Stowell said MontaVista's statement was a surprise. Not only has SCO made no demands on the company for Linux-related payments, but MontaVista's applications -- aimed at cell phones, personal digital assistants and other consumer electronic devices -- are believed to be based on earlier versions of Linux that SCO has not targeted.

another hole in there shall we nick name this blackhole that the lies end up in?

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"Still, Stowell characterized MontaVista's do-not-pay advice as ill-advised, especially if the OS involved is Linux 2.4 and higher -- the versions SCO claims its Unix code was copied into. " (emphasis added)

In other words, he's saying you might be ill-advised not to pay, even if you're not using one of the Linux versions SCO is making claims on!

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http://finance.messages.yahoo.com/bbs?.mm=FN&act ion=m&board=1600684464&tid=cald&sid=1600684464&mid=33434

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http://www.eet.com/sys/news/ OEG20030806S0025

And then MontaVista's statement is surprise. Go figure..

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I am retired from the U.S. Air Force, and I am acquainted with some of the details of this case from first hand knowledge. I am concerned that The SCO Group's claims against the US Government are fraudulent.

I 've read a number of recent news articles which stated that the Government would be asked to pay The SCO Group licensing fees for using the Linux computer operating system. The claims are based on allegations that Linux might contain some of the old AT&T Unix System VR4 source code that was purchased by The SCO Group. They claim these licensing fees have nothing to do with the outcome of their suits with IBM and RedHat Software. Their CEO also seems to tacitly admit that some source code from the US Government financed Berkeley Software Distributions is included in the proprietary Unix System V source code. He has made several statements like "We are not talking about the BSD code".

I found this very interesting since the Regents of the State of California had a license to make derivatives of AT&T's Unix version 32V. Unix first became a popular operating system as a result of their Berkeley Software Distributions (BSD). The development work on these Unix distributions was done by Berkeley's Computer Systems Research Group under a US government DARPA contract.

A subsidiary of AT&T subsequently filed a lawsuit against the Regents Of California. The Regents had filed an amicus brief with the court in the case of USL v BSDI Inc. explaining that AT&T had invalidated their copyright on Unix 32V by distributing it for fourteen years without registration or any copyright notices, and further that they intentionally removed all copyright notices from each of the source files prior to distribution. Under Title 17, section 405(a) Unix 32V would then be in a work in the public domain. The Regents also claimed that 50 percent of the files in Unix System VR4 were misappropriated from BSD 4.3 (developed by the State University under the DARPA contract). Despite those facts The SCO Group seems to claim that their software products including their Unix System V derivatives Unixware and Open Unix were developed "entirely at private expense" in accordance with the FAR 12.212. They recently registered an asset transfer that included copyrights for Unix System VR4 and 32V. Those registrations might have been invalid or fraudulently obtained.

My concern is that the Government should have a fully paid-up perpetual license to use the DARPA-funded Berkeley Computer Systems Research Group work, and shouldn't pay licensing fees for any works in the public domain either.

During a recent slide show, at The SCO Forum in Las Vegas, some of the so-called misappropriated Unix System V source code that SCO claims has been improperly included in Linux was shown. Both examples were of very old code. One was from the Berkeley Packet Filter. Obviously the government shouldn't pay an additional Linux licensing fee in order to use this code. It was derived from development for hire by a California state entity working on a DARPA contract. It is available for anyone to use under one of the BSD licenses at no additional cost.

Many of the Court documents from the USL v BSDI case have been posted at the Bell Labs web site of Mr. Dennis M. Ritchie the co-creator of the Unix operating system. http://cm.bell-l abs.com/cm/cs/who/dmr/bsdi/bsdisuit.html

My concerns fall into several areas: a. Should the government pay licensing fees for any of the code from Unix 32V? This code appears to be in the public domain. SCO's copyright application would appear to be invalid based on the facts and the law in Title 17 section 405a.

b. Was AT&T Unix System VR4 comprised of as much as 50 percent source code misappropriated from the DARPA-funded Berkeley Software distributions and some of the public domain sources from 32V? How can this be called, or qualify, as "software developed entirely at private expense" under FAR 12.212?

c. Some of the code which SCO recently revealed as the basis for their government Linux licensing claims is in fact derived from the DARPA-funded work done by Berkeley's Computer Systems Research Group, i.e. the Berkeley Packet Filter. Doesn't the government already have a fully paid-up perpetual license to use this code? If not, why is the same code available at no additional cost under a BSD license?

d. The SCO Groups copyright registrations for Unix 32V may have been based on claims they knew were materially false. AT&T/Western Electric appears to have removed all of the copyright notices from the files prior to distribution. According to the testimony of the the witnesses deposed in the USL v BSDI case: In at least some instances, like Unix System VR4, this may have been done in an attempt to conceal misappropriation.

e. The settlement between the California Regents and AT&T is under court seal. Was DARPA notified of it's terms or that USL's UNIX System V contained source code funded under the Berkeley Computer Systems Research Group contracts? If not how can the US Government avoid paying licensing fees for code that it paid to have developed under a DARPA contract?

The truth of these matters can and should be verified before any licensing fees are paid. None of The SCO group claims depend on the outcome of the pending court cases involving IBM or RedHat Software.

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In Kahn v. Thorley (link above) the 10th Circuit held: "Under that doctrine, "[w]hen an issue of ultimate fact has once been determined by a valid and final judgment, that issue cannot again be litigated between the same parties in any future lawsuit." Ashe v. Swenson, 397 U.S. 436,443 (1970). In the Tenth Circuit, application of collateral estoppel requiresour determination that: "(1) the issue previously decided is identical with the one presented in the action in question, (2) the prior action has been finally adjudicated on the merits, (3) the party against whom the doctrine is invoked was a party, or in privity with a party, to the prior adjudication, and (4) the party against whom the doctrine is raised had a full and fair opportunity to litigate the issue in the prior action." Dodge v. Cotter Corp., 203 F.3d 1190,1197 (10th Cir. 2000).

In USL v. BSDI the Court held: "Consequently, I find that Plaintiff has failed to demonstrate a likelihood that it can successfully defend its copyright in 32V. Plaintiff's claims of copyright violations are not a basis for injunctive relief."

We can see: 1) The copyright question would be the same. 2) The above ruling was a final order. 3) SCO is a party in privity. 4) USL had every opportunity to litigate its claim.

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An interesting explanation. I thought, though, that the USL v. BSDI decision you quote was only a denial for injuctive relief; that is, that proceedings could have continued on to reach a final judgment had USL not decided to settle. Is that accurate, and if so, doesn't that mean that item (2) fails, because the prior action was not finally adjudicated?

Also, has there been any indication that SCO intends to pursue this route? To this point, I haven't seen any direct claims that SCO really owns the BSD code as well. They seem to spend most of their energy trying to prove that certain sections of code were added to Linux which came from their codebase, or that the independent work of IBM and others belongs to them because it's related to Unix.

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"(c) 2002 Datamonitor. All rights reserved. Republication or redistribution, including by framing or similar means, is expressly prohibited without prior written consent. Datamonitor shall not be liable for errors or delays in the content, or for any actions taken in reliance thereon."

The're so confident of their analysis they even copyright the disclaimer. Maybe we better tell Ms. DiDio at Yankee Group. She'll chew 'em out for not offering indemnification.

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htt p://www.suse.de/de/company/press/press_releases/archive03/sco.html

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The Court in USL v. BSDI issued the copyright finding "on the merits" because it was the trier of fact. "Final ajudication" in this context means case closed and appeal deadlines have passed for the named cause of action.

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interesting interview?

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"SCO defended itself against criticism by the open source community, saying Unix code used in Linux comes from its own, copyrighted version of Unix, not - as Linux advocates argued last week - earlier versions that have been released into open source."

"SCO also said the General Public License (GPL), a popular license for releasing software into the open source community, violates U.S. and international copyright law."

http://www.internetwk.com/breakingNews/showArticle.jhtml?articleID=13900143

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"Current and future SCO Linux Server 4.0 customers can obtain a SCO System V for Linux license at no charge for use on SCO Linux"

So SCO Linux customers do not have to pay twice. I can't find it now but I did read this before and can opbtain means they have to explicitly request it and sign a contract - otherwise Darl wouldn't have anything to use against them.

Another quote from the same presentation "Customer Pricing: $149 per CPU" - The document is undated other than quoting 2003 as the year SCOsource was formed.

With regard to not specualting about the DoS attacks - I fully agree that it would be wrong to repeat some of the speculation that has been seen elsewhere, especially on the front page but it is important to discuss the issues to try and establish what could have happened.

The biggest clues are the length of time the site was down, the fact that some new content was present when it came back up, the host unreachable messages from an intermediate router and the fact that the server uptime was more than a couple of days when it came back up. All of these have been documented on this site. Unfortunately netcraft appears to be down at the moment so I can't tell if the uptime has a significant jump in it - if this happens it is a fairly good indicator that service has been switched to a backup server that has already been in testing for some time. SCOs web server will undoubtedly have been serving a fairly high load for the last couple of months so it would take a large scale DDoS attack to actually kill it, such an attack would continue even if the service was blocked at the router, leading to slow responses from that router - host unreachable packets are optional and routers are unlikely to send them if they are receiving a DDoS attack for that IP - the claim that the block was placed at the router to protect the rest of the network from the attack therefore seems unlikely although not totally impossible. If it was instead a more sophisticated attack on BGP then a firmware upgrade to the router followed by a reboot should have cleared the problem, also such an attack would not have needed distributed bots with long timers. It therefore seems likely that ESR was duped. It would be good to hear a statement from him though, preferably one saying that he had passed his informants details to the FBI and they were satisified that this person didn't have any information on a genuine attack.

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About the BSD

"It was an example of our ability to find moderately changed or obfuscated code, it was not an example we are using in court," Sontag said. "If they want to go off and make a big defense on that, they are welcome to it."

About GPL and OpenLinux:

However, Sontag said that argument holds no water because SCO never intended to release its proprietary code into open source. "U.S. and international copyright law asserts you cannot inadvertently and accidently assign your copyright to someone else," Sontag said.

Moreover, SCO said its proprietary code in Linux does not meet the definition of free software as stated in the Linux GPL.

"The Linux GPL itself asserts that the valid legal copyright holder has to place a notice at the beginning of their copyrighted work, the source code, identifying the code and the GPL. It requires an overt action. SCO has not contributed its code, and as soon as we became aware of the copyright violation we suspended our distribution," Sontag said.

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"The Linux GPL itself asserts that the valid legal copyright holder has to
place a notice at the beginning of their copyrighted work, the source code,
identifying the code and the GPL. It requires an overt action. SCO has not
contributed its code, and as soon as we became aware of the copyright violation
we suspended our distribution," Sontag said.

Which is why you can still download the linux-2.4.13-21S.src.rpm from ftp://ftp.sco.com/pub/updates/OpenLinux/3.1.1/Server/CSSA-2003-020.0/SRPMS/

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Several people on Yahoo are concerning themselves over this h ttp://contracts.corporate.findlaw.com/agreements/caldera/security.html and assuming this means that Canopy get the Unix license if SCO go bankrupt. Under UK law the administrator in a bankruptcy has a duty to obtain the best price possible for any assets so I believe if he can sell the IP for >$2m he would have to do that rather than give it to Canopy - I suspect in that scenario keeping the license out of Canopy's hands would be worth $2M to IBM but does anyone know if the same rules apply in the US.

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but they havent quit ? what am i missing here?

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I'm very happy about the SuSE press release. SuSE relies on the analysis of Bruce Perens. They say "Weder ist uns bekannt, noch hat SCO uns in irgendeiner Weise direkt darauf aufmerksam gemacht, dass in SuSE Linux-Produkten unautorisierter Code enthalten sei." about in English: SCO didn't contacted SuSE directly that SuSE Linux Products contain illegal Code (although they work together in the UnitedLinux Project).

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http://www.nwfusion.co m/news/2003/0826scodown.html

Brenda - Although SCO are making a general claim against 2.4, most of the things they are claiming are not in 2.4.13. NUMA is but JFS, RCU and the ate_utils code aren't

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htt p://asia.cnet.com/newstech/applications/0,39001094,39148140,00.htm

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HP doesn't infringe on SCO licence – official http://www.theinquirer.net/?art icle=11191

Well I stumbled accross this article on asia.cnet htt p://asia.cnet.com/newstech/applications/0,39001094,39139992,00.htm

And McBride claims:

"Actually, Microsoft and Sun Microsystems discussed with us, and got licenses from us. I expect we can repeat it with some Japanese counterparts," said McBride.

He added that SCO and Hewlett-Packard were in discussions about Unix licensing. However, he did not reveal the names of companies he would meet during the visit.

So could HP be the Fortune 500 company?

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It's not like I particularly dread the arrival of SCOX letterhead in my inbox, nevertheless...

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http://www.suse.de/us/company/press/press_releases/archive03/sco_statemen t.html

I hope this is not a dupe.

I also hope D. McBride shares a cell with a violent 450 lb sadistic homosexual sentenced to life for hate crimes against SCO employees. <G>

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maybe that is why they cant answer suse?

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Here's a computer translation of the entire German SuSE press release. Can you improve on it? Anyone?

SCO Lizenzforderungen without basis

The demand of royalties for the use allegedly in the Linux Kernel contained SCO code, announced recently by SCO in the USA, misses in the opinion the LIVE of Linux federation of each basis.

"with this new raid it concerns obviously a pure PR maneuver", thus live-Vorstandsmitglied Daniel Riek. "SCO can submit obviously no proofs for its statements. As we stated in addition, already in former times, SCO drove the Linux Kernel out anyway for many years as free software under the GPL license. Therefore the enterprise can make today probably hardly still any requirements validly ", so for Riek further.

This opinion divides also the technical periodical computer week and appoints themselves thereby to the open SOURCE advocate Bruce Perens. A presentation submitted by SCO on the house fair SCOforum should prove that Unix code was copied illegitimately in Linux. Bruce Perens checked the origin of the questionable 15-zeiligen of code window, which bad-proved V - holds copyrights at the SCO - according to SCO by system had been taken over.

According to Perens the mentioned program lines were published in addition, under the BSD license (Berkeley Software Distribution). It is admissible to use the code in Linux. With the lines publicly shown concern yourself it around a part of the store management of Linux.

In Germany SCO already committed itself in the context of an order complaint in an omission assertion to state not further of Linux operating systems contained illegitimately acquired mental property of SCO Unix. The SCO Group will also not continue to state according to the assertion, final users could be made liable for the use of Linux or would have prosecution to fear as well as Linux are an not authorized derivative of Unix. During offence a contractual penalty of 10.000 euro became due in Germany.

The Linux based enterprise operating system UnitedLinux, which was developed together by SuSE, Turbolinux, Conectiva and SCO, is supported also further reservationless by SuSE Linux. We fulfill all UnitedLinux obligations opposite our customers and partners, regardless of any internal messages, the SCO undertake or to statements, which express them.

We asked SCO to specify the offences suggested in SCOs public statements. SCO refused however taking in addition position. Neither it is well-known us nor SCO made directly on the fact attentive for us in any way that in SuSE Linux products unauthorized code is contained.

We have routine processes, with which we check carefully that we keep license-legal regulations for the code used in our products, both for open SOURCE and proprietaere components.

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http://pjack.modwest.com/cgi- bin/groklaw.pl

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Must be a slow news day http://www.computerworld.com/softwaretopics/os/linux/story/0,10801,84402 ,00.html

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The outage prompted Netcraft to declare that SCO was again the target of a denial-of-service attack. However, the outage was actually due to preventative measures taken by SCO and its hosting service to mitigate the effects of future attacks, according to company spokesman Marc Modersitzki.

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sigh this reflects on us all whether we want it too or not

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SCO stands for Stock Collapsed Overnight. SCO knows Shakespeare: Life's but a walking shadow, a poor player that struts and frets his hour upon the stage, And then is heard no more. It is a tale Told by an idiot, full of sound and fury, Signifying nothing.

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BTW Any Red Hat news?

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BTW Any Red Hat news?

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Why? You ask? Because they have demonstrated restraint so as not to help SCO build its case. Reading the latest rant here:

http://www.internetwk.com/breakingNews/showArticle.jhtml?articleID=13900143

has just shown me that if the entire open source community does not restrain itself and stop responding to SCO, performing their analysis for them, and helping them refine their case, they could potentially be handed all the arguments they need to win. This is very disturbing!

Both Bruce Perens and Eric Raymond seriously need to shut up. Linus Torvalds needs to resist the temptation to speak to the press. All others, who also have facts, should communicate it only to IBM and Red Hat, in secret.

The only way to win this, is to do what people involved in a lawsuit typically do. Shut up, collect and analyze evidence, and share it, in secret, with your side.

If you read the comments in the linked interview, I'm sure (or at least hope) you will agree that it is disturbingly obvious that the open source community is helping SCO build their case, by responding publicly with facts.

If the ideas is to dispel their FUD, we need to do so by sending our complaints and rebuttals to US federal authorities. Not to the press or to public BBs.

Hope no one takes offence to this, and people take what I am saying to heart, because I'd seriously hate to see SCO win this. Or maybe I’m just being paranoid.

We've all been guilty of this, so I am not pointing fingers. Just now asking for restraint in correcting SCO, publicly.

I do not believe that falsifying evidence is beyond SCO, so let's not help them in that regard either.

Comments welcome. Keep the flames low. ;-)

Regards

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SCO is a 'clipping service', indicating they don't have in-house personnel to do any monitoring or useful-info-searches.
And Darl's complaints about the Yahoo boards is 3 months late.
Anyway, the proof is in the pudding. The initial press was almost all neutral - to - proSCO. That's changed in the last little while.
The attention and close scrutiny does seem to be weighing on Darl at least - the community is forcing SCO into a defensive stance, and so far has forced SCO to make more and more ridiculous claims. That's another good thing. More rope for Darl to shoot himself with, to mix metaphors.

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I think you miss the point of open-source stuff. Free airing of ideas is, in fact, the best way to reach understanding.

If SCO actually had a valid claim that was being incorrectly disputed, then that would come out.

The fact is that SCO is almost universally in the wrong, legally, morally and practically - this will come out as well.

SCO is not exercising free speech, in general, they are lying. Because it is to some (MS, SCO and supporters) advatageous to support these lies (or at least exagerrations) we are experiencing a great deal of FUD that needs to be counterbalanced. The suit will not get settled until 2005 (if at all). This really isn't about fighting a law suit.

I do think it is time for the various states AGs to get involved, and I actually expect they will if SCO actually sends invoices.

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I agree with your points; however, I feel that it may be better for those who have evidence or damning analysis to send them directly to those who matter - IBM and Red Hat, rather than give SCO a way to learn from their ignorance.

And yes, like the rest of you, I too would like to know what is going on - which obviously creates a problem. How do you maintain secrecy while also allowing your allies and the public to know the truth? Very difficult.

In a typical lawsuit, secrecy would be reasonably easy to maintain - but SCO is effectively suing the world. And therein lies the paradox.

Oh well. There's always prayer. =)

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i am still puzzled by the silence any news on redhat?

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I don't have a better German translation for SuSe's press release, but I do think the term "mental property" is a more appropriate way to describe SCO's claims :-)

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I mostly agree that "Free airing of ideas is, in fact, the best way to reach understanding"; however, this is more than just about people with a common interest trying to reach understanding. This is about people with a common interest trying to defend themselves against evil men who will pervert the weaknesses of the US justice system to remorselessly rape and molest our beloved penguin, Tux. Hell hath no furry like a penguin scorned!

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I also looked at the pictures. McBride has a really punchable face.

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The threat we are facing (to the GPL as a model for social interaction, including the social interaction known as commerce) is a big threat. Most Open Source advocates have in common with you a belief that our goal now should be "win the lawsuit". That's naive. If all we do is win the lawsuit, we lose. Let me say that over: if all we do is win the lawsuit we lose.

That's because the lawsuit will be decided 1, 2, 20 years down the road. Whatever it decides will be just a drop in the social bucket we will have at that time. It won't matter. The substantive issues will have been decided in the press, public opinion, and politics *long* before then.

To win that battle we need to make noise--the right kind of noise. In particular, we need to stop underestimating the danger of what SCO can do (or their chances of winning). McBride knows what he's about: SCO is advocating a social system in which the only allowed model for social interaction is proprietary ideas owned by large global corporations or wannabees. This is similar to Merchantilism vs. Free Trade. Two very different social models.

Our advocates are naive because they say, "the British are wrong-headed so they can't harm us. We will win in a fair fight because right is on our side." Let's not be naive: their are powerful forces in society that want SCO to win. If SCO succeeds, it will be because we have *already* lost.

The lawsuit doesn't matter. Winning does. Tactics is not Strategy.

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When there is "damning analysis" is published in mainstream press, SCO can get even more outrageous or offer further snippets to analyze which may or may not be consistent with their previous claims. IBM and Red Hat lawyers seem to have lapped this stuff up - in particular Red Hat's complaint is filled with McBride quotes - he gave them ammunition.

As I said before, I agree with the sentiment that ESR has done our side no favors with his public efforts to date. ESR STFU.

It would also be very good if somebody would collect all the most potentially damning facts and collect them in a nice bundle to deliver to IBM or Red Hat. There are lots of areas to address, including

- Old SCO, New SCO, contributions to Linux

- Analysis of SCO comments about what is supposed to be infringing, and contradictions, back pedalling, etc/

- Analysis of Monterey related inconsistencies.

- BSD issues

- Inconsistencies in SCO press releases. I mean carefully look at every single one.

- etc.

Ideally you have more than one person doing each area, so as to check, and also make sure not to miss anything. Then somebody(s) *qualified* in charge to organize the effort, and check everything stated is true and can be verified, and is forwarded. Connectration would on press/media/non-IBM/non-Red-Hat etc., as I'm sure IBM/RH have all records of their own activities.

I don't know how anybody could get such an effort organized... but it would be a good idea.

BTW, I agree SCO doesn't have resources to analyze this type of stuff, even if it was publicly published.

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Very good points. However, the public is mostly composed of mindless sheep, though they are pretty hard nuts to crack. Or is it the other way around? Kidding (somewhat). :-)

Here's hoping reason wins out over corporate greed.

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John, I'm not sure how those Limeys got involved in your argument. But I think you're wrong. Everybody is a publisher since DTP and the web. Some kind of super-grandized-SCO theory ain't going to change that. The real battle is about Linux - can SCO grab it, and all the efforts of others. I tend to be with Adam's general sentiments - and I think even SCO are - it's the only explanation. If you knew you were on the road to a $3bn settlement and get royalties on Linux forever, would the insiders be selling stock? Tax liabilities - come on - if it was me and I knew by hanging on to some stock for a couple of years, I'd make millions - I'd remortgage my house, or even sell it and live in my car, or a whole bunch of other things - rather than sell the stock immediately to meet some short-term problem... and remember we aren't just talking about 1 or 2 insiders selling to met their tax liabilities.

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Abraham Lincoln said that he wouldn't mind if God were on his side but he absolutely had to have Kentucky.

The Open Source community is spending too much time saying God is on their side and not spending enough time figuring out who is their Kentucky. You are right that reason vs. corporate greed is a losing battle. Too much wishful thinking.

The correct strategy for Open Source? Sue the booksellers--class action. If you get a letter in the mail demanding license fees, and you got your copy from a book, sue the publisher.

Why is this the correct strategy? Because we need more than IBM and RedHat on our side--we need the media. Right now the media is having fun--they like Linux vs. Proprietary. They play both sides except the Tech Press which follows their paycheck.

We need to change that. Linux books make a *lot* of money. We need the publishers scared, because publishers are owned by media conglomerates and media conglomerates control public opinion. We need leverage--like Washington needed the French. We need the media to stop being amused and start being scared.

Strategy: Sue the Book Publishers.

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http://tinyurl.com/lao2

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If we followed your advice, then SCO-scum would have been free to spread its manure undisturbed and the lovely Laura Didiot would have been free from giving her toxic advice unchallenged. In the meantime, every corporate end user starts to think that we are really nothing more than a bunch of IP thieves and yes, that they should pay up the protection money. In addition, our corporate allies start to have their doubts about the way we operate. I will tell you frankly that we don't need this garbage, and if you don't like the way we have taken on SCO-scum, TOUGH!!! You don't defeat a campaign of vilification and falsifications by staying silent in the face of such a campaign. We have established over the last few months that our word is reliable while SCO-scum's word is worthless without independent verification - Even the lovely and tireless Laura Didiot can see that. Could we have achieved this through a communications blackout? We live in a free society, and in a free society the expectation is that falsehoods must be challenged. And when falsehoods are no longer challenged, the society is no longer free. I have no patience with your fears!

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We will need to have some intermediary relief granted by the courts - in the form of a colossal gag order slapped on SCO and their pimps.

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Blacklight, you're pointing that weapon in the wrong direction. Trust me, I look nothing like the enemy.

You guys are making a lot of good points. It is a complicated case. And, yes, the rebuttals to date have produced great effect.

But can we keep this up for another 18 months, without another more powerful strategy?

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The fact that they keep spouting, including contradictory statements, is being used against them - not in the media (but I get the feeling some in the media have picked this up - like that McMillan guy from IDG and Lee Gomes in WSJ) - but in the courts. The more SCO spouts, the more ammunition for IBM and Red Hat when they get their day in court - if it ever gets that far.

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I was trying to make an analogy that fell flat. However, your view that we should keep quite is incorrect.

RedHat and IBM are indeed fighting the law suit the way it should be fought, be keeping their mouths shut (mostly).

We are not part of the law suit. SCO obviously doesn't care about the law suit, or they would shut up as well. They will obviously lose the suit.

SCO is trying to fight its clains in the media by making false or misleading statements on a daily basis.

Whether their purpose is to actually get licensing fees or just to spread FUD for some other masters is hard to tell.

It is also not as important to the open source community who wins the law suit in 2005, if SCO succeeds in its current course.

It is therefore important that we speak out as well to conteract their FUD.

I agree that a restraining order or an action by the states AGs for illegal trade practices should shut them up, but until that happens we need to stay on every PR or interview they give, and show that they are wrong.

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I just wanted to make sure their sales representatives got a warm welcome if they do call...;-)

As for the US Government and the University of California, they have a long on-going history of cooperation that many of our friends from overseas might not be aware of see http://labs.ucop.edu/ for example.

At $699 per CPU some of those Linux clusters might impact the budget.

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In case my suggestion was unclear, my suggestion was

to locate public documents (like press reports,

including old ones) that IBM or Red Hat might not be

aware of. Obviously they and SCO should be aware of

the evidence to be used at trial including from the

other side - but that doesn't mean the Linux community

can not locate EXTRA evidence that might be useful to

IBM/RH

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In the US the first consideration is given to creditors, shareholders get what's left over after EVERYTHING ELSE (contractor contracts, builder liens, bondholders) get paid off.

In this case Canopy "wins" as their claim on UNIX is as a creditor not shareholder.

I don't know if IBM or RH is going to try to 'pierce the veil' to pursue Canopy. That would be the only way I can see (other than a judge declaring all the UnixWare code public domain) to wrest that from Canopy.

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In the US the first consideration is given to creditors, shareholders get what's left over after EVERYTHING ELSE (contractor contracts, builder liens, bondholders) get paid off.

In this case Canopy "wins" as their claim on UNIX is as a creditor not shareholder.

I don't know if IBM or RH is going to try to 'pierce the veil' to pursue Canopy. That would be the only way I can see (other than a judge declaring all the UnixWare code public domain) to wrest that from Canopy.

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Aside from legal uses, it'd probably be worth real money on eBay

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In that case, I sure hope that whatever ESR is cooking up is:

head 100 | grep "class action lawsuit"

Or something like that. So we can demand full access to their source code - especially since it is not a trade secret.

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I hope IBM goes for the jugular. If the courts find that there is evidence of fraud, implicating Canopy and the law firm of Boies, Schiller & Flexner in this mess (an maybe also a certain monopolistic organization people suspect is guilty), any settlement that passes the Unix code off to another organization, without barriers to future litigation, would not be acceptable.

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If possible, something like that would put a serious dent in their quest for a warchest.

Let them wander into the IBM and RH cases on the verge of bankruptcy.

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Where the Limeys come in: Mercantilism was an economic system centered on the idea of large government controlled franchise companies (Hudson Bay, East India). It worked and had strong support from those who profited under it. The American Revolution was not just "Mercantilism vs. Free Trade", but a significant part of the coalition that defeated the British had that is their issue.

"SCO and Linux" is not an isolated part of the world, but plugs into the larger issue of Globalism, "intellectual property", "software patents", and what freedoms people shall have to think, share ideas, and express themselves freely. It is an issue over which blood has already been shed and more will be, even if not in Utah.

I understand the wisdom of not dividing one's forces, but you should consider the wisdom of creating a workable alliance. You don't win in politics without political allies. Not all those allies do or must care about Linux or the GPL. They should agree stopping SCO and keeping Linux as it is is a worthy goal. They do not have to believe it is the only one.

Attacking the GPL attacks the lynchpin of the main alternative "economic system" we have to neo-mercantilism. We need to understand that not everyone is a free trade advocate like the EFF and FSF. Lots of them say the words but in fact embrace a different model. More like guilds or chartered corporations with exclusive access to resources, markets, or inventions--Crown Patents can even apply to books (e.g. the King James Bible is technically the exclusive property of Clarendon press in England, because of the crown patent). You need allies, hence you need larger context.

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But I think it interesting that IBM and Red Hat both allege that SCO is artificially inflating their stock price.

It would seem to me that particular allegation is not required for them to prove unfair trade practices, trade libel, and the other issues they allege.

Alleging artificially inflating stock price, is pretty close IMHO to outright alleging securities fraud.

So why would they allege it?

Possible thoughts about reasons?

1. It's a totally unjustified false smear that IBM or Red Hat don't believe in

- I don't think this is likely (which is not the same as saying it's true - I'm merely saying IBM or RH think it true), as it's not a prominent allegation

2. They are fishing?

- I think: Why bother, it's not relevant to their counter claims

3. They plan to put the frighteners on Darl and his buddies?

- I think unlikely - Darl should not be frightened if he hasn't done anything wrong, so it would be an empty implied threat. And if he had, a passing mention in civil law suits probably would not worry him.

4. They plan to use rise in SCO's stock price, and profits to SCO as a result, as some basis for part of damages claim

- Don't know

5. They plan to add securities issues to future litigation against SCO

- I think plausible for Red Hat, seems unlikely for IBM

6. They plan to use securities issues against Canopy?

- Don't know

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The issue to me is quiet simply, can SCO grab legal

or defacto control over the work of others - i.e. Linux.

I do not need fancy historical theories to tell me, that

what they are trying is morally wrong.

I have no problem with open- or closed- source. It is

the decision of the author(s) how to license their

creations - and the decision of user(s) what to use. That

is what I consider a working free market and indeed free

society.

SCO's attack on the GPL seems likely to fail legally

for reasons already endlessly. Any broader attack on

individuals self-publishing is doomed to total failure

both legally [corporations do not inherently have any

more rights to self-publish than individuals, neither do

big corporations as compared to small corporations] - and

more important practically - because practically EVERYONE

is a self-publisher - either have a web site, a blog, DTP,

etc.

FWIW, I also have doubts about your historical analysis about

the American revolution, but that's a topic for a different forum

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But we are all assuming the GPL will be held to be
a viable license, sitting as it claims to be on top
of copyrights.


But what if it is ultimately held to be not a license
at all but a sort of "community covenant" and/or 
a business practice?  Might its disclaimer
of consumer rights be held an unconscionable practice
for the likes of IBM and RedHat, while allowing Torvalds and
company to share software non-commercially?


One should minimize regret across all likely outcomes, not
just the ones that fit your/our preferred world view.


There are cases where SCO fails in its land grab but
the results are still not happy.  Not all the broader
attacks involve self-publishing!  They might involve
"self-publishing by large corporations for consideration
that nevertheless disclaim all liability".

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What about any other piece of software with a no liability clause in its license?

Just because it says it, doesn't mean that particular point is enforceable...

And that seems to me generally a good thing. I would hate
to see somebody selling (say) safety crtical software and saying "It really
really does work and is good and safe" in their marketing, but "no liability"
in their license, and knowing they can get away from any responsibility as a
result when say the software causes
a nuclear melt down or whatever.

The law (or license) should be a minimal standard for behavior,
not for action, based on the maximum you can get away.

And it seems to me even if a court were to rule the disclaimer of liability is not allowable or enforable,
the rest of the intent of the license should still survive.
In that event, if some company decides they don't want to do software under a court-revised GPL, that's up to them

And in any case, I've not seen any mention of the disclaimer being a SCO hobby horse.
If it was, they have a problem, as their own licenses,
including I think the AT&T source code one,
have disclaimers too.

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http:// www.newobjectivity.com/clay/application.do?forward=blogger

Clay

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If it's not a license to distribute copyrighted material,
then companies including IBM, Red Hat, HP, Dell, yes SCO, even Microsoft,
have and are committing copyright violations on a massive scale.
I don't think that's a likely conclusion.

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If it's not a license to distribute copyrighted material, then companies including IBM, Red Hat, HP, Dell, yes SCO, even Microsoft, have and are committing copyright violations on a massive scale.

In my hypothetical case I didn't make any statement
about copyright violations.  


One *could* argue that shrinkwrap licenses violate
our notion of a contract.  In other industries they
would.  Yet *software* shrinkwrap licenses are held to
be licenses because of software industry custom.
The unheard-of can happen, if near everyone agrees what
it is.


Industry custom can cut both ways--making non-licenses
into "licenses", and it might make "licenses" into public
domain distributions or some other way of distributing
code with a commonly bundled and understood set of legal
rights that hasn't been pinned down yet.  That ultimate
result might differentiate in significant ways between 
the Microsofts and IBMs of the world and the FSFs.  

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Laura, the Internet has been hit several times, noticeably within the past few days, by various software virii that have taken advantage of some of Microsoft's worst examples of software design.

The responsibility for that bad design lies firmly in the hands of Microsoft. I have read more than a few of Microsoft's EULAs, and one thing that sticks firmly in my mind is the disclaimer. South Park itself couldn't disclaim any better.

And Microsoft has of course, bought into the SCO fight with their $6 - $10 million, including of course the "indemnification" details, since they haven't explicitly disavowed SCO's words on that.

Tell me now, and it shouldn't take any longer than a quick trip to the IT techies at The Yankee Group, if Microsoft has actually offered The Yankee Group any indemnity for the damages caused by the Slammer, soBig, Blaster and so on? I imagine the damages caused by Microsoft's programming laxity - industry-wide - should run well into the hundred billions by now.

Or is Microsoft casting Windows as a second-class operating system? Please let us know.

Sincerely Yours

Wesley Parish

-- Mau e ki, "He aha te mea nui?" You ask, "What is the most important thing?" Maku e ki, "He tangata, he tangata, he tangata." I reply, "It is people, it is people, it is people."

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May I request that you point specifically to the section(s) of the GPL that disclaim consumer rights? I'm not aware of this section.

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John, the GPL is an adhesion contract, like all EULAs and shrink-wrap licenses. Unlike most software licenses, the GPL and other OSI complient licenses don't require any money change hands, but there is an exchange of value: i.e., you get permission to copy, examine, modify, and use the software in exchange for abiding by the license provisions. Adhesion contracts are legal, and the OSI complient licenses are far less objectionable than many that the courts have upheld.

If anything, the GPL gives the downstream user more 'rights' than most copyright licenses, the author(s) are yielding up more of their rights.

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One weakness that worries me (IANAL and all that, but a QA contractor by trade), reading what lawyers like Cem Kaner say about software product liability vis-a-vis testing, is whether the complete disclaimer of all liability is really viable.

[[May I request that you point specifically to the section(s) of the GPL that disclaim consumer rights? I'm not aware of this section.]]

I had in mind the diclaimer of all warranties for fitness of use, etc., on the part of billion dollar corporations redistributing the product for hundreds of dollars either in or not in the context of service contracts.

Do we really believe that we can build a world where product liability is *totally* on the end user and/or integrator and/or testing organization [that would be my specific interest]? Do we even want that world?

Now I admit, despite being a statist myself, to a libertarian streak that says such a world of complete and ultimate caveat emptor and supply your own remedies yourself is not all *that* bad. But I don't expect the public or the political system to agree. Right now, they seem mostly to want a regime where everyone can disclaim responsibility, but deep corporate pockets can be held up to pay for harms, with little or no relation to equity. I would think either an equitable sharing of liability or complete libertarian non-liability would be preferable to that.

But again, it's not what I want or the Free Software movement wants, but what the courts are going to hold that is of moment. Will the GPL really hold as a liability-free business model? Is a harmed consumer (security hole, say) only entitled to a refund of their purchase price--i.e. nuttin' ?

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As far as mitigation of damages I think now SCO is claiming they are mitigating damages. Sontag's latest "remove everything that IBM has contributed is a good place to start."

They are claiming ownership in Linux of RCU, SMP, XFS, JFS and NUMA. They have no rights to any of these technologies (all are copyrighted and patented by parties other than SCO) but it looks like SCO will claim they have done their best to mitigate damates.

This goes to a question I raised earlier, SCO is attempting to collect licensing fees for "generic IP", not copyright, not patents, not trade secrets, but "our IP that is in Linux". It's an over-reaching land grab / attempted theft of the copyrighted works of others (mostly volunteers).

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I understand you're just examining what you perceive to be weaknesses, but here's some more discussion on warranties:

First of all, the GPL's disclaimer is not so different from the language in the end-user licenses given out by big shrink-wrap software companies anyway. Do you know anyone who has won money from Microsoft after its software failed?

What's more, the GPL doesn't say that no one can provide a warranty. It simply says that there's not one by default. I'm sure you'll agree that's an appropriate default, when the software is typically downloaded for free. However, If a company wanted to sell GPL software along with a warranty, they would be quite free to do so. It would probably even be a good business move; audit some code carefully to make sure it meets some quality requirements, and sell warranties. Lots of organizations would probably be interested in buying one, to have an extra degree of certainty that they're safe from taking the fall if it breaks.

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Rather than rehash old arguments on a thread that is passing into history, let me just backreference to 2000 (before the Microsoft settlement, and before we knew UCITA would pass s-l-o-w-l-y if at all in the various states:

http:/ /linuxtoday.com/news_story.php3?ltsn=2000-02-06-001-05-NW-LF

Perhaps the legal types could give us an update on UCITA and potential conflict with the GPL as relates to SCO issues? Are these known with certainty to be non-issues now?

Does it matter to SCOs future claims against Linux end users if they live in UCITA states or not? Is the GPL and UCITA really on a collision course?

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http://www.computerworld.com/governmenttopics/government /legalissues/story/0,10801,83676,00.html

Also, discussion about GPL and UCITA I've read makes a crucial distinction, which I really didn't grok before, that

YES, GPL is license, but it's a license for the distributor, not the end user. Anyone can get and use the software with no restrictions at all, provided their *upstream* distributor is acting properly. If not, it's *their* problem, not end users.

That what y'all trying to say?

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Thanks, Mark.

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