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Is Open Solaris in Hot Water? -- No, I Don't Think So
Tuesday, July 29 2008 @ 03:49 PM EDT

I've been seeing articles implying that Sun may have trouble, now that it has been determined that the Unix copyrights belong to Novell. Here's one example, Steven J. Vaughan-Nichols' "Is OpenSolaris in hot water?" -- where a number of interviewees opine more or less yes. I disagree, and I'll show you why I disagree.

In Judge Dale Kimball's July 16, 2008 Order, he explained the terms of the agreement between Sun and SCO in 2003, the agreement that gave Sun the right to open source Solaris. There is a detail in the Order that some may not have noticed:

Section 10 of the 2003 Sun Agreement also sets forth SCO's obligation to indemnify Sun for any claim brought against Sun asserting that the Section 4 licensed technology infringes the rights of any third parties. Section 10 further provides that if the intellectual property rights in the technology become the subject of a claim of infringement, SCO shall ensure that Sun has the right to continue to use the technology or replace the technology to make it non-infringing. The provision has not been implicated or applied.

That tells me that Sun is not in any trouble. If anyone is in trouble, should Novell decide to do anything about this, which I doubt, it's SCO. The agreement included the indemnification of Sun, so that if anyone sues Sun, SCO has to step in and take the arrow.

Which is why I doubt Novell would do anything about it, since SCO is currently more or less flat broke, but we'll have to wait and see on that. If someday SCO's prince does come to save her with his wallet, it might change my analysis of what Novell may choose to do. But I can't see any way Sun's Open Solaris is in any hot water under any scenario that I can imagine. Angry as I am at Sun's old management for doing this deal and then keeping mum about it, while the Linux community suffered needlessly, the fact is, as far as I understand Judge Kimball's words, they tell me Sun is indemnified.

And if you want to know why I don't want OpenSolaris to be in hot water, read this article about Microsoft's plan to lock in cloud computing. What I'd like to see to create a FOSS alternative to lock-in cloud computing would be Linux GPL3 + Java GPL3 + Solaris GPL3. More on Midori.


Is Open Solaris in Hot Water? -- No, I Don't Think So | 318 comments | Create New Account
Comments belong to whoever posts them. Please notify us of inappropriate comments.
Corrections here
Authored by: bbaston on Tuesday, July 29 2008 @ 04:06 PM EDT
Should they be needed.

imaybewrong, iamnotalawyertoo, inmyhumbleopinion, iamveryold

[ Reply to This | # ]

Off Topic posts here
Authored by: bbaston on Tuesday, July 29 2008 @ 04:08 PM EDT
Links appreciated.

imaybewrong, iamnotalawyertoo, inmyhumbleopinion, iamveryold

[ Reply to This | # ]

News Picks comments go here
Authored by: bbaston on Tuesday, July 29 2008 @ 04:09 PM EDT
Do mention which existing News Pick article you are commenting on.

imaybewrong, iamnotalawyertoo, inmyhumbleopinion, iamveryold

[ Reply to This | # ]

Open Solaris in dispute
Authored by: bbaston on Tuesday, July 29 2008 @ 04:13 PM EDT
Speaking of unethical Sun behavior - shouldn't Sun approach Novell to resolve this issue and make a public statement?

Also, Novell should pursue this, demanding several millions in additional fees from Sun - who then should go to tSCOg - who should then be called to task by the BK judge.

imaybewrong, iamnotalawyertoo, inmyhumbleopinion, iamveryold

[ Reply to This | # ]

So if anyone buys SCO...
Authored by: seanlynch on Tuesday, July 29 2008 @ 04:13 PM EDT
So if anyone buys SCO, they should take into account how much they may have to
spend to defend Sun if it becomes necessary.

I think about this every time SCO tries to imply someone is interested in buying
them. With all the potential liability SCO has. The hundreds of millions that it
may owe to various wounded parties before this fiaSCO ends, wouldn't it be
cheaper for any potential suiters to just burn their money in a big bonfire?

at least they could roast marshmallows if they burn their money. Buying SCO
seems like the worst business decision anyone could make. (Unless they just
wanted to use SCO to keep funding FUD based lawsuits that is).

[ Reply to This | # ]

Is Open Solaris in Hot Water? -- No, I Don't Think So
Authored by: Anonymous on Tuesday, July 29 2008 @ 04:16 PM EDT
Ah, but Novell was not a party to the agreement between Sun and SCO which means
that if they choose to - they can tackle Sun head on.

If they do so while SCO is in bankruptcy or kaput - SCO's inability to fufill
it's part of the agreement with SUN has no bearing on any potential rewards to

If this was the case, people would love to have others act as proxies for them
idemnifying things which they plan to do and want to get away with no harm.


I think the key point is - will Novell wait long enough for sco to rise from the
ashes to they can siphon investment capital from SCO or will they go ahead and
ask Sun for it and have Sun impose an outstanding debt against SCO?

Whichever, I suspect it'll happen after the bankruptcy status is done as Novell
is probably more interested in SCO bearing the burden than having Sun do it.

[ Reply to This | # ]

Value of Indemnification
Authored by: Anonymous on Tuesday, July 29 2008 @ 04:19 PM EDT
I seem to recall SCO deriding the value of indemnification in the past when Red
Hat indemnified its customers. I believe they pointed out that they could still
sue anyone they wished and if Red Hat was bankrupted, the indemnified companies
would still be in the hook.

If that is true, then isn't Sun still ultimately on the hook should Novell
decide to pursue?

[ Reply to This | # ]

What good is indemnification promised by SCO?
Authored by: Anonymous on Tuesday, July 29 2008 @ 04:20 PM EDT
PJ, this article makes little sense.

Assume for the sake of argument that Novell owns some enforceable copyrights
that are infringed by OpenSolaris.*
Then if Novell chooses, it could press a case against Sun for infringement.
The contract between Sun and SCO says that after Sun loses that case, SCO will
pay Sun whatever Sun owes Novell.
Given that SCO is in Chapter 11 (and not likely to get out except via Chapter
7), Sun isn't likely to see that reimbursement.

In other words, Sun is out on a limb with no safety net. So why wouldn't Sun be

(Whether Novell will actually sue Sun is another question, and an interesting
one, but I have no knowledge of Novell's intentions.)

* Contrary to popular opinion, no court has found that "Novell owns
UNIX." What has been decided is this: certain copyrights that SCO claims
they got from Novell, they didn't. Doesn't mean that Novell's copyright claims
would stand scrutiny. I know PJ knows this; comment included for general

Of course, if Novell's copyright claims are tenuous, maybe Sun doesn't have to
be so nervous. But that doesn't exactly cast a flattering light on Sun's
decision to pay SCO for the indemnification.

[ Reply to This | # ]

Is Open Solaris in Hot Water? -- No, I Don't Think So
Authored by: shingebis on Tuesday, July 29 2008 @ 05:09 PM EDT
I'm glad I'm not the only person confused here...

That agreement doesn't make OpenSolaris safe. It makes SCO legally obliged to
fight tooth and nail to defend it, but I can't say I'm filled with reassurance
at that prospect.

To put it another way, did I ever mention that I owned the rights to the entire
Beatles back catalogue? I hereby allow you to distribute it all under a Creative
Commons licence. And if it turns out that I don't have the authority to do that,
I'll defend you in court. Or get a really good band together to make music
that's just as good. Hey, I'll think of something. OK, I'll let you go off and
put together a business plan, now that you're fully indemnified against anything
that could possibly go wrong.

[ Reply to This | # ]

That known or should have know angle
Authored by: Anonymous on Tuesday, July 29 2008 @ 05:12 PM EDT
That wouldn't apply?

[ Reply to This | # ]

Is Open Solaris in Hot Water? -- No, I Don't Think So
Authored by: wharris on Tuesday, July 29 2008 @ 05:20 PM EDT
There are legitimate reasons why Novell might not want to sue Sun, but the
indemnification clause isn't one of them.

If Novel does sue Sun, SCO is contractually obligated to pay for their defence,

and any fines imposed by the court. If they don't, Sun can sue SCO if the
bankruptcy court permits. But a contract between SCO and Sun doesn't remove
any rights Novel has, such as the right to sue Sun for copyright infringement.

[ Reply to This | # ]

... not been implicated or applied...- YET n/t
Authored by: atheist on Tuesday, July 29 2008 @ 05:34 PM EDT

[ Reply to This | # ]

The real SUN licence position!
Authored by: Anonymous on Tuesday, July 29 2008 @ 05:43 PM EDT
I am amazed how much stupid, un-informed nonsense gets
into these stories ... SUN aka Scott McNeally, at the
time, bought out its UNIX licence as part of a deal, in
1984 ... 86 to fix System 5.4 for AT&T. AT&T initially
bought 15% of SUN stock, and that was why their
competitors (HP, DEC ... ) formed OSL (This was the time
AT&T had more lawyers than programmers working on UNIX).

Later AT&T divested and SUN bought out their UNIX source
licence, and re-licence capacity from USL, the successor
of AT&T (long before USL wre sold to Novell). This is why
SUN could Open Source Solaris and
start to give it away having monetized the licence for
more than 20 years.

For those interested in archeology, this was also the
making of GCC, since SUN also tried to charge separately
for the SPARC targeted Johnson C compiler to the fury of
Universities which had invested in SUNs. They fixed GCC
instead of buying C at $1500 per box.

We need to start an open season on MBAs Duh!

[ Reply to This | # ]

Indemnification by bankrupt company is worthless
Authored by: ak on Tuesday, July 29 2008 @ 05:44 PM EDT
When SCO is bankrupt the indemnification is not worth anything.

[ Reply to This | # ]

Is Open Solaris in Hot Water? -- Big time, ;)
Authored by: Anonymous on Tuesday, July 29 2008 @ 05:48 PM EDT
Obviously based on all the legwork that SCO has so graciously
performed, SUN should be on the hook for $5B.

[ Reply to This | # ]

Novell's hands would be very dirty
Authored by: Anonymous on Tuesday, July 29 2008 @ 06:35 PM EDT
... if they went after Sun!

I think we may reasonably presume that Sun acted in good
faith and with due diligence, negotiating a deal with the
company they believed was authorised to do so (and before
SCO went mad). If Novell had objected to that, they
should've done so long ago, and the fact they didn't would
surely count against them.

Waiting for the outcome of SCO/Novell would also appear to
work in Sun's favour. It was Novell and (old)SCO who
negotiated the unclear deal, and if it needed this long
case to clarify ownership, that also points to Sun's
having acted in good faith.

Novell's 2.5 million *is* the value the judge apportioned
to them of what was sold to Sun.

[ Reply to This | # ]

Is Open Solaris in Hot Water? -- No, I Don't Think So
Authored by: JamesK on Tuesday, July 29 2008 @ 06:36 PM EDT
"The agreement included the indemnification of Sun, so that if anyone sues
Sun, SCO has to step in and take the arrow."

Given that Novell wasn't a party to that agreement and SCO might not have the
resources to protect Sun, what happens if Novell decides to get nasty? If that
sort of agreement can hold, what's to stop anyone from signing such an agreement
with some homeless person, who has nothing to lose?

"Ubuntu" is an African word meaning "SUSE is too hard for me".

[ Reply to This | # ]

Indemnification is probably irrelevent in a bankruptcy case
Authored by: Anonymous on Tuesday, July 29 2008 @ 07:05 PM EDT
See this asbestos-related article

If the indemnification is boiler-plate or implied, it means nothing in bankruptcy. Even if SCO offered an explicit indemnification, it is questionable if it would be enforceable. The 3rd Circuit (in which Delaware is located) seems to think not necessarily.

If SCO gets out of bankruptcy, indemnifying Sun litigation would put them right back in.

[ Reply to This | # ]

Is Open Solaris in Hot Water? -- Yes, absolutely
Authored by: Anonymous on Tuesday, July 29 2008 @ 07:10 PM EDT
I'm surprised PJ doesn't understand that SCO can't sign away Novell's rights to
deal with Sun. SCO's indemnification isn't worth any more than SCO is, which is
nearly nothing at this point, and whatever SCO has is already Novell's.

Novell can go after Sun, and since SCO isn't going to be around to pay Sun's
loss on this, Sun is left to make things right with Novell by themselves.

There's nothing complicated about this.

[ Reply to This | # ]

Midori? Yawn...
Authored by: fb on Tuesday, July 29 2008 @ 07:21 PM EDT
...the article acts like there was anything new there. And yet again, count on
Microsoft to take a good idea and get it wrong.

If you're interested in where the state of the art is concerning robust,
distributed, error-tolerant concurrency, have a look at any of the copious
commentary about Erlang/OTP to be found on the web. See also references to the
javascript optimization work that's been leaking out into the world. And then
there's the spectrum of virtualization technology that's been out and doing good
things for several years now...

Is there any reason to believe that Microsoft isn't going to find some way to
either (1) figure they can do it better than all the rest of the best minds in
the field, or (2) rip it off but make sure to cripple the best features?

[ Reply to This | # ]

  • You're wrong - Authored by: Anonymous on Wednesday, July 30 2008 @ 09:10 AM EDT
    • You're wrong, you too - Authored by: Winter on Wednesday, July 30 2008 @ 09:22 AM EDT
      • Actually - Authored by: Anonymous on Wednesday, July 30 2008 @ 11:06 AM EDT
    • You're wrong - Authored by: Anonymous on Wednesday, July 30 2008 @ 11:49 AM EDT
    • You're wrong - Authored by: fb on Wednesday, July 30 2008 @ 11:04 PM EDT
PJ's link to "A post-Windows OS" aka Midori
Authored by: SilverWave on Tuesday, July 29 2008 @ 07:26 PM EDT
Microsoft's plans for post-Windows OS revealed

This looks like a lot of hand waving. It makes the hype for the promised VISTA database file system look reasonable.

Come on people lets get real!
They couldn't get *promisedVISTA* to work, they had to dump it all and start again, it was so unworkable.
They had to cut almost all of the cool stuff just to have something that could be shipped.

The work involved with this "post-Windows OS" would dwarf the total work that was put into Vista.

I hope that MS do start pouring money into this "post-Windows OS" project, given their track record with VISTA it would by hilarious :)

Oh and that SCO indemnification protection idea looks very shaky to me ;)
... but then IANAL so I will watch with interest :)

I was wondering if the Novell CEO will not pressure SUN to buy them out... interesting times ahead.

RMS: The 4 Freedoms
0 run the program for any purpose
1 study the source code and change it
2 make copies and distribute them
3 publish modified versions

[ Reply to This | # ]

Microsoft rebranding UNIX as Miordi
Authored by: Anonymous on Tuesday, July 29 2008 @ 07:27 PM EDT
It just struck me as a possible reason why MicroSoft needed recent UnixWare
licenses... Fight Linux with UNIX?

[ Reply to This | # ]

"Linux GPL3"
Authored by: jjon on Tuesday, July 29 2008 @ 07:33 PM EDT
PJ, you and other people talk as if it was possible for the Linux kernel to be
relicensed under the GPLv3. This is simply not practical.

Legally, relicensing requires the consent of all copyright holders (and the
rewriting of any code where consent cannot be obtained). It would be a major
effort to track down all the copyright holders. Some contributors are dead so
you would have to track down the person who inherited the copyright. Some
doubtless work for now-bankrupt companies; you would have to track down who
bought the assets.

Several core kernel contributors have explicitly said that they do not consent
to GPLv3 relicensing. (And getting consent from SCO for relicensing
Caldera-contributed code may be hard). So major pieces of code would have to be

Nobody has expressed any interest in doing this huge amount of work, for
absolutely no technical benefit.

So please can we accept this is impossible (or at least impractical) and move

[ Reply to This | # ]

Is Open Solaris in Hot Water? -- No, I Don't Think So
Authored by: Anonymous on Tuesday, July 29 2008 @ 07:43 PM EDT
If they are indemnified via the license/contract by SCO, then they are not in
any way responsible. All of the wrong doing was done by SCO and not Sun. It
doesn't matter whether SCO exists to be sued. If they aren't then Novell has no
recourse against Sun. They are on solid legal ground with their paperwork.

Regardless of the issue of indemnification, the nondisclosure clauses in the
license will indicate that if it becomes public information through no fault of
their (Sun's) own, they are also off the hook.

-chuck (not logged in)

How much (if any?) was truly still proprietary anyway?

[ Reply to This | # ]

What about the 1994 purchase of SVR4 from Novell?
Authored by: radical1 on Tuesday, July 29 2008 @ 08:11 PM EDT
Why is it everybody forgets Sun purchased an indefinite license from Novell in 1994. Basically it's very hard trying to find info, but from an SEC document filed by Novell for 1994: SEC DOC, go down to page 18 near the bottom. Also a Sunsoft annoucment: Sunflash. Basically Sun has all the rights to sell or give away the source code for SVR4 unix. So No, Sun isn't in hot water.

[ Reply to This | # ]

Is Open Solaris in Hot Water? -- No, I Don't Think So
Authored by: dacii on Tuesday, July 29 2008 @ 09:09 PM EDT
Ok, going out to distrowatch I find that open suse is at #2. FreeBSD is at #14
and OPENSOLARIS is at #32. This is for the 30 day view. Looking at the 7 day
view, OpenSolaris is even worse at 42. FreeBSD is at 25 and OpenSUSE is still
at #2. Now your saying to yourself - ya, so. These are bad stats blah blah

OK, but in general it would appear that Novell/OpenSUSE has quite a following
and is growing or is at least stable. The other two (based on the old Unix
base) do not appear to be as attractive to other people.

So place yourself in Novell's shoes. Anger many and loose or shrink customer
base or grow it with good will. Novell may have made an error partnering with
the monopoly. I feel they understand the ill will that came about because of
that. Maybe now they will think about the community and the impact (financial)
another fumble may have on them?
What do they gain by suing Sun. Short term cash and a very large group of upset
people. Move on and take no action, a cautious following and long term cash and

The question then becomes, is Novell long term slow burn or take the money and
run. Their current actions indicate long term slow burn. They have battled
this long ( with caldera/sco) for little or no return. Maybe even a loss. Also
it doesn't appear that OpenSolaris is a huge threat to SUSE. (I have used all
three distros, on laptops and desktops. I am amazed that the rankings really do
fall in line with how polished and useful I found the OS's to be.)

So lets see if Novell will do a distribution/support deal with Sun and the Sun
servers. That would be so cool (lol) buy a Sun server and have it shipped with
SUSE as an option.
Sounds like a win/win + payback to me.

I know, only in my dreams...

[ Reply to This | # ]

I agree with you PJ, but consider this....
Authored by: Anonymous on Tuesday, July 29 2008 @ 10:21 PM EDT
I think Novell should sue Sun. Huge. Maybe $50 Billion, a number that showed
up in IBMs case (in Salt Lake Tribune, on a couple occasions). Here's why they
might want to:

1) even though the BK judge would probably block spending to defend against it,
the threat of a massive indemnity payout could keep phony "investors"
away from SCOG forever. I.e. a poison pill for taking over the "lawsuit

2) filing suit against Sun now would make it impossible for SCOG to sue Sun (to
head off Novell), would expose once and for all whether Sun was a significant
funder of SCOG, and could establish precedent for companies doing business with
petty crooks to be careful in their choice of partners and friends (and phony

3) filing suit would re-establish Novell rights to Unix, but they do so without
the "recognition" that SCOG hoped for if they sue SCOG directly. Aka:
"poetic justice". The only way out for SCOG is to appeal Judge K's
ruling but the BK judge may not want to let them spend money to do that - and
current legal agreements probably did not anticipate such a situation (and so,
BSF and friends may not want to come to SCOG's rescue). Also SCOG may not want
to appeal since they'd have to post a sizable bond, and it opens the door for
Judge K to correct errors in his recent ruling (such as the nature of
"methods and concepts", "one line of code" point, and unfair
(to Novell) percentages)

4) it keeps Sun from continuing distribution of OpenSolaris until either a) they
get Novell's blessing (which might happen if they put it out under GPL), or b)
the SCOG suit is resolved, the BK situation is resolved, IBM is resolved, and
the fate of SCOG and the execs can be determined - i.e. it puts Sun and
Microsoft at the BACK of the line where they belong (if they even belong there)

5) with history established in Judge K's court, it might open the door to going
after SCOG "execs" and their shills

6) it does *nothing* to tarnish (or even mention) Linux but could enhance Linux
market position (including SUSE Linux) by holding off a potential competitor,
one that improperly benefits from Unix code from SCOG.

7) it might help restore some open source community lost trust in Novell after
the M$ patent deal

8) it might put M$ on "better behavior" notice until the issue is
resolved at least (one can hope)

9) it forces SCOG to battle both sides of their own case in front of the same
judge - so, less opportunities to lie

The overall effect would be to put SCOG into a nice, tight vise and with even
fewer avenues for escape.

[ Reply to This | # ]

Sun is only off the hook to the extent that SCO is able to indemnify
Authored by: Anonymous on Tuesday, July 29 2008 @ 10:28 PM EDT
And judging the way SCO is losing money, that indemnity is not worth a lot. In
other words, SUN still bears the primary liability and it can then cross-claim
against SCO for whatever it is liable for, but SCO cannot be substituted as a
party in place of SUN.

An indemnity is like an insurance. But just as a bankrupt insurance company will
not be able to pay out your insurance claim if it is bankrupt, SCO will not be
able to indemnify SUN if SCO is bankrupt.

[ Reply to This | # ]

Authored by: Anonymous on Wednesday, July 30 2008 @ 02:07 AM EDT

I agree that it would be great if Sun would release OpenSolaris under a GPL license (preferably GPLv3). It can only be healthy for the Free Software community to have a choice of free kernels. GNU/Solaris is used a lot today, but the Solaris license puts some people off.

(The *BSD kernels are free, but the license discourages a lot of people from contributing because it allows corporations to incorporate it into non-free products. As Apple has already done. Basically, a lot of *BSD developers just turned out to be unpaid Apple employees.)

[ Reply to This | # ]

Is Open Solaris in Hot Water? -- No, I Don't Think So
Authored by: Nomen Publicus on Wednesday, July 30 2008 @ 02:27 AM EDT
One of the reason that Sun is so slow in delivering their open source promises is that every line of source has to be cleared by their lawyers. Like many companies, Sun include 3rd party code under various licenses and these need to be re-negotiated or if that is not possible, the code has to be rewritten.

I cannot believe that the Sun legal team did not point out the consequences of various outcomes of the SCO legal cases and also act to mitigate any bad results to the Sun business that may result.

Secondly, what exactly has Novell to complain about? It was no secret that Sun wanted to open solaris, there were many articles in all the tech press and web pages. If Novell did not think that SCO had the right to sell IP to Sun, why didn't they act immediately to warn Sun off and ask SCO what they were doing?

If you love some code, set it free.

[ Reply to This | # ]

Don't sue -- negotiate.
Authored by: Anonymous on Wednesday, July 30 2008 @ 03:30 AM EDT
Look, what does Solaris have?

If Novell pushes Sun to open source it in a friendly-to-Novell license (say gpl3
but IANAL), they can both avoid the cost of the suit.

Solaris will be open and free. The free Solaris will not hold competitive
advantage for Sun.

Novell would be remiss to not protect their assets but can still come away with
goodwill in the community and the opportunity to use whatever Sun puts in

One question though, if Solaris is GPL3 and Linux is not, can the GPL3 code go
into Linux?

Either way, Novell should get access to Solaris GPL'd code and worry about the
legal details and difficulties of getting Linux GPL3 later (if necessary). It
just protects them in case Sun develops something good later and Solaris remains
in an unfriendly to Novell license.

I think the community can win here and both companies too since obviously open
source best produces the results.

Zen Dragon

[ Reply to This | # ]

Is Open Solaris in Hot Water? -- No, but SCO is deeper in it
Authored by: Superbiskit on Wednesday, July 30 2008 @ 06:54 AM EDT
I respectfully disagree with PJ as to what Novell might do. Of course, neither of us has any inside info.

IMHO, Novell would be well-advised to sue Sun (perhaps they can use the $2.5M from SCO to pay the lawyers). The legitimate purpose of such a suit would be sorting out the legality of an "open" UNIX™. But the practical result would be to have Sun go after SCO for the contracted indemnification.

My unlawyerly thought is that Sun could tell the court: "By George, they're right! We stipulate all of that, but we can't agree on the extent of damages and we beg the court to determine the appropriate amount."

If SCO v. IBM isn't enough to bleed the villains to death, that would open another wound. And there seems to be no ambiguity at all about those contract obligations [SCO to Sun].

Cetero censeo Collegium SCO esse delendam.

[ Reply to This | # ]

Is Open Solaris in Hot Water? -- No, but SCO is deeper in it
Authored by: Superbiskit on Wednesday, July 30 2008 @ 07:03 AM EDT
I respectfully disagree with PJ as to what Novell might do. Of course, neither of us has any inside info.

IMHO, Novell would be well-advised to sue Sun (perhaps they can use the $2.5M from SCO to pay the lawyers). The legitimate purpose of such a suit would be sorting out the legality of an "open" UNIX™. But the practical result would be to have Sun go after SCO for the contracted indemnification.

A totally un-lawyerly thought is that, to minimize the cost of lawyers, Sun could tell the court: "By George, they're right. We have injured Novell, however inadvertently. But we can't agree on the extent of the damages, and we beg the court to determine the appropriate amount. Which, of course, SCO has contracted to indemnify Sun for. And there doesn't seem to be any ambiguity about SCO's contracted obligations to indemnify Sun.

If SCO v. IBM isn't enough to bleed the villains to death, that would open another wound. And there seems to be now ambiguity at all about those contract obligations [SCO to Sun].

Cetero censeo Collegium SCO esse delendam.

[ Reply to This | # ]

Is Open Solaris in Hot Water? -- No, Because Kimball has set the price
Authored by: Anonymous on Wednesday, July 30 2008 @ 08:42 AM EDT
I respectfully submit that we're going down the wrong track here. Judge Kimball has already ruled on this issue. Although SCO did not have the right to permit SUN to open source SVR4 code, It did, and Judge Kimball did not void the contract. Instead, he assigned a value of 1.5 Million to that transaction, which was part of the award. Quoting from the judge's order:
In this case, Sun obtained the rights to opensource Solaris, and SCO received the revenue for granting such rights even though such rights remained with Novell. If the court were to declare that the contract was void and should be set aside, the court could not return the parties to the same position they were in prior to the 2003 Agreement. Sun has already received the benefits of the agreement and developed and marketed a product based on those benefits. There was also evidence at trial that OpenSolaris directly competed with Novell's interest. The court, therefore, cannot merely void the contract. Had SCO sought Novell's involvement in the amendment of the 1994 Agreement, Novell and SCO would have negotiated a suitable division of the royalties.
Under the 2003 Sun Agreement, SCO received from Sun a total amount of $9,143,451. The court concludes that the release provision in Section 12 of the Sun Agreement is worth an equivalent amount to the similar release provision in the Microsoft Agreement, or $1.5 million.

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Was SCO representing itself as Novell's agent?
Authored by: Anonymous on Wednesday, July 30 2008 @ 12:41 PM EDT
We haven't seen the contract between SCO and Sun, so the big question still
remains. Did SCO represent itself as the owner of the copyrights to UNIX, or as
an agent of the copyright owner Novell?

If SCO represented themselves as the true owner of the copyrights to the code in
their license agreement with Sun, then there is no agency relationship, so Sun
can't say "We acted in good faith because SCO was Novell's agent". All
they can say is we're sorry that SCO defrauded us, and we're sorry that we open
sourced Solaris, but they would still be a target for a Novell lawsuit for
copyright violations and breach of the confidentiality clause of the old buy-out

Let's look at the facts as we know them from the various filings and testimony
in the trial.

1. SCO sold a license to Sun but wouldn't reveal the details to Novell.

2. When Novell learned that Sun was planning to open source Solaris, Novell sent
a letter to Sun saying that SCO didn't own the copyrights and didn't have the
authority to grant Sun the rights to open source Solaris.

3. Sun went ahead and open sourced Solaris.

This means that either:

1. Sun believed that Novell's letter was wrong, and that SCO owned the
copyrights, meaning that they didn't even think that there was any agency
relationship between SCO and Novell, in which case Novell can sue Sun for
copyright infringement.


2. Sun believed that Novell owned the copyrights, but ignored Novell's direct
communication stating that SCO did not have the authority to grant Sun the right
to open source Solaris, in which case Novell should be able to sue Sun over
breach of contract for not heeding their warning in the letter and violating the
confidentiality clause of the old buy-out agreement despite the warning letter.

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Is Open Solaris in Hot Water? -- No, I Don't Think So
Authored by: Anonymous on Wednesday, July 30 2008 @ 03:11 PM EDT
PJ, I generally find you to be well informed on legal
matters (and I really enjoy reading Groklaw and appreciate
the efforts of all the volunteers).

But I think you need to research what indemnification
means. In this case, it simply means that if Novell sues
Sun and wins (which it seems pretty clear they would), SCO
agrees to pay the bill. But since they obviously can't,
it's a useless guarantee (like any guarantee from a
bankrupt company). IANAL, but the concept of
indemnification is pretty basic.

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Novell: party or not?
Authored by: Anonymous on Wednesday, July 30 2008 @ 03:34 PM EDT
Quite a few posts here have revolved around the theme of [insert outcome of
choice] because Novell is not a party to the agreement.

However, while we haven't seen the actual agreement, we have seen Kimball's
ruling, and he offers some clues. One of the reasons he ruled that SCO was
authorized in the M$ agreement, but not with Sun, was because M$ was a new
agreement which (by SCO's "one line of code" testimony) was Unixware
w/SVRX being incidental. Sun, however, was a restatement & amendment of the
1994 agreement, and Kimball ruled that regardless of any Unixware components
added by such amendment, it was still an SVRX agreement.

By that logic, since the 1994 agreement was with Novell, not SCO, and in 2003
SCO was merely acting as the agent of Novell, the only logical conclusion is
that Novell is indeed a party. What is at issue is the scope of their
participation, since SCO was ruled to have exceeded their authority as agent.

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Open Solaris is not in Hot Water, but not for PJ's reasons.
Authored by: Anonymous on Thursday, July 31 2008 @ 07:17 AM EDT
There are three reasons Novell won't go after Sun:

1. First and foremost, the most likely consequence of such a law suit would be
the revelation to the world that Novell owns fewer non-GPLed lines of Unix code
than Sun.

2. Open Solaris is not a sufficient threat to anything anyone is doing, except
maybe Sun, for anyone to file suit against them to block them. So long as there
are no significant third party Open Solaris distributions, this will continue to
be the case.

This is not to say that the existence of third party Open Solaris distributions
will magically change this. It's just that with Sun distributing Linux, Open
Solaris, and Solaris, and Sun being the dominant distributor of Open Solaris,
the amount of Open Solaris being distributed won't be much.

Note: there may be some third parties distributing Open Solaris for all I know -
but I haven't heard of them.

3. The amount of Open Solaris in the world is probably too small for Novell to
get any decent judgment out of it. It's almost certainly a cash-loss
proposition even if they win.

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Is Open Solaris in Hot Water? -- No, I Don't Think So
Authored by: CraigG on Monday, August 04 2008 @ 03:03 AM EDT
The Midori article is interesting -- I can hardly wait to have my laptop, my
cell phone, and my mp3 player all die simultaneously with the BSOD while
task-sharing with my yogurt maker...

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PJ I think you're wrong
Authored by: DMF on Wednesday, August 06 2008 @ 11:33 AM EDT
The clause cannot fully shield Sun against the covered claims.

Suppose SCO ceased to exist. Does that mean that Sun's liability for
infringement ceases to exist? Of course not. With no SCO to "take the
arrow", the arrow still has to go somewhere...

Other than that, I agree that we won't be seeing Novell sue or publicly
threaten Sun. I wouldn't be surprised, though, that a back-channel conversation
is already underway.

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Suggested plan for Novell and Sun - not quite Panama.
Authored by: Wesley_Parish on Saturday, August 09 2008 @ 05:20 AM EDT

What I personally would like Novell and Sun to do is sort their way through the SysVRx and OpenSolaris source trees, comparing and contrasting, work out what parts which were under the confidentiality provisions are now free from that.

And then for Novell to release as much of the SysVRx source trees under the GPL as is possible - from System V Release 1 to System V Release 4 - while at the same time publishing a waiver for all companies and organizations that have Unix SysVRx source licenses, formally releasing them from the now-defunct confidentiality provisions. And also releasing certain companies and organizations such as the Open Group, which have source trees such as OSF/1 that are of interest to Unix historians such as abound in TUHS, from the necessity for licensees to have a Unix source code license.

And in the mean time, for SUN to start releasing source trees for its BSD-based SunOS to the likes of TUHS.

Think of Tom Bombadill in the Lord of the Rings opening the barrow on the Barrow-Downs and taking all the precious jewels and artifacts outside, to stop any further barrow-wight infestation. I want an end to "IPR-infestation" in the Unix part of the computer world, at the very least. I want a cleaner sky.

finagement: The Vampire's veins and Pacific torturers stretching back through his own season. Well, cutting like a child on one of these states of view, I duck

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