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McBride, Bench on call

Forward looking statements disclaimer read by announcer.

McB: Second consecutive quarter of strong pos earnings. Revenue from ScoSource made positive margin and cash flow. Tripled cash balance. Market cap $10M -> $140M Review actions over year. Restructured to reduce expenses SCO Brand 20 years old Formed SCO Source, monetize Unix and IP Vigorously protect IP, brought on Boies Numerous step in connection with IBM Prepared to see to full conclusion Reestablished as leader New Web services platform SCOx Strengthened partnerships ... financial footing grown revenue year over year Continued to build and strengthen legal case Said IP found in Linux 2.4 and 2.6 Notified gloabal companies Terminated AIX licensing Over 100 parties came to see code End user licensing program ... based on demand ... we made it availabe, companies are signing up Hit quarterly financial target from 90 days ago High level view of how for last 90 days Ball to Bob

Bob: Coninue to adhere to viable operating model Increased percent of revenue invested in product 12.8 million related to core Unix 10.8 million product related 2 mio services

7.3 mio from SCO Source

15.5 mio gross margin

operating cost 12.1 mio, were higher last quarter by 7% 600,000 restructuring costs and SCOx product line

Slow economic recovery worldwide Customers lengthen purchase and impl as consider

7 mio (55%) from US 4.7 mio (36%) from EMEA 1.1 mio (9%) from Asia-Pac

customers: People Bank of China China Telecom Taiwan Govt Taiwan Bank Interspace Planning French Military MOD in UK Pizza Hut German Railway Larget Telecom in EU J&J Walgreen McD Chrysler Warner Bros. Lucent Tech

Expect Q4 revenue in 22-25 mio Expect upside from SCO Source Have number of opportunities in various stages of negotiation Hard to predict ultimate outcome and timing

Expect SCOx to generate new revenue, exciting for customers

Darl: SCO's financial position improved Where now? IT ownership is powerful 2 major OS's, Windows and Unix MS owns Windows, SCO owns Unix. This is big deal. A lot of companies run on Unix We have a lot of licensees Ppl used to thikn we have a version of Unix No, we own the Unix operating system Contracts in place are very powerful Have great customer relationships 7 of top 10 retailers run on SCO version of Unix Financial position is strengthening We have detractors who say we have strong case but no financial ability Competitor said we will hound SCO, pound away with filings We do have strong capability to fight legal fight to wherever it has to go Have 2 Q of great performance, guidance for third Upside to numbers, but we feel confident Industry support form partners is strengthening Talking about heat we are taking In market place IP issue tying into Linux is dividing industry into two camps, Those that try to take IP and destroy it and those that say IP matters We have very vocal detractors in minority Silent majority backs SCO Any company with IP to protect hopes SCO will prevail That will give them the ability to monetize their software Our legal position is rock solid Anyone on call who questions is welcome to Next week have annual SCO conference Will update our legal position why we are so confidence. Monday is the day We have strong resolve to defend IP assets Have thick skin. A lot of ppl throwing rocks We're not the ones who started it, who misappropriated tech We were called into fight, and we're not backing down Final point, we gain in credibility View of normal guy on street used to be what? Crazy? Hail Mary pass? As ppl dug deeper and deeper, conclude we have a case We wouldn't put things on the line unless we had a very strong case Arguments have shifted. Now they say the SCO guys should let us know so we can change it and get back to work. Misses a point. We have had our code misappropriated, we need to be compensated Continue to gain support and credibility Those are main points Now open phone lines

*1 to signal question

Andy Shopick, nutmeg securities Guidence for budgeted legal expenses, how will they track roughly?

McB: From budget standpoint, we spent less than half of what we budgeted Anticipate costs in mio per quarter, now six months in, expense 600-700K Amount reserved and allocated has huge buffer Nature of cases there with RH and IBM, a lot more words than hard core positions that you have to defend Patent part of IBM case was expected, we're prepared Some of those expenses may turn up, but in terms of budget we feel good

Q: Included in G&A ... Bob: Less than 1/2 mio cost, included in cost of sales

Jonathan Cohen, JHC Capital

No bottom line guidance for next Q or any beyond Any sense of trending? Bottom line in past Q vs previous

Bob: As we look forawrd, last 2,3 Q give idea of worldwide operating cost They stabilize, we become more efficient. Decrease those Q over Q This quarter 600,000 in non-recurring restructuring costs 2 or 3 factors more difficult Legal costs, don't expect out of line, but could increase, would increase cost of sales Normal operating costs are fixed, any increase would be due to launch of SCOx market costs, etc Still maintain pretty strong R&D

Peter Richards, Empire Capital Hoping to get financial understanding of compliance license Want guidance on financial terms

McB: General comment on Linux tuff. Withing 4 business days, hundreds of companies contacted us. One licensee, confidential. Fortune 500 company, purchased for each server running in their business. Positive sign for future. We have said that signed it at slight discount to intro price. Price multiplied against 2.5 mio servers creates a signif opportunity We have said we need to be compensated A lot of customers said, can we get straight with you guys Base on those 2.5 mio servers and growing Opportunities in the multi billion, factor down how much do we collect ...

Bob: That kind of deal is the upside McB: Guidence we gave does not factorin SCO Source licensing. We feel that is what will carry us on into subsequent quarters

Q: Based on amount of interest in limited time, confident revenues will flow? McB: We are cautiously optimistic. Have done a lot of modeling. As a rule, don't give on guidance on what is not firmly factored in. Would be nice to multiply first deal by, but we prefer to let run for several months.

Q: ?? Bob: We have chosen to record SCO Source activity as cost of sales. Modeled at 70% gross margin. Little operating overhead. 65% drop to operating margin level. That is the kind of model ... difficult to judge. Take 3 lines of revenue. Heritage Unix revenue, Services, SCO Source. We should be close in operations with heritage, assumptions we gave you is close as we've come.

Bar Davies, First Western Advisor Last two days WSJ articles, not favorable. David vs Goliath, GPL article. How to characterize, have facts missing, things to dispute?

McB: At general level press reaction interesting. Draw line, linux fanatical press against, business press positive. A little communization of the publication when the WSJ takes swings. Shows we are in big leagues now. Shots we took were interesting. Went to points that we don't have code Part of mantra from Linux community. Anyone taken time to come to Lindon has walked away agreeing there is problem. RH woultn' look at code but instead filed lawsuit. We offered WSJ writer to show code, but he wouldn't and wrote that. Strange situatino we continue to offer it up, and no one will look. Today's article more positive. We felt from day 1 that building company on GPL is like building operations on quicksand. Very suspect, major problem. Behind closed doors, even major Linux companies have problems with GPL. They are scared their IP will be sucked into this GPL machine and be destroyed. Article out there today was strongly sided towards the view that we have. As we go forward will see press on both sides. Another industry exec said this is biggest IP issue seen in career. As we go forward we expect we will see both sides of argument.

Q: About firm hired. On split basis. What kind of split are they working on? Got impression today working on hourly ,not contingency.

A: Have modified rate, discount. They get upside on monies coming in. Say hi to Duff Tompson

Q: Dion Cornet from Decatur Jones Buyers of SCO Linux need to buy the license? A: Ansewr is yes. No, they don't need to. It is available to them with no charge. That's the way it works. Q: Said earlier guidance doesn't factor in SCO Source factor in. So expect heritage from 11 to 13 to 15 mio? Bob: Not far enough along. .... McB: Inside SCO Source have multiple line items. Not heavy emph on customer purchase yet.

Q: Maureen O'Gara, client server news About A:

Robert McMillan from IDG Q: Was what Maureen asked. Tell me more about SCO Source. Have new technology? How will you get 10-12 mio from that?

A: We modeled thing out, wanted to go out and sign up big industry partnerships More revenue in bigger blocks over multiple quarters. Get into end use licensing Continues to go down path of big deals with big companies Expect licensing programing of last weeks to ramp up First part isn't something that goes on forever. Over time will see end use type of licensing program up Q: There are new licensees or no? A: YEs, in terms of what we are projecting, yes

Q: Matthew .... Explain more thinking behind press release about trading by executive, encouraging them. Building company on GPL, like headquarters on quicksand. Can you expand on that, since that's what Caldera did.

A: Respect to GPL, clearly a lot of problesm from GPL. Have IP, try to protect it. Go back to days we were involved. A lot of customers, partnerships wanted to understand how to get involved without IP destroyed Answer is it's very difficult. Interesting in counterclaim, IBM uses GPL in defense. We feel very comfortable defending ourselves against that. Our IP is in Linux. As you look at the GPL. One of the big problems, look inside it, big bold letters no license. Hot issue in industry now, will company be inemnified. Since you got it for free, no warranty. Companies trying to get indemnification. Going to RH and IBM, saying give usindemnification. They cannot guarantee there have not been IP violations. We look forward to going into courtroom and addressing this.

WRT insider shares sold. I was shareholder since early 2000. I haven't sold a single share. I have no plans to sell a single share. Article out there did a good job to explain.

Bob: Matthew a very good question. Our directors and exec officers feel a lot of stewardship to shareholders, and feel good about quesions. Executive took substantial cuts in salary. Wanted to make sure exec objectives aligned with shareholders. So they awarded restricted stock. Award vest triggers tax for them. No way to pay but to sell vested shares. Amount of sales very small compared to stock owned by insiders. 117000 share last quarter is small percent of 8 mio shares owned. Cannot be considered unloading stock. Plans in place for a long period of time to give public a good view. We will do this each quarter so you can see what is happening. Look at holdings, will see it's small portion. Mostly to take care of liabilities they have to pay.

McB: I joined a year ago. We did analysis. Came out with shareholder letter. Focus around taking our Unix IP. Unix brand. Giong to rally around that as key assets, get leverage value on that in the market place. Gone well for us from a shareholder perspective and industry. As we move forward, great opportunities to monetize this. Going forward with legal challenge. Concerted effort.

My goal was to get return on initial investment I made in investment. After reverse split my options at $56. That is my goal. Two Q strong performance. Another one in our path. Going out, continue to make progress.

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If SCO only has to show part of the "offending" code, or if the disclosure to IBM is not public, then SCO could go after the Linux community as they seem to be doing.

Comment: the author may have a major point that SCO cannot seek the same damages from IBM and Linux users, but I would hate to see the litigation SCO could invoke if they had a billion dollars or so of IBM's money. Power corrupts and these guys do not need their morals weakened any futher...

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SCO got $7.3M this quarter from SCOSource and about the same last quarter - presumably this is the money from Sun and MSFT. Does anyone know how much more is due on these contracts? Will Sun want their money back if the analysis that suggests a lot of the UnixWare device drivers (which are what Sun was buying) were actually based on GPL code? At least Sun have got both lots of source code so they can do their due dilligence now if they are reading this.

The forecast for next quarter is that support and UnixWare sales will be flat - I'd imagine that there are going to be few new UnixWare installs right now so UnixWare sales will be mainly extra licenses for existing customers - even remaining flat will be hard work.

They have cut back R&D quite hard in order to be able to turn in a profit even with these one off revenues - that isn't the act of a Company that thinks it has got a future.

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Sounds crazier and crazier. It really is like Bagdad Bob, a complete alternate reality. I especially liked the "silent majority is with us" idea. So what stops them from speaking up? Some giant conspiracy whereby open source controls all the media outlets in the country?

It would be interesting to find out what is really going in SCO. Do they really believe they are in the right? Or did they see it as a scam from the beginning? Or did they originally think they were right, and later realize they are wrong, like when they finally read the GPL?

And do they still really think they are going to win, or do they realize now they are going to be clobbered, and are frantically trying to avoid disaster? Anybody have any inside connections to find out?

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I fight the wild, unverifyable accusations that SCO makes regarding the copying of "their propriatary code" into Linux. As a consequence I call their licensing scheme extortion or swindle. The way they handle their former business partner IBM baffles me, but IBM is capable of defending itself.

I am astonished by their press releases; but I've stopped trying to understand SCO's strategy. Their acts are so stupid at times that the only sane interpretation would be one of total panic.

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I going from memory here, so I might be off a wee bit on a couple of points.

The SCO Group seems believe that they have the copyright and trade secrets to all of SysVRx, and can enforce their rights through the terms of the draconian later AT&T licenses. They also assert ownership rights to some libraries in UnixWare. My guess these libraries would be Xlib that were developed for Xenix, since the PC handles video in a different manner than the Aadm3's used a Berkeley, the Textronic terminals used at Murray Hill and the bit-mapped workstaions like SUN's. The old SCO would have had to develop their own Xlibs to get X running on the PC.

As to their tactics, they are trying to keep us distracted from their goal of hijacking unix.

D. (usual disclaimer; not a lawyer, not a paralegal, just a coder.)

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SCO is claiming very broad rights, paraphrased: "If it isn't explicitly yours, we claim it as our property. See you in court if you don't agree with it." They don't seem to care about stretching contracts (what the hell if they break!) stretching the law in the same way and lie when it seems benificial to them... Not my idea of a business partner.

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While unix tends to have very clean code, tracing "authorship" is truly a speghetti exercise.

SysV, starting around release 2, as I recall was a joint venture between Sun and AT&T. The goal was to "unify" unix. Rival lisencees like DEC, HP and (yup) IBM formed a rival project, if memory serves, called OS/F with a similar stated goal...

USL sued BSDI and The Regents of the University of California, claiming copyright and trade seceret infringment. And they asked for a prelim. injunction. After discovery, the Judge denied the prelim. due to strong doubt that the claims would stand in trial. This lead to settlement negotiations.

I agree the SCOG is wrong in their belief, but they have hinted many times that this is their view from the copyrights and lisences.

With the current incarnation of SCO/Caldea, I think I'd rather be in a pit with a couple of rabid dogs, than to do any sort of business with them...

(as usual a disclaimer: not a lawyer, etc. and rusty (leaky?) memory.)

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Tracking copyright of the code wasn't done carefully in the early years (1970s). I wonder what (if any) arrangements were made regarding the copyrights or the work that Ken Thompson did during his sabbatical at Berkeley. At the moment UNIX boomed the seed for juridical problems was there. (AT&T was lucky with the BSD license!)

At the moment SysV copyrights are (is that true??? You need to check everything with SCO!) with a bunch of people that has no feeling with either engineering or history of UNIX. They don't even seem to be willing the lessons from the USL-BSD lawsuit (must be managers ;-) ). SCO is bound to relearn that UNIX copyrights is an area full of snares and pits. My main gripe about SCO is the amount of collateral damage they cause in their attempts to defend what they think are their rights.

(disclaimer: programmer, non-US, blah blah blah)

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Here are some key questions that no legal commentator has touched yet!

Q-What do you think of the "laws of agency" defense for user of Linux? Q-Why would actual, apparent or ostensible authority defense/offense not work against SCO's attempt to charge users a fee for the use of a LINUX license they already have... & any research that says it will not work? Q-Any holes in the logic of the comments below (or additions to help it along)?

From Newsforge comment below post like this one on OSDL Q&A by IP lawyer:

Too focused on IP... who pays when sued? by Anonymous Reader on 2003.08.14 23:43 (#64865) -----------------------------------------------------------------------------

These IP lawyers are all focused on only the IP issues... and they will not be paying the legal bill when SCO sues somebody. They will be watching and commenting and not out there on the field taking the hit. They fail to even consider the laws of agency that would take affect to protect the users when SCO comes knocking on their search for money. The problem is that the cost of lawyers may be higher than the amount to pay SCO (remember that Microsoft and Sun have already paid the SCO lawyer bill)- SO, we LINUX users will have to either pay the SCO mob the protection money and move on (or we might choose to pay the lawyers more, and if we pay IP lawyers then we will be getting really soaked). We need to act against SCO now by having the individual State's Attorney Generals start actions on behalf of the indivudual LINUX users. Actions, even criminal, against SCO in defense of users who have paid already for their use of LINUX (and for all future upgrades as well) is an option worth looking at. The "simple agency law" facts are something that the IP lawyers and IP press are above, yep plain old busines law 101 is far below them even to consider it. But it is the law. And in the end SCO (a principle) cannot harm innocent 3rd party user of LINUX. Ask a common non-IP lawyer and see what they say (don't ask the IP lawyer as they can't stoop to the lower more stable law as they intellectually are way too far above all that).

search google for - apparent authority, ostensible authority, ostensible agent, acquiescence, etc. AND what do these legal words say that the nose-in-the-air-IP-lawyers are not lowering themselves to say?

2nd comment below this one above (also found on NewsForge):

IP case should be separate from authority case! by Anonymous Reader on 2003.08.15 9:41 (#64906) -----------------------------------------------------------------------------

Due to the open nature of LINUX it can be proved that SCO has known or should have been aware of any potential abuse of their IP for many years! The fact that SCO has worked on the kernel for many years... shows us that SCO, it can be shown, has known of every inch of LINUX code for many many many years! And it can be shown that SCO has a history of knowing of and approving of, all of the LINUX OS's methods and means of acquisition and use, along with knowing and approving of the LINUX users perpetual rights that relate to future kernel and security upgrades ... !

SCO, at this time, is a self-declared principle of LINUX.

Actual,apparent or ostensible authority defense anyone?

With this arguement, LINUX users, hopefully with the help of their state's Attorney General, should be able, in court, to remove any long and drawn out multi-million dollar legal arguements, attempted by any parties, about any LINUX IP, code, etc..., and hopefully limit it all to an actual, apparent, or ostensible authority related "SCO vs the innocent 3rd party LINUX user case" where the court looks at ONLY a situation where a LINUX user has acquired LINUX, and when acquiring the product were led to believe, by LINUX agents, that they could use LINUX in all the historical ways (and that per the acts of LINUX agents, it seems, that all the terms and conditions of acquisition along with the rights to all expected historical uses, that applied to the LINUX product's acquisition/ download and use, were being encouraged by any and/or all LINUX principles)! The judge must be aware that any IP case, that is being tried somewhere else, has nothing to do (even if SCO wins or loses) with an actual, apparent, or ostensible authority related case where innocent 3rd party customers are being wrongly and illegally harmed by a principle! SCO will, of course, try to make any case into an IP case (their lawyers make more money if they do - and in fact, due to hourly billing, your lawyers will too). A simple LINUX IP "historical use of LINUX as a product" related case, removing all IP discussion, should be able to stand-on-it's-own as a part of this whole SCO-IBM-LINUX user fight.

This LINUX IP product's (including the now claimed SCO IP, even if SCO owns it or not) purchase or download and expected historical use activity... all of this happened while a "now declared" IP principle "SCO", watched and knew of LINUX IP agents who were conducting said transaction(s), all this happened with SCO doing nothing more than to willingly allow the agents to complete the LINUX purchase or download transaction(s)! So - SCO thus has previously, with knowledge, knowingly approved of many LINUX purchase or download transactions that took place, AND/OR with or without knowledge, let LINUX IP agents with actual, apparent or ostensible authority conduct the transaction(s) while SCO did nothing to prevent said transaction(s) from occuring... whereas, because of this action (meaning SCO's actions and/or lack of actions), it can be argued, SCO can not now go to the innocent 3rd party customer and charge money AGAIN for a product that was acquired previously, as the innocent 3rd party customer, who paid, according to the terms of their LINUX acquisition, has paid the proper sum once already for the product that they bought or downloaded! Any innocent 3rd party LINUX customer/user should not be obstructed from all the usual and expected rights that related to their use of any LINUX, meaning that all their historical use expectations are perpetual rights once they acquired LINUX, no matter how SCO's IBM (or other) IP related case comes out! The innocent 3rd party customer can not NOW be harmed. It's the law..., let's see if a law with a history of cases behind it will save us from SCO!

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Thanks, splashed some coffee on the monitor when I read that one!

MathFox,

You're correct when Thompson and Ritche, gave their paper on the system at an ACM Symposium in 73(??), people wanted to get their hands on it, world wide interest in the system developed after the paper was published in 74(??). The demand for copies was such that the CSG's support staff was "overwhelemed" as I undertand. And a group was formed just to handle license requests.

One point to remeber is that during that time Bell Telephone was operating consent decree at that time, and were prohibited from being in any other business than that of a "common carrier". So they were in a bit of a quandry on how to fulfill the requests. Part of the solution was offer the tapes for "Educatonal, personal or Non-commerical use." And the Labs had a policy that was described as "No advertising. No support. Payment in advance."

On a side note, when the famous "50 bugs" tape started making the rounds, I've been told that the lawyers went bananas. Nobody, but nobody, knew where that tape came from.

I don't know how they handled copyright assignments in the earliest days, later on the lisences had lots of boilerplate some of which covered copyrights becoming the property of AT&T. The stuff that McB and company are claiming gives them the right to "terminate" the IBM and Sequent licenses. I am also sure that most if not all of the lisencees had side agreements, like IBM's.

BSD, on the other hand was distributed USENIX members who held approriate ATT&T licenses (v6&7 for the early stuff, 32v for the later.).

#include stdio.h

main() { printf ("Standard disclaimern"); printf ("not a laywer, not a paralegal, just a codern"); printf ("working with a rusty memory, and recalling what others saidn"); }

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I have found a reference to a "fifty changes" tape that was going around in 1976. (I guess it is the same.) I didn't know about it before starting to dig in Unix history (It is far before the time I started using Unix) and I think most of the readers here don't know what we're talking about.

Annomyous,

I think you have an interesting line of defence for an end user. (Yet Another SCO Defence.) I wonder how this defence would apply for kernel contributors and Linux distributors. For distributors it would be another argument to lower SCO's damages, but how far can distributors claim innocence for the software they spread? There is some due dilligence (checking) a distributor has to do.

For the kernel maintainers and contributors it is clear that IMO they have a duty to perform due dilligence. In Linux the openness of the development process ensures more checks than are common in propriatary software development, but no process can be 100% correct when some copyrighted code is locked away in vaults.

There's nothing I can do for the kernel contributor that contributes code without permission of the copyright owner. That is both legally and morally wrong. I'ld like to save Linus from being dragged down with such a person.

import disclaimer
print disclaimer.ianal

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A complaint was officially filed with a state's Attorney General Office (A.G.O.) listing as offenses -SCO's practice of attacking LINUX users who already have full rights to use LINUX (as the self-declared principle SCO is now trying to harm innocent 3rd party individual, commercial, educational, and governmental users of LINUX who, due to the laws of agency, are legally using LINUX now), -SCO's illegal activity where they are selling of something that they don't have legal title to, - SCO's attack on IBM's promotion of LINUX (an employer in the state), - SCO's illegal attack on IBM AIX users who also have protection from SCO via the laws of agency defense (the state may be an IBM AIX user)!

After speaking with a key Assitant Attorney General, who was watching the situation regarding SCO and IBM, it was learned that SCO's actions against innocent 3rd party users was news to the Attorney General's office, as they thought that SCO was just going after IBM at this time! The A.G.O. did not think that the actions meant anything unless a user of LINUX was directly contacted by SCO. However, they will read the letter/complaint (typos and all) and will read through the package of SCO-IBM-LINUX educational materials (should take them a bit of time to have the GNU GPL, and the various LINUX positions sink in) and then they will let me know something? I will let them finish reading the material and respond before public notification of state where this was filed. A.G.O's inital reaction was luke warm (due to lack of complete understanding of facts).

Explained to A.G.O. that the problem was that individual LINUX users and small business users could not afford to defend themselves against SCO and that the state A.G.O. needed to step up and pursue the actions of an out-of-state company that was illegally acting against citizens of the state (some, who may very well be on the list of 1,500 that received SCO letters already)!

Please feel free to contact your state's Attorney General's office and file an official complaint!

>>>Then in response to someone who is doing the same thing in Texas, who was looking for direction, the following was posted as follows (know that a corrected version to fix typos was sent per comment but that was not posted).

Re:Complaint filed - edited copy here see note! by Anonymous Reader on 2003.08.13 15:39 (#64551) ----------------------------------------

Note: This was by no means a professional legal job and it was delivered by hand to the Attorney General's office (had to sign in to a visit log due to security etc). However - the package that was delivered was about 1 inch thick with a cover letter! Most all of the information was from previous Newsforge posts with regards to the subject of the Laws of Agency and LINUX use.

see below comments for the edited main parts of the letter and saved parts from previous NewsForge comments.

>>>Later the "form of the letter", and two other previous NewsForge posts were added as examples of what was sent to the state, was posted as found on NewForge (again) below:

>>> Leter to state, typos and all (Have learned the letter was modified later to fix typos and correction then sent to state)!

Letter to Attorney General by Anonymous Reader on 2003.08.13 15:54 (#64554) ------------------------------------------

To: __________ State Attorney General, address From: To file a complaint they must have your name - so my name was added to a piece of paper that the Assistant Attorney General had... otherwise it was FROM: Anonymous, as it now a potentially legal and/or financially risky (and thus complicated) matter to have in one’s possession, and to use, LINUX (for both personal and/or commercial use). For example: I have read on a couple of web sites (GROKLAW, for one) that the SCO licensing scheme puts LINUX users in a Catch 22 situation: "as they can violate SCO's demands and get sued or they can violate the GPL and get sued". So - in order to avoid this situation it might be best that my name be withheld in order to prevent myself from being put in a situation where I could be harmed by being caught in between these two forces.

This letter, with the supplied information, is being written for the following reasons:

1 - A State of Utah based company called SCO ( http://www.caldera.com/ , The SCO Group, 355 South 520 West, Suite 100, Lindon, Utah 84042 USA. 801.765.4999 phone 801.765.1313 fax - http://www.sco.com/company/legal/ ) is attacking government, business, schools and individuals who are using LINUX, by attempting to charge them a fee for a LINUX product that these users/customers ALREADY have bought or legally acquired! These innocent 3rd party LINUX customers ALREADY have paid the agreed upon asking price to agents for the legal use of the LINUX product, ALREADY have binding agreements in place with agents for the acceptable methods of support for their LINUX product, ALREADY have understandings with regards to the terms and conditions of LINUX use, and ALREADY have binding understandings with agents that pertain to the issues regarding future upgrades and future support for their acquired LINUX product(s). These innocent 3rd party customers, by using LINUX.... ALREADY have agreed to the LINUX GNU GPL. Buyers of any or all products should not have to fear that a claimed principle of any intellectual property can come to them and force them to pay again for the product, and any support for that product, that they have already paid the asking price for! If SCO's actions are legal, then any buyer of any product could never feel safe that they actually own the product that they have paid an agent the asking price for. If SCO's actions are legal, then well after a product is bought from an agent then principles could come out of the woodwork and bill folks any amount of money for the use of products, use of parts of products, or use of combinations of products, that said principle suddenly declares were not properly paid for when the original sale/contract/deal was made! It is not the responsibility of the innocent 3rd party customer/consumer to be responsible for the actions of actual, apparent or ostensible agents that represent, or appear to represent, such a principle! It is the duty of all principles, at all times, to maintain control over any and/or all actual, apparent or ostensible agents. SCO, or any other "claimed to be" principle that acts like SCO, is possibly breaking the law, by trying to force innocent 3rd party customers to pay for something again (or pay some other invented price, to be paid over some other invented period of time) when the innocent 3rd party customer(s) have already legally acquired, and thus paid the asking price for (and accepted the terms and conditions for use of), any LINUX product as offered by previously existing actual, apparent or ostensible LINUX agent(s), who were acting with SCO's complete knowledge and authority at the time (as the principle SCO is a self-declared and long time developer and distributor of LINUX they have known about all the ways that LINUX is being acquired, upgraded, used, and paid for in the past… and during all the years that this LINUX acquisition and use activity has been happening, SCO has said nothing before that publicly condemned any such activities)! And during all these years of historical LINUX acquisition and use, SCO never before publicly condemned the LINUX GNU GPL. When acquiring any product through an agent, a principle's acceptance of the price, terms and conditions of any LINUX product distribution, should be the same the same as if the agent were dealing with any product that can be distributed or sold by any agent. Business is business!

2 - A company called SCO could be breaking the law by trying to sell something that SCO does not have a clear title to!

3 - A company called SCO is attacking LINUX, a product that is being promoted by IBM (a company/employer doing business in _______).

4 - A company called SCO is also looking to harm users of IBM AIX in the same way as they are trying to harm LINUX users. Any AIX users in the State of ______ should also be free from SCO's harm and any fees SCO is looking to charge them for the use of AIX! These AIX users already purchased their use of AIX from agents that were licensed to sell AIX. These agents of IBM AIX made binding business deals! Innocent 3rd party IBM AIX customers ALREADY made payments for the use of AIX! According to the certain terms and conditions that were understood and agreed upon when the IBM AIX deals were made final the original deal(s) with IBM and IBM's AIX customers should stand as executed and existing customers of IBM who are using AIX should be unaffected by SCO's termination of IBM's AIX UNIX license. These deals with IBM include any continuing and/or renewable support and upgrade agreements with IBM for however long these agreements last or are extended to.

With regards to SCO's LINUX license/ use fee requirements of late, it is hoped that the state will look to quickly move toward protecting individual, business and/or government (including school) LINUX product use interests, by obtaining a court ruling preventing SCO from being able to harm existing LINUX users as they go about their historical use(s) of the LINUX product.

On Friday 2003-08-08, An Associated Press sources article in "______________", with a picture of SCO’s CEO, Darl McBride, above it, reported on some of the partial facts surrounding SCO's recent LINUX actions that directly affect LINUX all users! The article is enclosed with this letter and it is quoted as follows: “ SCO is not just targeting system builders like IBM or distributors like Red Hat. Taking a page from the recording industry’s tactics against music swappers, SCO says it can go after individual users - whether it’s a company running a server or someone with a device embedded with Linux such as a TiVO personal video recorder.” So - does this mean that SCO is not just targeting commercial users anymore?

I have purchased LINUX from a retail store, downloaded LINUX from a distributors web site, and have used different distributions of LINUX as distributed by LINUX agents (examples: RED HAT, Linux Mandrake, and K12LTSP.org). It is only lawful that SCO should respect these acquisitions of LINUX as being final and that the terms and conditions of the acquisition(s), as agreed to at the time, are binding according to the terms and conditions of each of those LINUX acquisition’s sale, purchase and/or download agreements! SCO should not be able to harm any innocent 3rd party users of any LINUX distribution as they use and upgrade their LINUX software into the future. It is well known by LINUX users that all downloads and purchases of LINUX opens the doors for support from the LINUX community. This support is expected by all LINUX users to last for however long into the future that one wishes to use LINUX. Historical use of LINUX lends the user to commonly understood benefits of LINUX use and this includes any future ability to download or purchase media containing upgrades for the future improvement and security of any computer running any LINUX distribution. For example: Per the web site of the K12LTSP.org distribution it is clearly understood that future downloads and/or purchases and all improvements and upgrades will be free to download, and/or may optionally cost a small fee (around 15 dollars) to have CD ROM media mailed directly to the user. The K12LTSP.org distribution web site implys that all use and upgrades, are availalbe for free now and into the future for all users of the K12LTSP.org distribution, for as long as the user(s) wish to use the K12LTSP.org Linux distribution and the K12LTSP.org web site says nothing else to lead one to think otherwise)!

Innocent 3rd party customers of a purchased product, in this case, need protection from SCO. It seems that reporting SCO’s actions to the state is the most logical course of action to follow. Innocent 3rd party customers, in order to get protection from the confusing and most likely illegal actions that are being exercised at this time by SCO, need legal help. The fact that SCO is charging a license fee under a threat of litigation (that would have costs in excess of the price of SCO's "license fee") might be called extortion. And charging innocent 3rd party customers again for a product the users have ALREADY legally acquired could be breaking the law as well.

It appears that contacting the ________ Attorney General is the only way to afford legal representation. The price that SCO is charging for a license fee is far less than the cost of a lawyer. If a user had to hire a lawyer, in order to defend against SCO in court, most users could not afford to do so and might decide to pay SCO's "protection fee" instead. So - in cases like this, it is a logical couse of action that individuals and businesses of ________ must ask for help from the Attorney General. The Attorney General, as the highest ranking law enforcement officer, has a responsibility to protect the state's citizens, businesses, schools, and government entities from the unlawful acts being attempted by, or committed by, out of state businesses who are preying upon the LINUX using citizens and businesses of _________!

Any state that has businesses, schools, and individuals (along with potential government agencies), that are using LINUX, need for the State's Attorney General to defend it's citizens and business interests against the licensing actions and threats recently made by SCO.

This package to the Attorney General's office contains:

-Copies of paid receipts for boxed Red Hat LINUX software (the latest version 9) that were bought from STAPLES on 07-29-2003 and 08-09-2003 (one purchase BEFORE, and one purchase AFTER, the SCO Linux license fee program was announced on 08-05-2003). AND also enclosed are copies of web pages from the K12LTSP.org site that show that they are giving away, for free download, the K12LTSP.org distribution of LINUX (and they promote the unrestricted making of copies of their K12LTSP.org LINUX distribution and giving these copies away). A copy of their K12LTSP.org CD set, version 3.1.0, is also enclosed. -Cut and paste copies of references to material, such as GNU GPL license, -The content of a chapter written by LINUX founder Linus Torvalds that is found in the book "Open Sources: Voices from the Open Source Revolution" …as Linux education for the lawyers. -Articles concerning SCO's threats and articles that cover IBM and RED HAT’s legal action against SCO -SCO's web info regarding their licensing, -Information in the form of web page printouts regarding the words apparent authority, ostensible authority, ostensible agent, ACQUIESCENCE, as read on the NewsForge web site. -A copy of Eben Moglen's OSDL position on SCO -A copy of OSI's position on SCO-vs_IBM suit (and a history of UNIX) -And other articles and materials (mainly a list of references to the SCO vs IBM vs LINUX skirmish as published on various web sites all over the internet).

It is hoped that the Attorney General will not pursue a case about intellectual property, but instead will pursue one that focuses on consumer protection types of laws and the possible unlawful actions of SCO. The SCO-IBM-LINUX intellectual property (IP) cases are being litigated in other cases already. It is felt that, in at least one case, the state should focus on "other than SCO-IBM-LINUX IP related legal issues". If the state wishes to focus on IP related legal issues, then joining the RED HAT or IBM suits against SCO might be the best arena where the state could join that battle.

Innocent 3rd party customers, those who give LINUX to others, or those doing business with LINUX need to be protected from SCO's unlawful actions.

Also delivered (details about the same-dated-old) by Anonymous Reader on 2003.08.13 16:30 (#64562) ---------------------------------------------

Part A:

SCO is doing nothing but making non-enforceable threats!

It seems logical that until a court rules on SCO's IP claims (AND MAYBE AFTER A COURT RULES) that apparent authority, also known as ostensible authority kicks in to protect the innocent 3rd parties from a principle who has acted like SCO!

If, SCO (if looked at as being a principle) were actually found to own a few tid-bits of IP in LINUX (an idea that is totally rejected in the position paper for OSI on the SCO vs. IBM suit – see http://www.opensource.org/sco-v s-ibm.html ) and a position paper, which casts doubt on SCO's position, that was authored by one of the world's leading legal experts on copyright law as applied to software, Professor Eben Moglen of Columbia University. See http://www.osdl.org/do cs/osdl_eben_moglen_position _paper.pdf

…then, just by the fact that they let other "agents" distribute said IP (in downloads or distro form) to innocent 3rd parties... means that said agreements by these "agents" are final and SCO is wrong thinking that they can now go to the 3rd party customers and cause them harm.

Remember that no "agent" ever told the innocent 3rd parties that any potential IP principle (called SCO) was disapproving of them freely using LINUX - and in fact, in all the years that SCO was contributing to LINUX and distributing LINUX, SCO never did disapprove of any distribution of LINUX, using LINUX, upgrading LINUX, or anything with LINUX period.

If SCO wins the suit (hardly likely, dubious-at-best-OS), it is then and only then that they can make claims on ONLY future distribution of LINUX. In fact, SCO could make no claims on LINUX because the GNU GPL forbids any IP that is non-GNU GPL and thus SCO could have no claim because any SCO IP must be cleared out of it in order for LINUX, governed by the GNU GPL, to be LINUX. Any SCO IP in LINUX would have short term affect, as the LINUX code writers would replace this IP very quickly.

Also any kind of SCO IP found in LINUX would NOT affect current LINUX use and/or past downloads or distributions… This reasoning is due to apparent authority, also known as ostensible authority, SCO's obvious LINUX history, and SCO’s obvious exposure to the GNU GPL!

It would seem that the burden of proof is on SCO to prove that their claim that SCO IP that they claim is part of LINUX is- a) really SCO's IP, b) is IP that is free from the GNU GPL. It would seem that any current use of LINUX should be as before and that this would only change if the courts rule in favor of SCO! It would seem only logical that such a ruling would only affect LINUX users of any download or acquired distribution after, not before, the court rules (and only if the court rules in favor of SCO).

Fact: SCO is on record as stating that they are not going after LINUX (only IBM at this time) AND so by saying this SCO is saying that they still do not disapprove of LINUX being distributed or used by anyone. It does appear that SCO is saying that the case against IBM does NOT affect any new LINUX installs (even TODAY). SCO seems to be endorsing the continued distribution of LINUX…! And by allowing the continued existence of any agents with apparent authority they are allowing the use in LINUX, of any SCO IP they have contributed via the GNU GPL, and/or have continued to allow via unopposed download or distribution of, from any source (any LINUX/SCO IP agent with SCO's apparent authority)!

REMEMBER THAT SCO OFFICERS HAVE STATED (not too long ago), IN PUBLIC INTERVIEWS, THAT SCO HAS NO IP CLAIM AGAINST LINUX! There has been no legal attempt by SCO to stop LINUX distribution! The licensing tax that SCO has in mind does not apply to holders of current versions of LINUX!

Any and all future upgrades to current LINUX installations would be affected by this apparent authority agency law (also known as ostensible authority), as SCO’s IP "agents, with apparent authority" (LINUX distributors and their web sites) also seemed to have the authority to advise the innocent 3rd party users that LINUX support is/was available, without interruption and that it would continue to be available without interruption -meaning any and all future support, patches, upgrades, etc would be available without interruption ( SCO has never ever made mention at any time that these "agents with apparent or ostensible authority" are or were wrong in conveying this message to all LINUX users)! So this means that LINUX users and distributors, if deemed innocent 3rd parties, still can use LINUX, and any SCO IP in LINUX, the same as they always have! Today, LINUX business (downloads, distributions, upgrades, any renewable LINUX service contracts, etc… can appear to continue as usual with the apparent blessings of SCO. SCO has filed no claims against LINUX and has not proved that any LINUX code contains their non-GNU GPL’d IP. So – it appears that all the letters that SCO sent out warning some companies about their LINUX use AND this new license idea that they have now… are non-enforceable threats!

From: http://dictionary.law.com agency n. the relationship of a person (called the agent) who acts on behalf of another person, company, or government, known as the principal. "Agency" may arise when an employer (principal) and employee (agent) ask someone to make a delivery or name someone as an agent in a contract. The basic rule is that the principal becomes responsible for the acts of the agent, and the agent's acts are like those of the principal (Latin: respondeat superior). Factual questions arise such as: was the agent in the scope of employment when he/she ran down the little child, got drunk and punched someone, or sold impure wheat? There is also the problem of whether the principal acted in such a way as to make others believe someone was his agent-this is known as "apparent" or "ostensible" authority. When someone who is or is not an employee uses company business cards, finance documents, or a truck with the company logo, such use gives apparent authority as an agent. See also: agent authority respondeat superior scope of employment

From: http://dictionary.law.com apparent authority n. the appearance of being the agent of another (employer or principal) with the power to act for the principal. Since under the law of agency the employer (the principal) is liable for the acts of his employee (agent), if a person who is not an agent appears to an outsider (a customer) to have been given authority by the principal, then the principal is stuck for the acts of anyone he allows to appear to have authority. This "apparent authority" can be given by providing Joe Slobovia (who has no authority to contract) with materials, stationery, forms, a truck with a company logo, or letting him work out of the company office, so that a reasonable person would think Joe had authority to act for the company. Then the contract or the price quote given by Joe and accepted by a third party is binding on the company. Apparent authority may also arise when Joe works for the company, has no authority to contract, but appears to have been given that authority. Beware of the salesman who exceeds his authority or the hanger-on who claims to work for the boss. See also: agency ostensible authority

from: http://dictionary.law.com ostensible authority n. apparent authority to do something or represent another person or entity. See also: ostensible agent apparent authority

from: http://dictionary.law.com ostensible agent n. a person who has been given the appearance of being an employee or acting (an agent) for another (principal), which would make anyone dealing with the ostensible agent reasonably believe he/she was an employee or agent. This could include giving the ostensible agent stationery or forms of the company, letting him/her use the company truck, telephone or desk in the company office. Businesses should be careful not to allow such situations in which an ostensible agent could bind the business on a contract or make the apparent employer responsible for damages for an accident, libel or assault by the "agent." See also: ostensible authority apparent authority

It has been explained recently in a seminar, given by an expert who was advising the audience all about legal issues, that a principle is responsible for the actions of others that are their employees or others that represent themselves, or appear to one as being allowed by the principle to act on behalf of the principle.

The example given during the lecture was as follows (having to do with the laws of agency):

A shop owner goes into the back room and leaves the shop unattended. A customer (A) comes in and looks around. A second customer (B) comes in and looks around. Customer A then goes behind the counter and acts like an employee. Customer B then picks up an item, goes to the counter to buy this item, and asks the price. Customer A tells Customer B that the price is 90% off and sells the item for 90% off of the retail listed price. Q: Is the sale to customer B final at the 90% off price? YES, according to the laws of agency there was an apparent or ostensible authority situation and the innocent 3rd party is not to be harmed (or told to pay the full price after the fact)!

SO - if this holds true for any product (as it will, as a product is not any different than any other product)... then, any and all IP owners that allow the IP to be sold or distributed can not AFTER the FACT (where the IP has been sold to or distributed to an innocent 3rd party customer)... they can not then, after a firm deal has been made final by any apparent or ostensible agent, go after the customer and cause them harm (by asking for payment of any kind as the terms and understandings of the original deal as made by the agent with apparent or ostensible authority are final and this WILL STAND up in court!

As it relates to the example above: SCO is a shop owner of their "claimed, but not proven to be theirs" IP. SCO has been in the back room for years while SCO's agents donated code to the LINUX and the GNU GPL. AND for years while SCO was in the front of the store... SCO watched, knew, and approved of other agents that were selling, distributing, and giving away LINUX. SCO also knew that distributors and various LINUX web sites were allowing downloads and use of LINUX and many of these sites were stating that support and upgrades would be always available (for fee or free, depending) for all LINUX users forever... As far a LINUX is concerned, since SCO can indeed be seen in this case as being a potential IP principle (or shop owner), and we LINUX users this case are the innocent 3rd party customers... the deal we acquired LINUX under has terms and conditions (either with a price tag attached, or not) that are binding AND still apply today AND will still apply tomorrow when SCO comes knocking and looking for money!

Why have you maybe seen this posted so many times?

Linux users need to know about this! Many past, present, or future Linux users (who are threatened by SCO related FUD materials) may miss this information about apparent authority...as not one person in the LINUX press, the "regular press" or anyone from OSI, FSF, IBM, Red Hat, SuSE, etc... are advising individuals or business users of this seemingly overlooked area of the law!

AND SO - This is posted repeatedly here and on other sites to give the folks who only visit such sites on occasion a notice that they should be knowledgeable about the fact that apparent authority may offer them the ability to continue to use LINUX without fear.

LINUX use should be considered a use not unlike using any product (erase any discussion about any IP). One does not buy a CD player in a store and think of buying the whole list of IP that is licensed for it... a customer is buying a complete product with warrantees that are guaranteed by the manufacturer. When we download, contract for, and/or buy anything to do with LINUX it is the same! Everyone is so focused on this IP issue that they are not seeing the forest thru the trees!

A copy of a similar post about apparent authority has been sent by regular snail mail to IBM's legal team and to Eben Moglen, the FSF general counsel ( http://emoglen.law.columbia.edu/ )

It would be nice if some court somewhere would uphold this apparent authority fact so that it would be a matter of court record. If this happened then all SCO material that is FUD related would vanish! SCO would then have only one option and that would be to get to court quickly to attempt to prove their IP claims. When SCO's IP claims are a matter of court record (and a judge states that it is public record)... then any (if any) code in conflict can and will be corrected!

The sooner, the better! For now, be advised that agency laws relating to apparent authority exist to protect innocent 3rd party buyers/users of products!

If you want to help spread the word about this then please send e-mails or letters to any or all that you think should be advised (be sure to let them know that a legal opinion regarding this apparent authority law and SCO's FUD IP statements, not legal claims), against ALL of LINUX... is needed in this case)!

Part B:

Additional information can be obtained by searching google for the legal terms listed (many extended educational URLs are discovered by this search)!

1- apparent authority 2- ostensible authority 3- ostensible agent 4- ACQUIESCENCE (new word not discussed in Part A )

For example: A search on the term "apparent authority" gives us a very interesting Power Point Presentation file at the below URL to view (can also use OpenOffice to view the presentation):

www.law.wisc.edu/facstaff/download.asp?ID=6

Note: From a slide found in the above PowerPoint presentation we run into a word called acquiescence. It seems that this word may also play in the description of SCO’s actions, or lack of, as well!

acquiescence is not in the first law dictionary I used (so I used a search of google brings up some cases that refer to he use of the word).

However, another law dictionary here http://www.lectlaw.com/def/a150.htm said this:

"ACQUIESCENCE - The consent which is impliedly given by one or both parties, to a proposition, a clause, a condition, a judgment, or to any act whatever.

When a party is bound to elect between a paramount right and a testamentary disposition, his acquiescence in a state of things which indicates an election, when he was aware of his rights will be prima facie evidence of such election.

The acts of acquiescence which constitute an implied election, must be decided rather by the circumstances of each case than by any general principle.

Acquiescence in the acts of an agent, or one who has assumed that character, will, be equivalent to an express authority."

So when we go back to http://dictionary.law.com/ For what is "express authority" we find this:

authority n. permission, a right coupled with the power to do an act or order others to act. Often one person gives another authority to act, as an employer to an employee, a principal to an agent, a corporation to its officers, or governmental empowerment to perform certain functions. There are different types of authority, including "apparent authority" when a principal gives an agent various signs of authority to make others believe he or she has authority; "express authority" or "limited authority," which spells out exactly what authority is granted (usually a written set of instructions) "implied authority," which flows from the position one holds and "general authority," which is the broad power to act for another. See also: ostensible authority principal agency agent apparent authority authorize

From other readings from our google searches… we also learn that: The laws that concern agency, also create a method by which a principle can notify the public, and the customers, that an employee of theirs is out of their control (or agent with apparent or ostensible authority) and thereby notify the public and any customers that this agent is not able to represent the company or principle anymore.

SCO, it appears, is now caught in this area of law's bind. AS SCO allowed this area of LAW to bite them, by the actions, and lack of actions, caused by SCO's own hand!

So, again please understand this:

1- An employer, or principle, must keep control of employee’s actions. Example:

From a previous Newsforge NewsVac post...

Anonymous Reader writes: Part of SCO's complaint against IBM is that IBM should not have helped Linux by adding JFS. Looking at the history of JFS on Linux is therefore interesting.

First read Steve Best of IBM announces JFS 1.0.13. Read the post, and you'll notice 5 contributions by a "Christoph Hellwig".

So who is this Christoph Hellwig? He appears to have been a Caldera (former name of The SCO Group) employee posting from a @caldera.de address.

Did he and SCO/Caldera know what IBM were doing with JFS? Well I can't say for sure... but he does appear on the kernel mailing list fairly frequently. It also appears this gentleman might have been working on Linux JFS while at Caldera/SCO in March 2002.

Also on the mailing list, you'll also find more recent posts by presumably the same Christoph Hellwig, who now says he is a former employee of SCO/Caldera." ---------------------

Folks, Christoph Hellwig had at least the apparent authority to do add code and make suggestions, etc. As the employee was working for SCO then there is not doubt that this employee had authority to put code into, AND HELP in with, the LINUX project as an agent that represented SCO. AND if SCO employees did not have approval by management then they, he or she… still had the apparent authority to add code to the LINUX GNU GPL body of work (and thus involved SCO directly in the whole LINUX kernel development process). ------------------

2- A principle, must be aware of those that are acting with either apparent or ostensible authority... and there is a LEGAL path that must be followed to take away that authority. SCO’s mangagement, employees and agents over the years, were aware of SMP, etc… in LINUX code as they were working on this code themselves. SCO watched (hereby maybe the word ACQUIESCENCE comes into play with apparent or ostensible agent/authority words) as everyone started using this LINUX code, they even exposed themselves to the LINUX GNU GPL, and all the while they appeared to everyone else as approving of all use of any code in LINUX and SCO made no legal action to stop ANY LINUX AGENT or user from distributing, downloading, buying, contracting for or simply using it for personal or commercial use (thereby approving of the price of the terms of use for all the innocent 3rd party customers)!

YES, there are areas of the LAW designed to protect the customers! SCO is bound by the terms and conditions of use as laid out in the LAW! SCO also has to respect these terms and conditions as defined by the terms of the deals that each individual innocent 3rd party customer entered into when they acquired their copy(s) of LINUX. AND SCO is also bound the LINUX license (GNU GPL) as they were both contributors, users, and distributors of the LINUX code in question!

One way for a business to commit suicide is to not control the actions of employees and/or control the actions of those with apparent or ostensible authority... to the point where it gets out of hand!

SCO, as far as their interest is concerned (and their interest is only a seemingly simple claim on IP that they may or may not own, as a product)..., well lets just say that SCO let things get out WAY out of hand. A lack of previous action by SCO is the reason why any 3rd party innocent customers, that obviously had 100% LINUX use approval previously from SCO – due to actions that took on the appearance of acquiescence and by the very existence and actions of SCO’s apparent or ostensible authority enabled agents, in the LINUX area that SCO and all of SCO’s agents, were 100% involved in…, covering all the aspects of LINUX (acquire, use, and upgrade), for a long time before any LINUX user started any kind of SCO claimed IP (and during), …anyway, these innocent 3rd party users/customers, CAN NOT now BE HARMED by SCO while SCO scrambles and attempts to try to correct their own "lack of control of ALL their IP related mistake(s)". THE LAW SAYS SO!

If anything, SCO is guilty of not having a working system of checks and balances in place FOR YEARS AND YEARS! This problem was evident from top management down to programmers who where contributing code to LINUX... and SCO can not now make any innocent 3rd party PAY for SCO’s own mistakes!

Important things to remember:

1 - SCO's evidence of code ownership and their ownership of UNIX is shown to be false at this site: http://www.opensource.org/sco-v s-ibm.html

2. - Today, SCO can not harm any current LINUX (or AIX ) customer as ALL products contain IP and software is not unique to be different legally than any other product that a consumer would acquire- it is apparent that the LAW says so! SCO's involvement all aspects of developing and selling LINUX and where the words ACQUIESCENCE, Agents, Authority, apparent or ostensible authority/agents, etc... become important to this case means that ANY innocent 3rd party can not be harmed by SCO today (or maybe for anytime in the future as well)!

3 - The LINUX GNU GPL forbids any entity from making claims, or taking actions, like the one(s) that SCO is planning!

Also - this former NewsForge comment was enclosed by Anonymous Reader on 2003.08.13 16:35 (#64565) ---------------------------------------------

If SCO knocks, then go to court -only not over IP by Anonymous Reader on 2003.08.05 16:00 (#63097)

Red Hat just set up a fund. I wonder if anyone that SCO goes after with this license requirement can have access to the money for their own defense?

Can anyone list any methods of legal defense against this illegal assult on innnocent 3rd party users of LINUX?

Due to the open nature of LINUX it can be proved that SCO has known or should have been aware of any potential abuse of their IP for many years! The fact that SCO has worked on the kernel for many years... shows us that SCO, it can be shown, has known of every inch of LINUX code for many many many years! And it can be shown that SCO also has approved of all of the LINUX OS's historical methods of purchase, download, and/or use... until today!

Apparent or ostensible authority defense anyone? With this defense one can go to court, remove any arguement by both parties about IP, code, etc.. and limit the case to ONLY the situation where a LINUX user has bought LINUX already, and when acquiring the product already agreed to certain terms and conditions that applied to the LINUX product's sale or download...! This LINUX IP product purchase or download (including the now claimed SCO IP)... all of this happened while a "now declared" IP principle "SCO", watched and knew of LINUX IP agents who were conducting said transaction(s), all this happened with SCO doing nothing more than to willingly allow the agents to complete the LINUX purchase or download transaction(s)! So - SCO thus has previously, with knowledge, knowingly approved of many LINUX purchase or download transactions that took place, AND/OR with or without knowledge, let LINUX IP agents with apparent or ostensible authority conduct the transaction(s) while SCO did nothing to prevent said transaction(s) from occuring... whereas, because of this action (meaning SCO's actions and/or lack of actions), SCO can not now go back and charge money AGAIN for a product that was acquired previously, as the innocent 3rd party customer, who paid, according to the terms of their LINUX acquisition, has paid the proper sum once already for the product that they bought or downloaded! The innocent 3rd party customer can not NOW be harmed. It's the law..., let's see if a law with a history of cases behind it will save us from SCO!

Typos fixed, words add and resent to state contact by Anonymous Reader on 2003.08.16 8:24 (#65021) -------------------------------------------

added words and fixed actual authority to read: actual (express and/or implied), apparent or ostensible authority...

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I hope the Nevada Attorney General knows about the case; it would be very helpfull for his office to know that the SCO board of directors is available in Las Vegas to answer some questions (17-19 Aug). :-)

#!/usr/bin/python
import disclaimer
print disclaimer.ianal

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[ Reply to This | # ]

I did not find it difficult to discern what state your are referring to, and I would be interested in hearing what happens. I wonder if the Attorney General knows that some parties have already been contacted by SCO with the original warning letter, followed by the demand for license money? I don't know if any are located in the same state, but if they are, and the AG could certainly determine that, then that might give them a nail to hang their interest on. However, if it's true, as has been reported, that SCO doesn't tell callers that they need a license but merely suggests callers ask their own attorneys, then what would you sue them for, if your own attorney advised you to get a license? I think the person you spoke with was expressing something similar. It's like with domestic violence. The police can't arrest a husband because his wife says she's afraid he'll harm her. He has to do something they can arrest him for. Whether a state's laws would cover the kind of activity we've seen in the SCO case so far would be something for the AG's office to determine, and that would vary from state to state. I guess it might be of interest to look into federal consumer protection laws too. Hmmm. But I'm thinking they might have to wait until SCO overtly sues someone. I don't know the answer to these questions, but I'm surely thinking about where to look to find out the answers.

Consumer protection laws are an area I hadn't thought of, but I will now. It wouldn't solve all the issues that have been raised, but it is something to think about but, speaking for myself, I wouldn't personally make any moves without speaking with an attorney, and I'd hope that I didn't make any moves that would do any harm to any other legal cases already ongoing. The thing about the law is that it is deceptively accessible. By that I mean, you can be really clear about one aspect of it, and miss the boat completely on something else and find your position completely undermined by that blank piece in your knowledge, as there are layers and layers to know and understand. The more you know, the more cautious you become. At least that is my experience. So my hope, once again expressed, is that everyone will seek legal advice before taking any steps.

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Yep - with computers, the law, or just about anything... it seems that the more you know the more you discover that you don't know, and so we spend our lives attempting to know more, so that we can actually know less! Ah - but, to live is to learn!

Comment/question: When one contacts their "state attorney general" then, isn't that the same as contacting an attorney? If one files a complaint against an out-of-state company "that is making possibly illegal financial threats against you" (or is trying to sell something that they don't own clear title to), then is it not the job of the state attorney general(s) to look into these matters? Is it not the duty of a citizen to report possible illegal activity to the proper state officials so that they can investigate? Isn't one of the state attorney general's main jobs consumer protection (according to their web sites it seems that it is)! For some of us LINUX users (even commercial users these days) the only attorney we can afford is one that the state pays for (especially now that Microsoft and SUN have witten HUGE checks that can be used to back the SCO legal bills)!

pj - Today, in fact, when we look around we see that LINUX agents are still everywhere allowing SCO's, the self-declared principle SCO's, "claimed IP" to be acquired, downloaded, upgraded, and supported. AND SCO has made no attempt to stop any historical acquisition, use, or support, etc of LINUX, AND so it seems evident that SCO seems to be endorsing any and all current activities of LINUX agents, who are acting now on a claimed-to-be-IP-principle SCO's behalf, as they continue their distribution and historical support of LINUX (including the making of copies of LINUX and the giving of LINUX to other friends or businesses)! At least, I have filed my complaint and filed my documentation regarding the fact that I have "acquired and are using a free version of LINUX and have paid for, and are using, at least two copies of RED HAT LINUX" (both acquisitions dated well before any kind of obvious SCO legal action to notify any one memeber of the public with regards to any attempt, by SCO, to control or stop any agent(s) distribution of LINUX, ... these documents that show 3 LINUX OS acquisitions, and so are dated, and these documents NOW ARE ON FILE WITH THE STATE! I have also registed in my complaint my understanding, that per the GNU GPL, that it is implied by the GNU and all previous historical understanding of LINUX acquistion, use, upgrade and support ...that continued acquistion, use, upgrade and support options are perpetual rights once you have a copy of LINUX and are using it! And since my tax forms are made out showing income (what is commercial use?) in two states... I am thinking about filing the same complaint and the same exact documentation in a certain second state next week. I see no problem with putting a stake in the gound regarding my ownership and perpetual rights as they pertain to the copies of LINUX that I am using. Guess what - I have a dual processor computer that I hack on and has actually run, in a multi-OS optional kind of way/testing, a copy of LINUX!

Other Questions, etc:

The first question regarding the laws of agency defense/offense that I see is the question relating to "if SCO is a principle" (at this point in time, is there any doubt that SCO is or is not a self-declared LINUX IP principle).

The next question is, if SCO is a truely seen as a principle, then who are the agents and innocent 3rd party customers? AND can there be innocent agents (with LINUX, it seems, that one first is an innocent 3rd party customer/user, then when you give a copy to a friend or other business, etc. then you become an agent too)! Hmmm, are the agents then innocent as well because SCO has, all this time before, stood by and watched as all these historical tradings, giftings, acquirings, and support/upgradings, etc and all other LINUX related understandings and/or transactions ALL took place... and all this time SCO HAS SAID NOTHING AND SCO HAS NOT EVER DONE ANYTHING TO STOP IT? SCO has never told any possible agent of LINUX that it is wrong to be an agent of their claimed LINUX IP! Today, this is a fact.

Another question is how would SCO possibly legally go about the process of legally notification to the public around the world telling them about all the possible actual, apparent or ostensible agents that are running around letting innocent 3rd party customers/users become LINUX users? How can SCO legally do such a notification about all these agents? There maybe a reason why they have not gone after the agent "Red Hat" yet, as in reality everyone is equal to RED HAT who has distributed/sold or simply given a copy of LINUX to someone else - all innocent 3rd party users and all agents are equal under the eyes of the GNU GPL?

The problem with hanging back until SCO contacts you first... is that SCO in their court filings could then start the ball rolling "first" by introducing their IP claim into their case against a LINUX user from the very start (making it very expensive to argue the case "from the start"). If SCO's posting on the public internet and their press statements AND their public license demands toward users can be seen as "over the line INTENT to cause future harm" then, the attorney general, or a local court room DA, may be the only one(s) who could address this with possibly criminal charges or at least a court ruling that tells SCO to cease and desist from their FUD and LINUX licensing claims against citizens of their state(s)? I don't know? Remember that their threats have been violent enough to cause one company to fear them enough so that their legal staff advised this company to go to SCO and PAY SCO (whatever SCO wanted)for the SCO LINUX license! Hmmm, in a domestic case can't one party get a court order causing the other party to be restrained in some way? Don't the facts point to a SCO that has made valid enough threats to harm others such that the state or the courts have valid reason to at least step in, listen to the agency defense and then to stop SCO's attempts to harm - as personified by the FUD and related licensing threats toward LINUX users (stopping it until the IBM SCO code ownership situation is resolved - where if SCO were to win, then they might still be able to kick themselves and charge someone maybe for future use of code based only on transactions that happen then ONLY after the case is closed - where then LINUX coders would have replaced the code and it would not matter)?

At this point in time SCO wants ALL the discussion(s) to remain focused on the intellectual property debate! There IS A REASON WHY! If agency law were used to defend the LINUX user against this SCO's license fee-or-if-you-don't-then-you-WILL-suffer-harm public threat/requirement, and a case were won using it, then SCO's only course of action would be to get to the IBM IP case court room as quickly as possible in order to salvage any possible future for their company!

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