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I'll Huff and I'll Puff and I'll Huff and I'll Puff Some More -- If That Doesn't Work, Then I'll Hold My Breath |
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Wednesday, August 13 2003 @ 01:44 PM EDT
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SCO has "terminated" Sequent's UNIX System V software contract. This may be setting the stage for some legal action on SCO's part down the road, or just dotting an i (Sequent is already named in the case, but they were added later, in the Amended Complaint, so SCO had to wait the contractually required number of days to "terminate" Sequent after that), or it could be just another puff of FUD smoke, or two of the three. Hopefully, IBM will be able to resist the urge to go off into the woods and slit its wrists.SCO's
press release says it was "terminated" for the following reason: . . .for improper transfer of Sequent's UNIX source code and development methods into Linux. As a result, IBM no longer has the right to use or license the Sequent UNIX product known as "Dynix/ptx". Customers may not acquire a license in Dynix/ptx from today's date forward.
The press release also enumerates Sequent's sins in greater detail than SCO normally does, and we can probably assume this is the legal theory they will be following:SCO's System V UNIX contract allowed Sequent to prepare derivative works and modifications of System V software "provided the resulting materials were treated as part of the Original [System V] Software." Restrictions on use of the Original System V Software include the requirement of confidentiality, a prohibition against transfer of ownership, and a restriction against use for the benefit of third parties. Sequent-IBM has nevertheless contributed approximately 148 files of direct Sequent UNIX code to the Linux 2.4 and 2.5 kernels, containing 168,276 lines of code. This Sequent code is critical NUMA and RCU multi-processor code previously lacking in Linux. Sequent-IBM has also contributed significant UNIX-based development methods to Linux in addition to the direct lines of code specified above. Through these Linux contributions, Sequent-IBM failed to treat Dynix as part of the original System V software, and exceeded the scope of permitted use under its UNIX System V contract with SCO.
In Other News of Interest
Here's something interesting, because it shows what the penalties for false and misleading statements can be, something I've gotten emails about. Here is a CEO who faces up to 30 years in a criminal case for issuing false press releases (he separately is facing civil charges): The former CEO of technology firm eConnect pleaded guilty to overseeing a scheme to artificially inflate the company's stock price by issuing false financial information, federal prosecutors said. Thomas Hughes, 55, was charged with three counts of securities fraud for distributing false press releases and making misleading statements on the company's Web site, the U.S. Attorney's Office said Monday in a statement. . . . Hughes was scheduled for sentencing Dec. 1 by U.S. district judge Nora Manella. He faces up to 30 years in prison for the securities fraud charges and an indefinite maximum sentence for the contempt count. "Manipulation of the markets will not be tolerated," U.S. attorney Debra Yang said in the statement. . . . Prosecutors say Hughes helped send out press releases claiming eConnect had obtained a $20 million investment in quality asset-backed bonds, started a stock repurchase program, and received a purchase order of nearly $1 million for one its products. In reality, the bonds had little value and no stock buyback program existed, prosecutors said. So, now you know the worst-case scenario for such behavior. Whether IBM's accusations against SCO in its Amended Complaint will end up being pursued by regulators and also be proven true, I don't know, but even raising the charge is something any company would need to take seriously. I expect they are carefully looking at what they say and do before they speak, and wouldn't that be a refreshing change?
Update: Here's the Declaration of a Sequent guy, Roger C. Swanson, who was Director of Software Engineering at Sequent and negotiated the agreement with AT&T, submitted by IBM in 2004, along with
a group of others, including David Frasure, who negotiated the Sequent agreement for AT&T, on the other side, who all testify to what the contract actually intended and was understood to mean, so you can see how off the wall SCO's allegations were. For historians, in case the press releases disappear again down the rabbit hole, here's SCO's press release in full:
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The SCO® Group Announces Final Termination of IBM / Sequent's Contract to Use or License Dynix Software
IBM's Disregard of Sequent's Contract With SCO Leads to Final Termination of UNIX License
LINDON, Utah, Aug 13, 2003 -- The SCO® Group (SCO)(Nasdaq: SCOX) delivered final written notice yesterday to Sequent Computer Systems for termination of its UNIX® System V software contract. Sequent is now owned by IBM. The Sequent (IBM) contract was terminated for improper transfer of Sequent's UNIX source code and development methods into Linux. As a result, IBM no longer has the right to use or license the Sequent UNIX product known as "Dynix/ptx." Customers may not acquire a license in Dynix/ptx from today's date forward.
SCO's System V UNIX contract allowed Sequent to prepare derivative works and modifications of System V software "provided the resulting materials were treated as part of the Original [System V] Software." Restrictions on use of the Original System V Software include the requirement of confidentiality, a prohibition against transfer of ownership, and a restriction against use for the benefit of third parties. Sequent-IBM has nevertheless contributed approximately 148 files of direct Sequent UNIX code to the Linux 2.4 and 2.5 kernels, containing 168,276 lines of code. This Sequent code is critical NUMA and RCU multi-processor code previously lacking in Linux. Sequent-IBM has also contributed significant UNIX-based development methods to Linux in addition to the direct lines of code specified above. Through these Linux contributions, Sequent-IBM failed to treat Dynix as part of the original System V software, and exceeded the scope of permitted use under its UNIX System V contract with SCO.
SCO gave Sequent-IBM two months written notice prior to termination, as required by contract. IBM failed to cure its breach of the Sequent-IBM contract, or to offer any solution whatsoever to cure its breach. SCO's termination of the Sequent-IBM UNIX System V license is self-effectuating and does not require court approval. SCO previously terminated IBM's right to use or license IBM's UNIX product known as AIX. From and after June 16, 2003, customers no longer have the legal right to acquire new AIX licenses.
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Authored by: Anonymous on Wednesday, August 13 2003 @ 11:48 AM EDT |
One thing jumped out at me:
In today's press release, SCO say "SCO previously terminated IBM's right to use
or license IBM's UNIX product known as AIX. From and after June 16, 2003,
customers no longer have the legal right to acquire new AIX licenses."
Previously, I thought, SCO seemed to be talking about existing AIX licenses as
well (not just new ones). From
"Today AIX is an unauthorized derivative of the UNIX System V operating system
source code and its users are, as of this date, using AIX without a valid basis
to do so."
and
"Today SCO is requesting that the court enforce its rights with a permanent
injunction. IBM no longer has the authority to sell or distribute AIX and
customers no longer have the right to use AIX software."
(I think Darl is supposed to have said AIX users should return or destroy their
software in some press article)
So I wonder (1) has SCO changed their position, or (2) are they trying to look
more charitable, or (3) do they not want to look impotent (as I've not
personally seen any press reports about any AIX copies actually being returned
or destroyed) ? quatermass[ Reply to This | # ]
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Authored by: Anonymous on Wednesday, August 13 2003 @ 11:50 AM EDT |
"Previously, I thought, SCO seemed to be talking about existing AIX licenses as
well (not just new ones). From" should be
Previously, I thought, SCO seemed to be talking about existing AIX licenses as
well (not just new ones). From
http://biz.yahoo.com/prn
ews/030616/lam101_1.html quatermass[ Reply to This | # ]
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Authored by: Anonymous on Wednesday, August 13 2003 @ 12:29 PM EDT |
I've just had a quick grep through the (2.4.19) kernel source and other than
trivia such as calling rcu_init() at startup, RCU seems to consist of one source
file (kernel/rcupdate.c) with a corresponding header file and NUMA of one
architecture independent file, most of which will be ignored by the compiler in
some configurations because of #ifdef statements and less than 20 architecture
specific source files a few of which would be used in any particular kernel that
supported a specific NUMA machine. Large chunks of this code would also be Linux
specific.
If you exclude the areas which aren't really part of the core kernel such as
networking, filesystems, device drivers, SCOs GPLed ABI stuff and sound
libraries then the kernel only consists of 86 architecture independant source
files and a further 85 to support the i386 platform and altogether they only
total about 100,000 lines. This is something of a problem for SCOs binary only
license as the binary will not include the irrelevant architectures so the
amount of potential SCO code left is minimal. Adam Baker[ Reply to This | # ]
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Authored by: Anonymous on Wednesday, August 13 2003 @ 12:32 PM EDT |
All of SCO's shareholder information is hosted at ir.sco.com. Here is some
interesting information about it:
[root@macaque root]# host ir.sco.com
ir.sco.com is an alias for cald.client.shareholder.com.
cald.client.shareholder.com is an alias for client.shareholder.com.
client.shareholder.com has address 170.224.5.43
Okay, so SCO is using an outside Investor Relations firm. Big deal. The
interesting thing is who owns that netblock (170.224.0.0/14)...... Wait for
it........:
whois -h whois.arin.net 170.224.5.43
[whois.arin.net]
OrgName: Sequent Computer Systems, Incorporated
<snip>
NameServer: NS1.RALEIGH.USF.IBM.COM
NameServer: NS2.RALEIGH.USF.IBM.COM
<snip>
IBM! Unfortunately, it's running IIS (according to Netcraft), but perhaps IBM
_should_ step in and stop customers from using their products and services.
see http://slashdot.org
/comments.pl?sid=74586&cid=6685959 for additional details Frank[ Reply to This | # ]
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Authored by: Anonymous on Wednesday, August 13 2003 @ 01:21 PM EDT |
The comments about the netblock appeared on Yahoo earlier today - I'd just been
verifying them myself. The extra interesting snippet on Yahoo was that for an
hour or so today ir.sco.com was saying that SCOForum was postponed (I didn't see
it myself though). Most likely this was a misunderstanding somewhere - the
conspiracy theory is a bit too much to believe.
It seems that shareholder.com do have a couple of small netblocks themselves but
all of their high throughput servers are in the netblock acquired by Sequent
(and now managed by noc@ibm.com) so presumably
they use IBM to provide a managed hosting service.
On the subject of web hosting, it seems that (according to netcraft http://uptime.netcraft.com/up/hosted?netname=CENTER7-BLK,216.250.1
28.0,216.250.143.255) many of the Canopy group company's websites are hosted
by another Noorda (but not Canopy) company www.nft.com who are using Linux for
most of them - I hope they've paid for their license (I'm assuming that a name
like Noorda is sufficiently unusual it is reasonable to assume thay are
related.) Adam Baker[ Reply to This | # ]
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Authored by: Anonymous on Wednesday, August 13 2003 @ 02:18 PM EDT |
So they play the same trick with Sequent as they did with AIX. This then begs
the following questions:
1) Is the Sequent code covered by a separate Sequent-SCO license, or does the
IBM-SCO license that IBM had for AIX apply here as well?
1a) Could SCO claim ownership under the Sequent-SCO license to code authored by
Sequent before Sequent was acquired by IBM?
2) Does the side letter of Exhibit C apply to Sequent as well?
3) Does ammendment X apply to Sequent as well?
4) Did Novell intervene in the suspension of the Sequent license?
style="height: 2px; width: 20%; margin-left: 0px; margin-right: auto;">inc_x[ Reply to This | # ]
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Authored by: Anonymous on Wednesday, August 13 2003 @ 02:19 PM EDT |
It seems that as much code as Caldera contributed to the Linux kernel and the
amount of compatability work that was being done, Novell should be inspecting
SCO's code for contributing UNIX code to the linux kernel and pulling SCO's
license. Provided that the rights to UNIX that Novel retained would allow them
to do that, not too much of a stretch ... Mike BMW[ Reply to This | # ]
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Authored by: Anonymous on Wednesday, August 13 2003 @ 03:18 PM EDT |
Waldo, I don't think Sequent would be covered by Novell, because they were not a
party to the 3-party contract IBM referred to in its Amended Answer. I have
seen attorneys comment that the reason SCO added Sequent to their complaint was
because it is a weaker link. I haven't seen any contracts with Sequent, so more
than that, I don't know. If I see anything, I'll post. It's one of the biggest
questions in my mind. pj[ Reply to This | # ]
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Authored by: Anonymous on Wednesday, August 13 2003 @ 04:11 PM EDT |
Almost - Everything - You - Never - Wanted -To - Know - About - Project -
Monterey:
http://www.
csee.umbc.edu/help/architecture/idfmontereylab.pdf Z[ Reply to This | # ]
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Authored by: Anonymous on Wednesday, August 13 2003 @ 05:20 PM EDT |
Just for the record, I believe the SCO in Monterey was "Old SCO"
style="height: 2px; width: 20%; margin-left: 0px; margin-right:
auto;">quatermass[ Reply to This | # ]
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Authored by: Anonymous on Wednesday, August 13 2003 @ 05:26 PM EDT |
Background on RCU history?
http://slashdot.org
/comments.pl?sid=71977&cid=6502783 quatermass[ Reply to This | # ]
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Authored by: Anonymous on Wednesday, August 13 2003 @ 05:36 PM EDT |
Hi, PJ. Great job you're doing tracking this squirmy case.
THe Sequent contraqcts are posted at Scaldera as Exhibits F (the SOFT) and G
(the SUB).
These are in "dog ate my homework" condition and poorly scanned (hasty?).
Obviously carefully treated over the years. They are standard and contain the
standard 7.06 a) and b) clauses, which frankly are far from anything taht a
rational individual would condtrue as conferring any rights of ownership of
portions of authorised derivatives into the ownership (or even control) of AT&T.
This notion would be fostered by the deathstar, of course, but doesn't cut the
mustard. The clauses state very clearly "I'm the licensor of this product, you
should treat the ammendations, extensions and compilations of your authorship as
you see me treating those portions of my ownership." Looking at the historical
record of both Tarentella (old SCO) and Caldera (SCAMEX) the defense has a good
case to counter with.
All the above assumes that Scaldera has any rights left at this point, having
broken all contracts it has ever made.
In terms of funky statements after knowledge of difficulties, how about the
Vunet
.com interviews in late June (well after the Messman letters.)
"Why do you think IBM hasn't pounced to buy you already?"
"I think it is trying to throw some shots at us. It threw Novell out in front of
the bus a couple of weeks ago and Novell got run over.
It's a unique situation when a company as powerful as IBM has somebody coming at
it with such strong claims as we have in a very public forum. So maybe its
supercomputers haven't spat out an algorithm yet on how to respond to this kind
of situation. I don't know."
All kinds of gems in this interview. Dan O'Mara[ Reply to This | # ]
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Authored by: Anonymous on Wednesday, August 13 2003 @ 06:00 PM EDT |
If you read the document Z posted on project monterey, you'll see that the
project roadmap includes AIX versions with NUMA, etc. and shows that monterey
was to be the result of combining SCO technology with IBM et. al. Page 13 shows
that an AIX version was an explicit result, and the document was labelled as
being co-authored by SCO.
>Almost - Everything - You - Never - Wanted -To - Know - About - Project -
Monterey:
>http://www.
csee.umbc.edu/help/architecture/idfmontereylab.pdf
Personally I think SCOs goal is that same as for their case with CA - they are
hoping to be such a big pain in the butt that IBM will lay a big check $$ on
them.
ps: PJ, thanks for doing all this work, I really enjoy reading it and send the
URL to lots of folks who ask me for the straight dope on the lawsuit. Lafayettegeorge[ Reply to This | # ]
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Authored by: Anonymous on Wednesday, August 13 2003 @ 06:36 PM EDT |
Lafayette, my opinions on your theory
If your theory were correct, then we might expect SCO to be fighting their case
in the press rather than the court room.
More seriously, if the theory were correct, why target Linux users? The only
sub-theory I can envisage is that once it became apparent to SCO that IBM
wouldn't buy them out or pay them off, they were trolling for somebody else to
acquire them to get them to shut up.
Also if the theory were correct, SCO would have picked just about the worst
possible target. IBM is reknowned for have their lawyers and litigation skills.
Sticking to the theory, Microsoft would have been a better target (although I
guess you could add as a sub-theory: perhaps they were as well, which is why
they bought a license), as SCO would probably have had half of Slashdot doing
free research for them.
One last point, I don't know if this would be typical form for IBM, but if they
really got mad, they might start researching other Canopy group companies for
possible patent infringements. If I was Yarro, that would be the last thing that
I'd want. quatermass[ Reply to This | # ]
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Authored by: Anonymous on Thursday, August 14 2003 @ 12:04 AM EDT |
It seems to me that all of this stems from Project Monterey and it is with that
dead program that SCO has found either its ammunition, its true agenda.
All roads lead to Monterey. Z[ Reply to This | # ]
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Authored by: Anonymous on Thursday, August 14 2003 @ 03:18 AM EDT |
Projet Monterey was between IBM, Sequent, and Old SCO
It seems odd that New SCO is moaning about it, they weren't even involved AFAIK
- they (Caldera) were in competition with it. If Old SCO had been wildly
successful with Monterey, would new SCO have been in a position to buy anything
from them in the first place? anon[ Reply to This | # ]
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Authored by: Anonymous on Thursday, August 14 2003 @ 05:36 AM EDT |
Caldera got into Monterey when they bought Old SCO's Unix "assets".
style="height: 2px; width: 20%; margin-left: 0px; margin-right: auto;">MathFox[ Reply to This | # ]
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Authored by: Anonymous on Thursday, August 14 2003 @ 06:13 AM EDT |
But I think IBM might argue that their contract was with Old SCO, and they never
agreed to a contractual relationship with New SCO for Monterey. They point out
the difference between Old and New SCO in their response to the court.
style="height: 2px; width: 20%; margin-left: 0px; margin-right:
auto;">quatermass[ Reply to This | # ]
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Authored by: Anonymous on Thursday, August 14 2003 @ 06:14 AM EDT |
But I think IBM might argue that their contract was with Old SCO, and they never
agreed to a contractual relationship with New SCO for Monterey. IBM point out
the difference between Old and New SCO in their response to the court.
style="height: 2px; width: 20%; margin-left: 0px; margin-right:
auto;">quatermass[ Reply to This | # ]
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