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Now What?
Monday, April 05 2010 @ 01:48 AM EDT

Covering SCO is a marathon, not a sprint, so after each big win, I tend to savor the moment, goofing off and enjoying a rest, knowing as I do that they never quit and there will be more awfulness to come.

I confess I have been cracking myself up this time by reading old Rob Enderle, Paul Murphy, and Maureen O'Gara articles I had saved from the early days, each predicting solemnly Linux's doom. I can't tell you how much *more* fun it is to read them now than when they first showed up in 2003 and 2004. Remember Why SCO Should Win? Or O'Gara publishing Dan Wallace's letter supporting SCO's then-theory that the GPL was unConstitutional? Here's a law professor's answer to Wallace, by the way, for those who are new.

Ah, those were the days, weren't they? It's so pleasurable to reread all the heady nonsense SCO and its supporters were spewing. My favorite was Murphy promising to quit if SCO lost. Of course, he hasn't. He's still at it. Would you like to see his new dire prediction? He seems to think Elliot Management is a front for Microsoft or some other player who can buy SUSE and the copyrights, and then go after Red Hat and you and me.

Oh goody. Some new FUD. Let's enter, temporarily, then Murphy's alternate universe, because he forgot one detail. Well. Two.

First, for those who just must give him hits, here is the url:

But here's the part that made me laugh:

Now, however, the case has effectively made them real enough that if a company like Microsoft or HP could grab Novell they’d be able to combine these copyrights with SuSe’s market position and corporate credibility to quickly erode the lets it pretend its not a license gag supporting both SuSe and Red Hat licensing -and that would enormously weaken not just Linux, but the whole open source community.

As a result the very best outcome Linux advocates can hope for now is that the Judge orders the copyrights transferred to SCO. That moots a couple of the lawsuits, lets most of Novell’s directors off the collective hook, takes the copyright issue out of the underlying contract dispute, and leaves Elliot holding some speculative stock that simply didn’t pan out.

He goes on to predict an alternative, that Novell could try to "unload" the copyrights on the open source community, then Elliot would counter somehow to "protect the company's value" to a potential buyer like Microsoft, leaving IBM wondering what to do, what to do about Linux.

Here are the two things he forgot about. One, so far as SCO has been able to put anything on the table, after seven long years, we haven't been shown infringed code to build a case on, so the UNIX copyrights' ownership is irrelevant. It doesn't matter who owns them if there is no infringing code in Linux. Elliot folks, or Microsoft, or whoever, would have to prove that there is code in Linux that infringes those UNIX copyrights. But here's the problem with that. It wouldn't be a money maker because it would be removed, and we'd all go our merry ways. SCO's problem was that it acted like copyrights are patents, where you can force people to license. With copyrights, even if you can prove infringement, which after seven years SCO hasn't been able to do, the infringer has the option of just removing it. Bingo, presto, shazaam. The scam is over. No free ride. And no one I know who has compared the code can find any infringement. So there you are.

Second, the GPL stands in their way even if there had been any infringing code. SCO itself, as Caldera and as SCO, distributed that code, before, during and long after making the infringement claims, and they did the distribution under the GPL. It doesn't matter if they own the copyrights or not. As distributors, they said it was OK to use the code they claimed they owned under the GPL. So that provided us a license to use the code, to modify it, and to pass it along to anyone we want to. And Novell has done distribution of SUSE under the GPL. No one can change that license now.

In Murphy's alternate universe -- which you can enter at -- here's more on the evil plan:

Imagine that Ms (or HP or Intel or any other leading wintel seller) owned both Novell's SuSe business and copyrights to IP in it that could reasonably be said to date back to 7.3. That company could then stop pretending to sell free licenses with paid support and instead sell real licenses with the option of paid support.

They'd pretend all the other IP in the thing was still free, but it's hard to see how that would last very long once the SuSe market did what SCO's lawyers tried to do - value those copyrights for the courts - and allowed this vendor to go after Red Hat first and everybody else later.

Why do people have these ugly fantasies about tying Linux to the railroad tracks? Sorry, but they can't do it the way Murphy imagines, because the code is already licensed under the GPL, which forbids any other license on top. You can't sell the license for money. It's tied to the code and you get the license for free with the code. You can charge for the code and/or for support, but it's not allowed to sell the GPL license. Here. Read it for yourself.

I can't believe I'm still teaching classes in remedial GPL after seven years.

It's not rocket science. The GPL doesn't work like a Microsoft EULA. Trust me. Buying Novell and SUSE doesn't let you do what you could do if they were the same, because they are not the same. Here's the bottom line of the GPL:

Greedy people can't misuse GPL'd code with impunity.
That's chapter one in GPL for Dummies, if someone ever gets around to writing it. It's a feature of the license, planned for long before Microsoft or Murphy or SCO tried to find devious ways around it. The author of the GPL figured this day would come, and the prohibitions on bad actors were baked in. I have a question though. Why does ZDNet publish this kind of misinformation?

But, you may ask, didn't MySQL dual license, and sell proprietary as well as under the GPL? Yes, MySQL dual-licensed, but Microsoft/Elliot/whoever can't do that with Linux, even if it bought Novell and SUSE, because they still wouldn't be able to change the GPL license terms, because Novell doesn't own all the copyrights to all the code in SUSE. Not even close. All they could achieve, at most, would be the death of SUSE and the inspiration for some lawsuits against them for violating the GPL. MySQL did own all the copyrights, so it's apples and oranges. You have to be the sole owner or get all the authors to agree before you can dual license like MySQL. I don't think Linus and the gang will agree.


How is it possible that an entity like Elliot, which presumably has lawyers and advisers, can't grasp the GPL? I don't know. Because it interferes with their hopes and dreams, I guess. That's if Murphy is speaking for them or even understands them, which isn't a given.

Novell doesn't own the Linux kernel, period, and so Murphy's plan, while it seems to make him drool, can't come to fruition in real life. I tried to explain all this to SCO, but they never paid attention in class, so they'll have to learn the hard way, which they will, I trust, in the IBM case.

Some in the media have been asking me what's next in the SCO saga. Here's what I tell them. I have no idea what creativity SCO will come up with next. Here's what I do know: it doesn't matter what they try, or even what the judge does next in the Novell case, because the GPL protects Linux. There is no legal way to do what they want to do that I can see.

But SCO lawyers are nothing if not creative. One of their strategies we just saw play out to the end, regarding the slander of title allegation SCO raised against Novell. Some have pondered why SCO brought that claim in the first place. Remember how SCO tried to move to state court instead of federal? There was a reason for all that. And when I was reviewing the old Enderle materials, I came across the piece Steven J. Vaughan-Nichols did, which included a remarkably insightful explanation from an attorney, who explained why SCO wanted to be in state court. Here's how he explains the impact of that decision to compel SCO to stay in federal court:

Let me introduce you to Michael R. Graham, intellectual property attorney and partner with the Chicago-based law firm Marshall, Gerstein & Borun LLP.

Graham tells me, "Judge Kimball's decision is a serious loss for SCO. Not only in its slander of title case against Novell, but in SCO's case against IBM. The threshold issue in both cases is whether SCO owns copyright in the Unix software code."

"SCO wanted the case remanded so that the only issue would be contractual: whether the APA [Asset Purchase Agreement] and Amendment No. 2 transferred ownership of the Unix code," Graham says.

"But Judge Kimball concluded that a more fundamental issue is whether the APA and Amendment No. 2 constitute the type of 'writing' required under the federal copyright law to effect a transfer of copyright. This federal analysis could prove fatal to SCO's claim."

Why, you ask? Graham explains, "In simplest terms, a state contract analysis would presume that the writing transferred copyright, making the only issue—albeit a complex issue itself—what copyrights were included in a transfer of copyright. This could include testimony and evidence of what the parties thought the agreement transferred."

But that isn't what happened. Instead, Graham continues, "The copyright analysis questions whether the form of the writings and the terms of Amendment No. 2 could even be a 'writing' as required by the Copyright Act and analyzed in case law."

"SCO would have preferred—and could have a better chance of success—if the only issue were the analysis of the terms of the writing. The federal court held, however, that the sufficiency of the writing itself must first be determined," Graham adds.

And that is exactly what we just saw play out in Utah in the jury trial, where the jury found that in fact the APA and Amendment 2 did not transfer the copyrights. SCO is now telling the media that the issue in the IBM litigation is contract based, so copyright ownership doesn't matter. But it did and it does, as Mr. Graham pointed out. But the real issue in my mind is, why did SCO back away from a straightforward look at copyright ownership? Was it because they already knew what the jury in Utah has just told us, that SCO didn't own the copyrights?


Now What? | 430 comments | Create New Account
Comments belong to whoever posts them. Please notify us of inappropriate comments.
Good Morning PJ!
Authored by: The Mad Hatter r on Monday, April 05 2010 @ 02:01 AM EDT

Glad to see you are still on the job. No, I don't think that they will willingly
understand the GPL. In fact like you, I expect greedy actors to try and evade it
again and again.

RMS is a genius. The GPL is an incredible piece of work, and the entire world
owes him for his thought and foresight in designing it.


[ Reply to This | # ]

Off-Topic Here
Authored by: The Mad Hatter r on Monday, April 05 2010 @ 02:03 AM EDT

Please use clickable links in HTML. If you don't understand how to do it, the
instructions are just below the comment box, and if that doesn't help, ask.


[ Reply to This | # ]

Corrections Thread
Authored by: The Mad Hatter r on Monday, April 05 2010 @ 02:04 AM EDT

For the unlikely event that PJ made a mistake.


[ Reply to This | # ]

Newspicks thread
Authored by: The Mad Hatter r on Monday, April 05 2010 @ 02:05 AM EDT

Please put the title of the news item in your title


[ Reply to This | # ]

Authored by: The Mad Hatter r on Monday, April 05 2010 @ 02:06 AM EDT

Hum, so suffering from insomnia paid off tonight.


[ Reply to This | # ]

Even Funnier
Authored by: mpellatt on Monday, April 05 2010 @ 02:18 AM EDT
Even funnier, if it were possible, than "Paul Murphy"'s original blog
posting, are some of his attempts to justify his position in the comments

They make even SCO's statements in this sorry saga seem sane.

[ Reply to This | # ]

Best get used to it.
Authored by: tbogart on Monday, April 05 2010 @ 03:00 AM EDT
"I can't believe I'm still teaching classes in remedial GPL after seven
years. "

Oh my. If I only had a nickel ....

The last time I went thru this in major way: a new boss at an new job, where I
laid out how the entire organiztion had the concept whacked for some years ...
they had been using Linux, limiting installations to the number of 'licenses'
they had, making the confusion with support contracts, etc.

It took a year, but she finally came back and has the goodness to admit I had
been right all along.

I understand the sentiment, but I try not to say it out loud any more - just
mumble it under my breath.


[ Reply to This | # ]

Now What?
Authored by: gdshaw on Monday, April 05 2010 @ 03:04 AM EDT

There's one other important difference between what SCO did and what Novell could do. Remember SCO claiming that the permission they gave through the GPL was invalid, because they didn't know that their code was in Linux at the time?

Now granted their case law was questionable, their purported ignorance implausible, and SCO didn't help themselves by continuing to distribute Linux after bringing suit, but it was probably their best shot at escaping their obligations under the GPL.

Novell would be working from a baseline seven years later. After all the controversy during that period it would be ridiculous to claim ignorance. Even if the bid for Novell is part of a larger game plan, I don't see how a replay of SCO v IBM could be viable.

[ Reply to This | # ]

  • Now What? - Authored by: jbb on Monday, April 05 2010 @ 03:40 AM EDT
    • Now What? - Authored by: Ian Al on Monday, April 05 2010 @ 04:11 AM EDT
    • Now What? - Authored by: gdshaw on Monday, April 05 2010 @ 04:31 AM EDT
      • Now What? - Authored by: Anonymous on Monday, April 05 2010 @ 11:30 AM EDT
    • Now What? - Authored by: Anonymous on Monday, April 05 2010 @ 05:50 AM EDT
      • One more thing we know - Authored by: Anonymous on Monday, April 05 2010 @ 06:09 AM EDT
        • One more thing we know - Authored by: Anonymous on Monday, April 05 2010 @ 08:48 AM EDT
          • Xenix - Authored by: Anonymous on Monday, April 05 2010 @ 02:20 PM EDT
            • Xenix - Authored by: Anonymous on Monday, April 05 2010 @ 03:54 PM EDT
            • Xenix - Authored by: PJ on Monday, April 05 2010 @ 09:02 PM EDT
            • Xenix - Authored by: Anonymous on Wednesday, April 14 2010 @ 12:36 AM EDT
              • Xenix - Authored by: PJ on Wednesday, April 14 2010 @ 01:19 AM EDT
        • One more thing we know - Authored by: Anonymous on Monday, April 05 2010 @ 11:43 AM EDT
          • I wonder... - Authored by: Anonymous on Monday, April 05 2010 @ 05:19 PM EDT
Why we are better off even in Murphy's scenario
Authored by: Anonymous on Monday, April 05 2010 @ 03:06 AM EDT

Murphy: the case has effectively made them [the Unix copyrights] real enough that if a company like Microsoft or HP could grab Novell they’d be able to combine these copyrights

As PJ has pointed out, the Unix copyrights were never much of a weapon against Linux even if SCO had won the jury verdict. But SCO could argue that it didn't know it was distributing its code under the GPL. Don't bother telling me that that argument was pathetically weak, we all know that. But it was an argument that SCO could have made, and presented to a jury by a star BS&F lawyer, it had some chance of being believed.

That argument could never even be made for Novell, assuming that a Microsoft ally bought Novell. Novell is a much bigger player in the Linux world than SCO ever was, and as a participant in this lawsuit, cannot possibly claim to be 'accidentally' distributing its Unix code under the GPL. After all the discussion and legal activity emphasizing the importance of these copyrights, not even a jury under the spell of Boies' advocacy could believe that Novell - which has been distributing Suse Linux under the GPL for years and is still doing so today - was, and still is, unaware of what it is distributing.

[ Reply to This | # ]

Want to win a GPL case? Put Stallman on the stand.
Authored by: Anonymous on Monday, April 05 2010 @ 03:49 AM EDT
Have you met Richard Stallman? I have, and he is batpoop crazy. In the best
way, for us - we owe him everything. But put him in front of a jury of regular
working folks, and have a lawyer make him answer questions rather than letting
him give a speech - like "Is the goal of the GPL to destroy proprietary
software and the companies that produce it?" - and he will crash and burn

You think I'm trolling? Maybe a little, but I am concerned about this
possibility. You need to actually meet him to understand why - if you've only
read his writings, it's hard to grasp the depth of the... well, let's say
trembling passion... that he conveys in person.

[ Reply to This | # ]

Now What?
Authored by: darlmclied on Monday, April 05 2010 @ 03:53 AM EDT
I recall way back PJ posting that she had decided what she
was going >after< SCO, but wasn't telling just yet. I now
realise she was just joking. There is no >after< SCO, this
show just goes on and on.

On the latest crazy theories, Novell having distributed SuSE
linux under the GPL somewhat scuppers the plans of any
potential investor. Given Novell's vigorous defence
against SCO, any new owner can hardly claim it was all an

[ Reply to This | # ]

Universal vs. Nintendo
Authored by: jrvalverde on Monday, April 05 2010 @ 03:58 AM EDT
Someone posted about this case on an earlier post and being curious I read it in

There is one more factor to consider: Novell asked for the SuSE arbitration to
establish that GPL'd code contributed to United Linux wad in fact and by vritue
of GPL and UnitedLinux agreements, unquestionable.

Were they next to make any claim to the contrary any court woul have to reject
any claims, mostly with such a sound precedent.

Personally I rather think this is a problem with some people simply being
ignorant about the GPL and extrapolating what they know of other licenses (on
which they have based their livelihood and wealth) to an unknown field.

As for Murphy's scenario, it's absurd from the beginning. First, not even Novell
owns all needed UNIX copyrights so they would face a hard fight upon them.
That's also probably why nobody ever freed SysV code (except for Sun's Solaris,
more on that later). Second, there is no SysV code in the kernel. They could try
to inject SysV code but to do so would require them releasing it GPL first or
forking Linux with tainted code (which the GPL prevents). Third, the copmmunity
backslash would kill any company attempting it. and Fourth and most relevant of
all: except for MS, nobody in its sane mind would break a standardization
process that has taken so many years to reach.

That leads to two other considerations: governments can be brought into the
equation quickly if anybody tries to avoid enforcement of GPL now that they
depend on it. With the current crisis, most tech savvy and saving companies
switching to Linux to reduce costs would join the wagon. Further, after the
casualties of the UNIX wars and the rise of the MS empire, Linux has arisen as
the only real common reference standard. The momentum that breaking such a much
sought harmony would raise would be tremendous and could be easily braked by
defining Linux as an official ISO evolving reference standard (hey, neat

This is not to say MS cannot destroy Linux. Much like the evil Empire in Star
Wars could be on the verge of killing the renaissance of the old republic, MS
may be on the verge of killing a harmonizing competing OS. But the stakes are
becoming higher every day and the resistance would be enormous.

So... any evil company may buy Novell with evil designs, but that does not mean
they will be able to perform.

The other factor that opens the can of worms is Sun Solaris: SCO gave them
permission to publish SysV code relying on their reading that they owned it.
Someone might now come and take redress agains SCO who assumed all
responsibility for that. Or not. But then Sun CDDL gets in the way of a large
bunch of SysV code too.

At best you could in a very hypothetical world kill Linux, but not the BSD's and
Solaris, which are free as well. They are less protected, true, but that would
delay doom of MS enemies and erode MS heavily.

Not to mention that any such move would quickly be seen as what it is, a
monopolistic move by MS to kill competition and would raise new lawsuits and
govermental interventions.

Which in turn must fit in a globalized world, where e.g. software patents are
not valid in EU, further reducing and slowing the possible impact.

Jose R. Valverde

[ Reply to This | # ]

  • ISO Linux - Authored by: marcosdumay on Monday, April 05 2010 @ 12:27 PM EDT
    • ISO Linux - Authored by: Anonymous on Tuesday, April 06 2010 @ 04:05 PM EDT
Major Company Withdraws From Murphy Scheme.
Authored by: Ian Al on Monday, April 05 2010 @ 04:03 AM EDT
An Intel spokesman said, yesterday, that they had withdrawn from the MLCMS (Murphy Linux Code Monetisation Scheme). The spokesman explained,
An important part of our future business plan is a major push into the mobile devices processor market. It is essential to promote our Moblin, Linux for mobile devices, operating system and client as an essential complement to our processors. We rely on the GPL for that operating system
Murphy said 'don't care.' 'HP don't rely on the mobile devices sector.' 'Theirs is the big metal end.'

However, our reporter noted this on HP's website,
Linux has proven itself in the enterprise by running complex and business-critical workloads in heterogeneous environments right alongside HP-UX and Windows. For over a decade more companies have chosen HP servers to run Linux than any other vendor. This market leadership and experience gives you the confidence to leverage HP for all your open source and Linux needs.

HP offers open source and Linux solutions for the largest enterprises to small and medium businesses. With community and commercial Linux distributions available, you can choose the Linux that best suits your environment.
Analyst Laura Endergara commented 'nothing in your report has the effect of weakening MLCMS.' 'It is just as strong and powerful as the day it was announced.' 'Major companies, like Google, that depend on Linux and open source should be very afraid.'

Murphy was unavailable for comment.

Ian Al

I sentence you to seven years, or more with good behaviour.

[ Reply to This | # ]

Question On The Sun License
Authored by: sproggit on Monday, April 05 2010 @ 04:41 AM EDT
A few years ago Sun Microsystems paid SCO money for a license. I am not going to
try and explain or claim to know precisely what SCO thought they were selling or
precisely what Sun thought they were buying.

However, I am aware that after the license deal was struck and payment made, Sun
Microsystems went on to release OpenSolaris, their take on an "Open
Source" operating system. Of course one key differentiator with
"OpenSolaris" is that [it seems to me] the prime beneficiary of was
and always will be Sun.

But hold on one moment. What about copyright and disclosure requirements. In
this article PJ has just explained why Murphy's rant is so much hog-wash. There
is no single "copyright holder" for either Linux or Unix.

We already established that Novell could not "Open Source Unix"
because they did not own all the copyrights to the entire code base. So what
makes Sun think they do? Is it the case that Sun believe that they have
completely re-written Unix SVR5 to the extent that no legacy SVR5 code remains
in Solaris? If not, can Sun prove that they sought and obtained permission from
the copyright holders to release that code to the public in an Open Source

Did I just completely misunderstand what went on there, or have SCO just
"facilitated" the act that they accused IBM of committing? If so, what
is the legal outlook for either Sun Microsystems or SCO in the [unlikely] event
that one of the original copyright holders comes knocking on the door?

[ Reply to This | # ]

Correct me if I'm wrong, but isn't Paul Murphy a pen name?
Authored by: TAZ6416 on Monday, April 05 2010 @ 04:51 AM EDT
Can't remember why, but I thought he's not a real person, just a pen name used
by one or more writers on ZDNET.

So it could be Ms O'Gara or even Darl writing that.

Apologies if Mr Murphy replies to this saying "I am Spar..." I mean
"I Am Mr Murphy" ;)


[ Reply to This | # ]

Please be fair. Enderle article was an exercise in debating assigned by the editor
Authored by: Anonymous on Monday, April 05 2010 @ 06:07 AM EDT
Read the Editor's note at the top of the Enderle Article "SCO Should Win". I have pasted it below for ease of reference:
Editors Note: There are two sides to every story, including the battle over Linux. To help crystallize the issues, we asked two of our columnists to take extreme positions to help clarify the upcoming court battles. Rob Enderles pro-SCO commentary follows.
Do debate team members have to believe the side that they are arguing? I don't think so.

[ Reply to This | # ]

The comes thread
Authored by: mcNisse on Monday, April 05 2010 @ 08:11 AM EDT
Anything comes is very welcomed.

[ Reply to This | # ]

  • 9011 - Authored by: mcNisse on Monday, April 05 2010 @ 08:13 AM EDT
  • 9012 - Authored by: mcNisse on Monday, April 05 2010 @ 08:20 AM EDT
  • 9013 - Authored by: mcNisse on Monday, April 05 2010 @ 08:22 AM EDT
Now What?
Authored by: JamesK on Monday, April 05 2010 @ 08:34 AM EDT
First, for those who just must give him hits, here is the url

I was thinking about posting (not linking) this yesterday, but I concluded that
not everyone would have a shovel handy. How can someone publish such


(I am not a lawyer and I don't play one on TV)

[ Reply to This | # ]

Question for PJ
Authored by: maroberts on Monday, April 05 2010 @ 08:40 AM EDT
When you started this in 2003, did you imagine you would still be writing about
it in 2010, and from the looks of things possibly be writing about it for
another few (2?3?5?10?) years from now?

[ Reply to This | # ]

Shazaam WOW!!
Authored by: Anonymous on Monday, April 05 2010 @ 09:33 AM EDT
PJ you must be really old ... like me! ;)

[ Reply to This | # ]

Now What? - Copyrights Matter.
Authored by: Anonymous on Monday, April 05 2010 @ 10:15 AM EDT
" the UNIX copyrights' ownership is irrelevant..."

Don't know where he gets the idea it would be easier to buy out Novell than SCO.
You cold buy all the SCO stock now for a mere fraction of what it would cost to
buy Novell. SCO would probably jump at the opportunity to sell out to Elliot
(alleged front man for Elliot.) Copyrights going to SCO is not a desired
outcome. And yes, copyrights do matter, because it is a basis for the FUD
machine. "It would be so much easier for you to spend a few thousand on
licenses for your machines, than to have us take you to court."

But more importantly, the need for SCO to have the copyrights is because SCO's
five billion dollar lawsuit against IBM is based on copyright violation. They
are claiming it is only a contract violation right now, but if I remember
correctly, they still have copyrights in their complaint, regardless of their
public statements.

We can't poo, poo the copyright complaint until it is demonstrated that there is
no Unix copyrighted material in Linux in a court of law. That hasn't happened
yet, and as long as the only revelation of "infringing material" is
under a NDA where you can only say "yup, looks like it", but not
"these five thousand lines of Linux code here are are the direct copy of
those five thousand lines of Unix code there and I can tell you that because
I've seen the Unix code."

Sure, the community will code around it as fast as they can, and everyone will
update their systems to get rid of the lawsuit threat. But the business is not
suing Linux users, but threatening to sue Linux users. Keep the copyrights out
of SCO hands, and you get rid of one demonstrable FUD machine. "Maybe
Elliot is a front for MS", is a lot less credible threat than "We will
sue our customers."

[ Reply to This | # ]

Now What?
Authored by: Carlo Graziani on Monday, April 05 2010 @ 10:16 AM EDT
If you were taking a poll on "Now What?", my vote would go to starting
Groklaw surveillance on the patent infringement case that Apple is bringing
against HTC.

My own (highly-personal and legally-uninformed) view is that this case has the
same sorts of implications for openness in the mobile platform arena that the
SCO case had for classical computer hardware. In a struggle for the future
shape of mobile computing, Apple is trying to ensure that the iPhone business
model -- in which Apple and the carriers have the exclusive right to determine
what software and what ISPs users may select -- prevails over the more open
Android-ish model, within which users actually control their own phones. And
they are using the most contemptible, trivial, research-free software patents as
their main weapon.

This is every bit as despicable as anything Microsoft ever did to protect its
own monopoly, in my opinion. And it matters, a lot. Those "phones"
aren't really phones anymore. They are really powerful, networked computers
with some telephony capability. Pretty soon, this will be one of the most
important sectors in consumer computing. Imagine a world in which the
manufacturer of your PC decides, based on its own commercial interests, what
software you may and may not install, and what ISP you may or may not select,
and is entitled to enforce those decisions legally. That's Apple's vision for
the machines that may become our main computing platforms in the next decade.

This is the next serious threat to openness in computing, in my opinion. It is
also an issue that Groklaw is very naturally positioned to weigh in on and do
something about, long-term. I'd be rather comforted if this were in fact to

[ Reply to This | # ]

Microsoft Running Scared
Authored by: Leg on Monday, April 05 2010 @ 10:42 AM EDT
Drawing inferences from the tone of their pronouncements, Microsoft's long
tentacles join with these "analysts" and "journalists" just
below the back of the neck.

It should come as no shock that the spread of FUD continues, and even picks up
after a big defeat for the FUD-sayers like the SCO-Novell case has become. SCO
was only one pawn, after all, the chess game continues.

[ Reply to This | # ]

  • hmmm - Authored by: Anonymous on Monday, April 05 2010 @ 12:23 PM EDT
Have some mercy on Murphy
Authored by: Anonymous on Monday, April 05 2010 @ 10:51 AM EDT
The dude is in mourning for Solaris. To him, it's the only real operating
system on Earth and he's watching it vanish from the market to become an
invisible part of an integrated Oracle software stack.

Well, that and he hates IBM more than Microsoft so anyone (SCOX) who attacks IBM
must be right.

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The only thing ...
Authored by: cricketjeff on Monday, April 05 2010 @ 10:52 AM EDT
The only thing the SCOSters had to do
Was hope they got a judge with out a clue
A jury full of shysters
And a witness box of lie-sters
And the world of open source would turn to blue

Oh the only thing the SCOSter crew forgot
Is you have to try and prove your case ain't hot
Since they never owned the jewels
All their claiming broke the Ru-les
So their dreams of avarice got shot to pot

Now the fudsters joined the SCOsters at the trough
And they pointed down at Linux with a scoff
But that simple GPL
Would still pack them off to Hell
So the meal they planned of Novell's smelling off

But a dozen losses aren't the end of 'em
They still dream of owning one impressive gem
With an arsenal of flimflam
And no case that's worth a goddamn
They will try to sue the blue off IBM

Maybe all this would suit Olympic sports
But I fear democracy feels out of sorts
When a group of crude con-artists
Pose as tear-the-World-apartists
And start trying simple stealing through the courts!

There is nothing in life that doesn't look better after a good cup of tea.

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PLease pass the cap to Judge Cahn
Authored by: Anonymous on Monday, April 05 2010 @ 11:50 AM EDT
I tried to explain all this to SCO, but they never paid attention in class
Now that McBride, Yarro and crew have flunked PJ's GPL class, they ought to pass their pointy, cone shaped caps to the bankruptcy trustee and the crew at Blank-Rome next.

If the caps don't help them think better, writing the preamble to the GPL on the chalkboard 100 times might help improve their concentration at bit.

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Try putting Darl McBride on the stand
Authored by: Filter on Monday, April 05 2010 @ 11:58 AM EDT
Try putting Darl McBride or Maureen O'Gara on the stand and see how you do.

Oh, wait. You did.

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Whoever owns the copyrights, going forward, is bound by Novell's implied waiver
Authored by: Anonymous on Monday, April 05 2010 @ 12:04 PM EDT
First of all, IANAL. I'm not even a mole on a paralegal's butt.

The beauty of it all is that, regardless of whoever ends up with the Unix
copyrights, they are bound by Novell's implied waiver of infringement claims
against GNU/Linux. Even if there were actual Unix copyright infringement [fat
chance] in Linux and SCOG [God forbid] were able to persuade Stewart to give
them the copyrights, it no longer matters. They are bound by Novell's implied
waiver -- having so acted while been legally found to be the
"rightful" holders of the copyrights when they ought reasonably to
have known of any alleged infringement.

So the litigation pipe dream is dead, but for all the dreadful twitching.

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So now what? SCO vs. IBM?
Authored by: Nagle on Monday, April 05 2010 @ 12:56 PM EDT

So now what? Does SCO's trustee ask the bankruptcy court to let SCO vs. IBM go forward? That has bigger risks for the remnants of SCO than for IBM; IBM has substantial counterclaims.

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I can't believe I'm still teaching classes in remedial GPL after seven years...
Authored by: Anonymous on Monday, April 05 2010 @ 01:26 PM EDT
The problem is not that Murphy does or does not understand the GPL.

The problem is that Murphy is a FUD engine, and management does not get the GPL.
We at Groklaw are not the target of his FUD, he's trying to scare management.

What needs to be done is GPL 1.0 for Management. Once people who make decisions
understand the GPL, and that it protects them, FUDsters like Murphy will be
relegated to the lunatic fringe.

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Does SCO have to defend the S.C. Appeal?
Authored by: Anonymous on Monday, April 05 2010 @ 02:13 PM EDT
If Novell decides that it wants to continue the Supreme Court appeal, and the
court decides that this is important enough to grant cert, is SCO required to
brief its side of the case?

Or is cert impossible because it is no longer an actual controversy under Art.
III, Section 2, Clause 1?

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One Thing to Understand about Elliot
Authored by: Anonymous on Monday, April 05 2010 @ 02:33 PM EDT
Elliot doesn't leave his money in any scheme for long. It's about quickly
making a profit. With Novell the tactic is two fold.

1)Novell has a lot of cash on hand. He is betting he can buy the company. Take
the cash, and sell the company's pieces for a net profit.

2)Raise the price of the Novell shares he owns enough to make a profit selling

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Now What?
Authored by: herzeleid on Monday, April 05 2010 @ 03:28 PM EDT
"It's difficult to get a man to understand something, when
his livelihood depends on his not understanding it"

Another plausible theory as to why SCO is so dense.

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"Why does ZDNet publish this kind of misinformation?"
Authored by: Anonymous on Monday, April 05 2010 @ 04:14 PM EDT
"Why does ZDNet publish this kind of misinformation?" Because ZDNet
sells ads, and publishing outrageous junk written by professional trolls ups ad
clicks and/or lets ZDNet cite higher hit rates, and therefore charge more for
ads. "Paul Murphy" is such a professional troll; just Google around
for reaction to his writings under his real name. IMO, responding to either of
his personas as though he is otherwise only adds weight to his output.

Few ZDNet authors as blatant as "Murphy"; some are actually worth
reading and even quoting. (I happen to enjoy Dana Blankenhorn's rather measured
and well-thought-out essays, for instance.) ZDNet apparently has professional
respondent-trolls as well; their job is the same as that of the site's more
blatant troll authors. Factor in the astroturfers, and the result is usually a
high noise level that conceals little informative value.

A tonic to the likes of ZDNet comes to us through *Ghost of the Hardy Boys* by
Leslie McFarlane. In it, the author--who ghost-wrote all the HB books up through
*The Phantom Freighter*--relates that his father, a newspaperman, had a saying
about outrageous stuff finding its way into print: "Paper won't refuse

It turns out that video displays won't refuse the electronic equivalent of ink,

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Is there any proof that Elliot is thinking like this?
Authored by: Anonymous on Monday, April 05 2010 @ 06:43 PM EDT
I don't think I'd just rely on ol' Murphy.

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There are quite a few unencrypted DVD's
Authored by: globularity on Monday, April 05 2010 @ 07:22 PM EDT
I have some asian DVD's, not pirated ones which are not encrypted actually I
managed to play about half my DVD collection with gxine before needing deCSS.
The worst ones for requiring frequent key cracking were BBC ones. The best thing
about DeCSS is being able to play any region without having multiple drives and
being able to skip all the rubbish at the start of the DVD.

Windows vista, a marriage between operating system and trojan horse.

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Article Suggestion/Request
Authored by: Anonymous on Monday, April 05 2010 @ 08:43 PM EDT
PJ - What is the legal process going forward?

With the long delay and complications introduced by SCOG's bankruptcy, I've lost track of where all the cases are and am unsure what the legal processes are going forward. I'm sure there are other readers, both old and new, who could use a refresh on the important details and legal processes.

I realize SCOG's financial situation makes this somewhat hypothetical, but (assuming SCOG has/gets the money to actually take their litigation forward and the bankruptcy court allows them to proceed) where do the various cases stand and what are the legal processes going forward?

SCOG vs Novell

  • The Appeal court reversed portions Judge Kimball's decision that the amended APA did not transfer and several other decisions dependent on that and remanded them.
  • Jury has decided the amended APA did not transfer copyrights.
  • What is the procedure for deciding the other issues?
  • If the need for a jury to decide the copyrights was the only reason for Judge Kimball's other decisions to be reversed, are they now reinstated?
  • If not, what are the steps in the process going forward?
  • Can Novell make a motion to reinstate Kimball's decisions?
  • If Judge Stewart decides the issues differently, what are the implications?

  • Some items in SCOG vs Novell were on hold pending the SUSE vs SCOG arbitration.
  • Can Judge Stewart enter a final judgment without that?
  • I guess the answer is yes, since Judge Kimball did, but I don't really understand how it can be final with questions outstanding.

SUSE vs SCOG arbitration

  • Is this moot? (ie., only Unix code at issue)
  • Was any Unixware (or other non-Unix SCOG) code at issue?
  • Wasn't part of SCOG vs Novell pending on this?
  • How does this tie back to SCOG vs Novell?
  • How does this tie to SCOG vs IBM, would any/all of IBM's alleged infringements be cleared if SCOG transferred their rights to code in OpenUnix to the OpenUnix organization?
  • Would it be appropriate for Novell to issue a declaration that as Unix copyright owner it approves whatever small amounts of Unix code that Caladra or SUSE may have contributed to OpenUnix.
SCOTUS appeal of SCOG vs Novell 10th circut decision
  • Awaiting cert.
  • Important to resolve conflicts between circuits
  • If cert is approved, what is the process?
  • What impact on SCOG vs Novell (or generally)
    • if not certified
    • during process of SCOTUS appeal, if certified
    • if Novell prevails
    • if Novell does not prevail


  • SCOG has two main claims: contract violation and copyright.
  • Contract violation is based on an (IMHO) amusing construction of the contract. The construction is negated by a side letter to IBM, a published (newsletter) notice to Unix licensees, and common sense. I was looking forward to having PJ point out how the wording of the judgment on this showed the Judge's non-legal opinion (eg, whether the judge was amused or annoyed).
  • Was any non-Unix SCOG code at issue?

  • IBM has important counter claims, including a request for a declaration that Linux does not infringe any of SCOG's copyrights. That no longer includes Unix (but does include Unixware and any other code SCOG has), but is still important to put a stake in SCOG's SCOSource program.

  • Under what circumstances does this case forward?
  • How do decisions from SCOG vs Novell and the SUSE arbitration get brought into this case. How much do they simplify it.
  • What is the process if it does go forward (as I recall discovery was closed and they were somewhere in the midst of expert reports - where are they and what's next)
  • If it doesn't go forward what happens?

  • SCOG originally said they were terminating IBM's fully paid non-terminable Unix license for trade secret violations. One of their claims against IBM was that IBM hadn't complied with that notice. Since SCOG has admitted there are no Unix trade secrets, is the termination notice still in effect? Was it retracted or reissued with other grounds?

Redhat vs SCOG

  • Redhat asked for a declaration that Linux doesn't infringe SCOG's copyrights.
  • I think this is pretty much the same as IBM's counter claim and may heavily overlap the SUSE arbitration, though Redhat may have slightly different modules in their distributions than IBM or SUSE.
  • pending on outcome of SCOG vs IBM
  • I assume this stays pending and then is rubber stamped based on the outcome of IBM's counterclaim.


  • How does this impact the other cases?
  • How is the impact different for the Redhat case vs the cases SCOG started?

I realize there's scope for a separate, very interesting, article/discussion on the apparent abuses of the bankruptcy process to deny Novell and other creditors (and counter arguments that insiders are emotionally invested and want to preserve the business in whatever form they can), however, here I'm interested in how the legal process is supposed to work and its impact on the other cases.

Whither Linux?

There seemed to be three sources of code that Linux is alleged to infringe:

  • Unix code

    SCOG's claims of infringement are moot now that the Jury has declared the copyrights didn't transfer.

    Has Novell issued any statement about Unix code in Linux? I realize Novell/SUSE has distributed Linux under GPL, but I'm wondering if they've made an explicit statement that they have looked and not found any Unix code in Linux (that isn't also in BSD).

  • Unixware code

    Did SCOG allege any copyright infringement of Unixware or any other SCOG code (ie, code other than Unix)?

  • IBM code

    SCOG alleges IBM violated the Unix license when IBM contributed some IBM code to Linux, but IBM did release it to Linux. So, is Linux in the clear regardless of IBM's liability to SCOG?

What's left in the litigation that would officially (i's dotted, t's crossed) declare Linux in the clear? What are the FUD stopper moments we should be watching for?

Have any issues with Linux been raised that won't be officially closed by the current litigation?

Whither SCOSource Licensees

Judge Kimball ruled Novell should receive Unix SVR4 royalties for some SCOSource licenses. The money that was traceable was identified and (I think/hope) put in a trust. I'm not sure what claim Novell has for the untracable portion of what they should have received. I hope Novell has, at least, a claim as a non-priority debt under the bankruptcy.

Judge Kimball ruled Novell didn't get royalties for some SCOSource licenses. At this point I'm not sure what the Judge decided, Novell argued, or people mentioned in comments... One reason was that the licenses were for SCOG code and therefore if SCOG didn't have Unix copyrights then Unix code wasn't included. The other reason was the APA said SCOG couldn't amend existing Unix licenses without Novell.

I'm not clear if the licenses did or did not license Unix code. Although SCOG didn't own the Unix copyrights and wasn't authorized to amend Unix licenses, they were Novell's agent wrt Unix licenses, so Novell might have been stuck with the result (but then wouldn't they have gotten the royalty?).

If the SCOSource licenses are not valid for Unix code, what happens to SCOSource licensees who thought that included Unix and acted upon that assumption? Have they violated Novell's Unix copyrights? Didn't SUN release SunOS source code, including previously protected Unix code? Did they retract it after Kimball's decision?

Protection of Unix code going forward

SCOG's claims of Unix code in Linux (that doesn't have a another source like BSD) have been shown to be invalid and that will hopefully be confirmed in court.

Hypothetically, if there were a genuine infringement of Unix code either in some other product, how would/should Novell or SCOG defend the Unix copyright?

If they copyrights are not defended, Unix SVR4 licensees would have cause to request a royalty reduction or (for paid up licensees) refund.

For instance, if SUN hadn't retracted the source code release or that someone else had taken it and released their own product, what would be the proper process for defending the value of the SVR4 licenses via the copyrights? Who's job would it be - Novell's or SCOG's?

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