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The "one line of code" rule - Any UnixWare in SCOsource? |
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Monday, July 21 2008 @ 10:01 PM EDT
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In Judge Dale Kimball's recent order in SCO v. Novell, he accepted SCO's story about licensing practices. I think that was a mistake, and I'd like to show you why I think so. Here's what he wrote:UNIX licensees often distributed and used binary products that included code from multiple releases of System V. Novell and its successors required and allowed such licensees to pay only one set of royalties for the use or distribution of such a product. To identify the proper license under which such a product could be used or distributed and to calculate the appropriate royalty payments required for using or distributing such a product, Novell and its successors employed the "one line of code" rule.
Under the "one line of code" rule, Novell and then SCO determined whether there was as little as one line of code from the latest release of System V (including UnixWare) contained in a binary product and then calculated royalty payments for the entire product under that latest license. Novell and then SCO prohibited licensees from parsing out the relative amounts of code from different releases of System V and paying portions of the requisite royalties under multiple System V licenses. Now let me show you what I found regarding how SCO, Santa Cruz, billed in complex situations, according to what it told the SEC.
Look how Santa Cruz says it itself billed when it sold both UnixWare and OpenServer to the same customer, in its 10K filed with the SEC November 8, 2000:
The Company has sold Unixware and OpenServer products separately and as a result
for contracts involving the sale of Unixware and OpenServer which contain
multiple obligations (e.g. deliverable and undeliverable products, maintenance
and other services), the Company allocates revenue to each component of the
contract based on objective evidence of its fair value, which is specific to the
Company. The fair value of each element is based on the price sold separately.
The Company recognizes revenue allocated to undelivered products when the
criteria for product revenue set forth above are met.
So it knew how to allocate, and that is what it did when the situation got complicated. SCOsource was complicated. And there was more than one SCOsource offering, and some of them had nothing to do with UnixWare, as I'll show you. Actually, so far I can't find any SCOsource offering that was about UnixWare. First, let's think about the one line of UnixWare concept. Remembering that SCO's story is that UnixWare, OpenServer and System V are all the same thing,
if one line of code was the rule, every sale of anything would be a UnixWare sale, would it not? And yet, when SCO first offered SCOsource, it was for COFF libraries in Open Server only. It had zero to do with UnixWare. You can see that in this PowerPoint presentation someone at SCO forgot to remove from the Internet, where SCO's Jay Petersen announced and explained SCOsource to resellers in a webinar. Note the first offering and what they had planned for the future: Slide 5
First Deliverable
* SCO’s UNIX Shared Libraries from for use with Linux
-
Already in use among many enterprise customers
- Already encouraged by many Linux vendors
- Increases the number of UNIX applications available to Linux
Upcoming Plans for SCOsource
SCO System V for Linux
Slide 6
Example: OpenServer Application Environment
OpenServer System Calls
OpenServer Kernel
OpenServer
Application
OpenServer
Shared Libraries
Slide 7
Native Linux Application Environment
Linux System Calls
Linux Kernel
Linux
Application
Linux
Shared
Libraries
Slide 8
Linux for Native and OpenServer Applications
Linux System Calls
Linux Kernel
OpenServer System Calls
Linux ABI
OpenServer
Application
OpenServer
Shared
Libraries
Linux
Application
Linux
Shared
Libraries
Slide 9
UNIX application details: Object File Formats -
There are two object file formats that have been used in UNIX
-
COFF: original format (SVR2, SVR3, SVR4)
- ELF: improved format introduced around 1990
- Early versions of SCO UNIX (3.2v4.2, OpenDesktop, etc) used COFF only
- OpenServer supports both COFF and ELF
- UnixWare supports only ELF
- Linux native mode is also ELF
Slide 10
UNIX application details: Library Usage -
Libraries must match object file format of application (COFF or ELF)
- ELF libraries are dynamically linked
- COFF libraries may be statically linked
- UNIX applications can be created to use shared system libraries or to incorporate the libraries they need (self-contained)
- Standard practice is to use shared libraries
-
Reduces application size on disk
- Reduces overall system memory usage
- Allows library maintenance to be de-coupled from app
Slide 11
SCO System V for Linux Release 1
SCO UNIX Runtime Libraries
- First release includes COFF static shared libraries from OpenServer
- Compatible with SCO UNIX, OpenDesktop, all versions of OpenServer
- Packaged as an rpm installable on Linux
- License required and enforced (at install time) on non-SCO Linux systems
Slide 12
Customer benefits -
Preserves investment in legacy applications
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Application licenses
- End user training
- Applications integration
- Same application runs on UNIX and Linux
- Allows migration of applications to Linux even if source is not available
- Permits movement to Linux without requiring simultaneous upgrade or conversion of apps
- Cost effective evaluation of Linux in production environment
Slide 13
Why start with OpenServer COFF static libraries? -
Most customer interest (some large accounts)
- Linux ABI Project interest/development focussed on SCO COFF applications
- Largest base of applications for SCO platforms
- Oldest legacy applications
- Probably not the ISV’s latest release
- Upgrade to Linux versions would be painful
- Source code may not be available
- Nonetheless, apps may be firmly entrenched in customers business practice
Slide 14
What about UnixWare Libraries? -
Next step is to investigate value and feasibility
- Customer demand?
- UnixWare apps are newer, more likely to get ported?
- More compatible with Linux versions?
- Confirm Linux ABI functionality
-
Not much discussion in Linux ABI project
- UnixWare libraries are a much larger set than the COFF static libraries
- Need to test some applications
Slide 15
Availability & Delivery
Customer Pricing: $149 per processor
As you can see, there was at that time no UnixWare at all, not even one line of its code, in the first couple of SCOsource offerings as outlined. The date of the webinar is April of 2003. Note the age of the latest ELF, by the way, was 1990. So any money up to that point, and in fact until the testing the analyzing and deciding got done would be zero lines of UnixWare. You'll also notice three other things -- first, that back then SCO knew that UnixWare and OpenServer were not the same thing and neither were they identical code. As I showed you in the previous article, they didn't use the same kernel even. And SCO was rather specific about Linux being part of SCOsource. Later it claimed not, but I see the slides itemizing it. And three, SCOsource appears to be indeed about licensing code, specifically named. It was a license to use it. Now, as it turns out, SCO appears to have had no copyrights, and no rights to ABI code as we have explained long ago, and SCO itself told us later that the ABI code it wanted to sue over dated from the BSDi settlement, and that's not theirs. Too old.
You can also see that the first offering was priced way lower than the later SCOsource offerings. That's because they were Not identical offerings. That didn't sell well, but SCO never announced that it was withdrawing the offering or increasing the price. So far, then, we see that at least two SCOsource offerings as presented in this presentation had nothing to do with even one line of UnixWare code. UnixWare was being considered for the future, for reasons that have more to do with money than infringement.
In May of 2003, SCOsource, the next iteration, seems to be only about System V, the source code that IBM licensed in the 1980s from AT&T, as you can see from this SCOsource page, the SCO Letter to Linux Customers: SCO holds the rights to the UNIX operating system software originally licensed by AT&T to approximately 6,000 companies and institutions worldwide (the “UNIX Licenses”). Here's a screenshot I took back then:
AT&T did not ever license UnixWare to anyone. Certainly not to IBM. So that SCOsource message to Linux users was all about System V UNIX, the original code that AT&T licensed to IBM. IBM had no UnixWare license from AT&T, so I think it's clear that what Linux users were supposed to buy was protection from infringed code from the AT&T code, not UnixWare. I'm quite sure that SCO can't put System V code into a product, code that is copyrighted to Novell, pre-1995 code, and charge for it because the same code is also in UnixWare simply because SCO put it there too later.
You can see the same thing in the wording of the SCO Intellectual Property Licence for Linux: Many customers are concerned about using Linux since they have become aware of the allegations that Linux is an unauthorized derivative work of the UNIX® operating system. Screenshot:
Notice the registered mark, UNIX®? UnixWare is trademarked also. But the offering doesn't say UnixWare®. And the UNIX mark (two of them, actually) was originally owned by AT&T, but it was transferred to the X/Open Company. That isn't talking about UnixWare, then. AT&T didn't license UnixWare. The federal registration symbol indicates with specificity that it is the old AT&T code SCO was offering a SCOsource license to cover. If you go to the USPTO, and search for UNIX, you'll find both. And you'll find that USL had a separate trademark for UNIX SVR4.2, by the way, later abandoned. So, if we apply a one line of UnixWare "rule", there would be zero lines of code covered by that offering, by my reasoning. Later, after SCO registered copyrights that it turned out it didn't own, except for one, it began to speak about UnixWare and UNIX System V in connection with SCOsource, but that's after Microsoft and Sun took their licenses. And in fact, SCO so far as I can tell had no right to charge for any of this, by the way, since it has distributed Linux under the GPL. I was surprised Novell didn't argue that point. Whatever is in Linux, SCO either put it there or dolled it up and distributed it under the GPL, which makes any money collected money no one should have paid. I suppose Novell wants to be paid something, after all it's been put through, but for historians, at least, all this code is either stuff SCO didn't own at the time (or ever) or which no one had the right to charge for.
And one final proof that SCOsource was predominantly about System V source code dating from AT&T licenses, and not UnixWare that SCO itself wrote. At SCOforum 2003, there was also a presentation, the famous or infamous presentation purporting to show examples of infringed code. Heise published it, and it is still up and you can get a copy from Bruce Peren's site. So let me show you some slides that demonstrate that SCOsource was not principally about UnixWare, and to the extent it was about UnixWare, it had to be pre-1995 System V code. First, let's look at slide 10, and please notice the dates of the copyrights on the allegedly infringed code:
I think it's perfectly clear that when SCO said System V Code there in the header, it meant AT&T code and not UnixWare. Forget for a minute what it turned out to be and focus on what SCO thought it owned and what people had to pay it for. The next slide is slide 16, where SCO claimed the right to control all derivative works of System V:
Except notice that it claims its rights under copyright law. And as it turns out, it had no UNIX System V, the AT&T source code, copyrights. None. And it never claimed UnixWare infringement with any specificity in any court that I know of regarding a UnixWare copyright, so whatever it was offering in SCOsource, it was not about UnixWare, if this was about code, and we've already seen that it was.
But, but, but, you say, didn't we learn that Sun, for example, got SCOsource with its UnixWare license agreement? OK. But if they had a license for UnixWare, and the right to open source Solaris, why would it also need a SCOsource license, if SCOsource was about UnixWare?
Take a look at the list of code SCO claimed was infringed, in slide 19:
OK, class. Which of the items on the list are from UnixWare? Remember,
we can't count it unless it is something that SCO itself wrote after 1995. See anything there? So despite there being no UnixWare code that we can find, or SCO either, SCO calls it a license for UnixWare 7.1.3, in slide 26:
Now, why did SCO do that, other than the obvious, that they didn't have to pay any royalties to Novell for UnixWare royalties? I think it's perhaps because they thought they did own the copyrights to System V or at least they were giving us a mighty good imitation of a company that thought it did, or said they did. The copyrights they claimed were infringed were for code that you can find in UnixWare in that it includes a SysV kernel, and because UnixWare was what SCO still sold at the time, they used that name. Assuming they believed they had the copyrights, they would want to name it UnixWare, because that is what they were selling that had System V code in it, the modern code, and you can not sue for infringement easily for damages over infringed code you no longer sell. So I'm concluding it was misnamed, but for pragmatic reasons, but not because there was any actual UnixWare code of SCO's. They thought they owned both, and they told us that too, which hardly seems a basis for them to keep any of the money, to me anyway. Otherwise, we might reward a ripoff, and I'm pretty sure courts are not set up to reward ripoffs. Judge Kimball struggled to figure out what SCOsource was, and I hope the above makes it clearer, but this is what he concluded, so far:
The parties disputed at trial whether the SCOsource program was primarily concerned with SVRX or with SCO UnixWare. In litigating its claims against IBM, Novell, and a variety of other parties, the only infringing code SCO has identified is SVRX code. SCO's expert witness in the IBM litigation identified only UNIX SVR4 code in Linux. And SCO sued Novell for slander of title because Novell claimed ownership of the SVRX copyrights, not because it claimed ownership to the copyrights in SCO UnixWare. Many contemporaneous press releases, correspondence, and other material introduced at trial describe SCOsource as focused on SVRX infringement in Linux. SCO's internal memoranda and presentations also describe SVRX as the
"trunk" from which SCOsource took its value, distinguishing SVRX from "branches" such as SCO UnixWare.
Nonetheless, there was also testimony and evidence at trial demonstrating that SCOsource was not solely focused on SVRX. In January 2003, when SCO formally announced the SCOsource program, SCO was still focused on licensing both SCO UnixWare and Openserver technology. In February 2003, SCO created a "SCO V for Linux Sales Guide." The guide repeatedly refers to SCO's concern that "UnixWare" and "OpenServer" technology had been improperly used in Linux. The guide refers generally to "SCO System V," it did not specifically identify which technology comprised SCO System V. Also, in a December 2002 slide presentation, in describing the proposed "SCO System V for Linux" deliverable, SCO identified "SCO's shared UNIX Libraries from Open Server and UnixWare for use with Linux."
There is competing evidence as to whether in the SCOsource program SCO was attempting to increase revenue based on the SVRX technology or to protect its latest releases of UnixWare and OpenServer from competition with Linux. The court can only conclude that both factors played a role in SCO's determination to pursue the SCOsource licenses.
Whatever it was, it had no rights to protect, as it turns out. SCO argued that if SCO didn't have copyrights to UNIX System V pre-1995, then licensees just got less than they thought. But what if they got nothing at all? Even if someone can scrape through the barrel and find some UnixWare code somewhere, the fact is SVRX code can hardly be deemed "incidental" to UnixWare. If anything, even giving SCO every benefit of every doubt, it's the opposite. It was all about everything but UnixWare. And the SCOsource people paid for was arguably only about code SCO was supposed to pay over all royalties to Novell when it licensed it. Judge Kimball wrote:
Separate from its licensing of products, SCO began entering into SCOsource licensing agreements that were unique in that they did not involve product. Instead, these license agreements were waivers and releases of conduct based on the buyer's use of Linux. They were about code, as far as Linux end users were concerned. In fact, Darl McBride told the media that if Linux folks stripped out the infringed code, they were free as a bird from any claim from SCO. Kimball continues: Although Novell asserts that these provisions should be viewed as a license because a license insulates a party from liability, the release terms of the SCOsource agreements, including Section 2 of the Microsoft Agreement and Section 12 of the 2003 Sun Agreement, are not licenses to product. Unlike the licenses to products included under the APA, these releases are not royalty-bearing SVRX Licenses. SVRX Licenses involved in the APA gave licensees rights to use and modify SVRX code to create royalty-bearing UNIX derivatives. SCOsource licenses did not grant a right to use or modify any UNIX source code to create such derivatives. SCOsource agreements did not give any licensee the right to use any UNIX IP apart from binary code in Linux. The agreements are only releases of claims that SCO was entitled to bring.
Well. I'd argue with the "entitled to bring" part. After all, Linux end users all have the GPL license, which gives them the right to use all the GPL code freely. And SCO had no copyrights to any code it has claimed was infringed. I can't speak to the Microsoft and Sun licenses, because they are not public, but the other licenses were quite different. And folks had to pay for each CPU, just like if you bought a binary copy of UnixWare, which you couldn't modify either. Yet, those folks who got boxed versions of UnixWare certainly had a license, not a release of claims. SCO was structuring the offering to make it look like UnixWare was part of the problem, and they sure talked about UnixWare a lot, but where is there any such evidence? SCO said a lot of things in press releases and teleconferences and interviews and speeches. But in court, they said very little to match. Surely they don't get the right to scam people without evidence, and in the face of the GPL? I find only to the contrary, that SCOsource was not about post-1995 UnixWare, not even with respect to public statements. And that's been true since 2003. Just saying it in 2008 doesn't make it so, particularly if Novell is right and it was all a scam to begin with.
Since that has been stated in court, shouldn't SCO have to at least show some UnixWare code? No. Really. Finally, there is evidence that SCO itself thought that SCOsource was about code under the APA, code it should pay Novell for. Remember that detail? It's mentioned in the order, that when SCO approached Novell asking it to join it in going after Linux, it tried to tempt Novell by saying it would increase their royalties. Novell got paid by SCO for SVRX royalties. Can it get any clearer than that? Only after Novell said no did it morph into what I view as a pretense about being about UnixWare. Perhaps SCO wasn't desirous of sharing? If they called it a UnixWare license, regardless of what it really was, then they wouldn't have to. Of course, this is just me. Look at the evidence for yourself. You can draw your own conclusions, as have I.
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Authored by: Anonymous on Monday, July 21 2008 @ 10:16 PM EDT |
With detail, so PJ can find them. [ Reply to This | # ]
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Authored by: fudisbad on Monday, July 21 2008 @ 10:27 PM EDT |
Please place off topic posts in this thread.
To get things started:
517 7/21/2008 Debtor-In-Possession Monthly Operating Report for Filing Period
June 1-30, 2008 (for SCO Operations, Inc.) Filed by The SCO Group, Inc..
(Attachments: # (1) Certificate of Service with service list) (Makowski,
Kathleen)
516 7/21/2008 Debtor-In-Possession Monthly Operating Report for Filing Period
June 1-30, 2008 (for The SCO Group, Inc.) Filed by The SCO Group, Inc..
(Attachments: # (1) Certificate of Service with service list) (Makowski,
Kathleen)
---
"SCO’s failure to provide code for the methods and concepts it claims were
misappropriated is [...] a violation of this court’s orders." - Judge Brooke
Wells[ Reply to This | # ]
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Authored by: bbaston on Monday, July 21 2008 @ 10:32 PM EDT |
Please note which news story you're commenting on.
---
IMBW, IANAL2, IMHO, IAVO
imaybewrong, iamnotalawyertoo, inmyhumbleopinion, iamveryold[ Reply to This | # ]
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Authored by: artp on Monday, July 21 2008 @ 10:46 PM EDT |
So that everybody can find it, and especially PJ.
Second problem: don't misspell (sp?) Corrections. It befuddles searches.
Summary of error in the title block, please: eror -> error
---
Userfriendly on WGA server outage:
When you're chained to an oar you don't think you should go down when the galley
sinks ?[ Reply to This | # ]
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Authored by: The Mad Hatter r on Monday, July 21 2008 @ 11:08 PM EDT |
All of these details. Well, we'll see if the case is appealed by either party.
TSCOG has already promised to do so, and since the amount of money passed to
Novell was very small, they might do so as well.
I know - I'm repeating what everyone already knows. PJ's point about keeping
copies of everything you find (and making sure you send the information to her)
is important. There's a lot of details here at Groklaw that the lawyers at
Novell did not appear to have used, and which I think could have made their job
easier.
And of course someone else may want to use it someday, against someone other
than TSCOG.
---
Wayne
http://sourceforge.net/projects/twgs-toolkit/
[ Reply to This | # ]
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Authored by: Anonymous on Monday, July 21 2008 @ 11:32 PM EDT |
I think Judge Kimball may have had a couple of concepts in mind that we may be
missing here:
1. If SCO is told they owe everything to Novell, they have zero incentive to
stop fighting that before they totally run out of money.
2. If SCO is 100% liquidated by the Novell case, then IBM goes nowhere - and SCO
v. IBM is the one that the Linux community should really care about. That's the
one that would possibly determine if Linux has any UNIX code in it. (I fully
realize that, since SCO has been shown to not own the copyrights, that even SCO
v. IBM may not be helpful to the Linux community at this point. But oh well.)[ Reply to This | # ]
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Authored by: Anonymous on Monday, July 21 2008 @ 11:46 PM EDT |
The presentation doesn't appear to be available on Bruce Peren's site or on any
of the associated links.
I can't find it on archive.org or get the page to display that way. There
appears to be a displaying error in Internet Explorer (and Firefox).
On the page it says "If you are reaching it via another URL, be advised
that I don't control that URL and have not corresponded with the owner. "
I can't imagine that a copy isn't available somewhere on Growlaw's site (or
backed up elsewhere).
Or I've made a mistake.
There is source code to BPF is available though.[ Reply to This | # ]
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Authored by: Anonymous on Tuesday, July 22 2008 @ 12:21 AM EDT |
If you see a website that you think might be of legal significance down the
track that might be in danger of vanishing, and you copy it onto your own
machine to insure against that possibility, are there any copyright implications
in that?
I'm not suggesting that the owner of the website is going to come after you -
however I wonder if such backed up websites would run into "unclean
hands" type problems if someone later on attempted to use the information
in them in court.[ Reply to This | # ]
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Authored by: PolR on Tuesday, July 22 2008 @ 01:31 AM EDT |
One line of code would require a license for Unixware? To anyone that has ever
wrote a program this is nonsense. It is like having to license an entire novel
because you happen to include one sentence. What could the sentence be? Your
pick.
- Hello! How are you?
- It is sunny today.
- Do you have
a cigarette?
- Sit down there please.
- This is such a beautiful sky.
-
Would you marry me?
I can go on, but you should see the point. Such small
amount of information is way too often a triviality not worth a copyright. In
many cases it is dictated by externalities and can't be copyrighted at all. The
same way you can't claim a novel for one sentence, you can't claim a program for
one line of code. It is just nonsense.
[ Reply to This | # ]
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Authored by: sproggit on Tuesday, July 22 2008 @ 01:45 AM EDT |
Although, as a developer, I heartily disagree with the "One Line Of Code" rule
[for some reason this just strikes me as just the sort of thing a non-technical
lawyer would dream up] I think there may be a small error in the opening section
of PJ's article here.
Specifically, in support of the argument that SCO
knew how to allocate funds from a "mixed" deal, there is a quote from an SEC 10K
filing from November 8, 2000, which reads in part:-
The Company has
sold Unixware and OpenServer products separately and as a result
for contracts involving the sale of Unixware and OpenServer which contain
multiple obligations (e.g. deliverable and undeliverable products, maintenance
and other services), the Company allocates revenue to each component of the
contract based on objective evidence of its fair value, which is specific to the
Company.
(Emphasis added).
This is all subjective
interpretation, but I would read the SEC filing to say, for example, that if a
customer asked for 60 Unix Licenses and 40 Unixware Licenses (say because they
had different applications which required different versions of the OS) then
they would be allocated separately. That is entirely different from splitting
revenue from a merged product into two separate streams.
When you think
about it, it's the only sensible way to approach the problem of recording the
sale. One key reason for this would be support. If SCO were to follow the 'one
line' rule and then a bug were to be found that required a patch on all existing
versions of the OS [which happens from time to time] and if the patch were to be
developed on Unixware, then the act of shipping the patch and of applying it to
all pre-existing versions would have the effect of upgrading every single
instance of [patched] Unix to Unixware. Developing the idea a little: SCO
provide support for both versions of the product. Under their new thinking,
everything would be considered Unixware... so on that basis they could close
down their old Unix support Teams, no need to worry about maintaining the
documentation and so on, right?
Now try to imagine a situation in
which SCO charged more for a Unixware license than a Unix license [because the
former is 'old' technology. Today a new patch is issued and you download and
apply it. Tomorrow your maintenance contract is up for renewal and you're told,
"Sorry, you're a Unixware customer now, didn't you know?" On the face of it this
seems complete nonsense.
On a related approach from SCO... if
you think about their arguments through this case: first off there were millions
of lines of literal copying; then we had sections of copied code; next it became
anything that showed "substantial similarity" and then down to "methods and
concepts" if the code didn't even look similar. Yet now we're down to "one line
of code"?
Seriously, if that line were an 'else' statement, on it's own
on a single line, what would SCO have us believe? That the presence of this one
word converts several million lines of C programming source code to a new
license? Oh puhlease...[ Reply to This | # ]
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Authored by: jrvalverde on Tuesday, July 22 2008 @ 04:25 AM EDT |
I beg to slightly disagree.
We should keep in mind the
history of events.
Remember Darl arrived to SCO with little
knowledge of the technical side of the business and he couldn't have helped but
to hear the FUD spread by the MS PR machine about the low quality of free
software for two decades.
About the lawsuit: they wanted to prove that
Linux was a derivative of UNIX, and since Linux is dated 91-92, they needed to
quote earlier UNIX code for that.
As for the infringements: these needed
not be reduced to earlier code. In their view, if they existed, they might as
well be continued and since Darl's belief was that it was impossible to develop
anything outside corporate world, it would -under that misled belief- make
sense
- that advanced drivers came from theirs, which in his view
where the only ones, no matter many other UNIX for PC did exist -both free and
commercial (see ESR)-, specially
from Monterey developments done jointly with IBM
- That Sun wanted
their modern device drivers from Unixware for Solaris, and so Sun's license
needed to include Unixware
- that basic SMP support was lifted from
SVR4MP and later
- that advanced SMP and NUMA support was lifted from
later developments like Unixware, Dynix (a derivative according to them and
bought by IBM) and Monterey, done jointly with IBM
- that the PPC port
was done using knowledge of commercial development --the one they did in
Monterey for IBM
Under these and similar assumptions, they would
claim original Linux as a derivative of SVR4, and modern Linux as a derivative
of Unixware, SVR5 and Monterey. And again under these assumptions, the most
evident culprit had to be IBM who would have used the Monterey agreement to spy
on their most holy IP and transfer it to Linux.
So, if you look at it
from the point of view of a layman who refuses to believe anything of quality
can spring outside the closed corporate world -as MS and others have been
asserting for almost three decades with the full strength of their PR-, it all
seems to make sense. Wrong indeed, but sense it makes.
The problem then
is of a different kind: Darl -or whoever advised him- was willing to buy that
line of thought and as a zealot was not willing to concede any other
possibility. Thus, he/they ignored all evidence as it "just couldn't possibly
be" (just as creationists ignore scientific evidence) and went ahead with their
untested (or badly tested, at least not thoroughly, scientifically tested)
theory.
They ignored that Linux could have been totally developed from
scratch. Heck, they ignored that out of the original, minimalistic UNIX, BSD and
a large part of SV sprang from free collaboration of many people and that in
fact (until SV) BSD was much complete and often better than plain vanilla UNIX.
They just wouldn't take it.
Now they have no choice: they must
keep ahead with a straight face or close business down. They may have to do it
in the end, but meanwhile the company is up and running and employees get their
wages (and bonuses). It is even possible they still stick to their unscientific
beliefs, but from what I am told, that is not so uncommon in the US
nowadays.
I think it is important we try to understand their stance
if we want to successfully fight them back. Otherwise we risk arguing the
wrong points. And we should be ready to consider we might be facing a person
with a distorted view of the world... and what that view may be and how it can
be counterbalanced.
--
José R. Valverde
These
opinions are mine and only mine. Hey man, I saw them first!
--- Jose
R. Valverde
EMBnet/CNB [ Reply to This | # ]
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Authored by: Anonymous on Tuesday, July 22 2008 @ 06:47 AM EDT |
PJ, I think you are misreading the emphasis in the Judge's words.
I believe what he is saying is that "The agreements are only releases of
claims that SCO was entitled to bring", meaning that they are NOT releases
to any claims that SCO was NOT entitled to bring.
Therefore, since SCO has not entitlement to release any claims regarding SYSV,
then these cannot be releases to any such claims.
This means that Novell cannot be due any monies regarding these releases, as
they are definably not about SYSV.
However, the Judge does NOT say that there is any substance to what SCO is
selling - he specifically makes the point that these are NOT product licenses -
so if anyone is owned anything, it's the poor saps that paid up.[ Reply to This | # ]
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Authored by: Bernard on Tuesday, July 22 2008 @ 06:52 AM EDT |
My understanding is that any appeal can only consider evidence already submitted
to the court. If that's the case, is it possible, using the evidence submitted,
to reconstruct this argument about SCOsource <> Unixware?
If that's the case, then would Novell have grounds for appeal on the basis that
Judge Kimball misinterpreted the evidence?
It'd be nice if Novell entered all of SCO's public statements into evidence,
they could point to the smoking gun, and say "Sorry, your honour, but we
thought these public statements by SCO made it very clear it was all about Unix
SysV".[ Reply to This | # ]
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Authored by: jez_f on Tuesday, July 22 2008 @ 08:41 AM EDT |
This must have been a difficult judgment to make. Whatever he ruled, unless it
was to award SCO gazillions, he knew would be appealed. I would guess that in
such a situation you would rule in such a way as to give the party as little lea
way to appeal as possible, while still giving a fair ruling.
I should imagine this is why a lot of dubious SCO facts are taken at face value,
or at least given a possibility of being true. So while it may have been
possible to rule much more in favour of Novel, the ruling as it stands give SCO
much less wriggle room. That is the way that I read (the little that I have
read) of this ruling.
Is it common for Judges to issue “defensive rulings” when they may believe that
one of the parties will use any grounds possible for appeal?
[ Reply to This | # ]
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- Appeal - Authored by: grokker59 on Tuesday, July 22 2008 @ 08:54 AM EDT
- Appeal - Authored by: jmc on Tuesday, July 22 2008 @ 09:17 AM EDT
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Authored by: artp on Tuesday, July 22 2008 @ 08:56 AM EDT |
Urgent "Eyeballs for ODF" feedback goes here. PJ says:
"... from now on, only post anything that seems to be vital" and
"Stay polite at all times, of course, if you say anything, and you needn't
say anything"
---
Userfriendly on WGA server outage:
When you're chained to an oar you don't think you should go down when the galley
sinks ?[ Reply to This | # ]
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Authored by: DannyB on Tuesday, July 22 2008 @ 09:16 AM EDT |
SCO supplies the rope
with which they will hang themselves
Using their own words
---
The price of freedom is eternal litigation.[ Reply to This | # ]
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- One of each - Authored by: Anonymous on Tuesday, July 22 2008 @ 02:58 PM EDT
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Authored by: vb on Tuesday, July 22 2008 @ 11:12 AM EDT |
-SCOscource is about licensing System V for Linux systems (IBM case).
-SCOscource is about licensing UnixWare for *NIX systems (Novell case).
-UnixWare, OpenServer and System V are not the same thing (IBM case).
-UnixWare, OpenServer and System V are all the same thing (Novell case).
SCO can pick and chose what to tell the Judge. The Judge can pick and chose
from what SCO tells them in his ruling. The Judge can be both right and wrong
depending on which SCO version is used. The Judge does not rule based on the
truth, he rules based on what he is told is the truth.
Just because Novell was unable to cut through SCO's mist, and give the Judge
better information to craft his ruling, don't call the Judge's ruling wrong.[ Reply to This | # ]
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Authored by: Anonymous on Tuesday, July 22 2008 @ 01:31 PM EDT |
Every time this is brought up, I can't help but think of all the corporate
bashing
and fear-mongering about the 'viral nature' of the GPL. Isn't SCO
trying to do
the same thing here, but from the corporate side?
We'd all
better be on the lookout for the fast-tracking of OOGPL! (because 'OO'
is the
new 'MS')
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Authored by: Anonymous on Tuesday, July 22 2008 @ 02:59 PM EDT |
I'm getting the impression that after all these years of legal process the
issues still did not get properly recognized or fairly resolved.
This seems to contradict your (PJ) frequent cautions to trust the system and
that justice will prevail.[ Reply to This | # ]
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Authored by: mikeprotts on Tuesday, July 22 2008 @ 03:42 PM EDT |
I think the Judge has done his best with the complexities of this case. Sun
& Microsoft have bought less than the dollar value suggests they should
have. Sun should be concerned as they need the license for Solaris. Microsoft
bought FUD, so they don't need to worry about what was written on the contract.
Novell have made a deal with MS so they probably hope to win either way. What
grounds do SCO have for appeal, and from the BK court point of view, why bother
to avoid a couple of million dollar payment?
SCO lost, and more importantly there is now a case (SCO v Novell) which can be
used to present SCO evidence as fact in other lawsuits (SCO v IBM?). These
facts (there are some) will not be very helpful when presented to the court by
the Nazgul. How can a Lawyer argue against a case where they can be quoted so
easily? How can SCO get out of bankruptcy until the IBM issue is settled, but
they can't ever win because they've just undermined their own case.
I sometimes think that judges can be quite clever.
Cheers
Mike[ Reply to This | # ]
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Authored by: atheist on Wednesday, July 23 2008 @ 03:19 AM EDT |
The judge said in section G, P13
"...the only infringing code SCO has identified is SVRX code."
In section D, p36,
"SCO did not comply with these terms." referring to the APA and
granting rights to SUN it was not entitled to, and also
In section J, p21
"The provision has not been implicated or applied" following on from
SCO's potential actions to make code non-infringing.
Novell were keeping their powder dry, and these findings allow them the greatest
degree of freedom of action, not just re feeling SUN's collar, but with
bankruptcy, if all the code is defined as SVRX, it may now all revert back to
Novell with less fuss. We have seen SCO try to sell it off, so it's back to the
bankruptcy court. I wonder if the old SCO cash cow, openserver, has been
compromised by this, leaving them with little product.
Justice delayed is justice denied, so to get the message across to the rest of
the industry, keeping SCO alive but on the rack, with potentially 27 companies
(see p28) 22+ms+sun+autozone+novell+ibm+red hat with claims against them, is
imho the right thing right now. SCO's plan's due August should be funny.[ Reply to This | # ]
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Authored by: Anonymous on Wednesday, July 23 2008 @ 09:45 AM EDT |
Here in Canada, Justices often have fresh out-of-school lawyers - those
deemed super brilliant - work for the Justices and actually write up the
Justices
finding/judgement. In other words, these "super brilliant" young
lawyers would
do all of the grunt work - deciphering reports etc.
So..
in this USA case; wouldn't the judge use any "outside resources" to
clarify -
if need be? [ Reply to This | # ]
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Authored by: Anonymous on Wednesday, July 23 2008 @ 06:08 PM EDT |
The 1 line rule is reasonable from the perspective of a licensee - licensor
relationship, not what SCO and Novell had. "1 line of code from a newer
version and we update your license to that level". It is a revenue tactic
and in the power of a licensor rather than try to unmake a cake and pull the
eggs, flour etc.
It has very little to do with accounting however. The licensee wanted the 99.99%
version plus 1 line of code. The question would be what is the bulk of the value
the licensee was interested in, what made them want to fork over $$? The 1 line?
I think not.
It would probably be fraudulent under GAP to account for it that way because it
distorts revenue and more importantly distorts risks associated with the stock
(SCO). So for example SCO uses the 1 line rule and applies x% of revenue to
Openserver that SCO owns copyright to. So as a stock holder I can evaluate the
risks of the revenue disappearing and dropping the value of stock. With SCO's
theory I would be blind to this. Smells like a SOX violation also.
SCO mixed licensing with accounting and spun it cleverly into a accounting rule.
It is not, I wonder why Novell missed this.[ Reply to This | # ]
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Authored by: Anonymous on Thursday, July 24 2008 @ 02:48 PM EDT |
PJ, you quoted their 10K:
"The Company has sold Unixware and OpenServer products separately and as a
result for contracts involving the sale of Unixware and OpenServer which contain
multiple obligations (e.g. deliverable and undeliverable products, maintenance
and other services), the Company allocates revenue to each component of the
contract based on objective evidence of its fair value, which is specific to the
Company. The fair value of each element is based on the price sold separately.
The Company recognizes revenue allocated to undelivered products when the
criteria for product revenue set forth above are met."
And then you based some of the following argument on this.
There's another possibility: even back then they may have been telling porkies
to the SEC. I can't think why they'd want to not tell the truth, except if they
were already converting Novell's money, but to write a different story in the
10K would have been an admission to Novell.
I'm sceptical of this - I think it's highly unlikely - but it's another theory
as to why the story changed.
JV
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