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SCO Explains a Bit About the GPL
Monday, August 18 2003 @ 09:34 PM EDT

That's the title of a surreal interview Tuxedo did with SCO's Blake Stowell. Note the Alice in Wonderland logic in this snip:
Q: Why has SCO not taken any steps to minimize the alleged copyright infractions?

Blake Stowell responds: "How can SCO identify this code and still keep it confidential as our contractual obligations specify that we must do? That is the quandary that SCO is in. To address that, we have folks view the code under non-disclosure. The Linux community cries fowl because we require a non-disclosure and refuses to view the infringing code. So what are both sides to do? . . .

"I'm not sure that there is a law that says we can bill users, but if users are going to continue to use our intellectual property, then they should pay for it. If they don't want to pay for it, then they shouldn't use it. The law does say that we can keep others from infringing our copyrights."
So...we shouldn't use it, but we can't see it, so we can't remove it. Curiouser and curiouser. It's the second article down. Meanwhile, some open source folks have asked SCO today to come up with an NDA that programmers that actually program can sign without destroying their ability to code in the future. Oh, you mean a normal NDA? Why, yes.

Funny, Alice thought to herself. SCO never answered my email, and this one got answered the same day. How very peculiar.

This article, "Sontag and Heise also presented some short snippets of source code that they claimed had been directly copied from SCO's Unix to Linux" at the James Bond-themed SCOForum. I had it right. The metaphor is that SCO will escape seemingly impossible odds. They are David against Goliath, it seems. In alternate universes, anything can happen. If any of you real coders were there, what, pray tell, did you see? I'm hearing rumors, but I need confirmation before I'll run with it. Anybody attend?


  


SCO Explains a Bit About the GPL | 28 comments | Create New Account
Comments belong to whoever posts them. Please notify us of inappropriate comments.
radiocomment
Authored by: Anonymous on Monday, August 18 2003 @ 07:15 PM EDT
Oh, how I love the mispelling of others.

Stowell "


D.

[ Reply to This | # ]

radiocomment
Authored by: Anonymous on Monday, August 18 2003 @ 07:18 PM EDT
here is what I meant to write:

Oh, how I love the mispelling of others.

Stowell: "The Linux community cries fowl..."

Is he trying to say, the we are ducks, chickens or turkeys???


D.

[ Reply to This | # ]

radiocomment
Authored by: Anonymous on Monday, August 18 2003 @ 07:20 PM EDT
Okay, standard disclaimer, IANAL. Having said that, I have to wonder... is Stowell on an extended trip from the real world? How can the GPL be rendered invalid by US copyright law while Microsoft's and even SCO's end-user license agreements are valid? Aren't they just as liable to be rendered invalid by Stowell's argument?

Stowell mentions "When Congress enacted the current Copyright Act, it defined certain exclusive rights that copyright holders can rely upon to protect their copyrights." This is of course true, and is the very basis for the copyright rights retained by the authors of the Linux code.

Further: "These include the rights to copy, authorize derivative works, modify, and distribute the copyrighted material." But these are the very rights recognized by the GPL, and are the basis for the author's rights to (as mentioned above) "authorize derivative works".

"Further, under the Copyright Act an interest in copyrighted material cannot be transferred unless expressly authorized in writing by the party transferring that interest." Excuse me? In writing? Um, isn't that what the GPL *is*?? Or am I missing something?

"The GPL tries to define the rights of copyright holders with respect to copying, distribution, and modification of copyrighted source code." No, Mr. Stowell, the GPL tries to define the rights of the *recipient* of the code, just as do the commercial software houses' EULAs. The GPL says absolutely nothing about modifying or otherwise affecting the rights of the copyright holder. His rights are indeed defined by federal copyright law.

On the subject of disclosure, Stowell asks "How can SCO identify this code and still keep it confidential as our contractual obligations specify that we must do?" As I said at the outset, IANAL, but I cannot for the life of me understand what kind of contract a company would enter into that would require it to keep its own (supposedly) confidential property confidential? Wouldn't the simple desire on the part of the propery owner to keep such property confidential be enough? "Oh, wait, corporate lawyers, you forgot to write into this contract the part where I'm forbidden to give away my secrets." On the other hand, assuming for the sake of argument that the code in question is in fact in the Linux kernel, then it's no longer confidential; it's been widely distributed. Can't have it both ways, guys.

"I'm not sure that there is a law that says we can bill users, but if users are going to continue to use our intellectual property, then they should pay for it." OK, prove that it's yours. Go ahead. Likely to be a rough task if you're not willing to indicate what it is that you claim.

Sheesh.


Steve Martin

[ Reply to This | # ]

radiocomment
Authored by: Anonymous on Monday, August 18 2003 @ 07:22 PM EDT
Isn't it obvious what is going on

On the day after Red Hat filed suit, SCO had a conference call. McBride said (I'm paraphrasing) that they wouldn't reveal the code, because then Red Hat could remove the infringement, and it wouldn't make sense for SCO

Today (check back a couple of stories in the comments section for link), Sontag said even if the allegedly infringing code were all removed (which SCO didn't plan to identify anyway), SCO would still not be satisified with Linux users. In other words, SCO wants something else from Linux users than just to stop infringing.

In CRN today (again link posted in previous recent comments section), McBride said he wants IBM to pay them off, and SCO to get an ongoing royalty from Linux.

In summary, I think it's clear (at least in my opinion, yours may differs) what SCO wants, Sontag+McBride made it very clear today,

1. the allegedly infringing code is not the real issue. SCO don't want it removed, and if it was somehow was despite their efforts to prevent identification of what it might be, that is still NOT going to be enough for them. Read Sontag's comments.

2. A payment from IBM, at least hundreds of millions (McBride said this)

3. A royalty to SCO for Linux (McBride said this), regardless of whether it incorporates the allegedly infringing IP (I think implication of Sontag's comments that removing the code isn't going to be sufficient to satisfy SCO)

2. 1


quatermass

[ Reply to This | # ]

radiocomment
Authored by: Anonymous on Monday, August 18 2003 @ 07:28 PM EDT
ecprod

"Keep it confidential" doesn't make sense to me.

1. From one angle: If SCO have to keep whatever's in Unix confidential, how can they license it to more than one company? How could anybody buy it, without knowing what's in there, it's not like people buy a $10m license without some due diligience. [and this leaves aside that Steve Pate book by the Old SCO]

2. From another angle: The confidentially would already have been broken. Anybody can read the Linux source code and get to whatever's supposed to be secret. The only thing we don't know is what SCO defines as secret.

My analogy would be a dictionary:

Let's say Linux = dictionary

SCO would be saying some definitions in the dictionary are our secret. To keep them secret we won't identify to you which ones we claim.

However... there is no secret, as anybody can, will and has already read (if there are millions of readers) the supposedly secret definitions.

The only secret is out to millions of people.

The only part that the readers don't know, is which part used-to-be, or supposedly was, a secret, at one point in history.


quatermass

[ Reply to This | # ]

radiocomment
Authored by: Anonymous on Monday, August 18 2003 @ 07:37 PM EDT
Maybe they are correct and SCO never licensed their code under the GPL:

"By selling Linux itself, SCO has not assigned all of its copyright ownership to the GNU General Public License. "SCO did not put a copyright into the GPL and authorized the usage of that code in Linux," Heise said." http://www.eweek.com/ article2/0,3959,1224322,00.asp

That would mean a lot to me if SCO hadn't already admitted it doesn't own the copyrights to RCU and NUMA.

It must have been Caldera Systems that arranged for it's release under the GPL:

"The Caldera License Agreement "GPL Software" consists of the following computer programs: 1. Linux packages as selected, arranged and coordinated by Caldera Systems for inclusion in this OpenLinux distribution."

That is the license that Caldera was using to distribute OpenLinux - including the Linux kernel - long after the complaint in the IBM suit was filed.

If SCO wants to be like the RIAA, I think they ought to go after the distributor (Caldera Systems) first. The evidence is that they didn't send out the usual DCMA take down notice:)

Since they want to test if copyright pre-empts the GPL, why not just resell the offending distributions to one another and claim protection under the first sale doctrine?


Harlan

[ Reply to This | # ]

radiocomment
Authored by: Anonymous on Monday, August 18 2003 @ 07:51 PM EDT
Oddly enough, I addressed this same issue at length a little earlier today in some remarks on the "Rule 10b5-1 - Trading "on the Basis of" Material Nonpublic Information" article.

If these guys don't shutup I may have to get a blog and quit freeloading here. I really would rather that these guys just shutup!


Harlan

[ Reply to This | # ]

radiocomment
Authored by: Anonymous on Monday, August 18 2003 @ 08:01 PM EDT
"In another keynote presentation, SCO Senior Vice President Chris Sontag and Mark Heise (....) presented what they claimed was proof that SCO clearly owned all the intellectual property, copyrights and trademarks for Unix."

I'm sure the Open Group would be very interested in seeing the "proof" that SCO owns the UNIX trademark.


Steve Martin

[ Reply to This | # ]

radiocomment
Authored by: Anonymous on Monday, August 18 2003 @ 08:03 PM EDT
"By selling Linux itself, SCO has not assigned all of its copyright ownership to the GNU General Public License. "SCO did not put a copyright into the GPL and authorized the usage of that code in Linux," Heise said."

I don't think I've ever seen clearer evidence that Heise (in particular) just doesn't understand the GPL.


Steve Martin

[ Reply to This | # ]

radiocomment
Authored by: Anonymous on Monday, August 18 2003 @ 08:05 PM EDT
http://www.eweek.com/a rticle2/0,3959,1224839,00.as p

At that Q&A session, SCO Senior Vice President Chris Sontag said there are millions of lines of offending code involved

My comment: "millions of lines", must = 2 million or more, otherwise wouldn't be "millions". What are we talking about half of Linux? Is there really that much difference between 2.2 and 2.4, i.e. millions of lines different or added?

Q. Are SCO really going to claim that they didn't notice for 2 years that a huge fraction of Linux was "tainted"?


quatermass

[ Reply to This | # ]

radiocomment
Authored by: Anonymous on Monday, August 18 2003 @ 08:17 PM EDT
Someone correct me if i'm wrong in my assessment...

Copyright law protects both the holder and licencee does it not?

The clause that SCO is misquoting is saying that the holder of the copyrighted material must (by law) grant the licensee at (very minium), the right to backup their copy of licenced software.

To me this implies a limitation to the copyright holder, not the licensee.

Does it stipulate anywhere the CR holder cannot extend further rights to the licensee?


SD

[ Reply to This | # ]

radiocomment
Authored by: Anonymous on Monday, August 18 2003 @ 08:18 PM EDT
Harlan,

Nice arguement for the crazieness from Lindon. The SCO Group is Caldera International.

New CEO in 2003, Darl McBride.

If I recall correctly, Sontag also came from Novell last year.


D.

[ Reply to This | # ]

radiocomment
Authored by: Anonymous on Monday, August 18 2003 @ 08:23 PM EDT
If you allow that copyrights pre-empt software licenses, you might want to
return your software to the store
for a refund. I checked, and Hastings Bookstore wouldn't take back my old copies
of OpenLinux, RedHat, Suse,
or Mandrake that might contain the disputed non-GPL'd kernel code. They said
that ALL SOFTWARE SALES ARE
FINAL. Under copyright law SCO really can't control the use of those copies then
- because of the "First
Sale" doctrine. I believe that this pre-empts SCO's pregnant cow license. I'm
really not interested in their
offer to hold their customers harmless, since I purchased my Linux from Hastings
and have no direct dealings
with SCO anyway.
Harlan

[ Reply to This | # ]

radiocomment
Authored by: Anonymous on Monday, August 18 2003 @ 08:34 PM EDT
ecprod: "In another keynote presentation, SCO Senior Vice President Chris Sontag and Mark Heise (....) presented what they claimed was proof that SCO clearly owned all the intellectual property, copyrights and trademarks for Unix."

If they possess any proof that they aren't infringing the IBM's patents (or that they now own Novell's) they might want to present that at trial.


Harlan

[ Reply to This | # ]

radiocomment
Authored by: Anonymous on Monday, August 18 2003 @ 08:38 PM EDT
> 1. the allegedly infringing code is not the real issue... > 2. A payment from IBM... > 3. A royalty to SCO...regardless...

Sounds right. And why? Just because...because...we think software shouldn't be free. Or just *because*.

It seems like the only real threat is, give us lots of money, or we'll keep making nuisances of ourselves on no particular grounds.

Do you suppose there's such a thing as collective sociopathology? A single individual behaving like this would be a textbook DSM-IV case.

Frank


Frank Brickle

[ Reply to This | # ]

radiocomment
Authored by: Anonymous on Monday, August 18 2003 @ 08:53 PM EDT
> I'm really not interested in their offer to hold their customers harmless

Well that seemed one of the most meaningless and pointless and stupid things they said.

IANAL, and maybe the legal craziness is beyond me, but I can not believe a corporation would be able to *successfully* sue one of their customers for simply buying that same corporation's previous product from the corporation (and using it), on the terms the corporation then offered. It seems more likely the customer would be able to have some come back, for the corporation retroactively changing the terms of sale after the purchase has been made.

On the subject of the Open Group and trademarks, I noticed one of today's press releases from SCO said they owned the copyright to the UNIX operating system (although with usual attributions for UNIX(R)). They used to say that kind of thing a while ago, then stopped and started saying they owned System V or UNIX System V. Questions I'm pondering, are were they (a) asked to use correct language by Open Group, and (b) maybe I'm over-interpreting, but if not, why the apparent volte-face today.

Incidentally either their original complaint and/or amended complaint, defines UNIX in interesting ways.


quatermass

[ Reply to This | # ]

radiocomment
Authored by: Anonymous on Monday, August 18 2003 @ 09:04 PM EDT
I don't know if this has been noted or discussed much but I thought it was interesting that IBM demanded a Jury Trial.

If so, SCO has to essentially convince 12 jurors that SCO is not an extortion syndicate run by hair-brained delusionary nutcases.

Yeah, that'll be easy.


Z

[ Reply to This | # ]

radiocomment
Authored by: Anonymous on Monday, August 18 2003 @ 09:04 PM EDT
http://www.open group.org/comm/press/unix-backgrounder.htm

Statements that SCO "owns the UNIX operating system" or has "licensed UNIX to XYZ", are clearly inaccurate and misleading.

versus one of TODAY's press release

http://biz.yahoo.com/prn ews/030818/lam040_1.html

The SCO Group (Nasdaq: SCOX - News), the owner of the UNIX operating system, helps (etc)


quatermass

[ Reply to This | # ]

radiocomment
Authored by: Anonymous on Monday, August 18 2003 @ 09:27 PM EDT
"I'm not sure that there is a law that says we can bill users, but if users are going to continue to use our intellectual property, then they should pay for it."

I love this! He admits that they have no idea if what they doing is even legal, but they're going to do it anyway. Admissions like that are god-sends to opposing counsel.


J.F.

[ Reply to This | # ]

radiocomment
Authored by: Anonymous on Monday, August 18 2003 @ 09:33 PM EDT
SD: They are on the horns of a dilemma. What they are saying is that they accidentally distributed their code under the GPL, and that it was misappropriated. They can't collect licensing fees without violating all of the other kernel copyright holders licenses (the GPL). That would expose them to statutory damages in excess of their market cap - assuming a few thousand authors and a few thousand copies sold.

They need to get the GPL ruled invalid to avoid that. Their theory is that copyright owners can change their licensing terms at will because they derive their rights from the Copyright Law, and not the GPL. Microsoft practically replaces their EULA with each patch, update, or Service Pack. The Law only requires them to allow or permit one copy - not unlimited copies and unlimited distribution per the GPL. Happily if that argument were upheld, it could (and should) be just as easily argued that patent law pre-empts old AT&T software license contracts in favor of Sequent/IBM:)

They are saying that the law pre-empts any license the owner dislikes. This is a self-defeating argument, since an application of the law to pre-empt an existing license agreement might invoke an application of the same law to pre-empt any new one that might favor SCO. As I've outlined above, I might be unwilling to accept the terms of such a counter-offer to the existing terms (the GPL). It's unthinkable that any court would attempt to impose a contract of adhesion on everyone because of plaintiffs own negligence. I checked, and the store where I purchased several 2.4 Linux distributions is unwilling to offer refunds in that event. They consider the transactions to be sales. Unless SCO is willing to buy back all of these copies at full price, under copyright law the doctrine of first sale might then apply. SCO's rights to charge a new license fee under any license at that point would be moot. "Collectable" used copies of 2.4 might be offered for sale on the second hand (E-Bay) market:)


Harlan

[ Reply to This | # ]

radiocomment
Authored by: Anonymous on Monday, August 18 2003 @ 09:47 PM EDT
Harlan, I think Microsoft's case is different. You buy or install something new, and read the new EULA, before running it. If you don't like it, you don't accept the new EULA, and don't run the new whatever.

Okay, you may not be able to get your money back from the store if you don't like the shrinkwrap license - but that's a different issue.

Microsoft do NOT suddenly say, "You bought Windows 98 back in 1999, and we've now retrospectively changed the terms, and you have no recourse but to accept them. As of today, you're no longer allowed to use Paintbrush, Notepad or install drivers for mice made by X, disks by Y, blah blah. And by the way if you're using programs A, B or C with Windows 98, they were compiled using Microsoft Visual C++, so you also owe $699."

At the time you bought it, there was NEVER any term in the license agreement saying that the software developer could impose any new license on you, that they felt like, and you could never have forseen them imposing as it is in complete contrast to the original license terms, at their will, and you have no say-so but to accept it.

(and even if there was, it would be an interesting question if such a clause was legal/enforceable - IANAL - so I won't comment on that, as I don't know).


quatermass

[ Reply to This | # ]

radiocomment
Authored by: Anonymous on Monday, August 18 2003 @ 09:47 PM EDT
Harlan, I think Microsoft's case is different. You buy or install something new, and read the new EULA, before running it. If you don't like it, you don't accept the new EULA, and don't run the new whatever.

Okay, you may not be able to get your money back from the store if you don't like the shrinkwrap license - but that's a different issue.

Microsoft do NOT suddenly say, "You bought Windows 98 back in 1999, and we've now retrospectively changed the terms, and you have no recourse but to accept them. As of today, you're no longer allowed to use Paintbrush, Notepad or install drivers for mice made by X, disks by Y, blah blah. And by the way if you're using programs A, B or C with Windows 98, they were compiled using Microsoft Visual C++, so you also owe $699."

At the time you bought it, there was NEVER any term in the license agreement saying that the software developer could impose any new license on you, that they felt like, and you could never have forseen them imposing as it is in complete contrast to the original license terms, at their will, and you have no say-so but to accept it.

(and even if there was, it would be an interesting question if such a clause was legal/enforceable - IANAL - so I won't comment on that, as I don't know).


quatermass

[ Reply to This | # ]

radiocomment
Authored by: Anonymous on Monday, August 18 2003 @ 10:15 PM EDT
http://www.nwfusion .com/news/2003/0818openserver.html

SAMBA, Apache, Mozilla, Perl,?

Seems to me, SCO doesn't mind certain kinds of Open Source?


quatermass

[ Reply to This | # ]

radiocomment
Authored by: Anonymous on Monday, August 18 2003 @ 10:25 PM EDT
It sounds like the same old trade secrets confusion they started with initially. The only benefit they might gain by keeping it secret is preserving trade secret status. Remember this "we have contracts preventing us from showing " has only come about in the last few weeks (I never heard it until 2 weeks ago)

If it's now in Linux, It CANNOT BE A TRADE SECRET. That's been pointed out to them many times.

You can only get damages from someone who stole your trade secrets, not from anyone that eventually got the secrets.

Let's not let them come back full circle and confuse this issue again.

Quandary?
SCO's only quandary is, the money they want is in other peoples' pockets and they can't generate lies fast enough to keep the stock price up.


Sanjeev

[ Reply to This | # ]

radiocomment
Authored by: Anonymous on Monday, August 18 2003 @ 10:51 PM EDT
http ://www.computerweekly.com/articles/article.asp?liArticleID=124209&liArticleTypeI D=1&liCategoryID=2&liChannelID=28&liFlavourID=1&sSearch=&nPage=1

From the article: "...Stowell said 900 companies have contacted SCO in the past two weeks, 300 of which were willing to buy a licence. As yet, the company has just one licensee, however."

Another word, lots of calls but no sales!


Quan

[ Reply to This | # ]

radiocomment
Authored by: Anonymous on Tuesday, August 19 2003 @ 01:44 AM EDT
Sanjeev: re: Trade Secrets, Unix System V Release 4, etc, one should remember that SVR4 is itself a self-confessed SVRx and 4.xBSD hybrid. If one goes to

http://minnie.tuhs.org/PUPS/

one can download the sources of the 4.2BSD and 4.3BSD that went into SVR4, and then also the sources of the Editions 5, 6, 7 and 32V, and compare them with the header files of any friendly relict of the early nineties SVR4 OSes - google for them, names like ESIX, etc.

Over half of SVR4 _is_ 4.xBSD, and SVRx's been more than amply well covered in text books like "The Design of the Unix Operating System", etc - so as far as "Trade Secrets" goes, SCO doesn't have a leg to stand on - but if you look closely at Darl McBride, Stowell, et alii, you'll notice them chewing their toenails and leg bones in the background ... ;)


Wesley Parish

[ Reply to This | # ]

radiocomment
Authored by: Anonymous on Tuesday, August 19 2003 @ 05:58 AM EDT
quatermass: "Harlan, I think Microsoft's case is different."

Perhaps, perhaps not. Let's say that you purchased Windows 2000 as a retail upgrade after studying Microsoft's product end-of-life schedule. You were encouraged to register - so that Microsoft could provide you with important updates. In order to obtain and install the Service Packs - you have to grant Microsoft root priviledges on your machine under a new license. You cannot safely operate your machine using the existing product without those Service Packs. If you don't agree to those new terms, and wish to return the defective product to the store where it was purchased, you cannot. Each changed EULA breaks your old contractual agreement with Microsoft, and represents a new offer or counter-offer that requires your acceptance. If these contracts are broken on one side, they are broken on all sides. Just like SCO's with IBM. If copyright law pre-empts licenses then under the first sale doctrine I can dispose of my copy like any other property. Microsoft can't claim some rights without waiving others.

What we are then left with is a perverse game of rock, scissors, paper - using patents, copyrights, and software licensing contracts. If copyright law pre-empts the GPL license, then patent Law almost certainly will pre-empt old AT&T Unix licenses. Novell claims that IBM's rights can't be terminated. At this point we don't care so much that the contracts are in breach. We care whose fault it is that they got that way. I am not in favor of software patents. Happily, we don't have to reach that issue. NUMA is an invention. It is a combination of very special hardware and software that was patented in part by Sequent/IBM. SCO has claimed that NUMA is a derivative of the Unix System VR4 Operating System Software. I can't wait to hear their arguments:)


Harlan

[ Reply to This | # ]

radiocomment
Authored by: Anonymous on Tuesday, August 19 2003 @ 07:41 AM EDT
Wesley Parish, thanks for the comments, I'm completely aware of those things.

My point was that SCO is still trying to play games that were discredited a while ago, and (perhaps some people new to this discussion ) were a little confused by this new rehash of "we have to keep it secret".

That's been debunked, many times over, please don't let SCO reset the argument back to square one with lame recasting of its original cow patties.


Sanjeev

[ Reply to This | # ]

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