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Chris Sontag Admits to "Linux License", Also Calls it a "Covenant Not to Sue" - Updated
Saturday, May 26 2007 @ 02:24 PM EDT

One of the new exhibits Novell has just filed in SCO v. Novell is a portion of the March 14, 2007 deposition of Chris Sontag, Exhibit 335-14 [PDF]. It's attached as an exhibit to the Second Supplemental Declaration of Kenneth W. Brakebill in Reply to Novell's Motions for Summary Judgment [PDF].

We learn some mighty fascinating things about the SCOsource endeavor we could only guess about before:

  1. The lawyers who worked on it (the list includes Boies, Schiller, Ryan Tibbitts, and Kevin McBride).
  2. The two guys most responsible for negotiating with potential victims (Sontag and Larry Gasparro).
  3. SCO's projected dreams of massive revenues from it (they seem to have figured it at 100% of the market of installed commercial Linux servers, some 10 to 20 million servers by their estimate at the time, or so he claims. It is in SCO's interest at the moment in this litigation with Novell, though, to make it appear to be a huge amount of lost business, obviously, so it can claim Novell ruined their business and get Novell, hardy har, to pay them should SCO win, so keep that in mind when reading about their financial expectations.)
  4. Questar Gas took a license. EV1 did too, but we knew that, but what we weren't sure about was what the license they took was precisely for. Now we know it was a "Linux license".
  5. They did offer a "Linux license". Sontag also uses the phrase a "covenant not to sue." And he calls it a Linux license, not an IP license or a Unix license. This isn't what SCO told the IBM court, as I'll show you.

So it looks like SCOsource was the first draft or dress rehearsal for what Microsoft is now trying with patents, all right, trying to find a way to neuter the GPL so it can tax Linux. That was SCO's dream too. As you'll see, Sontag speaks about a "right to use" license for Linux. That's what SCOsource was, or what it included. Linux users were supposed to pay SCO for a right to use Linux. Speaking of rights, what right does SCO have to decide who has a right to use Linux? Now Microsoft wants us to pay them too for a "right to use" Linux. It's like a hustle which requires vagueness about their claims -- they don't want any "infringement" fixed. They want to charge for it perpetually. Two dying companies trying to ride the Linux wave to survive a little longer by hook or by crook.

I wonder if Microsoft crafted the Novell deal from what they learned about the GPL from the SCOsource experience? Or did Microsoft provide SCO with the legal strategy in the first place? We don't know yet, but I'll bet we'll find out someday.

Don't you just love these folks? Here we are, Linux users, developers, and vendors, minding our own business, just traveling down life's highway when suddenly out of nowhere comes a gang of highway robbers who stop our coach, tell us to get out and hand over our gold, or we won't be allowed to continue on our way in peace. They don't own the highway or the coach or our gold, but they just grab what belongs to us because they feel like it. Do they care if it's fair?

Actually, it's worse than bandits. At least highway robbers don't pretend we stole *their* gold in some way they won't tell us about precisely, but that now we have to pay them for the rest of our lives every time we want to take a couch onto any highway.

Now, if I go to Burger King, do I have to pay a McDonald's tax? Will McDonald's threaten to sue me if I eat Burger King's hamburgers instead of theirs? No, they recognize that customers get to choose what they like, so they try to provide something that people will prefer. Why is Microsoft so concerned about people using Linux that it is trying to control it through doomed IP infringement claims to make it seem less appealing? Why not just make products people prefer? They can make money too, if they'd redirect some of that energy and money more productively. Hey, just calling off the message board astroturfers would be a nice start, and they'd save money too. The world would thank them for it. I know I would.

They'd probably need to grasp the design of the Internet first, though, so they'd understand how to make use of it to make money. No, not by turning it into controlled pipes into a walled garden, where paying customers sit on their hands and watch what they are allowed to watch, like some kind of Internet version of those old-fashioned drive-in movies. That's the way it was *before* the Internet.

That really is, I think, Microsoft's fundamental problem. They don't like the Internet or get what it's good for. They see the Internet as a worldwide drive-in movie, one that they wish to own. Linux is developed using the Internet, and that makes it fast and makes it possible for some of the greatest developers in the world to work together, no matter where they live.

The Internet is Microsoft's real problem, all right. It's Hollywood's problem too, and Viacom's, and the RIAA's. They are pining for the goode olde dayes and can't get with the new, even though, as Google and Red Hat have demonstrated, there is real money to be made the new way. Instead they are trying to shut down the openness of the Internet and sue into the ground those who discerned the Internet's possibilities before they did.

Microsoft seems not to realize that trying to kill off its competition in the glare of the Internet's spotlight is not going to work out well for Microsoft the way it used to in the dark. It is damaging its own reputation, and badly, on a worldwide scale, thanks to millions of uncontrollable bloggers. Communications have changed. Mainstream journalists are valuable, some of them are indispensable, but, with some notable exceptions, for the most part, they don't control opinions any more. People go more to independent blogs to get the truth, because they've lost trust in the mainstream. Read the comments under Ephraim Schwartz's factually-challenged piece on ODF and OpenXML. You will get more accurate information in the comments than in the article, I think, and the consistency of the comments correcting the article is my proof that no one took that article seriously *because they knew better* -- because everyone can now know whatever they want to know. You can't control knowledge now. Only actually playing fair and telling the truth works for companies now. And I'd suggest that means a change for Microsoft.

Maybe Microsoft should hire some PR people who are younger and/or more with it, so they wouldn't keep falling over their own feet. Maybe after first renovating the executive suite.

Yes, Microsoft has sullied its reputation with this patent saber rattling. That is true even if it were to turn out that it has a valid patent somewhere hidden away, because they are threatening end users and individual developers. That was a fatal mistake. It makes people furious. End users are your customers, and companies don't do well when they start threatening to sue their own customers. As for threatening individual developers, it's contemptible for any company the size of Microsoft to do such a thing. People naturally find it reprehensible. This is, at best, a vendor to vendor matter. And even that is a problem. The idea behind patent licenses is that someone *wants* to use your patents. We don't. The second Microsoft tells what its patents actually are, any actual infringement would be instantly removed and everyone would reroute. Maybe that is why they won't tell. Just like SCO.

The patent landscape has changed, too, thanks to KSR, so the value of the "let's sue for patent infringement" business model has been impaired. It might even need to be written off, when it comes to software. No one is afraid of Microsoft the way they used to be anyhow. The jeers and laughter at OSBC ought to tell it so. We expected Microsoft to pull something like this, so everyone prepared. The money is there. The talent is there. The community is there. And people know better, thanks in part to the ridiculous SCO dress rehearsal.

FOSS is unstoppable anyway, no matter what Microsoft does, because it isn't a traditional business that can be stopped in any traditional way. It's just talented people who figured out what the Internet could do for software development and did it. Even if it were possible to destroy all FOSS vendors in the universe, FOSS would continue, thanks in large part to the GPL.

Microsoft can make money from openness too. But they'd need to listen to Irving Wladawsky-Berger's advice, "If you want to know how to be successful, follow the smart people. Figure out what's on their minds, talk to them, figure it out, then you can say "Oh My God" -- then you can be part of it."

Here's the kicker, though. If your company has a bad reputation, the best people won't want to work for you. Yes. Think about it.

Speaking of destroying your own reputation, here's the interchange from the Sontag deposition, and I've marked some places because I want to show you where Sontag contradicts what SCO claimed in the IBM case:

14

1 the SCOsource umbrella.
2 Q. Okay. I think we were talking about who
3 else over time has devoted a substantial portion of
4 their time to SCOsource and you mentioned Bill
5 Broderick, and you mentioned Larry Gasparro I think
6 headed a sales team?
7 A. Uh-huh (affirmative).
8 Q. Any other individuals?
9 A. Jay Peterson, who was kind of my technical
10 lead for gathering source code on repositories or
11 answering technical questions for various cusomers
12 and so on.
13 Q. Did he have anyone working with him?
14 A. No, he did not.
15 Q. Okay. And what about Larry Gasparro: who
16 was on his team?
17 A. I can't remember. He had two or three
18 people working for him. Greg Pettit was one that I
19 can remember. And then I can't remember the name.
20 At least one other person that was working for Larry.
21 Q. And what were Bill Broderick's main areas
22 of responsibility for SCOsource?
23 A. Contracts administration.
24 Q. And what does that mean?
25 A. He was responsible for kind of doing the


15

1 day-to-day negotiations on contracts or drafting of
2 contracts that in many cases were ultimately reviewed
3 by the legal team. But he would be the day-to-day
4 contracts administrator.
5 Q. Did he have anyone working under him on
6 SCOsource tasks?
7 A. No, he did not.
8 Q. And when you say "the legal team" is that
9 in-house or outside counsel?
10 A. Both.
11 Q. Who would that encompass?
12 A. It would involve Ryan Tibbitts, a number
13 of attorneys from the Boies, Schiller & Flexner law
14 firm, as well as Kevin McBride.
15 Q. And who was most involved in talking
16 directly with potential licensees under the SCOsource
17 initiatives?
18 MS. BORUCHOW: Object to form.
19 A. Can you be more specific?
20 Q. Well, who at SCO -- you've mentioned a
21 number of people who had areas of responsibility in
22 SCOsource. Whose job would it be to be talking
23 actually with potential licensees?
24 A. That would have been myself, along with
25 Larry Gasparro and his team.


90

1 under oath?
2 A. Yes.
3 Q. Anything you need to correct or clarify
4 from this morning?
5 A. No. I don't believe so.
6 Q. Okay. So can you tell me again when was
7 the first time you think anyone came up with numbers
8 in terms of projections for the revenue that
9 SCOsource would generate?
10 A. I think by April or May of 2003, we
11 started developing some kind of high level
12 projections of what we expected to be able to be
13 accomplished with the SCOsource right-to-use
14 licensing program. And it was based on the
15 projections of commercial use of Linux and servers
16 that was somewhere on the order of, by that time,
17 about 2 million commercial servers. But we believed
18 that number could be substantially higher because
19 there wasn't really effective reporting mechanisms,
20 and that it was having a fairly high growth rate. So
21 by this time now, it's on the order of 10 to 20
22 million installed servers as of 2007.
23 But based on our pricing that we had, we
24 viewed that ultimately we should be able to get a
25 hundred percent adoption of our UNIX or our


91

1 right-to-use license with the commercial use of
2 Linux. So whatever the current installed base is, we
3 thought we should be able to get the entire
4 commercial use licensed appropriately. It's just how
5 quickly that could occur.
6 Q. Which is the right-to-use license, again?
7 A. The license -- the right-to-use license
8 for Linux.
9 Q. The IP license?
10 A. Well, no. The right-to-use license for
11 Linux that provided the covenant not to sue.
12 Q. Is that the Microsoft Sun type
13 arrangement?
14 A. No. That was the license for Linux users.
15 Q. And that was entities such as ... who took
16 those licenses?
17 A. Any commercial user who ...
18 Q. No. Who actually took them?
19 A. EV1 was a licensee. Questar Gas
20 ultimately was a licensee. A number of retailers and
21 a few others, many of whom I no longer remember the
22 names of.
23 Q. You were saying before that the IP was
24 such a valuable asset, and protecting that was the
25 primary goal of SCOsource. I mean, if that's true

Soooo, the Microsoft and Sun licenses were NOT Linux licenses, meaning they must be Unix licenses, no? Which makes the money Microsoft and Sun gave to SCO Novell's money. Right?

And I'd surely like to hear SCO's explanation for why it told the court in SCO v. IBM that what it offered wasn't a Linux license but a Unix license that had nothing at all to do with Linux:

B. SCO Did Not Breach the GPL

24. IBM alleges that SCO has breached the GPL by imposing "further restrictions" on Linux users.

25. Section 4 of the GPL states that a licensee's use of licensed material beyond the scope of the GPL will "automatically terminate" the licensee's rights under the GPL (but the GPL does not say when such a termination becomes effective, and it provides no mechanism by which the licensee is put on notice of an alleged unauthorized use of the licensed material). (IBM Ex. 128 4.)

26. Section 6 of the GPL states: "Each time you redistribute the Program (or any work based on the Program), the recipient automatically receives a license from the original licensor to copy, distribute or modify the Program subject to these terms and conditions. You may not impose any further restrictions on the recipients' exercise of the rights granted herein." (Id 6.)

27. IBM argues (at 19) that SCO's right to use and distribute Linux under the GPL "automatically terminated" when SCO began offering its Intellectual Property License for UNIX (the "UNIX License") beginning on August 5, 2003. Specifically, IBM contends that the UNIX License imposed "further restrictions" (and thereby breached Section 6 of the GPL) by allegedly licensing Linux only in object code format, prohibiting end-users from further sublicensing or distributing Linux, and by charging fees for Linux.

28. However, the UNIX Licenses on their face license and charge for the use of UNIX software, not Linux or any IBM-copyrighted work. (See, e.g., IBM Ex. 401; IBM Ex. 403.) The UNIX Licenses contain a release of claims, covenant not to sue, and waiver of any infringement claims SCO may have against the licensee, all based on the licensee's use of UNIX. (Ex. 49 30.)

29. For example, IBM labels the UNIX License that SCO sold to Questar as a Linux license.

REDACTED

30. The licensing clauses of all the UNIX Licenses are worded similarly. (Ex. 49 30.) The UNIX Licenses thus are agreements pertaining to UNIX and not to Linux. (Id.; IBM Ex. 324 at 181-82.)

31. SCO has not sought to collect royalties or licensing fees for, or to impose any restrictions on, the use of Linux or any of IBM's allegedly copyrighted works. (IBM Ex. 284 9; Ex.49 30.) SCO has never attempted to license or sublicense Linux or any IBM copyrighted work, or any other GPL-licensed source code. (Ex. 49 30.)

Getting the picture? In one case, it's all about Unix, not Linux. In the other it's all about Linux, not Unix. Notice Questar mentioned as getting a "Unix license"? But Sontag says it was a "Linux license". Well, which is it? SCO keeps digging the hole its reputation is falling in deeper and deeper. For sure, if what Sontag said at his Novell deposition is true, then SCO's memo in IBM is not, or vice versa. Well. I guess they could both be not true. At least I see no way to make them match up.

It's SCO's misfortune to have both cases, Novell and IBM assigned to the same judge, who presumably can count how many stories he is being told.

You will have noticed that these are snips. For example, the exhibit jumps from a snip on page 15 of the deposition transcript to page 90, so don't let it confuse you.

So, thanks to this deposition, at least we know now who was involved, who was most in charge of running it, and where the buck stops at SCO. If those parts are true. But can't you imagine another trial someday, maybe an antitrust case, where some poor guy will be deposed and asked who was most responsible for the Novell-Microsoft "covenant not to sue"? And who was silly enough to sign up for something like that?

The Brakebill declaration is in support of four Novell reply memoranda:

Reply in Support of Novell's Motion for Partial Summary Judgment on SCO's Non-Compete Claim in Its Second Claim for Breach of Contract and Fifth Claim for Unfair Competition

Reply in Support of Novell's Motion for Partial Summary Judgment on the Copyright Ownership Portions of SCO's First Claim for Slander of Title and Third Claim for Specific Performance

Reply in Support of Novell's Motion for Partial Summary Judgment on the Copyright Ownership Portions of SCO's Second Claim for Breach of Contract and Fifth Claim for Unfair Competition

Reply in Support of Novell's Motion for Summary Judgment on SCO's First Claim for Slander of Title Based on Failure to Establish Special Damages

The Brakebill supplemental declaration is the document you need to figure out what all the exhibits are, because he numbers and names them, including mentioning some sealed exhibits, like a letter from a guy at Raytheon to Greg Pettit at SCO and internal HP email. You will also note with pleasure that in Exhibit 7, Mr. Brakebill teaches the court how to use Internet Archive to find pages that have been removed from websites. The exhibit is a Novell web page on a certain date in 2004. Little by little, we'll get the judiciary up to speed! Here's a tip: try to find any SCO pages on Internet Archive. You can find old Novell pages, but where, oh where, has our little SCO gone? Might it be they'd rather we can't find where they say one thing one year and something else another?

The thought comes to mind because Exhibit 15 to the Brakebill supplemental declaration is Chris Sontag's deposition in the IBM case taken in 2006. In that deposition, Sontag claimed that while there were negotiations over HP taking a license, it didn't happen because they couldn't come to terms. Asked to explain, he claims it was SCO that turned HP down (and by the way, Sontag says the approach was to then-CEO Carly Fiorina), not the other way around. But isn't SCO now claiming that it was Novell's statement about owning the copyrights that interfered? It's so hard to keep up. So, um, which is it? That is, of course, Novell's message to the judge.

Sontag additionally claims HP offered to pay SCO 30 to 50 million for a SCOsource license, but SCO thought that was insufficient remuneration for such a fabulous license as it was offering and turned the offer down. Sontag claims SCO also had "legal concerns" which made SCO walk away from the HP offer, concerns he wouldn't elaborate on. I'd say they were getting warm there, if that were true, which I doubt. I'd have legal concerns about offering such a license to anyone with in-house counsel, frankly. But that's just me.

Sealed Exhibit 17 is an internal HP email dated September 1, 2003 and Exhibit 18 is another dated September 3, 2003, both emails produced "by a third party in the SCO v. IBM litigation". Ah. Foiled again, if there was any attempt to avoid disclosing these emails. But you do have to wonder why SCO didn't turn them over itself. Since it is Novell doing the filing of the HP emails, I must assume that the emails tell a different story than Sontag's.


  


Chris Sontag Admits to "Linux License", Also Calls it a "Covenant Not to Sue" - Updated | 687 comments | Create New Account
Comments belong to whoever posts them. Please notify us of inappropriate comments.
Corrections Here
Authored by: old7 on Saturday, May 26 2007 @ 10:29 PM EDT
Post 'em here

[ Reply to This | # ]

Off-Topic
Authored by: old7 on Saturday, May 26 2007 @ 10:31 PM EDT
Off-topic comments here, please.

* See the example on how to create "Clickable links"
* Choose "HTML Formatted" for the "Post Mode" if using links
or HTML.
* Please provide a summery if including links.
* Use the preview option before submitting to make sure the HTML works.

[ Reply to This | # ]

Chris Sontag Admits to Perjury?
Authored by: Sunny Penguin on Saturday, May 26 2007 @ 10:50 PM EDT
Um, telling two courts opposite statements under oath; that's perjury, right?

Novell=SCO Source WAS a Linux License.
IBM=SCO Source was NOT a Linux License, only a UNIX license.

I think the glove fits.....

---
If you love your bike, let it go.
If it comes back, you high sided.....

[ Reply to This | # ]

Or is that "The right-to-SUE license for Linux that provided the covenant not to USE" ? ;) n/t
Authored by: SirHumphrey on Saturday, May 26 2007 @ 11:39 PM EDT
as in - We won't SUE if you don't USE (Linux)

[ Reply to This | # ]

Microsoft commiting Extortion
Authored by: Anonymous on Saturday, May 26 2007 @ 11:56 PM EDT
Is it possible to bring a criminal complaint against a company like Microsoft
for coming to you and saying you're violating their IP and won't tell you what's
violating but they're still seek compensation anyways, sight unseen even?

And they can't claim that telling us that list of patents they've assembled so
far is administratively prohibitive since it's already assembled.

I think if they don't, they should lose all rights to any compensation because
of unclean hands by trying to commit extortion for sight-unseen violations.

[ Reply to This | # ]

What was the task of Gregory Blepp?
Authored by: ak on Sunday, May 27 2007 @ 12:13 AM EDT
It is somewhat strange but Christopher Sontag does not mention Gregory Blepp who
was reporting to Sontag.

What was the task of Gregory Blepp?

[ Reply to This | # ]

Chris Sontag Admits to "Linux License", Also Calls it a "Covenant Not to Sue"
Authored by: dobbo on Sunday, May 27 2007 @ 01:05 AM EDT

As Mr. C. Sontag is a senior person within SCO isn't he speaking for the company in his declarations? I ask this because surely this declaration can be used by RMS, FSF and other software authors that have licensed their software under the GPL to issue cease and desist notices against SCO for infringement of their copyright.

Dobbo

[ Reply to This | # ]

  • No. - Authored by: Ed L. on Sunday, May 27 2007 @ 04:10 AM EDT
I think that they may now have crossed over the line into criminal behaviour
Authored by: The Mad Hatter r on Sunday, May 27 2007 @ 01:09 AM EDT


IANAL - and IANAC (Cop). This appears to me to be very close to a criminal act.
The United States has a law that was specifically written to cover acts by a
criminal organization like the Mafia - RICO. I would love to find out if this
covers the actions taken under the SCOSource program.

Comments anyone?


---
Wayne

http://sourceforge.net/projects/twgs-toolkit/

[ Reply to This | # ]

Chris Sontag Admits to "Linux License", Also Calls it a "Covenant Not to Sue"
Authored by: Darigaaz on Sunday, May 27 2007 @ 03:35 AM EDT
It's SCO's misfortune to have both cases, Novell and IBM assigned to the same judge, who presumably can count how many stories he is being told.
1) From the RIAA v. World blog, I was given to understand that it is common practice to assign cases that are deemed "related" to the same judge. Perhaps this case is a good illustration of why (so a party can't claim different stories in each case and snow the judges).
2) SCO's told so many different stories by now that I'd bet Kimball *has* lost count. (Of course, if he's lost count he'd know that it was a lot more than 1 ... and even a little more than 1 is usually a Bad Thing.)

---
Many eyes make all bugs shallow - not just in software, but journalism and law as well.

[ Reply to This | # ]

Some Questions on the "Linux License"
Authored by: sproggit on Sunday, May 27 2007 @ 05:38 AM EDT
So here we have a situation in which SCO are creating this "Linux
License" product and selling it directly to end users for $700 [I believe].
OK, let's work with this for a moment.

In so doing, SCO create a direct, contractual relationship between themselves
and end users of Linux technology. I'm deliberately not using the name GNU/Linux
here, because although I've seen lots of claims from SCO and Microsoft about
Linux infringing their IP, I've not yet seen anyone accusing GNU of doing so.

Anyway... if you look around the marketplace for similar examples of licensed IP
or code, one of the best that I'm familiar with is that of RSA, the security
specialists, who provide various crypto functions in programming languages such
as C and Java for developers to use.

RSA offer their code with published and documented APIs.

They offer a 24x7 Support Service in case any client experiences difficulties or
finds any bugs implementing their code.

They offer a patching and updating service by which licensed clients can log in
to a secure server and download fixes. Note that this *has* to be via a secure
server because the data being transferred contains RSA Intellectual Property, so
they are obliged to ensure it is protected during transmission.

The terms and conditions that they offer with use contain specific clauses that
cover what happens when RSA-provided code forms part of another or different
product that an RSA customer wants to sell on to others.



Now let's compare and contrast some of that with SCO's "IP license"
and "covenant not to sue", shall we?

Ownership.
When SCO create the license agreement with the end customer, they become the
"seller" [of the license]. Unless I'm mistaken, there will be laws in
the US that require SCO to actually and provably own what they are selling. [The
precious IP]. They would therefore have to explicitly state it to their
potential customer, in the form of,

"Seller offers the buyer this explicit pig in this explicit poke".

or, without that specificity, there is no effective bill of sale? If the deal
were vague, then either party could at some future time claim that something
entirely different was bought or sold? For example, if the transaction proceeded
and then at a later stage IBM went to the buyer claiming ownership of some
portion of Linux, and the buyer said, "But Mr IBM, I bought the right to
use that from SCO", what's to stop SCO from changing their mind and saying,
"No no, we didn't sell you *that* bit of Linux, we sold you an entirely
different bit."?

Support.
What happens if someone encounters a bug in some SCO IP code? Oh, hang on, I
forgot. SCO refuses to tell us which lines of code are theirs, so if we find a
bug, we won't know if it's in their code or that belonging to the community?

Documentation.
Whilst it's common for vendors to release their code with EULAs that have
"no warranty as to merchantability, either expressed or implied" and
that "end users operate this software product entirely at their own
risk" it is common for software to be accompanied by documentation.
Complete products have user guides and reference manuals, while libraries tend
to have documentation for objects and methods. So where's the documentation for
the SCO IP that they are claiming ownership for?

Fixes.
Not knowing if a line of buggy code belongs to SCO or not, the chances are that
the community will go ahead and fix the bug anyway. Who owns the fix? What
effect does the fix have on the SCO owned IP if the fix substantially alters the
form, function, method or concept of the underlying code?

How do SCO release their own fixes into the community Linux code base? Obviously
it's important for all distributions and all subscribing customers to stay on
the same release of code - even though there are many Linux flavours now - so
how have SCO proposed to release their patches and fixes to the community?

Obviously we also have companies who have already either seen or paid up for a
SCOSource license. What terms does that license have for re-distribution of the
SCO IP? Obviously, the GPL gives any user the right to re-distribute, but it
does specifically state that in cases where there is a conflict between the
GPL'd code and other code, then restrictions apply (i.e. you must not release
code under the GPL that you do not own, produce or have those exclusive rights
for). But as conscientious users, it's vital for a SCOSource licensee to know
which bits of the Linux distribution they can pass on to me freely, and which
portions they must hold back, telling me that I need to go direct to SCO for my
own SCOSource license. Surely if SCO fail to do that, they are potentially
encouraging another to break the law? What's that you say? Entirely SCOs plan?
They want to stop me freely distributing Linux? Ah, now I get it...



Years ago Tom Cruise made a movie called "The Firm", about a guy who
went to work for a small law firm that was a front for organised crime. Under
pressure from the FBI, the main character realised that his employer was
mis-charging clients for the time being spent on cases. When those invoices were
put in the post and mailed they became a federal crime with some serious and
accumulated minimum charges.

Oh how I would love for the mailed SCOsource invoices to be covered by that
law... or any other one, for that matter!

[ Reply to This | # ]

He perhaps just didn't know what was said in the IBM case
Authored by: Anonymous on Sunday, May 27 2007 @ 06:17 AM EDT
He perhaps just didn't know what had been said (by other
SCO people) in the IBM case, and therefore did not lie.

[ Reply to This | # ]

Pot and kettle?
Authored by: Anonymous on Sunday, May 27 2007 @ 06:24 AM EDT
"Might it be they'd rather we can't find where they say one thing one year
and something else another?"

Early versions of Groklaw's Mission Statements and Comments Guidelines are not
available either. As their evolution would prove useful to historians, I could
only speculate why they were removed, but I will not.

[ Reply to This | # ]

Convenant not to sue = Extortion?
Authored by: Anonymous on Sunday, May 27 2007 @ 09:29 AM EDT
PJ, I don't understand these "convenant not to sue" thingies.
Aren't such agreements by definition an admission of blackmail, according to Wikipedia:
Blackmail is the act of threatening to reveal information about a person unless the threatened party fulfills certain demands.

Or more likely extortion, defined by Wikipedia as:

Extortion is a criminal offense, which occurs when a person either obtains money, property or services from another through coercion or intimidation or threatens one with physical or reputational harm unless they are paid money or property.

Wilipedia goes on to note that:

The simple four words "pay up or else" are sufficient to constitute the crime of extortion.

Seems to me a "convenant not to sue" contract in these circumstances meets these definitions perfectly and should be sufficient evidence to begin criminal prosecution.

J

[ Reply to This | # ]

Concern about this "Covenant Not to Sue" in relation to GPLv3
Authored by: map on Sunday, May 27 2007 @ 09:48 AM EDT
Will SCO be the first to jump on the GPLv3 bandwagon.
My concern is that the Novell/MS loophole in the proposed GPLv3 may allow things
not allowed in GPLv2.
Specifically GPLv2 section 2b:

b) You must cause any work that you distribute or publish, that in whole or in
part contains or is derived from the Program or any part thereof, to be licensed
as a whole at no charge to all third parties under the terms of this License.

This would seem to me to imply that licenses for any infringed or potentially
infringed IP be required for distribution of the whole, and such licenses have
terms that are compliant with GPLv2.

Before GPLv3 is ratified serious consideration should be given to how it affects
various parties obligations under GPLv2 section 2b,4, and 6; and also any
potential impact it may have on the IBM/SCO/MS case.

Unnecessary language in the GPLv3 draft may be a problem such as section 11 p5:

...that is in the business of distributing software...

I can almost guarantee you that MS is dumping IP into non-distributing puppet
companies to get through that loophole.

It never hurts to have an extra lawyer review a document, I hope FSF will
consult with IBM, et al. about this.

IANAL

[ Reply to This | # ]

I finally get it
Authored by: Reven on Sunday, May 27 2007 @ 10:05 AM EDT
It's taken me a long time, but I finally get it. I've been seeing boogeymen behind every closet door - and to an extend they are there, but not the way I thought. The real boogeyman is Linux, and it's giving Microsoft nightmares. I'll explain.

I always thought this was about trying to discredit Linux, to fight it's existance, but this isn't the case. They never were trying to kill Linux, they just wanted it to cost, like proprietary software costs. Or, more correctly, they want it to be perceived as costing.

SCO really were patsies. Microsoft convinced them they could make bundles of money off of Linux, and even if that succeeded, Microsoft didn't care. They could handle SCO making tons of money extorting Linux folks, because if they did then it would make Linux just like their own software, something everyone has to pay for. They could take away both types of freedom from Linux, then they could fight it. If everyone had to pay money for it, if it was tied up with Unix IP, then that's something Microsoft knows how to compete with. It's not so frightening then. They don't care about its technical merits - they've been bullying technically superior software to death for years now.

I figured no one could be as stupid as SCO was - there's dumb as a stump, but there isn't even a word for all this. I figured there must have been some secret plan on their part, but there isn't. There really isn'y - they really are patsies... they really are just that stupid. They believed they could make all this money and get away with it. And Darl blathering on, writing letters to congress... was just so much urinating into the wind. It's potetic just how stupid he was. But then, how stupid was I for not seeing it myself? *sigh*

Microsoft now knows SCO hasn't a prayer of winning a used kleenex's worth of damages and had moved on to patents. Novell was the patsy this time. If they can just make everyone see Linux like they see proprietary software, if they can just get the poison into the system, they figure they can win. They don't care if they make a dime off patents, they are happy to compete with Linux the software, they just can't compete with Linux the philosophy so they want to make people see it as just another proprietary system.

In short, they're terrified. They don't know how to fight it, and they are trying to drag it into an arena they know.

---
Ex Turbo Modestum

[ Reply to This | # ]

If by Unix....
Authored by: nuthead on Sunday, May 27 2007 @ 10:32 AM EDT

This reminds me of the famous "if by whiskey" speech", SCO style:

If by Unix, you mean a license revenue that we owe Novell 95% of, then it's a Linux license....

[ Reply to This | # ]

Clueless
Authored by: Anonymous on Sunday, May 27 2007 @ 10:37 AM EDT
>Two dying companies
Come on. MS had gross profits of $12 Billion and net income of $5 billion last
quarter. 65% quarterly earning growth - year of year, and $25 Billion in the
bank.

How is that dying?!

[ Reply to This | # ]

Remember...
Authored by: Nick_UK on Sunday, May 27 2007 @ 12:10 PM EDT
I have said this a lot of times in here.

Law does not decide if it [the case] is right, ethical.
honest or just - it just decides if it abides by
the 'law'.

Now; whose law, I do not know... but I guess those with
the most money get there first.

Basically law is an ass. That is why we are in this mess.

Nick

[ Reply to This | # ]

FWIW Dept.
Authored by: chaz_paw on Sunday, May 27 2007 @ 01:46 PM EDT
Number 77 Indy car(tux car) just hit the wall and is out of the race. Driver,
Moreno, is okay.

---
Proud Linux user since 07/26/04
Registered Linux user #422376

Charles

[ Reply to This | # ]

SCO Needs Collision Avoidance on it's lies
Authored by: kawabago on Sunday, May 27 2007 @ 02:27 PM EDT
This is like watching SCO screaming down the freeway in the wrong direction and
suddenly running head-on into themselves.

[ Reply to This | # ]

How can MS/Viacom/Hollywood/etc. make money off the internet?
Authored by: Anonymous on Sunday, May 27 2007 @ 03:52 PM EDT
I agree with this statement:
The Internet is Microsoft's real problem, all right. It's Hollywood's problem too, and Viacom's, and the RIAA's. They are pining for the goode olde dayes and can't get with the new, even though, as Google and Red Hat have demonstrated, there is real money to be made the new way. Instead they are trying to shut down the openness of the Internet and sue into the ground those who discerned the Internet's possibilities before they did.
It's all about control, or the fear of losing it. The RIAA is afraid of losing control over music distribution. They have been for years.

Prior to the 60's, it was impractical for the average person to copy a music recording. At the time, vinyl records were the best DRM around. Few, if any outside of the record industry, possessed the technology to copy vinyl-to-vinyl. The RIAA was in heaven. Some did copy to tape, but if you've ever listened to a 60's vintage reel-to-reel, you know the quality suffered. 8-track tapes were an improvement in quality, but 8-tracks were not practical for duplication due to the "dead space" at the end of the tracks or having a track-change in the middle of a song. Even so, 8-track recorders weren't common.

Beginning with cassettes, it became much easier for the average individual to copy music. CD's weren't much of a threat at first, since, like vinyl, the average user didn't have the technology to duplicate them. Copying to cassette was possible, but, again like vinyl to reel, the quality suffered, albeit only slightly.

Now, with CD burners for copying and ripping software to make MP3's, they are once again scared of losing control. It's understandable, but if they will look back, every time a new technology has been developed, they actually profitted from it in the long run.

Likewise, the movie industry has had their share of scares. TV was supposed to kill movie theatres, but the advent of wide-screen movies kept them open. Dual-deck VCR's were on their hit-list for awhile, the argument being that it made it too easy to copy movies. In my city, there are more screens than ever before. And they are always packed.

What they are both afraid of now is losing control of distribution via the internet. Digital copying differs in that I could rip a CD or DVD to my PC once, then log in to my favorite peer-to-peer filesharing service, and distribute it multiple times. It's easier than having to do each copy individually to distribute it, like with copying tapes or CD/DVD's to other like media.

I understand their concerns, and they are somewhat valid, but I can't help thinking that the entertainment industry, movies and music alike, can make money off of the technology, in some way.

But how? It's obvious, given iTunes and the like, that people are willing to pay a reasonable amount to obtain music legally. The same technology that would allow me to distribute their works inexpensively (not that I do) would allow them to do the same. I would think that digital distribution has to be more economical.

Maybe they just need some suggestions. How can they change their thinking to embrace the technology and make money?

[ Reply to This | # ]

Does SCO care about its paying customers?
Authored by: Night Flyer on Sunday, May 27 2007 @ 05:40 PM EDT
"19 A. EV1 was a licensee. Questar Gas
20 ultimately was a licensee. A number of retailers and
21 a few others, many of whom I no longer remember the
22 names of."

Does SCO care about its paying customers?

I guess I'm glad I'm not a paying customer to SCO, they would probably forget my
name thereafter...




---
Veritas Vincit - Truth Conquers

[ Reply to This | # ]

Sometimes "rerouting" may involve narrowing or invalidating patents...
Authored by: leopardi on Sunday, May 27 2007 @ 07:53 PM EDT

From the article: "The idea behind patent licenses is that someone *wants* to use your patents. We don't. The second Microsoft tells what its patents actually are, any actual infringement would be instantly removed and everyone would reroute."

Sometimes "rerouting" may involve narrowing or invalidating patents as well as or instead of changing code. For example, there are patents covering:

Are there better ways to tackle these patents than to have them narrowed or overturned? Maybe ask the owners to donate them to OIN?

[ Reply to This | # ]

Chris Sontag Admits to "Linux License", Also Calls it a "Covenant Not to Sue" - Updated
Authored by: Anonymous on Sunday, May 27 2007 @ 11:06 PM EDT
This whole thing smells of fraud and extortion. Indeed it is fraud and
extortion.

Now M$ is playing or singing to the same sheet music. Of note is rule 1.2(d) of
the Washington State Bar, rules of professional conduct:

"A lawyer shall not counsel a client to engage,
or assist a client, in conduct that the lawyer knows is
criminal or fraudulent, but a lawyer may discuss the
legal consequences of any proposed course of
conduct with a client and may counsel or assist a
client to make a good faith effort to determine the
validity, scope, meaning or application of the law."

Bradford Lee Smith, AKA Brad Smith, General Counsel for M$, has, in my opinion,
flouted the "or assist a client ..." part of said rule.

Maybe, just maybe, if enough people generated a grievance against Brad Smith
through the Washington State Bar Association (www.wsba.org) something positive
might occur.

krp

[ Reply to This | # ]

So at last we know why SCO sued IBM and others
Authored by: Anonymous on Monday, May 28 2007 @ 01:25 AM EDT
When Sontag said that he thought they would get 100% takeup of their Linux
license it finally makes it clear to me why SCO prosecuted IBM and others in the
first place. It was not to get IBM to buy them as we all thought at the time,
but to extract money from Linux users. They really imagined they would get
billions in Linux licensing revenue. 100%? What a fantasy! When it didn't
materialize of course they had to keep going or lose face. They were forced to
throw good money after bad because they couldn't admit to shareholders and the
world at large that it was all bluff. When the end comes they can always say
they were beaten in court by a more powerful opponent, and pretend that they had
a good case.

[ Reply to This | # ]

Kenneth Brakebill is like a Silent Assassin
Authored by: Anonymous on Monday, May 28 2007 @ 07:05 AM EDT
This man does not mince words, not does he fill his filings with long words or
long winded explanations. He gets right to the point, every time, with as little
fanfare, but as much explanation as needed. I have throughly enjoyed reading
each and every one of his motions. Its almost like poetry. The Nazgul are
awesome, but this fellow seems to be top notch!

You go Counselor, I for one am truely enjoying the show!

[ Reply to This | # ]

Another Question on SCO "IP" in Linux - and more Discovery, maybe?
Authored by: sproggit on Monday, May 28 2007 @ 08:24 AM EDT
OK, here's another silly thought to tickle the grey cells...


At some point in the past, newSCO purchased, from what was then, I believe,
Tarantella, the AT&T Unix SVR4 Code Base. This is the same code base that
Novell sold, along with certain, limited rights - ;o) - to oldSCO.

Fast Forward.

Now newSCO, claiming inheritance of that code base, are claiming that some of
the precious IP that they purchased [and did not write themselves] has been
deliberately placed in Linux by IBM.

Through discovery, we have seen newSCO make incredible demands of IBM for the
source code to AIX, asking for all versions, programmer notes, the works.

But all this is something of a diversion.



How do we know that the 326 lines of "infringing code" that newSCO
have offered to the judge as evidence [or the millions of other lines Darl
talked about] have come either from the original deal or from the innovation and
creativity of newSCO themselves?

What would have stopped newSCO [or any of their predecessors in interest, for
that matter] from appropriating strong *nix technology and inserting it into the
code base?

How do we know that this precious IP wasn't borrowed from somewhere else? From
Linux? From BSD? From Minix? We must remember that newSCO are fairly frothing
about not releasing any of their code to public scrutiny.

Maybe they have something else to hide?



I think recent SCO motions set before the Court argue that it would be possible
for some limited extra discovery on a few new claims. Now, we might be splitting
hairs with the Court, but IBM have been asking SCO, with specificity, to give
the three coordinates of the infringing code. Obviously they haven't done this.
But what about it's history? Where are *their* programmer notes? What about
*their* sandbox environments? Where are *their* developer testimonies as to the
clean-room origins of their work?


I am sure it is the case that SCO would point to code that has been in the
AT&T source codebase for quite some time. They wouldn't possibly be foolish
enough to plant evidence and then try and swing it past Judge Kimball. [umm...]

But exactly how confident are *they* of the purity of this original code?

Just curious, that's all.

[ Reply to This | # ]

Chris Sontag Admits to "Linux License", Also Calls it a "Covenant Not to Sue" - Updated
Authored by: Anonymous on Monday, May 28 2007 @ 02:15 PM EDT
Now, if I go to Burger King, do I have to pay a McDonald's tax? Will McDonald's threaten to sue me if I eat Burger King's hamburgers instead of theirs? No, they recognize that customers get to choose what they like, so they try to provide something that people will prefer. Why is Microsoft so concerned about people using Linux that it is trying to control it through doomed IP infringement claims to make it seem less appealing?

PJ, this is a terrible analogy. If you look at this from the perspective that both organizations buy beef instead (which would be analogous to the use of a technology in a product), you DO pay a "tax" to the cattle farmers. Everyone in the supply chain for a physical product gets paid.

Now I don't think software patents are a good idea (so don't get the wrong idea here). There's a lot of stupid things that are patented in software that shouldn't be. But if you extend the analogy into software, a patented technology is more like the beef - it's a component of the larger product. Linux is like prime rib, Windows is like a McDonald's hamburger. Both use, let's say, TCP/IP as their "beef". By drawing this comparison to a physical deliverable, you make the opposite argument to what you want, because who doesn't want the ranchers to be compensated for their work raising the cattle?

[ Reply to This | # ]

Third Party Licensing?
Authored by: GLJason on Monday, May 28 2007 @ 02:58 PM EDT

Has anyone ever heard of this third party licensing scheme? I think SCO came up with it. You let people get a product from someone else then charge them license fees for something they never got from you. I've never ever heard of that type of arrangement before SCO's "IP License for Linux". The license specifies a "binary only" (which is improbable in practice as source code comes with Linux and many companies compile the kernel with special options or code to make it perform better) license for anything that is contained in that product without specifying what.

That just seems silly to me. The same type of things happens often with patents it seems. Large companies sign cross-licensing agreements indemnifying each other against claims for all patents one company owns that may be infringed by the other. That has the effect of providing protection for the numerous (and dubious) patents held by the other without actually showing which patents may be used. That is information I think should be available to consumers and sub-licensees. It also has the effect of keeping the 'little guy' out while big companies enjoy an umbrella of patent protection impossible for the little guy to achieve without a large patent portfolio of their own.

I think I've found a way to fix that, or at least make it more clear. I think the laws should be changed so that if anyone claims a product violates a patent (or copyright) or licenses such to another that they must specify the particular patent or copyright and how it infringes. When giving a license, the precise patents or copyrights used must be specified as well as how they are used. It should allow for covenants to add additional patents or copyrights for a nominal fee if they are found ($1?), but they must also be specified as soon as it is known that the product implements those patents or copyrights. Any thoughts?

[ Reply to This | # ]

LWN discusses the heavily redacted Novell release, "What Microsoft and Novell agreed to"
Authored by: qu1j0t3 on Monday, May 28 2007 @ 09:50 PM EDT

It would probably be abuse of my subscription for me to post a free pass link, but here's the subscriber-only link. Sorry. LWN is good value, though, if you decide to sign up.

But here's a pull quote under free use:

Novell's customers only get the non-license from Microsoft for as long as Novell complies with the terms of the agreement. Many of those terms - especially in the termination section - are blanked out. If Novell and Microsoft get into a big disagreement in the future, the non-license could vanish overnight.

... the non-license is, unsurprisingly, not transferable. There is an explicit clause that neither party is acknowledging any infringement or even that the other side's patents are valid. ... Novell has recently stated that the company itself remains as open as ever to patent infringement suits by Microsoft, but that's only partly true: both companies have forgiven each other for any infringement which may have happened before the agreement was signed. There is one exclusion here: there is no forgiveness for distributing Wine.

... The bulk of this set of agreements really is as boring as some people have claimed. It's two companies trying to make their products work better together and to increase the market for both. The patent agreement is worth some study, though, especially for anybody who is tempted to rely on it to make their business somehow safer.

---
I have a semicolon and I'm not afraid to use it.

[ Reply to This | # ]

Smoking Gun For Redhat?
Authored by: Anonymous on Monday, May 28 2007 @ 10:39 PM EDT
Doesn't this give Redhat a smoking gun for their case against SCO?

[ Reply to This | # ]

Chris Sontag Admits to "Linux License", Also Calls it a "Covenant Not to Sue" - Updated
Authored by: Anonymous on Tuesday, May 29 2007 @ 01:40 AM EDT
Whether it is perjury or not, it will create a BAD problem from TSCOG as it will
be brought up and rubbed into their wounds. It has the potential for much
damage.

Tufty

[ Reply to This | # ]

gplv3 anti-patent provisions may backfire.
Authored by: Anonymous on Tuesday, May 29 2007 @ 10:24 AM EDT

I believe I have found another way for the gplv3 anti-patent provisions to backfire.

"You are not required to accept this License in order to receive or run a copy of the Program."

Large corporate "end users" of gplv3 software will use this provision to contract directly a seperate patent peace with large non-distributors with possibly bogus patent claims. (This time they will not go through a conveyor intermediary like Novell).

The "end user" will not be subject to the anti-patent provisions because they only "receive" and "run" the program. The non-distributor will not be subject to the anti-patent provisions, because as a non-distributor, non-copyer, non-everything elser, they do not require a license under copyright law.

In order to protect its patent peace, and in order not to run afoul of the gplv3 anti-patent provisions, the corporate "end user" must insure that it remains a pure "end user", that is, a person that "receives" and "runs" the program only. It will prevent its employees from making any contribution to any gplv3 project, even bug reports, so that it does not become a "modifier". The corporate "end user" must become a pure "free rider" in order to protect its patent peace.

This can not be what the authors of draft gplv3 intended.

The existence of this scenario, actually makes the Novell-MS deal a "good thing". Apologies to Martha Stewart.

Consider a situation that Eben Moglen has recently discussed.

Suppose there is a corporate "end user" so politicly dangerous to MS, that MS must make a peace with it before proceeding with the FUD war. Like say, the NY stock exchange.

Which method is preferable, from the point of view of the Free software community, for the NY exchange to receive it's patent peace? Remember these are corporate suits we are talking about; They care nothing about principles for freedom or the free software movement, They WILL make a separate peace if it seems advantageous from a financial prospective and not too risky.

Under my scenario, direct agreement with MS, the section 11 anti patent provisions would apply to the NY exchange, if it lost its "pure end user" status. Therefore the NY exchange will zealously guard this status, preventing its employees from making any contribution to a gplv3 project.

If the NY exchange, gets its patent peace through the Novell-MS deal, then the NY exchange has not made any agreement with MS, and its agreement with Novell probably does not even mention the Novell-MS deal. So the section 11 provisions would not apply to the NY exchange, so the exchange could go ahead and agree to the gplv3 and allow its programmers to make contributions to gplv3 projects.

Clearly the second scenario, is preferable from the point of view of the free software community.

There are reference books at the library that list the contact information for every fortune 500 company. MS has the money on hand to pay someone to look up this info and try to make agreements with them all.

Let's stop being so mean to Novell. Novell has only done what corporations can be expected to do: Exploit every loophole and ambiguity, just like water flows into every crack, crevice and fissure, as it moves down hill.

Do we really want there to be only one corporate free software distributor?

[ Reply to This | # ]

Chris Sontag's Comments re HP
Authored by: sproggit on Tuesday, May 29 2007 @ 10:56 AM EDT
So I've just got around to re-reading the deposition that Chris Sontag gave in
the IBM case - and in particular the sections where he talks about the offer
from HP. The more I think about this, the less sense it makes, for a variety of
reasons. Whatever the sense - or lack of it - there might be some interesting
material here.

However - and here's the kicker - this is dynamite for IBM...

In his IBM deposition, and with reference to HP's licensing of SCO's
yet-to-be-seen IP, we see the following. (FYI, Sontag = Chris Sontag of SCO;
Drake = IBM's Lawyer; Normand = Ted Normand, SCO's Lawyer).

-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-

Sontag: ...I believe the reason we didn't enter into the license was because SCO
determined it was not in our business interest to make a - enter into a license
with Hewlett-Packard.

Drake: So is it your testimony that Hewlett-Packard was ready, willing and able
to enter into an agreement, and SCO said no?

Normand: Objection. Form.

Sontag: Yes.

Drake: And the reason SCO declined to enter into the agreement was what, again?

Normand: You can answer to the extent that it was business reasons. [Editorial
comment: is that leading a witness or what?]

Sontag: Ultimately it was financial amount, but most of the reason why was due
to legal concerns for which I can't provide any more answer.

Drake: You said business reasons, My Sontag; that's not legal. What were the
business reasons that SCO declined to enter into an agreement with
Hewlett-Packard?

Sontag: A financial amount we didn't deem to be sufficient for the type of
license Hewlett-Packard sought.

Drake: What are we talking about? What are the numbers?

Sontag: It was on the order of - 30 to 50 million dollars was going to be the
size of the license. We didn't believe that was enough.

Drake: Was that the price you demanded or was that the price that
Hewlett-Packard offered to pay?

Normand: Objection to form.

Sontag: That was the price they offered.

Drake: What price would SCO have accepted?

Normand: Objection, form. Objection to the extent that it calls for speculation.
Objection to scope.

Sontag: Are you through?
[Editorial: love it, he must be quizzing his own counsel!]

Drake: Come on.

Sontag: I don't have any more I can add.

Drake: Well, did SCO have a number in mind or not? You said the deal fell apart
because you couldn't reach an agreement.

Normand: Objection to form.

Sontag: I don't think we had a specific number in mind.

-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-

OK, so here's why I think this is *so* interesting.

1. The Microsoft Angle.
We already know that Microsoft spent $50 Million on a SCOSource IP License from
SCO, giving them a right to include "Unix IP" in their "Windows
Services for Unix" Product.

Question 1.
Bearing in mind the relative sizes of Microsoft and HP as software
users/vendors, and given that Microsoft's license cost $50 Million, I can
understand why HP were thinking in terms of $30-50 Million for a license of
their own. But can anyone even guess at why a sum of this size would be such
that SCO - in Sontag's words - "didn't believe that was enough"???
(Don't forget that although HP probably stand to make more use of the code, they
have already paid [someone, at some point] for the right to build and distribute
HP-UX. So they are in a sense already licensed, as are IBM).

Question 2.
If we break down SCO's accusation against IBM into 2 parts, we might have the
alleged act of copying SCO IP into Linux on the one hand, plus the continued use
of that IP in Linux on the other hand. We might also deduce that SCO, when they
put in a claim for $5 Billion in damages, would have factored those two
activities separately. [C'mon, humour me a little].

If we compare Microsoft, HP and IBM [in software terms only please] and work on
the basis that these three companies generate similar revenue and use from Linux
technology as eachother (and I'm pretty sure that in reality Microsoft would be
out in front by a country mile - think about the number of copies of Windows
sold vs AIX or IBM-sold Linux, say), then we might conclude that had a different
third party be the target of SCO's court case and had IBM approached them for a
"SCOSource License" to use their IP, SCO might reasonably have charged
them $50 Million dollars for the pleasure. [Yes, I know, all wild conjecture].

But the question then becomes: Do SCO reasonably expect IBM to pay $4,950
Million for the act of copying 326 lines and a few methods and concepts into
Linux, vs $50 Million for a license to carry on using the same?

Does that stack up to you? I'm suspecting not. I'd suspect that IBM saw it the
same way and that's at least part of why they are happy to take this to court.


I may be wrong - heh, I frequently am - but I have a sneaky suspicion and hope
that this might prove to be very useful indeed at undermining SCOs position.

Nice one Chris, thanks.

;o)

[ Reply to This | # ]

Some of the comments surprise me
Authored by: Anonymous on Tuesday, May 29 2007 @ 11:08 AM EDT
I have seen a number of comments in different areas here that surprise me. Why?
Well, because Darl in August 2003 spelled it out on what SCO wanted (this is in
relationship to Chris' deposition that this article covers). Here is the Darl
quote:

"They're putting this on a [slow, legal] path. But customers have been
putting pressure on IBM to get this resolved. This is not a case IBM can get
knocked out on--they'd be filing motions to dismiss the case [if they thought
they could win]. Our case is up to $3 billion--they'd have to come up from a few
hundred million dollars to settle. Every month we keep finding more and more
[Linux code that violates our Unix System contract]. We'd want a settlement and
royalty [on Linux] going forward.-- Darl McBride, 2003-08-18"

That was the plan all along. Get a royalty on Linux, the use of Linux. Period.
And, the IBM case was a ruse to get others to pony up to the bar.

All I can say is, boy, did they pick the wrong company to pull a fast one on.

I would be astonished if not even one SCO person involved in planning this mess
didn't stand up and say "Sue IBM over this? Are you completely
insane?" To which the answer would be, most assuredly, "Yes".
What where they thinking? Obvious answer, they weren't thinking, not at all,
except about the *big dollars" they were going to rake in. I certainly hope
Chris, Darl and those involved with SCO running this extortion scheme get
soundly smacked by the court and various regulatory officials, attorney's
general, etc.

[ Reply to This | # ]

SCO IP worth 14 *billion* dollars?
Authored by: Anonymous on Tuesday, May 29 2007 @ 12:57 PM EDT
You gotta be kidding me.

I'm of the camp where I don't think SCO owns *anything* in Linux that it didn't
already, knowingly, release under the GPL. But even, let's say they did. Why are
they allowed to name their own price for it?

As I recall, SCO was setting a price of $700 (I think?) for their SCOSource
license. If they think that they should have been payed that 20 million times,
that would put their IP at a worth of approx 14 BILLION dollars.

I hardly think a couple of header files and one or two algorithms, if SCO does
own them, are worth 14 Billion bucks.

So here's a legal question: assuming the court decided that some harm was caused
to SCO, could the court decide that the asking price SCO is asking for is way
too much and revise it down to a more reasonable amount, like a few million plus
attorney's fees?

[ Reply to This | # ]

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