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SCO's Gift to Linux
Monday, February 07 2005 @ 06:59 AM EST

Who'd have imagined at the beginning of the SCO operetta that in the third act, Linux would be singing that SCO was the wind beneath its wings? And yet, that is what has just happened.

I'm sure you will realize with what delicious satisfaction I bring you the news that OSDL's Stuart Cohen has a Viewpoint piece in the current Business Week, in which he says that we should thank SCO for greatly accelerating Linux use in the enterprise. SCO's great gift to Linux, he writes in "How SCO's Threats Rallied Linux," was that the world came to its defense and looked carefully to evaluate SCO's claims, and now Linux is now even more popular:

"The SCO litigation and surrounding media hoopla actually helped accelerate Linux's popularity -- and its legal foundation. SCO's legal offensive was effectively a wake-up call for a community, mobilizing and uniting a large but disparate group of customers and developers around a single cause. It spurred the Linux community to get its house in order. Its response revealed to the world how large that house had become and gave Linux newfound credibility.

"Linux developers, assisted by such interested parties as the Free Software Foundation, Groklaw, and my own organization, the Open Source Development Lab (OSDL), went to work to systematically examine every claim SCO put forth. As part of this grassroots effort, corporate developers and freelance contributors investigated and vetted the code from A to Z -- and back again. Offers to extract and rewrite any offending code in the Linux kernel were fielded from all over the globe."

All the lawsuits accomplished, he says, is that companies did due diligence in what turned into the most extensive internal audit and license compliance review since Y2K, with the result that Linux was vindicated and is now accepted as approved and endorsed for use by business.

"This vindication is perhaps SCO's greatest gift to the industry. The lawsuits and threatening letters literally forced customers to actively review and ultimately approve and endorse the use of Linux within their info-tech infrastructure.

"On the way to the courthouse, we can thank SCO for helping to move Linux even faster from the fringe of the computer network to the heart of the data center."

You will also enjoy reading First Monday's "The Penguin in Peril: SCO's Legal Threats to Linux," by Groklaw's Ishtiaque Omar, now an Australian attorney. He did his honors thesis on the SCO litigation, and he says the reason Linux is being sued now is simple: "With large companies now involved, these projects have become attractive targets for litigation."

Ah. The mystery solved. It's not the open source methodology, it's not that there are problems with provenance, and it's not a battle between business models. It's about money, honey. IBM has a lot of money, so it gets sued.

Omar examines the SCO legal claims and gives a very clear overview. His opinion is that SCO's claims are probably doomed. He lays some of the blame on mistakes SCO's attorneys have made.

"Boies' team has misidentified the defendant's place of incorporation, mistaken key dates in the contractual history, and had to reverse outrageous claims. It has also abandoned evidence that seemed central to one of its claims, abandoned an entire claim that was a pivotal part of the original complaint, and added a new legal theory that should have formed part of the action from the beginning.

"Given the complexity of the litigation, the long contractual and corporate history and the relative novelty of open-source licensing, Boies' mistakes have significantly injured SCO's case. At each stage, IBM has taken advantage of the inconsistencies and contradictions introduced into SCO's case."

"Boies" here stands for the entire SCO legal team the firm oversees. You'll find that, with footnotes, on page 30. On page 41, he speaks of IBM's motions for partial summary judgment related to the fact that SCO continued to distribute Linux even after bringing its lawsuit against IBM:

"F. Promissory Estoppel of and Copyright Infringement by SCO

"Two IBM counterclaims, promissory estoppel and copyright infringement, arise from one allegation: that SCO distributed Linux, necessarily under the GPL, and continued to do so after it found code that allegedly infringed its intellectual property rights. IBM argues that, having distributed Linux despite knowing that the software included SCO's copyrighted code, SCO has accepted the GPL terms of distribution and must abide by them.

"Pertinently, the GPL requires that software must be accompanied by source-code and cannot be redistributed except under the GPL. It is argued that SCO is prohibited by these terms from attempting to restrict the distribution of Linux source-code. SCO is also prohibited from distributing the code under other terms — which it would be doing if it sold licences to use parts of the Linux code. IBM asserts that SCO's obligation to comply with the GPL gives rise to promissory estoppel, prohibiting SCO from attempting to pursue its current action.

"In the alternative, IBM argues that if SCO did not accept the terms of the GPL, it continued distributing Linux without licence. IBM notes that it contributed 'hundreds of thousands of lines of IBM code' to Linux, and that the only licence granted to use that copyrighted code was the GPL. Therefore, IBM argues, if SCO successfully renounced the GPL and continued to distribute GPL-licensed code, it infringed IBM's copyright. SCO 'literally copied more than 783,000 lines of code from sixteen packages of IBM's copyrighted material [that were contributed to Linux]'.

"These alternative arguments cunningly target the mistake that SCO made by continuing to distribute Linux after bringing this action. Unless the judge reaches the unlikely conclusion that SCO's continued distribution constituted an oversight in a multibillion dollar lawsuit that persisted for several months, it is difficult to see how these motions could fail."

Of course, time marches on, and there have been developments since the paper was written, like the BayStar exit, but that is unavoidable when writing about litigation that is ongoing. The collection of resources beginning on page 67 of the PDF version of this paper, the index, some 18 pages long, is quite useful in and of itself. At the end of the paper there is a discussion of the GPL, quoting a UK professor who thinks the GPL covers use, which it doesn't. But for an excellent overall look at what the SCO litigation is about, I think this is about the best and most comprehensive coverage I've seen.

He thanks Groklaw in the acknowledgments in the PDF version. "Pamela Jones, made my life immeasurably easier," he writes, "by providing in Groklaw a record of SCO-related events."

That's one of Groklaw's goals, of course, to enable scholarly work regarding this historic litigation. So it's nice to know we have reached two target goals.


SCO's Gift to Linux | 118 comments | Create New Account
Comments belong to whoever posts them. Please notify us of inappropriate comments.
OT Here Please
Authored by: fudisbad on Monday, February 07 2005 @ 07:12 AM EST
For current events, legal filings, 10-Ks and CC10 rulings. Please make links

See my bio for copyright details re: this post.
This subliminal message has been brought to you by Microsoft.

[ Reply to This | # ]

... and IBM too
Authored by: jmc on Monday, February 07 2005 @ 07:14 AM EST
I've often thought that IBM must be pretty pleased that SCO have given them a
name as the good guys amongst people (like me) who wouldn't previously have been
seen dead supporting them.

[ Reply to This | # ]

Corrections here please
Authored by: fudisbad on Monday, February 07 2005 @ 07:14 AM EST
If required

See my bio for copyright details re: this post.
This subliminal message has been brought to you by Microsoft.

[ Reply to This | # ]

SCO's Gift to Linux, that was the plan from day 1
Authored by: Anonymous on Monday, February 07 2005 @ 07:34 AM EST
Rember that the world and its mother own TSCOG a license to use their preciousIP
(tm) for each and every copy of Linux ever found on a computer ?


[ Reply to This | # ]

Take a bow, Lady
Authored by: grouch on Monday, February 07 2005 @ 08:00 AM EST

What you did by speaking out and providing research early on in the fiaSCO
cannot be overstated. The point of focus you provided back in the radio.weblogs
days sparked hope and direction to the battle. Your plain-spoken articles with
copious links to back up your words have always followed the basic tenet of open
source: show me the code.

You have welcomed reasoned dissent (and received it!) which strengthened the
credibility of all of your open creation, Groklaw. The incredible growth of
Groklaw's readership and the quality of researchers and authors Groklaw attracts
is directly attributable to your leadership.

You were the right person at the right time with the right attitude to meet the
needs of the threats.

Thank you, sincerely!

(P.S.: I'll still argue with you when I think you're wrong).

"The power of the Web is in its universality. Access by everyone regardless of
disability is an essential aspect." -- Tim Berners-Lee, inventor of the WWW

[ Reply to This | # ]

SCO's Gift to Linux
Authored by: belzecue on Monday, February 07 2005 @ 08:22 AM EST
SCO is a growing pain that's almost done.

"When I was a child I spake as a child, I thought as a child, and reasoned
like a child. When I became a man, I put childish things aside."

So I guess that's bye bye SCO.

[ Reply to This | # ]

Making silk out of a SCOG's ear. (nt)
Authored by: Stumbles on Monday, February 07 2005 @ 08:22 AM EST

I guess it can be done after all.

You can tune a piano but you can't tune a fish.

[ Reply to This | # ]

SCO's Gift to Linux
Authored by: Anonymous on Monday, February 07 2005 @ 08:31 AM EST
a UK professor who thinks the GPL covers use, which it doesn't

Under US copyright law it doesn't. But I'm not so sure about European copyright law, which is probably the basis of this UK professor's statement.

Directive 91/250/EEC on software copyright in Europe states specifically in article 4(a):

Insofar as loading, displaying, running, transmision or storage of the computer program necessitate such reproduction, such acts shall be subject to authorization by the rightholder

Hence "use" of a computer program is within scope of European copyright. So it's not a surprise that a UK law professor would make such a claim.

[ Reply to This | # ]

SCO's Gift to Linux
Authored by: Stumbles on Monday, February 07 2005 @ 08:36 AM EST
Unless the judge reaches the unlikely conclusion that SCO's continued distribution constituted an oversight in a multibillion dollar lawsuit that persisted for several months, it is difficult to see how these motions could fail."

Only IMO by an extremely generous view could it be seen as an oversight. It's difficult for me to imagine given this case they "just forgot" to plug such a gapping hole.

I would find it laughable at the least and at worst astoundingly clear the judge is not using common sense.

You can tune a piano but you can't tune a fish.

[ Reply to This | # ]

SCO's Gift to Linux
Authored by: Anonymous on Monday, February 07 2005 @ 10:56 AM EST

Yes, thank you, SCO, for all your hard work in advancing the cause of Linux through your legal shananigans. You've managed to unite Linus users like no other might have been able to (possibly more than even Bill Gates might have been able to).

Still, that said, I'd still like to see Darl and his cronies have new positions when this is all over. Positions where their new boss comes by periodically to shout

``Tea break over! Back on your heads!''

[ Reply to This | # ]

Conspiracy Theory: SCO's Gift to Linux
Authored by: Anonymous on Monday, February 07 2005 @ 11:06 AM EST
I've always wondered if this wasn't IBM's plan from the get go.

A softball litigation (how else do you describe some of the 'legal docs' coming
from the SCO camp?) that essentially puts the world on notice that Linux is more
than a hobby OS.

In the real world, its one thing to talk that you own something, but aren't you
supposed to do your homework first before you sue someone, specially IBM?

SCO is left hoping for the fishing expedition. Since SCO has no other evidence,
one has to wonder on what basis they tried to cancel IBM's right to distribute
AIX. Or have we all forgotten about that part?

[ Reply to This | # ]

This gift may keep on giving
Authored by: PeteBoton on Monday, February 07 2005 @ 12:27 PM EST
I agree that MS and SCO have helped open source in general and Linux in
particular. While the FUD may have fooled some people in the beginning, neither
company has much credibility today.

That's the good news. The even better news is that MS may have scuttled its
next FUD effort before it even gets under way.

Patents may well be the subject of the next round of FUD. There have been
public claims that Linux violates some large number of patents. AFAIK, nobody
has ever identified publicly any of the patents that Linux allegedly violates.
Without the nonsense generated by Darl and his gang, the patent FUD might be
believed. Now that the industry knows better, any patent threats made by MS (or
another proxy) will be quickly discredited and disbelieved.

Remember claims about code, with no code being identified? The next step is
claims about patents, with no patent being identified. This is going to be

[ Reply to This | # ]

Boies' Mistakes?
Authored by: Anonymous on Monday, February 07 2005 @ 12:51 PM EST
"Boies' team has misidentified the defendant's place of incorporation,
mistaken key dates in the contractual history, and had to reverse outrageous

So I guess we should now point out these legal mistakes so they can fix them?

[ Reply to This | # ]

"...a class of speculative schemers..."
Authored by: Anonymous on Monday, February 07 2005 @ 12:56 PM EST
In The Great Atlantic and Pacific Tea Co. vs. Supermarket Corp., 340 U.S. 147 (1950) Mr. Justice Douglas filed an interesting concurring opinion for himself and Justice Black.

"It is not enough," says Justice Douglas, "that an article is new and useful. The Constitution never sanctioned the patenting of gadgets. Patents serve a higher end--the advancement of science. An invention need not be as startling as an atomic bomb to be patentable. But it has to be of such quality and distinction that masters of the scientific field in which it falls will recognize it as an advance." He then quotes the following from an opinion of Justice Bradley's given 70 years before:

"It was never the object of those laws to grant a monopoly for every trifling device, every shadow of a shade of an idea, which would naturally and spontaneously occur to any skilled mechanic or operator in the ordinary progress of manufactures. Such an indiscriminate creation of exclusive privileges tends rather to obstruct than to stimulate invention. It creates a class of speculative schemers who make it their business to watch the advancing wave of improvement, and gather its foam in the form of patented monopolies, which enable them to lay a heavy tax upon the industry of the country, without contributing anything to the real advancement of the arts. It embarrasses the honest pursuit of business with fears and apprehensions of concealed liens and unknown liabilities lawsuits and vexatious accountings for profits made in good faith." (Atlantic Works v. Brady, 1017 U.S. 192, 200 (1882)).

The opinion [of Justice Douglas, I think] concludes: "The attempts through the years to get a broader, looser conception of patents than the Constitution contemplates have been persistent. The Patent Office, like most administrative agencies, has looked with favor on the opportunity which the exercise of discretion affords to expand its own jurisdiction. And so it has placed a host of gadgets under the armour of patents--gadgets that obviously have had no place in the constitutional scheme of advancing scientific knowledge. A few that have reached this Court show the pressure to monopolies to the simplest of devices:

Hotchkiss v. Greenwood, 11 How. 248 (1850): Doorknob made of clay rather than metal or wood, where different shaped doorknobs had previously been made of clay.

Rubber-Tip Pencil Co. v. Howard, 20 Wall, 4998 (1874): Rubber caps put on wood pencils to serve as erasers.

Union Paper Collar Co. v. Van Dusen, 23 Wall. 530 (1875): Making collars of parchment paper where linen paper and linen had previously been used.

Brown v. Piper, 91 U.S. 37 (1875): A method for preserving fish by freezing them in a container operating in the same manner as an ice cream freezer.

Reckendorfer v. Faber, 92 U.S. 347 (1876): Inserting a piece of rubber in a slot in the end of a wood pencil to serve as an eraser.

Dalton v. Jennings, 93 U.S.271 (1876): Fine thread placed across open squares in a regular hair net to keep hair in place more effectively.

Double-Pointed Tack Co. V. Two Rivers Mfg. Co., 109 U.S. 117 (1883)): Putting a metal washer on a wire staple.

Miller v. Foree, 116 U.S.22 (1885): A stamp for impressing initials in the side of a plug of tobacco.

Preston v. Manard, 116 U.S. 661 (1886): A hose reel of large diameter so that water may flow through hose while it is wound on the reel.

Hendy v. Miners' Iron Works, 127 U.S.370 (1888): Putting rollers on a machine to make it movable.

St. Germain v. Brunswick, 135 U.S. 227 (1890): Revolving cue rack.

Shenfield v. Nashawannuck Mfg. Co, 137 U.S. 56 (1890): Using flat cord instead of round cord for the loop at the end of suspenders.

Florsheim v. Schilling, 137 U.S. 64 (1890): Putting elastic gussets in corsets.

Cluett v. Claflin, 140 U.S. 180 (1891) A shirt bosom or dickie sewn onto the front of a shirt.

Adams v. Bellaire Stamping Co., 141 U.S. 539 (1891): A lantern lid fastened to the lantern by a hinge on one side and a catch on the other.

Patent Clothing Co. V. Glover, 141 U.S. 560 (1891): Bridging a strip of cloth across the fly of pantaloons to reinforce them against tearing.

Pope Mfg. Co. v. Gormully Mfg. Co., 144 U.S.238 (1892): Placing rubber hand grips on bicycle handlebars.

Knapp v. Morss, 150 U.S. 221 (1893): Applying the principle of the umbrella to a skirt form.

Morgan Envelope Co. v. Albany Perforated Wrapping Paper Co. 152 U.S. 425 (1894): An oval rather than cylindrical toilet paper roll, to facilitate tearing off strips.

Dunham v. Dennison Mfg. Co. 154 U.S. 103 (1894): An envelope flap which could be fastened to the envelope in such a fashion that the envelope could be opened without tearing.

The patent involved in the present case belongs to this list of incredible patents which the Patent Office has spawned. The fact that a patent as flimsy and as spurious as this one has to be brought all the way to this Court to be declared invalid dramatically illustrates how far our patent system frequently departs from the constitutional standards which are supposed to govern."

The invention at issue was a simple wooden structure to move an order of groceries at a checkout counter as a rack of balls is moved in pocket billiards.

This list of patents declared invalid by the highest court did not stop in 1894.

[ Reply to This | # ]

SCO's Gift to Linux
Authored by: blacklight on Monday, February 07 2005 @ 02:08 PM EST
"Who'd have imagined at the beginning of the SCO operetta that in the third
act, Linux would be singing that SCO was the wind beneath its wings?" PJ

I wouldn't credit SCOG "as the wind beneath my wings" - SCOG is
proably more like a heat seeking air to air missile in search of a fuselage. And
since said missile was redirected toward the sun, the explosion is bound to be
ugly - and painless to the intended victims.

Someday, when we the Open Source Community will stand tall in the muck, we
should give a five millisecond passing thought to SCOG whose corporate corpse
somewhere under our feet makes it possible for our combat boots to stay dry and

[ Reply to This | # ]

What my boss knows about Linux
Authored by: Anonymous on Monday, February 07 2005 @ 02:11 PM EST
My previous CEO knows the following about Linux:
  • Linux is IBM's new Operating System (must be the successor to AIX); and IBM is a great company.
  • Daimler Benz; the guys that made his Mercedes Benz use Linux; and his Mercedes is a great car.
And that's just about all he knows about operating systems; but it's enough!

Thanks SCO!

[ Reply to This | # ]

SCO's Gift to Linux
Authored by: blacklight on Monday, February 07 2005 @ 04:09 PM EST
SCO's Gift to Linux

Said the dying evil queen to Snow White: "I made you, girl! Without me,
there would have been no fairy tale about you!"

[ Reply to This | # ]

The Article is a Mixed Truth
Authored by: webster on Monday, February 07 2005 @ 05:15 PM EST
It is nice to hear that Linux is surviving and thriving despite the Litigation,
FUD and other campaigns sponsored by that company that has the most to lose.

But their campaigns are succeeding in great part also. It is costing IBM and
other Linux companies billions. Imagine what the uptake of Linux would be
without litigation and FUD, particularly with the state of security in the
computer world.

Many companies simply will not consider Linux, or at least defer any decision,
due to the litigation. Despite SCO being down with scant prospects, it's not
over till it's over.

For one prominent company sponsoring litigation and FUD is simply the cost of
doing business like buying advertising. It pays and maintains their position.
There is no political will to change them. People are addicted, it's what they
are used too. Like cigarettes and alcohol. Denigrating Linux is essential
business. People might like it if they tried.


[ Reply to This | # ]

I told you so...
Authored by: DarlingMcBribe on Monday, February 07 2005 @ 05:17 PM EST
I told you a long time ago that this whole fiaSCO is just an elaborate
plot to advertise Linux, and that one they you will all thank SCO!

IANAL, IANAG, IARASC (I am running a software company)

[ Reply to This | # ]

Microsoft's Gift to Linux
Authored by: Anonymous on Monday, February 07 2005 @ 07:28 PM EST

I have never even heard of Linux, but thanks to Microsoft and its FUD campaign I
am now a dedicated Linux user.

When I first tried out linux I was amazed. It had everything and it worked

Now MS is still blabbing about how Linux is costly and all this stuff and that.
I just dont see what they are talking about Linux is great.

Thanks for the gift Microsoft.

[ Reply to This | # ]

SCO's Gift to Linux
Authored by: Anonymous on Tuesday, February 08 2005 @ 12:39 AM EST
Reality doesn't bear the "facts" in this story out. SCO has been
granted full access to IBM's code base because the judge feels that there is
merit in their case. Don't believe me? Read about it here:,1759,1752775,00.asp

SCOX is also up 30% in the last two weeks. Don't sell them short.

[ Reply to This | # ]

It's history
Authored by: k12linux on Tuesday, February 08 2005 @ 02:27 AM EST
I've been saying this about MS and SCO from the beginning. Neither seems to
want to learn from history.

IBM and it's sales force bashed Novell when they were virtually unknown. The
result was that millions looked at it and decided that not only was it easier
than doing things the way IBM was doing them, but it was cheaper and *good
enough* for what they wanted. IBM's negative campaign only accelerated Novell's
growth until they were arguably the number one server OS for LANS.

MS, SCO and others who spread FUD make consumers wonder why they protest so
much. After taking a look and getting familiar with Linux they start to see how
wild some of MS's claims are. Pretty soon it starts to look like those
companies are really saying, "Ignore the man behind the curtain. Don't use
FOSS. It will give your cat cancer!"

Millions who would never have looked at Linux if MS and co. just kept their
mouths shut suddenly start evaluating it. Many are finding it is better or at
least "good enough" for what they need. It also has no complicated
licensing and fee schedules to worry about.

Speaking of complicated licensing. MS is doing itself no favors there. One
server may require 3 or more different license types to be fully licensed. Some
licenses are per server, some are per client system, some are per concurrent
user and some are even per total user count (not account count mind you, only
the number of users who actually log in.. ever.) Some can be either. And if
you change from one type to the other you may not be able to change back if you
realize you goofed. It's sad when even MS sales people can't agree what types
of licenses and how many you need.

That alone could be enough for someone to say, "Forget it! I'm just
installing an LTSP (Linux Terminal Server Project) server. Then I don't have to
worry about how many users or concurrent users or concurrent PCs or total PCs
connect to my server over the next 2 years.

- SCO is trying to save a sinking ship by drilling holes in it. -- k12linux

[ Reply to This | # ]

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