategic. All they have to do is to
tell one lie, viz "TISC did not have the authority to license ELF", to
introduce material disputed fact that must be resolved by trial.

I believe that most of the postings here speak to why IBM can't win at trial,
not to why they can't win on August 4.

[ Reply to This | # ]

RCU
Authored by: archivist on Friday, July 23 2004 @ 08:13 AM EDT
From research of other posters it must be noted that TSOG only has a license to
use the RCU code they do not OWN it IBM do. So it is not part of the original
sysv code nor AFAIK is it a derivative of sysv. All it needs now is for the
contract between USL and Sequent to become public knowledge to bury TSOG on that
point.

[ Reply to This | # ]

A Tall Tale About ELF - by Frank Sorenson, Dr Stupid and PJ
Authored by: pfusco on Friday, July 23 2004 @ 08:19 AM EDT
Fifth, this is getting silly emphasis mine

This has always been silly :)

---
only the soul matters in the end

[ Reply to This | # ]

The ELF's Tale sounds like the JPEG Tale
Authored by: dodger on Friday, July 23 2004 @ 09:09 AM EDT
complete
article:http://uk.builder.com/webdevelopment/design/0,39026630,39152832,00.htm

"A who's who of the hardware business are being sued by Forgent Networks, a
software company that claims rights over the compression technology behind the
image format"

So Forgent has successfully raised millions from its suit against Sony, Canon
and everybody under the sun that uses jpeg format. The format came from a group
of companies to set the photographic image standard. One of the members of the
group suggested the compression scheme (and secretly held the patents to that)
and now in the autumn years of the patent's life, these suits are successfully
bringing the scheckles home to Forgent Technologies.

The Elf scheme sounds like that. Scramble around looking for anything that you
can copyright, patent, own and then sue every linux user for it.

Hey, how about the qwerty keyboard?

[ Reply to This | # ]

Solution
Authored by: Scorpio on Friday, July 23 2004 @ 09:25 AM EDT
If the analyses of SCO's thinking are correct, the easiest solution is for the
original committee to meet again and amend the original wording.

Let's see, that's Novell, IBM, etc. But SCO is not on that committee. How sad!

[ Reply to This | # ]

Ref for this SCO claim?
Authored by: Anonymous on Friday, July 23 2004 @ 09:38 AM EDT
Can anyone tell me where the quoted article got this claim by Sontag that TISC
overstepped it's bounds? I mean, the article said its source was "recent
court filings", and that the facts were in sealed documents that were
"tersely" referred to by documents that weren't sealed. I found the
mention of ELF and RCU copying in the Harrop declaration (which indeed
references the sealed Gupta declaration) which PJ quotes above. But I can't
find anything about TISC. Anybody found this?

[ Reply to This | # ]

Rights
Authored by: Sunny Penguin on Friday, July 23 2004 @ 10:04 AM EDT
If the Tool Interface Standard Committee (TISC) could not release this standard
for free, how could they sell it?

If they created it, they had rights to release it for free.
If The SCO Group(Caldera-SCOX) "bought" something that is free, this
is a fault of The SCO Group(Caldera-SCOX) management.
Just because your software supports a standard does not mean you "own"
the standard, no matter how much you payed.



---
Litigation is no sustituite for Innovation.
Say No to SCO.
IMHO IANAL IAALINUXGEEK

[ Reply to This | # ]

Sealed documents
Authored by: jbeadle on Friday, July 23 2004 @ 10:16 AM EDT
Having some of those exhibits - the Gupta declaration, for example - sealed is,
IMO, just a way for SCOG to try to keep from being discredited publicly in some
of their claims. I can see the need for them to keep their precious UNIX source
supersecret, but if they're sealing Linux source, I feel that's unacceptable.

But, like Darl sez (paraphrasing) - "If we tell them what's wrong, they'll
just fix it." I'm not so sure there's much to fix...

-jb

[ Reply to This | # ]

OT: Interview with Stallman
Authored by: Tim Ransom on Friday, July 23 2004 @ 10:16 AM EDT
Link

---
Thanks again,

[ Reply to This | # ]

Source Distro & ELF Solution
Authored by: scoove on Friday, July 23 2004 @ 10:27 AM EDT
After reading O'Gara's article and the SCO assessment that recompiling binaries (the process which would have to be taken to "strip out" ELF) is impossible, I just sat here dumbfounded as I watched my Linux workstation AUTOMATICALLY RECOMPILING BINARIES ("the horror... the horror...").

I run Gentoo, a source distro. Regardless of the Debian/Redhat/SuSe jabs about how Gentoo users are compiling all day long, the truth is that my Gentoo systems that I permit to update are almost always light years ahead on their patches. Plus, the control you gain is tremendously better than many alternatives. (Again, tools are tools and you pick the best one for the job - Gentoo for a source distro is unbeatable, but there are still reasons I'll prefer a RedHat, Slackware or Debian load for a project).

Not to start a distro war on Groklaw, but why do Gentoo users do 'source' installs and maintenance? It allows us to control our binaries with greater precision than a binary-based distro (through a system called Portage). For instance, my development workstation has compilar options (in a file /etc/make.conf) that aggressively optimize binaries for my exact processor hardware (vs. getting fat Redhat binaries compiled for backwards compatibility to 386 and subsequent 386-level optimization ONLY). I also control what compatibility I want (e.g. make sure SSH, LDAP, Apache2, and Python support is compiled in any app I build) through the USE= flags statement in this same configuration file. Oh, and for any of you Python language fans, the Portage source distribution program is a Python creation.

It would seem to me, subsequently, that a /etc/make.conf statement allowing me to specify binary format would not be far fetched, and overnight (your processor mileage/speed may vary) all Gentoo users could be recompiled to a different standard from ELF. Granted, there is the whole issue of why we use ELF that I'm overlooking, but the fact is that through a source distrobution like Gentoo, there already is an automated way to recompile every single binary in the system and resolve this nonsense threat of SCO's in a matter of days.

Check out Gentoo if you have a chance. I've worked with Linux since January 1993 when one of the early serial port developers gave me two 5.25 floppies. I was a SLS, Slackware, Redhat and Debian advocate and still believe many have their value (Debian for embedded is still my choice). But Gentoo gives F/OSS a rather interesting weapon: the ability to automatically distribute and recompile code on demand, in hours. ELF today, something totally new tomorrow (if so desired).

*scoove*

[ Reply to This | # ]

What a SCO lawyer would do
Authored by: clark_kent on Friday, July 23 2004 @ 11:18 AM EDT
"What is new is the claim about ELF. They are scraping the bottom of the
barrel now. They are facing a real moment of truth, both in the IBM case and in
AutoZone. If there is no infringing Linux code to save them, what to do? What to
do? Where to rustle up something in a hurry that might convince a judge that
there are some facts that are really, really, truly, we mean it, at issue that
must go to a jury, or some genuinely and significantly infringing code, so the
judge doesn't grant summary judgment in the IBM case on their 10th
counterclaim?"

If I was a lawyer with SCO, I would probably do this. Why not? Keep the party
going. Geting paid $$$. They don't care about the issues. They care about the
money. Did you expect them to care? This is the job of legislators in our US
government, to impose law of caring. But you know, it doesn't always, if at all,
work that way.

[ Reply to This | # ]

BayStar/SCO fight getting ugly..
Authored by: SirFozzie on Friday, July 23 2004 @ 12:01 PM EDT
Apparently BayStar doesn't consider the A-1 for normal stock transfer closed. They want further details on why SCOSource is flopping like a dead fish.

LINDON, Utah, July 23 /PRNewswire-FirstCall/ -- The SCO Group, Inc. (Nasdaq: SCOX - News) announced today that the SEC has declared effective, as of July 21, 2004, SCO's registration statement relating to the resale of shares of common stock issuable to BayStar Capital II, L.P. This fulfills the only condition to closing the repurchase transaction under the stock repurchase agreement between SCO and BayStar dated May 31, 2004, which was previously announced on June 1, 2004. Accordingly, SCO has informed BayStar that it considers the repurchase transaction to be closed as of July 21, 2004.

BayStar has notified SCO that it is BayStar's position that the repurchase transaction has not closed, pending resolution of claims by BayStar that SCO's recent public statements regarding SCOsource licensing opportunities are inconsistent with statements previously made by SCO to representatives of BayStar. SCO takes such questions very seriously and reaffirms the accuracy of its public disclosures concerning its SCOsource business and confirms its belief that such disclosures are not inconsistent with any confidential statements previously made to BayStar. As SCO previously has cautioned in its public disclosures, it has limited experience with its SCOsource licensing initiative, and projecting SCOsource revenue is difficult and subject to numerous risks and uncertainties.

BayStar has also claimed that it will not consider the repurchase transaction closed until SCO provides BayStar with confidential information supporting the accuracy of SCO's recent public disclosures regarding its SCOsource business. SCO has declined to provide the SCOsource information requested by BayStar in order to protect the confidential and proprietary nature of the information and the names of the companies engaged in SCOsource licensing discussions and to avoid fostering speculation regarding its SCOsource business.

SCO believes that the stock repurchase agreement with BayStar is effective and binding, and observes that the issues raised by BayStar are neither conditions to closing nor the subject of any representations, warranties or other terms of that agreement. In connection with the closing, SCO has sent to BayStar a stock certificate representing 2,105,263 shares of SCO common stock and notified BayStar that is ready to deliver $13,000,000 in cash, constituting the balance of the repurchase consideration, upon receipt from BayStar of its wire transfer instructions.

SCO has requested BayStar to fulfill its obligations under the stock repurchase agreement to deliver to SCO the certificates for the 40,000 shares of SCO Series A-1 Convertible Preferred Stock upon closing, and has informed BayStar that SCO will, in any case, consider all such Series A-1 stock cancelled and no longer issued and outstanding, effective as of the closing on July 21, 2004.

[ Reply to This | # ]

Question: How can SCO bring this up now ??
Authored by: Anonymous on Friday, July 23 2004 @ 12:14 PM EDT
Completely ignoring for the moment the utter bogosity of SCO's latest
"claims"...

My question is, how in the world can they bring this up now as a way to stop PSJ
on counterclaim 10?

After a year of pre-litigation antics, IBM says "enough is enough, they
claimed they've provided all their evidence and since that amounts to nothing,
we would like a partial summary judgement".

To refute that, shouldn't SCO be forced to show how the evidence they've
provided *does* amount to something? How there's a genuine issue of material
fact in the stuff they *have* presented already?

Why should they be allowed to make up new half-brained theories at the last
second just to confuse the court?

I certainly hope Judge Kimball is unimpressed by SCO's desperate, last-minute
flailing.

[ Reply to This | # ]

And how does SCO UNIX run Linux ELF binaries?
Authored by: tz on Friday, July 23 2004 @ 12:28 PM EDT
Anyone remember the embarrassing question on whether SCO copied any Linux code
into SCO UNIX in order to run Linux binaries? They never released the source to
my knowledge, but it would be far more tempting to copy GPL code into
proprietary than vice versa.

Maybe someone in one of these suits will ask to see their source. The AZ case
might is almost a mirror, but maybe they ported the program under SCO UNIX Linux
compatibility and then moved it over.

I don't know who would want to sue SCO and ask this, but I think the answer
would be interesting.

[ Reply to This | # ]

  • ELF - Authored by: Anonymous on Friday, July 23 2004 @ 01:00 PM EDT
** TROLL ** IGNORE (n/t)
Authored by: Anonymous on Friday, July 23 2004 @ 12:29 PM EDT
.

[ Reply to This | # ]

LOL!
Authored by: dkpatrick on Friday, July 23 2004 @ 12:33 PM EDT
Hey, can I have all your financial records (going back, oh, 20 years) along with
your medical records and personal correspondence?

You have nothing to hide, do you?

---
"Keep your friends close but your enemies closer!" -- Sun Tzu

[ Reply to This | # ]

This is posted in the wrong place
Authored by: PJP on Friday, July 23 2004 @ 12:54 PM EDT
There is a section early on in the comments for trolls.
You really should have posted this there.

[ Reply to This | # ]

I own pi. Users must pay up!
Authored by: Anonymous on Friday, July 23 2004 @ 12:58 PM EDT
This all very interesting, and encouraging to me, too, since the US Patent Office recently granted me a patent on pi, the ratio of the circumference of a circle to its diameter. I intend to enforce my patent, and will demand royalties from any company using technologies in which the value of pi is used in the design of their products. This will include just about any product using alternating electrical current or any use of electromagnetic technology other than pure direct current devices. These people are using my intellectual property and MUST pay up or face legal consequences!

I'm looking for smart investors willing to help me win the legal battles which I'll certainly have to fight, but I intend to win, since pi is my intellectual property. RBoC, Baystar, are you listening? Forget SCO, they're losers. This is a slam-dunk, guys!

[ Reply to This | # ]

A Tall Tale About ELF - by Frank Sorenson, Dr Stupid and PJ
Authored by: Anonymous on Friday, July 23 2004 @ 01:00 PM EDT
Can someone just simply http://snipurl.com/7yy3 Darl & cut this misery
short?

[ Reply to This | # ]

ELF Perjury to Defeat IBM's Motion
Authored by: Anonymous on Friday, July 23 2004 @ 01:15 PM EDT
A lawyer friend mentioned that when a motion to dismiss or for summary judgment
is filed against a bogus claim the easy way to defeat the motion is to
"create" facts in dispute where none actually exist -- as in the code
in Linux ELF is the copyrighted property of SCO. If IBM challenges this
"fact" then it must go to the jury.

This technique is usually done with a false affidavit. The lawyer simply types
up a set of "facts" to which a "witness" who has direct
knowledge is willing to falsely swear and presto, a dispute of fact that
requires resolution by a jury. Does the affidavit in the DC case ring a bell?

One way to minimize the embarrassment of filing an obviously false affidavit is
to have it sealed. Avoids bad publicity. And does this ring a bell?

Any bets that this is SCO's strategy?

[ Reply to This | # ]

More about: A Tall Tale About ELF
Authored by: Anonymous on Friday, July 23 2004 @ 01:20 PM EDT
I am still churning away on my quest to reach enlightenment about the APA, and I just came across a very interesting statement, by Novell, that may be of some relevance.

Given that the APA is dated September 19, 1995, as of that date, at 2.10. Technology., Seller [Novell] makes the assertion:

    "...Seller [Novell] does not know of any unauthorized use, infringement or misappropriation of any of the Seller [Novell] Intellectual Property Rights by any third party that reasonably would be expected to have a material adverse effect on the Business Condition of the Business."

The "Business", of course, being what the Old SCO bought.

Notwithstanding the very broad nature of this assertion, it would certainly seem to state that what Novell knew of, Novell had no problem with, in terms of Intellectual Property Rights.

And as others have said, certainly Novell knew all about the Tool Interface Standard Committee (TISC).

t_t_b

---
APA analysis, see:
http://www.finchhaven.com/TSCOG/index.html

[ Reply to This | # ]

Must be missing something...
Authored by: GLJason on Friday, July 23 2004 @ 01:21 PM EDT
Nowhere in the APA between Novell and SCO do I see ELF in the "included
assets"...

[ Reply to This | # ]

Yo man!
Authored by: Anonymous on Friday, July 23 2004 @ 01:34 PM EDT
Thanks man, you made my day! I needed a good laugh!
:-D

[ Reply to This | # ]

Reverse-engineering the Gupta and Harrop declarations
Authored by: k9 on Friday, July 23 2004 @ 01:50 PM EDT

What could be in the Gupta and Harrop declarations? They are the core of SCO's defense, the rest is just "sound and fury". Let's do a little reverse engineering ... the SCO response says :

Examples of facts from discovery to date that show copying of material from UNIX into Linux include
  • (i) copying of SCO’s UNIX Executable and Linking Format (ELF) codes in Linux;
  • (ii) substantial similarity in the Read-Copy-Update (“RCU”) routine in Linux version 2.6.5 and in patches to Linux and the RCU version in SCO’s copyrighted work, specifically UNIX SVR4.2 MP;
  • (iii) copying of UNIX SMP 4.2 System V initialization (SYS V init) code in Linux version 2.6;
  • (iv) substantial similarity in the user level synchronization (ULS) routines in Linux and similar routines in UNIX;
  • (v) copying of SCO’s UNIX System V IPC code in Linux 2.4.20; and
  • (vi) copying of SCO’s copyrighted UNIX “header and interfaces” in Linux. Gupta Aff. ¶¶ 3-86.

Another example of the results of SCO’s comparison of source code is the copying of the journaled file system (JFS) module in IBM’s successive later versions of AIX in Linux version 2.6. Id. IBM has not produced the early versions of AIX, so that SCO cannot (yet) establish how the JFS in Linux version 2.6 derives from the JFS in UNIX. Harrop Decl. ¶¶ 88-90. The foregoing evidence demonstrates copying from UNIX into Linux – and is probative even if SCO is not seeking to assert copyright in the foregoing material. See Gates, 9 F.3d at 833 n.7.

The “facts” must presumably be (at least in part) what the declarations aver. The section is headed “Comparison of Source Code”, so the declarations must be about the result of that. So we may safely assume that the declarations testify to “substantial similarity” or “copying”. However, it's difficult to imagine that the affiants can actually testify to personal knowledge of “copying”, unless they did it themselves or have documents from one who did, so that must surely be SCO-hype for “almost identical code fragments”. “Substantial similarity” is on a sounder footing – if the code comparisons were done by the affiants or persons under their direct supervision, they could testify to that. Probably the “substantially similar” items are just less similar than the “identical” ones. Given the court's order for specificity, it also seems likely that the affiants have actually extracted and attached some similar sections of code. And that's why the affadavits are sealed. SCO don't want them to suffer public gutting like the last lot of “copied” code that they showed in public.

There is another probable reason for the sealing. Note that 4 of the 6 assertions refer to "UNIX"; only 2 refer to a specific SCO product. Now look at the bit about "not seeking to assert copyright". Combined, they suggest that the court should first accept SCO's scope for "UNIX" based on their notion of derivative works, then accept code similarity as probative of copyright infringement. Well, possibly - but if SCO don't actually own the copyrights they're so generously not asserting they have no standing and it's irrelevant. Without seeing the affadavits, it's impossible to analyze this further.

Still, once the affadavits are stripped of opinions and other inadmissible material, probably we have facts about code similarity. How could that have happened? We know the answer for some of them :

  • ELF : scenes à faire based on public standard
  • RCU : common ancestor, USL licensed RCU from Sequent
  • Header & Interfaces : scenes à faire based on public standard

Though not a lawyer, what I understand is that there must be an inferential chain from the evidentiary fact offered (here, some degree of textual similarity) to a fact of consequence (copying of copyright material). To counter this, there's no point just offering evidence that points the other way, because that would need a jury to weigh it. What's needed is to break the chain of inference, so that the judge can determine that the EF even if true does not make the FOC more probable, and so the EF shouldn't go to a jury. SCO not owning the copyright would presumably do. I would also assume that scenes à faire and provably common ancestor are sufficient, since they mean that similarity would be present regardless of copying. That may be the best way to break the inference. It would, however be interesting to have some legal comment on the issue of relevance and probative value here in respect of the six “facts” above, and the best ways of countering them. I suspect that close examination will show that each of them is an invalid basis for inferring breach of copyright.

[ Reply to This | # ]

So open standards are better than open source - eh?
Authored by: hardware-guy on Friday, July 23 2004 @ 02:03 PM EDT
This latest debacle certainly nukes Sun's argument that open standards are
better than open source...

Thanks, but I'll take open source every time.

[ Reply to This | # ]

BIFF! You've migrated, you old fool.
Authored by: ihawk on Friday, July 23 2004 @ 03:12 PM EDT
And your spelling and grammar is just as bad here as on the yahoo board. Now go
away.

[ Reply to This | # ]

*** TROLL ALERT ****
Authored by: alisonken1 on Friday, July 23 2004 @ 04:52 PM EDT

Besides the point about SCO *owning* an interface specification - it's
interesting to note that this particular troll forgets that the current judge is
only deciding IF it this case going to court - not WHEN.

Dontcha luvit when trolls abound - so much more fodder to play with. {g}

---


- Ken -
Slackin' since 1994 -
export IANAL=TRUE

[ Reply to This | # ]

The Yahoo board
Authored by: Tim Ransom on Friday, July 23 2004 @ 05:46 PM EDT
is Here.

Copies of My Pet Goat are available Here.

---
Thanks again,

[ Reply to This | # ]

When SCO tries to specify claims..
Authored by: webster on Friday, July 23 2004 @ 11:36 PM EDT
..they end up withdrawn or abandoned. They are in over their heads. They are
afraid to specify evidence because it then disappears. They try something and
then look here and in the opposition's court filings and find out what all the
problems are with their code claims. IBM is intimidating SCO or at least their
lawyers who have some knowledge and respect for the rules of evidence. IBM and
Linus will continue to detail the provenance of every line and file of Linux,
with every detail. They tell them this is the way it is. If SCO has knowledge
and authority that this is wrong or improper in some way, show better, more
reliable authority than Linus, IBM and other experts. They have affidavits of
the actual parties involved in licensing and distributing the code in question.
IBM says that if SCO can do no better, their claim is without good faith and
frivolous.
For example The SCO claim 'that ELF was not intended to be released' is a
possible fraud. Clearly Novell opened it up before they sold UNIX to Old SCO.
There are two "inaccuracies" 1) that they have a claim to it,and 2)
that it was not intended to be released. SCO will have to present some
reasonable facts and authority to establish this. They are dancing very near a
frivolous claim. Their lawyers realize this and that is why so many of their
claims disappear in court.
It is possible that ELF looked relatively strong to them. If they check out
what has been presented here today, they may decide that it too is frivolous
given the numerous problems it seems to have.
Clearly SCO speculation and wishes crumble in the face of the History and
Experts of Linux.
In addition these new claims are late and unexplained. They will not be
allowed.

---
webster

[ Reply to This | # ]

  • SCO claims.. - Authored by: Anonymous on Saturday, July 24 2004 @ 01:28 AM EDT
I did a search....
Authored by: PeteS on Saturday, July 24 2004 @ 07:03 AM EDT
and lo and behold

For the COFF standard, there is a wealth of information

Even SCO is still giving this tsuff away for free (get it before the page disappears!!!)

Look at This SCO link for a wealth of information (including the COFF Link Editor)

There are so many links it is not possible to list them all.

But you can see even Microsoft uses the standard Here and here

For both COFF and ELF, you can look at This page at HP or This interesting collection of links to papers

I don't really think SCOG has a snowball's chance in hell of getting away with this, but as always, it is uncumbent upon us to ensure that :)

Pete S

---
Today's subliminal thought is:

[ Reply to This | # ]

Some Early ELF History
Authored by: shap on Saturday, July 24 2004 @ 01:01 PM EDT
I was one of the people at USL who was involved in the creation of ELF. More precisely, Jim Arnold did the ELF design (see: ELF: An Object File to Mitigate Mischievous Misoneism, Summer USENIX 1990), while my group did the first debugger to support the ELF format and defined the original DWARF debugging specification. Later, I was involved in the first incremental compiler efforts at USL that used some of the features of ELF to speed rebuilding and relinking. This led to some refinements of ELF before its public release.

The openness of the ELF standard long predates SCO's acquisition of UNIX. ELF was released by UNIX Systems Laboratories as part of the SVR4 ABI specification, and its design principles were described in Jim's paper and several later publications. USL, rather than SCO, released ELF. While SCO may have different views about its subsequent handling of the intellectual property, SCO does not have any authority to repudiate earlier decisions by USL to release things as open standards.

It was clear to James, to me, to Margaret Ellis (who collaborated on ELF), to our management, and to USL as a whole that the SVR4 ABI and the ELF work that it contained was an open standard. Indeed, much of the purpose of the ABI was to allow disparate vendors on disparate hardware to form a common UNIX standard that could counterbalance the market dominance of Microsoft. While the attempt didn't succeed, the commitment to openness was very clear.

Several years later, as one of the founders of HaL Computer Systems, I found myself running the compiler group at HaL, where Roland Crunk (who was a member of my group) defined the second round of the DWARF standard in the context of the ELF object file format. HaL would not become a licensee of UNIX until well after this work was started. Many people at USL, including senior management, were aware of our efforts, aware of our license status, and actively encouraged our efforts on the basis of ELF being an open standard. I was personally involved in negotiating HaL's collaboration with USL in this regard.

While USL certainly attempted to sell SVR4 licenses wherever they could, USL encouraged adoption of the SVR4 ABI in whole or in part with or without an SVR4 license. You couldn't *call* your system SVR4 without a license (because it was a trademark), but the view of USL marketing at the time was that convergence was good and needed to be encouraged.

So: whatever SCO may think, ELF was unquestionably released as an open standard. Whether or not ELF is copyrighted, USL effectively granted broad permissions to reuse ABI-specified technologies under the open standards rubric. Even if SCO's theory of copyright is correct (which it clearly is not), SCO lacks the authority to undo USL's permission to the UNIX community to adopt and independently implement ELF and other parts of the ABI standard specification. To re-use the code, you needed an SVR4 license. To independently implement the standard you did not.

Jonathan S. Shapiro
Assistant Professor
Johns Hopkins University

[ Reply to This | # ]

ELF, (and HP and Sun)
Authored by: Night Flyer on Sunday, July 25 2004 @ 03:35 AM EDT
I read the article and the comments about ELF, and I am left with the thought
that the judge is in a bit of an interesting position...

I think IBM deserves a summary judgement on some, if not all of the issues
before the court. What if the judge has also arrived at this conclusion, then
is faced with the ELF controversy?

Suppose the judge reads 'GROKLAW' or has other competent sources of information,
and concludes that the ELF controversy is a creation of SCO's fevered mind.
And, in fact, is incompetent, irrelevant and immaterial when used in the SCO vs
IBM case in the way SCO presented it. (IE: SCO has not specified any copied
'IP' code.)

Can the judge order a limited round of discovery, or let IBM rebut these
allegations to have a resolution in the court record without going to jury
trial?
-----------------
OT <sarcasm>
As I remember HP and Sun Microsystems were given a clean bill of health, in
terms of having made no improper use of SCO's intellectual property, (as opposed
to IBM which SCO sued).

Does this mean that HP and Sun don't use ELF?

In view of SCO's new position on ELF, maybe SCO needs to reconsider its hands
off approach to HP and Sun (open up a few new fronts in its legal battles???)
------------------------------
Veritas Vincit: Truth Conquers


[ Reply to This | # ]

RCU claim=Path to destruction for SCO?
Authored by: eugen on Sunday, July 25 2004 @ 11:17 AM EDT
"Comparison of Source Code" ...

(i) substantial similarity of the Read-Copy-Update ('RCU') routine in Linux to a routine in UNIX;

I don't know about american courts (being from Europe), but here (Austria) this document would almost certainly kill your case:

  • It is easy to proof (as you did), that the similarity between Linux RCU and SCOX RCO comes from the fact, that both (legally) stem from the same "parent code".

  • Case A: SCOX claims their document to be well-researched in the hearing
    IBM can easily show, that the document is factually wrong in a substantial point, which (in Austria) would render the document worthless, so there is no rebuttal for IBM's move. Additional consequences for filing wrong facts might follw.

  • Case B: SCOX backpedals in the hearing, saying the document is not well-researched
    This also renders the complete document worthless, again no rebuttal to IBM's move, plus misconduct before the court


  • I don't want to be in their place!

    Regards, Eugen

    [ Reply to This | # ]

    Linux does not use System V ELF
    Authored by: jesse on Monday, July 26 2004 @ 02:41 PM EDT

    I really had to think about this before providing the following.

    Linux does not use the UNIX System V ELF loader.

    The proof is in the following URL where the author (for fun) attempts to generate the "smallest possible executable" - essentially, the no operation program consisting only of the exit system call. Now "smallest" to the author means the minimum file size for an executable - what he does is in assembler, and creates an executable that fits INSIDE the ELF header for executables - limiting the length of the file to the size of the header. NOTE: this is NOT a valid (ie standard System V header) anymore. It is corrupted by using fields for the code that normally specify other load options to the System V loader... which are unused in Linux.

    the tiniest Linux executable

    [ Reply to This | # ]

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