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They seem to be making the same kinds of arguments. I.e., they own all of UNIX, they own any derivations, etc.

I wonder if this whole case will hing on what constitutes "derived work".

Of course, it'll be a great help to have people like Dennis Ritche around.

Slightly off-topic, I'm reminded of a Frank Zappa live album with a guest apperance by Sting. Sting introduces "Murder by Numbers" by talking about some televangelist claiming the song was written by Saten, etc. Sting replies "Hey, I wrote the f*ing song..." :)

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What we have is code that is definitely not "line-by-line copying". It is either New Unix code modified to fit into Linux or Old Unix code that was updated to work in Linux in a way similar (but not the same) as how the same thing was done in New Unix.

Cutting Unix code and pasting it into Linux would be a violation of copyright but that isn't what happened here. Is using Unix code as a model to make a Linux function a violation of copyright?

Another point is that given two 5 million line collections of code that do the same things, written by people trained the same ways and potentially building from the same base, our common sense ideas of what can be a coincidence and what can't may not apply.

Buy anyway, SCO has repeatedly asserted that there is line-by-line copying from New Unix into Linux. They gave two examples that clearly are not that. They have also shown that they can show examples of disputed Linux code without violating their "contracts". The question for SCO is "You keep saying you have line-by-line copying. Where is it?"

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The reason this keeps coming up is because its very similar to the SCO vs IBM case and thus makes SCO's similar claims appear to be doomed to getting the same result or worse.

As far as why its taking so long for something to happen is that there are various procedures each side must take and this can take months. Look how long it took for IBM to respond to the SCO complaint (5 months). As it is, the case isn't scheduled to come to trial until April 2005. As you can see, the American judicial systems could use an oil change and a new filter because its pretty gummed up.

The lawyers love it because its their bread and butter. The longer it takes, the more money they make.

I don't expect to see a response from SCO on the Red Hat suit for as long as they can possibly hold out. They're in no hurry to have anything resolved because it'd pretty much screw up their scam and the money would stop flowing in.

As long as the legalities do not involve personal criminal proceedings against SCO's executives, they probably feel fairly safe hiding behind the SCO corporate entity and think they can jump ship if things get too uncomfortable for them.

After all, SCO was doing lousy before all of this and its 52-week low was under a buck. That's not the sign of a healthy company, its the sign of the corporate grim reaper.

If SCO goes belly up, its execs will have made tons of cash from selling off their ultimately worthless stock (to the suckers that buy it and are holding the bag when it implodes) over the next two years and they can bail. They'll already have squeezed out all the cash they could and can retire lest someone come after them personally with criminal charges.

That's what I think anyway.

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Its also possible that McBride and his lackeys would simply leave the U.S. and head to a country with unfriendly extradition laws before their scam blows up in their faces.

As an example, Howard Hughes and his lackeys were able to avoid being subpoenaed in the TWA case in the 70's by hightailing out to the Bahamas.

If I were McBride and I thought I could get away with the a scam to pump-and-dump my stock and/or extort mass gobs of moolah, I'd be making sure my money was either in a Swiss bank account or in the Cayman Islands and be prepared to leave at a moment's notice.

If I've got a few hundred thousand dollars or a few million, I could live like a King in some of these other countries and the Feds couldn't touch me. As for my company, if it tanks, what do I care? It was going down the drain anyway until I pulled my scam. Now I'm rich and living in the lap of luxury, scot free and untouchable. Screw everybody else (like my hapless underlings, employees, stockholders, IBM, Linux users etc.), right?

And McBride seems like the type of guy that might actually go for that hence his insane rants. He probably thinks he's untouchable and the case will never get to trial anyway because he'll bail the second we get the drop on him in regards to criminal prosecution.

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By the way, Dennis Ritchie's comments, seem to me like they are **N**E**W**S**. Maybe not to us geeks, but the mainstream press would lap it up. I hope Perens and whoever else might be interested, knows about it.

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I believe there is a motive and method behind the madness of recent public musings by SCO's counsel Eric Heise. Heise's recent FUD concerning the GPL is simply a smokescreen. Most of the criminal charges that could be brought against SCO concern the license schemes of SCO and Linux user's. Heise's public gibberish is laying the groundwork for a "good faith reliance upon the advance of counsel" should these fabrications implode on SCO's top people. The "good faith" defense varies amongst jurisdictions but is present in most states and in federal law.

Darl McBride: "Your honor I honestly relied on the prestigious law firm of Boies Schiller & Flexner for advice that the GPL was invalid and that licensing Linux was a proper way of protecting our intellectual property."

This is a powerful defense in some jurisdictions.

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On another financial note, does anyone know if the fact that the UNIX rights they're banging on about only cost them $30-40M in the first place is likely to tell against them when they claim in court that the rights are worth billions?

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Neither SCO nor RedHat nor IBM seem so far to have asked for that. For SCO, the reason seems obvious. Could somebody help me to find the reason why RedHat only asked for "permanent injunction" (http://lwn.net/images/ns/rh-com plaint.pdf, Request for relief, A), while IBM asks for "granting IBM injunctive relief"(f) only among many "damages" (a-e,g-i) that SCO will certainly never by able to pay for.

How long would it take to get an immedate/preliminary injunction in the USA? In Germany, it was a matter of a few days (i dont know exactly, because i could not yet find the date when the claims against SCO were brought to court).

TIA

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Here's a list of some files from the USL / BSDI case in 1993, from Dennis Ritchie's page. In particular,

http://cm.be ll-labs.com/cm/cs/who/dmr/bsdi/930303.ruling.txt

is good reading... it's the judge's finding and order on USL's request for a preliminary injunction against BSDI. If one reads this file, the similarities between this case and the current situation are quite amazing.

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I have to confess that this makes me wonder about the possibility of a "sacrificial lamb" scenario, especially since Boies has faded into the background and the spotlight is now on Heise. No, I'm sorry, that's ludicrous. Bad geek! No sushi!

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http://twiki.iwethey.org/twiki/pub/Main/SCOvsIBM/alleged_copying_history.png

Basically, yes, it's K&R who wrote the code but SGI seems to have laid a pipeline from SysV over to Linux but then again no-one actually cares because they borrowed the ideas of:

1) adding ASSERT debug calls (yawn! everyone and his dog does so all the time) 2) adding mutex instructions around the olden 1973 core (yaaaawn! this is about as trade-secretable as the method of opening and closing a door)

Ok, now where's the beef?

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That's true, but it also shows that this code is VERY OLD, not some kind of special, secret SysV code. It shows that it's (at least) 30 years old and, so it seems, absolutly everywhere.

Paul

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But, all sing with me:

Caldera released it all in 2002. Caldera released it all in 2002. (Refrain)

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So where would SCO be if any significant number of Free Software rights-holders would send them letters reaffirming that without the GPL, any distribution of their code is a violation of copyright law, and threatening to sue and/or push for criminal prosecution if SCO continues using their code in ways that SCO themselves claim are illegal? I can see it now. "Okay, SCO. You've succeeded in proving that the GPL is illegal. You now owe these people a total of a billion dollars in damages for deliberate copyright violations you've committed in between the time you recognized that the GPL was illegal and the time you stopped illegally copying their code. And oh yeah, your leaders will be spending some time behind bars too."

At the very least, it seems like a nice dream, but I can't help but think it ought to be possible for it to be more than just a dream. When a company deliberately sets up a situation where if it wins its lawsuit, it's guilty of copyright violation, and if it loses its lawsuit, it's guilty of copyright violation, there is no possible outcome in which the company is not guilty of copyright violation. In such a situation, the company ought to be held civilly and (if possible) criminally liable for deliberate copyright violation no matter what the outcome.

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This is the point on which Linus accused SCO of "having problems with the truth" (as opposed to general opinions like "being full of it" and "smoking crack"). SCO had previously stated that the code they were complaining about was not "historic Unix code", but more recent, unreleased SysV code.

Now SCO are claiming (without any evidence) that this code was copied into Linux from System V (presumably by SGI) and not from the near-identical much older open sources. This is quite possibly true, and would therefore be an infringement by SGI, but a very trivial one, given that the "restricted" code is negligibly different from open versions, and is in any case a straightforward implementation of an algorithm described in a textbook in 1968.

As far as Marcelo is concerned, he is employed by Connectiva in Brasil, which, according to a July 2002 Caldera press release is a key SCO partner. This is another indication of how SCO's current treasure hunt represents a complete burning of boats regarding their previous business strategy.

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Yes, but it *did* have an advertising clause in the license and it appears that Linux does not abide by it. So *if* the defense relies on the Caldera code release, there is still a bit of a problem. I don't know quite how serious.

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"Such right to use includes the right to modify such SOFTWARE PRODUCT and to prepare derivative works based on such SOFTWARE PRODUCT, provided the resulting materials are treated hereunder as part of the original SOFTWARE PRODUCT."

The work is the amicus brief submitted by the University of California Berkley at: http: //www.hcrc.ed.ac.uk/~richard/ftp-area/usl-vs-bsd/930107.amicus

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PhilTR:
I honestly think you're being a little paranoid.

Yes, Congress has gone a bit loopy when it comes to copyrights. But what these things often come down to is cash, and frankly, we're not talking about the RIAA lobbying against and going after file sharers. We're talking about a lawsuit against IBM, for petesakes -- they're a veritable icon of intellectual property, and there are contractual points that make the issue fairly cut-and-dry. I pity SCO...

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This is a powerful defense in some jurisdictions.

Attorneys perform one of two mutually exclusive services.

1. Provide legal advice. 2. Hired mercenaries to do what they're told.

If this case were the former, SCO would not be plastered all over the media. Darl's personality also suggests the latter.

It's odd, but a suit of this size also suggests contingency fee. If so, why did SCO feel the need to assert that they have the financial resources to fund the suit??? If contingnecy fee, then why can't these attorneys keep the client under wraps?

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p.j. What is the latest Linux view of the above? Links anyone?

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Because none of IBMs customers can make a strategical decision currently.

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http://news.com.com/2100-101 6_3-5065422.html

At the SCO Forum here Monday, the company pulled out its latest weapon: lines and lines of disputed code that were allegedly copied from SCO's Unix into IBM's version of Linux. The company claims that IBM illegally copied Unix code into its version of Linux, and

Neil Abraham, with SCO reseller Kerridge Computer, said SCO made the right decision to pursue IBM. "I think they've got a very firm case," he said, after looking at the code. "It's not just one line. It's huge chunks."

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http://news.com.com/2100-101 6_3-5065422.html

At the SCO Forum here Monday, the company pulled out its latest weapon: lines and lines of disputed code that were allegedly copied from SCO's Unix into IBM's version of Linux. The company claims that IBM illegally copied Unix code into its version of Linux, and

Neil Abraham, with SCO reseller Kerridge Computer, said SCO made the right decision to pursue IBM. "I think they've got a very firm case," he said, after looking at the code. "It's not just one line. It's huge chunks."

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Would a judge buy the assertion that SCO's 1/4 of Linux would be worth the same price as UnixWare ?

(I'm curious how that hypothetical would play out, remote as the probability is).

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The " IP as physical property " stuff is applied to IP that is unquestionably owned. No one came out of the woodwork and contested that "Thriller" was owned by someone else. In those cases the plaintiffs / lobbyists were pushing to retain control.

The difference I see between your examples and this case is that this dispute is not about protecting what SCO absolutely owns, it's about SCO dubiously claiming ownership over materials it does not own.

Big difference. When I'm feeling cynical I can agree with you that a judge might fail to see/grasp/understand the difference.

But I have to believe that IBM will ask SCO "who has the copyrights on this?" "What does the amendment say about who owns derivative works?"

When (if) this gets to court IBM can paint a picture of habitual, wildly - overstated, over-reaching claims.

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Link to the amendment anyone?

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page 2 paragraph 2

2. Regarding Section 2.01, we agree that modifications and
derivative works prepared by or for you are owned by you.
However, ownershiop of any portion or portions of SOFTWARE
PRODUCT included in any such modifications or derivative work
remain with us.

The meat of the issue is "derivative works are owned by you."

When I first read this I thought

"anything new authored by IBM employees or contractors is owned by IBM, perhaps on a line by line basis."

That is, IBM owns lines 100 through 500, AT&T owns lines 1 through 99.

That line-by-line interpretation is probably wrong, though.

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RedHat's approach is to ask for a gag order against SCO. The fact that they're asking for a permanent injunction does not preclude them from asking for a preliminary injunction -- in fact, (IANAL) from what I've seen of Canadian injunction cases, asking for a permanent injunction could be seen as the first step to requesting an interim (preliminary) injunction.

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From what I understand in the USL v BSDI case they nit-picked the terms of the license really focusing on what was said relying on very specific and well defined meanings of terms.

In this case McBride has already telegraphed his punch. He's going after a much broader and difficult to define terms, intellectual property, et al but one that given the direction of the courts and Congress have been going and which seems to be taking on meaning not necessarily intended by the 1976 copyright act but, one that is more useful to him and his aims. Private good rather than public good. Swaps up the rules sumfin awful.

In this case the accuser is in the catbird seat and judges will give them presumptive victim status against those criminal types and the accused presumptive criminal status stealin from them poor victims. The accused has the burden of prooving her innocence. Yet how does she prove her innocence in this case when the accusor refuses to put the evidence of guilt on the table or can control what they put on the table?

Sure McBride is trying to play the victim here. After all he's only trying to makes sure he can protect the intellectual property of his poor programmers so's they can at least put sour milk and dry bread on the table for their starving chilluns.

What the OpenSource community must do, in my view, is capture and keep the high road. The graybeards of the community must take the offensive expressing their indignation as Eric did and then gather together to sharpen their knives and spears and discuss tactics and strategy.

They must gather together all who contributed their time, energy and workproduct to the development of the OpenSource model, tally their contributions, and list their greivences. Then they must bring action agains SCO in as many different jurisdictions as is practical. We need to help fund the effort. Finally, they must make it a political liability for politicners to fail to see meaningfully acknowledge their point of view and to talke appropriate action on their and societie's behalf.

Judges, I would say, never "fail to see/grasp/understand the difference." I always operate under the assumption *all* elected judges are corrupted by those elements that enable them to get their message out come election day. The rest are beholden to their masters for appointing them. Then I go from there. Judges, particularly those who are elected always pay attention to and protect those who got them elected. The angrier and more abusive someone would get over such an accusation, the more certain he's stone cold busted.

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SCO started an trade secret contract case with IBM. All of the "intellectual property" clouds seems to be an essential part of their licencing plan.

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It's very useful because AT&T used a standard license in 1985 with the same clause in paragraph 2.01. It seemed to imply that AT&T owned a licensees derivative code. Paragraph "[fn13]" in the amicus relates the details of the tesitmony of two AT&T/USL witnesses who helped explain or prepare side letters to ALL OF THE LICENSEES in August 1985. That letter explained that the derivatives were owned by the licensees, unless they contained at least some code developed by AT&T.

SCO has submitted two sets of 1985 AT&T licenses. One set pertains to IBM and has a side letter explaining the derivative rights all dated 1 Feb 1985. The other is a Sequent license they filed along with their amended complaint. It's dated 1 April 1985. SCO did not include any side letters with that license. The testimoney from the USL witness in BSDI indicates that Sequent would have been sent one - along with all the other licensees - the following August of 1985.

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I like to compare the "FIRST CAUSE OF ACTON" in the original complaint with the "SIXTH CAUSE OF ACTION" in the amended complaint to make my point regarding where I think SCO coming from and where it going with its case.

FIRST CAUSE OF ACTION (original complaint - on my puter)

(Misappropriation of Trade Secrets—Utah Code Ann. §13-24-1 et seq.)

104. Plaintiff incorporates and re-alleges by reference paragraphs 1-103 above.

105. Plaintiff is the owner of unique know how, concepts, ideas, methodologies, standards, specifications, programming, techniques, UNIX Software Code, object code, architecture, design and schematics that allow UNIX to operate with unmatched extensibility, scalability, reliability and security (hereinafter defined as “SCO’s Trade Secrets”). SCO’s Trade Secrets provide SCO with an advantage over its competitors.

SIXTH CAUSE OF ACTION

(Misappropriation of Trade Secrets—Utah Code Ann. §13-24-1 et seq.)

160. Plaintiff incorporates and re-alleges paragraphs No. 1-159, above.

161. Plaintiff is the owner of unique know how, concepts, ideas, methodologies, standards, specifications, programming, techniques, UNIX Software Code, object code, architecture, design and schematics that allow UNIX to operate with unmatched extensibility, scalability, reliability and security (hereinafter defined as “SCO’s Trade Secrets”). SCO’s Trade Secrets provide SCO with an advantage over its competitors.

In my view this is what the case is all about. SCO will try to argue for an extremly broad interpretation of intellectual property and very loose criteria for evidence of violation. Since courts seemingly eagerly entertain such sillyness, SCO can't help but make the arguments. And since they're going to argue that block of code are functionally similar/identical they're derivatives of the "SOFTWARE PRODUCT" and hense their intellectual product.

The importance here is that they're likely to argue the syntactical differences and date of origin of the code is de minimus irrelavant. They'll contend its the functionality that's controling. They may even try to throw in some variant of the lookie-feelie argument to bolster their point.

I could be wrong, I just donno.

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Thanks for posting what SCOG is claiming as "trade secrets".

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Are SCO suing for copyright violations, or for trade secret issues?

Are they suing IBM or somebody else?

(Don't bother answering those rhetorical questions, you should know by now)

If Colonel Sanders gave me his secret blend of 11 herbs and spices, and

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How Boies intends to prove that published U.S. patents for multiple processor computers sharing memory instead of inputs and outputs - NUMA hardware - are derivatives or trade secrets under an operating system software license agreement still puzzles me. So this hardware patent can never be licensed by it's registered owner for use with any competing operating system (grant-back or product tying) forever, because that would constitute misappropriation of trade secrets under some Utah statute? Is that your theory?

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I mentioned Berman only because he is a potential enemy of open source and free software as he is a supporter of intellectual property as a private good as opposed to a public good.

I believe SCO will attempt to wrap its arms around all Unix-like software code. Well I don't even have to equivocate here, McBride and Sontag have made statements to that effect. I'm trying to understand how they migh possibly do it. Looking to their amended complaint seems to be the best place to start.

You rightfully point out a conflict between the concepts of patent and copyright. To tell you the truth I don't know how the courts are going to sort this mess out either. I do suspect they will "divide the baby." I'm trying to figgure out where the cut is going to be made.

The patent office screwed up when it awarded patents for software. The courts made a mess of things by giving code both copyright and patent status and treating intellectual property as a real property. Hardware is increasingly being driven/controlled by software. Congress hasn't help the situation either when it tossed the hot potato to the Patent Office. But be sure mischief is in the air. The entire area of copyright and patent is very unstable at the moment and the outcome is much like a crap shoot.

Will congress and the courts completely abandond the idea of copyright as a public good? If they do how is copright treated as an exclusively private good real property) as I would my hard drive. After all there are the issues of copyability exibithed by my software that are not exibited by my hard drive. I can share my copy of "You got to fight for your right to party" and I still can enjoy my copy with the owner still able to sell copies of his original. No so with my hard drive. Quit frankly I don't know how this conflict is eventually going to be resolved either.

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But there's a major problem, if anybody owns the general concept of Unix-like, it's Open Group. SCO's past and present actions (acknowledgement trademark, get certification) seem to confirm they acted as if that was the case. Novell would probably have a lot to say about this too.

And the potential owner of Unix-like, Open Group, essentially say SCO is just a particular implementation of THEIR concept.

Frankly I'm surprised at Open Group. They emphasize how UNIX(R) is their trademark, and their site even says that claiming "SCO owns UNIX" (as some press statements and press releases do) is misleading - yet they are not really protecting their trademark from this kind of "abuse" AFAIK.

I know you have to protect trademarks to stop them becoming generic. Do you have to protect trademarks from "abuse" too, or not?

*Silly* Idea for Tinfoil Hat Bridge: Maybe Apple is behind SCO! It's all an attempt to get "Unix" to be a generic rather than a trademark!

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They made local copies.

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Here's a hint: "Ya want fries with that?"

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To quote a very wise man: For who makes you different? And what do you have that you didn't receive? But if you did receive it, why do you boast as if you had not received it?

Einstein: "God does not play dice"

Donald Knuth: MIT God and Computers Lecture Series

Apparently SCO feels that AT&T invented computer science, mathmatics, and algorithms.

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BCPL was developed in the mid 60s and Tripos in the mid 70s, both by Martin Richards in Cambridge. http://www.cl.cam.ac.uk/users/mr/

AFAIK both were effectively in the public domain 30 years ago.

I ought to put on record that I was one of Richards' students in the 70s, and to this day remain in awe of the brilliance of his lecturing.

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