http://tinyurl.com/m11g

[ Reply to This | # ]

[ Reply to This | # ]

http://twiki.iwethey.org/twiki/pub/Main/SCOvsIBMReferences/RH-Decl aratory-Judgment.txt

[ Reply to This | # ]

[ Reply to This | # ]

Groklaw August 5

[ Reply to This | # ]

FWIW, here's Groklaw links for when we discussed this issue previously:

Groklaw August 5

Comments on the "Helping Red Hat" post

[ Reply to This | # ]

This gives them more time to dump inflated shares, more time to find somebody to buy out SCO, and IF all of this is backed by MS, more opportunity for MS to introduce anti-Linux windows-lockin products (such as the upcoming DRM in office).

The best time for MS to accomplish its aims is while Linux is under a cloud.

[ Reply to This | # ]

"You know, Darl and Co are probably not idiots, probably not insane, and therefore have a game plan. If their action’s seem insane, or just do not make sense, we must not have the game plan right. So let’s break this down logically:..."

[ Reply to This | # ]

But unfortunately, here is negative opinion about the SCO Linux debacle.

He makes pretty wild attacks on the Linux community worthy of DiDio, for example:

"What seemed to be different was that the open-source community seemed collectively to say, "Theft is okay as long as we benefit." "

I never read that. I read something more like theft is wrong and we will correct it and pay whatever penalties are legal if you tell us what it is.

More:
"To extend the example to the book-publishing world, some open-source proponents have argued that if you started with Harry Potter and the Sorcerer's Stone, you could end up with Parry Hotter and the Wizard's Rock and be just fine. But this sort of line-by-line replacement won't work because the ideas that surround the product are also protected."

This is another deliberate misrepresentation of the community position. The community's position is more like code will be replaced by people who have never seen the SCO code using original techniques to replace any code (if there is any, which is very far from proven) that shouldn't be there.

But you can't win them all. Presentations on our side often link to impartial sources where our claims can be verified. Somehow he decided that SCO has a greater than 50% chance to win. Many people have read the same licenses and come to the opposite conclusions. What part of the license does he believe Linux proponents have misread? Like SCO, he'd rather keep that secret.

[ Reply to This | # ]

Are you planning any legal action against SuSE or Red Hat? We have no action planned at this time. Our focus is on the IBM lawsuit. This does not mean, however, that we will not initiate other actions to protect our intellectual property at a future point."

[ Reply to This | # ]

Besides that, if SCO actually sent out invoices, then the point pj is making in the article would no longer hold, and so they could no longer use it against the RedHat claims.

Something else: what would be written in such an invoice? Normally an invoice bills you for a specific amount of product and money, such as "purchased on 7/01/03 100 widgets @$1.00 each plus 4% tax = $104 total."

But SCO has no idea how many copies of Linux any individual or company is running, so would the invoice just read "Pay us $199 for all your desktops and $699 for all your servers" (or perhaps it would read: "All your (code)base are us") I don't even know if that you could call that an invoice.

Anybody out there know what would be the legal status of such a document? It sounds more like a BSA audit threat, since there is nothing specific in it.

[ Reply to This | # ]

[ Reply to This | # ]

[ Reply to This | # ]

In addition, I do not know if Red Hat received one of the "warning" letters, but the letter was obviously written as a precursor to legal action by notifying the companies that they are infringing, so that SCO can say they provided notification of infringement and the companies cannot claim they were not notified. The letter may not specifically say this, nor would this probably hold up as proper notification since no specifics of the infringement were given, but why else can SCO claim they sent the letters?

Judges are rarely completely blind to attempts by claimants that attempt to weasle around the circumstances by claiming absurdly innocent arguments, and I doubt that would happen in this case. Claiming that their is no legal controversy between Red Hat and SCO is somewhat rediculous.

[ Reply to This | # ]

[ Reply to This | # ]

Also, might be important to consider the "will sue users, won't sue users, will bill users so we won't sue them" circus.

[ Reply to This | # ]

I wrote a few posts at the weekend regarding this, so I felt I had to respond <G>. I used to believe in conspiracy theories, and also in the existence of some dark game plan when I saw managers pursue a self-destructive path. But I don't any more, since I have seen the power of ignorance and incompetence in action.

I was personally involved in a development project several years ago that "went south." The reason being 3 of the 6 developers were complete fools, and couldn't program sh*t. Threee of the developers, me included, continually warned the VP of IT that the other parts of the project would crash and burn, and we showed code examples, but he WOULD NOT fire the other programmers. Of course, when everything went live, our stuff worked, theirs didn't, and the company was forced by time constraints into buying a very expensive commercial semi-customizable alternative. Over 2 million wasted- incompetence the cause, with a bit of ignorance thrown in.

Here is my take on SCO's "game plan." Darl and friends decide to sue IBM over allegedly flaky evidence of IP theft. Why not- Caldera has sued before and won big, and so has Darl. IBM has the biggest pockets, and they have been involved with SCO Linux/Unix, so they are the targets. And SCO stock is no longer traded on the NYSE, because its price has dropped beneath a buck a share.

David Boies lives in town, and they discuss the idea with him. I doubt Boies understands the finer aspects of the GPL, or even how programmers go about writing an OS, but he thinks that there is money to be shaken from the IBM tree. IP law isn't his field, but he thinks IBM will cave without a trial, buy out SCO, and he'll make a big chunk of change for use of his name. Everybody has drinks, if devout Mormons drink.

The suit is filed, and IBM sees it as a major challenge to their investment in Linux. Having spent millions on advertising alone, and doing quite well in their Linux endeavors, they are a little worried. Perhaps they don't realize that their role in the game is to buy out SCO for big bucks. IBM makes almost 2 billion per year from their IP, so they have some very good IP lawyers; these lawyers tell management the case is unfounded.

IBM goes on the offensive. Meanwhile, the open source movement is getting very pissed off. SCO starts a sh*tstorm, and doesn't understand why the plan failed. The plan has fallen apart, and they need to seriously "plan on the fly." Easily said than done, because they are getting smacked about at every turn. They get real worried because it looks like they are the ones who will be paying big money to have IP lawyers defend them! The IBM suit doesn't worry them much because they think they will be offered a buyout.

Then- a white knight to the rescue in the form of MickeySoft, who pays SCO 10 million for the "license that is not a license," and they are once again encouraged. Perhaps MS tutors them on some of the finer points of FUD production. SCO has some real luck with idiot analysts writing silly articles, and their stock prices rise. All the execs start dumping stock, because they know the tenuous situation the comapny is in.

But they know they have to "tuff it out" to have ANY chance of winning anything. They are slightly amazed that the mainstream IT press is so incompetent, and think they really might pull SOMETHING off. Then the bubble breaks- Redhat, a player with much more money than SCO, sues them. This after getting smacked by the German courts over legal challenge by Linuxtag, who just might be having its strings pulled by their former partner Suse. Doesn't look good, especially in late August when some rational analyses of the lawsuit are appearing in the press.

Oh man, oh man, thinks Darl McBride, we gotta be tough. We got allies, I know we do. MS said they would help...I'll check out that property in Brazil in case the feds come after me for stock manipulation, like my lawyer warned me about....

SCO, keep "planning" on the fly. There is a plan, but it ain't very good. Better call Billy gates or Stevie back and see if they have any suggestions. This messing with the press stuff doesn't seem to be working, and now those darn Germans want to throw my European Div. CEO into jail. If the SEC comes asking me questins, thinks Darl, I am booking to Brazil....

My analysis- Darl and co. are probably not insane, but they are certainly idiots.

[ Reply to This | # ]

I believe the way this happened was that SCO started sending companies who they believed were IBM customers the Linux warning letters; IBM of course does not have its own Linux distro. They recommend Redhat's Linux, so RedHat customers were actually threatened, threatening RedHat's business, which is why RH sued.

[ Reply to This | # ]

Here is what I think lead up to it: McBride took over a company that was dying, so he had to come up with a quick plan. What he came up with was the idea of hitting companies up for IP money. The plan was put into action, but it basically failed.

Now SCO says it worked wonderfully, like SCO is profitable for the first time in years. But it has actually earned them what, 30 million? and I bet most of that is one-time only, perpetual licenses. They have hit up all the easy marks, and so next year income is going to drop down, and OpenServer and UnixWare will be one step closer to the grave.

I think McBride figured out late last year that the plan would not work, so, in desperation he came up with the sue-IBM-over-linux plan. My guess is he knew SCO didn't have a good case, but thought he could bluff his way through it and scare some big bucks out of IBM.

I say he thought he could succeed through bluffing, because it is obvious if you read through his interviews that he is a very good lier (he doesn't fool us, but he fools people who are not so informed), and people who are that good at lieing usually have been doing it all their lives and so are confident they can do it well when needed in the future.

Alas, the plan didn't go as expected, and so he has been frantically improvising ever since.

[ Reply to This | # ]

This has almost nothing to do with the Linux community, and that particular ad hominem argument is nothing new to the BSD or GNU communities.

Here is an example of community theft:

"In 1986, petitioner Lucas bought two residential lots on a South Carolina barrier island, intending to build single family homes such as those on the immediately adjacent parcels. At that time, Lucas's lots were not subject to the State's coastal zone building permit requirements. In 1988, however, the state legislature enacted the Beachfront Management Act, which barred Lucas from erecting any permanent habitable structures on his parcels. He filed suit against respondent state agency, contending that, even though the Act may have been a lawful exercise of the State's police power, the ban on construction deprived him of all "economically viable use" of his property and therefore effected a "taking" under the Fifth and Fourteenth Amendments that required the payment of just compensation." Actually, as you can see lots of communities used that earlier premise together with zoning ordinances until a few years ago the Supremes ruled that we no longer could.

Something of that sort happened with Unix as well. The US government would not allow AT&T to market Unix as a product because of a Consent Decree, but DARPA contracted with Berkeley to make improvements to it. Eventually, AT&T did get permission to market Unix as their own, but by then Berkeley had gotten tired of having to work every bug or issue through and with AT&T. They felt that they "owned" the DARPA funded bits, and set out to create a "cleanroom" version of Unix that would contain no AT&T code. Ordinarily if you've looked at the source code for a decade you can't claim your implementation is based on reverse engineering - something that a cleanroom re-implementation must do. To summarize, that's some state and federal agencies, together with the state and federal courts, deciding what to do with a regulated monopoly and it's property before during and after it's divestiture. The most important parts are under seal in a California Superior Court.

Today everyone gets irate when Microsoft tries to "make the Internet proprietary". We seem to forget that DARPA, BBN, and Berkeley used to go past a boot screen that said:

RESTRICTED RIGHTS

USE,DUPLICATION OR DISCLOSURE IS

SUBJECT TO RESTRICTION STATED IN YOUR

CONTRACT WITH WESTERN ELECTRIC COMPANY INC.

They all had AT&T Unix licenses, most Linux developers and users don't and never did. The questions is can Caldera be made whole for under 25 million (7 million in cash paid and an 18 million loan to Old SCO).

[ Reply to This | # ]

Hey David, I think the single most compelling bit of evidence for the "planning on the fly/no rational plan" theory is the fact that SCO execs are dumping stock. Now WHY would you dump stock if SCO had a strong case? Just keept it cool, and that $15 share will soon be worth HUNDREDS of dollars. When it comes to lining their own pockets, the SCO execs are certainly not idiots- they realize they have no rational plan, and perhaps suspect their course of action IS being plotted by an idiot. Check out the "I Love Darl McBride site"- a parody on the "I Love the Iraqi Information Minister" site. Anyone think Baghdad Bob was a genius?

[ Reply to This | # ]

http://www.in foworld.com/article/03/09/02/HNscofined_1.html

[ Reply to This | # ]

Story in eWeek (Aug 18) quoting McBride threatening to sue commercial Linux users:

http://www.eweek .com/print_article/0,3668,a=49197,00.asp

"In his most definitive warning to corporate Linux users to date, SCO CEO Darl McBride told eWEEK here on Sunday ahead of the start
of the company's annual SCO Forum 2003 on Monday that there are some 2.5 million servers running Linux and that SCO has "identified
by name those companies running many of them.

"We are in the process of contacting them about coming into compliance and taking a UnixWare license from us. If they refuse to do so,
we will sue them directly and see them in court," he said. "

Again from McBride, further down in the same article:

"We will take legal action against any company that violates our intellectual property."

This is about as explicit a threat of legal action as one could possibly find.

[ Reply to This | # ]

[ Reply to This | # ]

[ Reply to This | # ]

1st - Red Hat is a SCO suit target by being a "commercial user" too.

2nd - I don't know if it is a help but if you search GOOGLE using this phrase:

" SCO is not just targeting system builders like IBM or distributors like Red Hat "

then you will get some hits that show an Associated Press article that is interesting, as this article is an example of what the associated press seemed to think of SCO's state of mind on the issue.

The only direct quote in the article was this:

''For the first time in the history of the industry, we have a major operating system platform that's being pushed on end users and at the same time the users take it, they're being told buyer beware - you own all the inherent intellectual property risks with this product,'' said Darl McBride, SCO's chief executive.

FYI - Just about a month ago our local paper ran with the story (and my notification to the ate AG's office got an original copy of this article, in fact the whole printed page as printed in our local paper, as one of the "SCO is threatening users" exibits). Oh - It appears that there was no rabid request by SCO that every local paper in the country that ran the story correct any mistakes in their articles (so as to correct any of the Associated Press reportings at all)! Hmmmm, one tends to believe what is written by the AP reporters as the AP has a solid reputation of reporting current events correctly. If SCO had a problem with the AP reporting I would think that we would have heard screams for a correction from SCO long before now! Hmmm, have we heard that SCO is going to sue the AP for incorrect reporting? I have not heard a peep, have you? Acquiescence strikes again!

[ Reply to This | # ]

[ Reply to This | # ]

You said that if they thought the plan would succeed, they would hang on to their stock instead of selling it, since it would become worth much more. That is an excellent point, I think you are on to something.

About conspiracy theories, I am reminded of what Napoleon said, don't attribute to malevolence what can be explained by incompetence. If they were really as smart as the conspiracy theorists think, they would not have launched oof on such a foolish and dangerous course. That is why I mentioned desperation in my explanation, when people are desparate they often panic and make decisions they regret later.

[ Reply to This | # ]

But to anyone with a CD burner and a copy of a Knoppix .iso it's a difference that makes no difference at all (almost a legal fiction of sorts...;-)

[ Reply to This | # ]

Another thing, the day after Red Hat filed against SCO, SCO had a teleconference. There is a transcript on GROKLAW.

In that teleconference Darl specifically says that Red Hat products infringe SCO's rights.

[ Reply to This | # ]

"The controversy must be definite and concrete, touching the legal relations of parties having adverse legal interests." Well, SCO definitely and concretely says that Linux infringes on their IP, and Red Hat definitely and concretely says that it doesn't -- why is that not enough?

Let's say someone claims I owe them a million. Couldn't I get a declaratory judgment that I don't, even if they don't explicitly threaten to sue me?

[ Reply to This | # ]

see post above

[ Reply to This | # ]

If that were all they had to go on, its easy to see how McBride & Co. could draw the conclusions they did. The problem, once again, is that in their (self) righteous outrage they overlooked the possibility there may have been something they may have overlooked, and scorned IBM's request for clarification of their claim. Back before things had gone legalistically ballistic, and could have been reasoned out amoungst reasonable men.

Okay, so it doesn't explain the corporate stock sales plans. But no matter how one looks at it, it appears there was so much top-level secrecy about this whole issue that management over at SCO didn't even trust with their Technical Staff. You know, Members who could have helped them avoid this whole mess, or most of it. SCO does have a few good Unix(tm) hacks on board, and has contributed to Linux, so there are folk out there who know their way around both the Linux CVS trees, and Unix(tm) history, well enough that e.g. the SCO Forum debacle could have easily been avoided if SCO management hadn't been so self-righteously overly-confident there was nothing there to avoid.

Anyway, that's the charitable view, FWIW.

[ Reply to This | # ]

Exactly. Even if Linux contained a pristine copy of the entire source of Unix System V, what would it be worth? Caldera purchased it for 7 million in cash and some stock. Old SCO had already licensed it perpetually with no new royalties coming in. A couple of courts apparently found nothing wrong in a settlement that allows others to use the BSD derivatives without paying any royalties to AT&T and it's successors.The IBM license is functionally equivalent to Confederate money, it belongs in a museum or at The Unix Historical Archive.

[ Reply to This | # ]

Somehow PJ is missing how it's done right. Instead of prominently displaying his disclaimer at the top of his non-commercial blog, he should start a commercial site, charge handsome fees and bury his disclaimer in an itty-bitty teeny-weeny almost invisible link at the bottom on the page... then piously whine about indemnification.

DATAMONITOR http:// www.commentwire.com/commwire_story.asp?commentwire_ID=4733 (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.

ABERDEEN GROUP http://www.aberde en.com/ab_company/about/disclaimer.htm The information contained in Aberdeen publications has been obtained from sources Aberdeen believes to be reliable, but is not warranted by Aberdeen. Aberdeen publications reflect the analyst?s judgment at the time and are subject to change without notice.

PRINCIPAL FINANCIAL GROUP htt p://www.corporate-ir.net/ireye/ir_site.zhtml?ticker=pfg&script=500 The Principal Financial Group is followed by the analyst(s) listed above. Please note that any opinions, estimates or forecasts regarding The Principal Financial Group's performance made by these analysts are theirs alone and do not represent opinions, forecasts or predictions of The Principal Financial Group or its management. The Principal Financial Group does not by its reference above or distribution imply its endorsement of or concurrence with such information, conclusions or recommendations.

ACACIA GROUP http://www.acaciarg.com/legal/ter ms.htm 8.1 NEITHER ACACIA NOR ANY PROVIDER OF THIRD PARTY CONTENT OR THEIR RESPECTIVE AGENTS WARRANTS THAT THE WEB SERVICE WILL BE UNINTERRUPTED OR ERROR FREE; NOR DOES ACACIA, ANY THIRD PARTY CONTENT PROVIDER, OR THEIR RESPECTIVE AGENTS MAKE ANY WARRANTY AS TO THE RESULTS TO BE OBTAINED FROM USE OF THE WEB SERVICE OR THE CONTENT. THE WEB SERVICE AND THE CONTENT ARE DISTRIBUTED ON AN "AS IS, AS AVAILABLE" BASIS. NEITHER ACACIA, THIRD PARTY CONTENT PROVIDERS, NOR THEIR RESPECTIVE AGENTS MAKE ANY WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION, WARRANTIES OF TITLE OR IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, WITH RESPECT TO THE WEB SERVICE, ANY CONTENT OR ANY PRODUCTS OR SERVICES SOLD THROUGH THE WEB SERVICE. NEITHER ACACIA NOR ANY THIRD PARTY CONTENT PROVIDER WARRANTS THAT ANY FILES AVAILABLE FOR DOWNLOADING THROUGH THE WEB SERVICE WILL BE FREE OF VIRUSES OR SIMILAR CONTAMINATION OR DESTRUCTIVE FEATURES. YOU EXPRESSLY AGREE THAT THE ENTIRE RISK AS TO THE QUALITY AND PERFORMANCE OF THE SERVICE AND THE ACCURACY OR COMPLETENESS OF THE CONTENT IS ASSUMED SOLELY BY YOU.

ACTUATE GROUP http://www.actuate.com/ho me/termsconditions.asp LIMITATION OF LIABILITY IN NO EVENT SHALL ACTUATE OR ITS SUPPLIERS BE LIABLE FOR ANY DIRECT, INDIRECT, SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES INCLUDING, WITHOUT LIMITATION, LOSS PROFITS OR REVENUES, COSTS OF REPLACEMENT GOODS, LOSS OR DAMAGE TO DATA ARISING OUT OF THE USE OR INABILITY TO USE THIS WEB SITE OR ANY ACTUATE PRODUCTS OR SERVICES, DAMAGES RESULTING FROM USE OF OR RELIANCE ON THE INFORMATION OR MATERIALS PRESENTED ON THIS WEB SITE, WHETHER BASED ON WARRANTY, CONTRACT, TORT OR ANY OTHER LEGAL THEORY EVEN IF ACTUATE OR ITS SUPPLIERS HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.

VESTIN GROUP http://int.vestingroup.com/terms.asp ANALYST DISCLAIMER: We'll provide a list of analysts who cover Vestin Group, Inc. as matter of record only and do not endorse or recommend any securities analyst or brokerage firm. The company does not endorse or adopt any of the opinions expressed by any securities analyst or brokerage firm. Any statements made by securities analysts express the views of the author, not the company.

[ Reply to This | # ]

Same quote from Napoleon I posted above, I suppose you hadn't seen it yet. I guess it means great minds think alike.

About their jumping to conclusions: I think you have to add in the desperation/panic factor, because if you are thinking carefully you go off on a very dangerous course like suing IBM (and it is dangerous, look at all the software patents they can throw at you, for one thing) unless you check things out very carefully beforehand.

So that makes me think McBride was in a desperate rush. And if they had started checking the Linux code soon after McBride started the general IP plan last august, there would have been 6 months to think things over before making a decision to sue, so it is unlikely they would have done something so foolish.

That is why I think the general IP plan was tried first, and then, late last year McBride realized it was going to fail, got into a panic, and rushed ahead with a brainstorm he got to examine the linux code plan, and this lead quickly to the sue-IBM plan. That is why, as you pointed out, they didn't consult with their unix staff. Well, maybe I am wrong, but it makes more sense to me than any other explanation I have heard so far.

[ Reply to This | # ]

As for "a concrete and immediate litigation threat", that exists (see my post above).

[ Reply to This | # ]

They don't. However, devout Mormons promise to be honest in all their dealings with their fellow men. They also work for a living and accept responsibility for their actions.

[ Reply to This | # ]

http://www.jonobacon.org/ramble/oldramble.php?id=20&ref=/ramble/index.php

Not very informative. My guess is that there is some contractual agreement among all the UL members such that the other three cannot throw SCO out, and furthermore SCO can cause them various types of trouble as long as it is in.

[ Reply to This | # ]

[ Reply to This | # ]

If SCO's reply to Red Hat is they didn't mean to sue, then SCO is estopped from suining Red Hat. Then RH's defense fund can be used to defend RH clients who got an SCO nastygram.

[ Reply to This | # ]

If SCO's reply to Red Hat is they didn't mean to sue, then SCO is estopped from suining Red Hat. Then RH's defense fund can be used to defend RH clients who got an SCO nastygram.

[ Reply to This | # ]

David Boies lives in town, and they discuss the idea with him. I doubt Boies understands the finer aspects of the GPL, or even how programmers go about writing an OS, but he thinks that there is money to be shaken from the IBM tree. IP law isn't his field, but he thinks IBM will cave without a trial, buy out SCO, and he'll make a big chunk of change for use of his name.

Cranky

[ Reply to This | # ]

[ Reply to This | # ]

Why does the press seem to often portray it as if it was just him.

[ Reply to This | # ]

[ Reply to This | # ]

[ Reply to This | # ]

oh, and dig the Stacey Quant quote: "I can't see why a company would pay this, since it is all based on allegations and hasn't been proven in court," she said.

For months, the analysts would say "consult your lawyers to find out if your should pay, this might be a real threat" The last week or so a lot of them are saying "don't pay." I guess they are starting to figure out what is really going on. I wonder if this will have an effect on SCO's strategy, like push it to settle the lawsuits, since they must see their efforts are actually making things worse for them.

[ Reply to This | # ]

Both the dropping of the IBM anti-trust suits and the final decree in the AT&T case happened in the same time frame. Mid '80's, with a very different political mood in DC and the country than when the cases started.

Similar change happened in the last round of the MS anti-trust case.

[ Reply to This | # ]

"SCO Group has claimed Linux users will still need to buy one of its licences even if they find and replace the code it claims was misappropriated from its Unix operating system and "dumped wholesale" into Linux."

This is kind of like the original sin doctrine in Christianity. You start out guilty, and nothing you can do on your own efforts can get you out of sin. You have to get salvation from God, or in this case McBride.

also: "He added that the 1,549 figure could rise as SCO continues its efforts to discover further examples of infringing code and files in Linux.

"That is just the number identified so far. It will probably end up being a lot higher," he said. "

Oh, now I see where this is going. Eventually they will prove that every single line of code in Linux belongs to them. Well, that will certainly make things simpler.

[ Reply to This | # ]

[ Reply to This | # ]

Not at 65K most Linux developers didn't <G>. That's what the licenses were when I had worked for a company who had a source license, and had the job of reviewing new code releases so I could assure the boss there were no security holes in the stuff...

You seem to forget that AT&T had a habit of distributing Unix code to universities, so that the students could see how it worked. Remember Lyons' book? You can buy it once again- went back into print a few years ago. Now, seems to me that if you are distributing your OS source code to universities so that students can play with it then it's sort of silly to claim IP rights- you haven't really protected that IP.

[ Reply to This | # ]

I am familiar with Felten case, but as I understand it, it was complicated by the fact that the alleged controversy was over a hypothetical act, i.e., whether it *would* be a DMCA violation for Felten to present his material at USENIX. We don't have that element here -- Linux already exists, and SCO claims that a violation is already taking place.

Sure, I suppose SCO could say they aren't going to sue Red Hat, but in that case, I don't see how addressing "concrete" and "immediate" plays into this, unless it's to protect themselves from charges of barratry that, I am guessing, could arise if someone harrasses you with threats of a lawsuit and then in court says, "I was just kidding."

[ Reply to This | # ]

[ Reply to This | # ]

David Boies is probably pumped and living on ego since the MS case. nah- I don't think he would even consider the possibility of IBM fighting back. I think the assumption was that IBM would shell out a hundred mill or 2 and call it "annoyance relief."

Explain why SCO execs have been dumping stock if they feel their case is so strong? make 200K now when they could be multi-millionaires if SCO succeeds? And why SCO refused to "put up" when Linuxtag brought them to court in Germany?

[ Reply to This | # ]

'82 for the IBM anti-trust and '84 for Judge Green's (surprising for the times) break-up decision. If I recall correctly. 'Tis quite likely the DoJ asked for a final decision in the AT&T case at the same time they dropped the IBM anti.

The minor point is, who was the president at that time?

[ Reply to This | # ]

Well, the press must have gotten it wrong. Darl McBride must be a devout MORON, he couldn't possibly be a devout Mormon if honesty is a prerequisite.......

[ Reply to This | # ]

Seems to be the goal <G>. I wonder what SCO will do when open source programmers decide to make life difficult for them? Take the new SCO unix release- SCO advertises inclusion of the latest Samba. What happens when Samba developers decide not to include any SCO OS update code, and maybe start changing things so Samba won't run under SCO? And decide not to answer any questions regarding problems from SCO developers and users? And what if the developers of other projects do the same? It's already being talked about. Most open source developers are highly pissed off.

SCO would then have the choice of either not including these great open source tools in their Unix releases, or hiring huge numbers of programmers to make the programs run under SCO. I have little doubt SCO will go away- they have dug their own hole.

[ Reply to This | # ]

Seems that there are two cases in Germany, one in Munich and one in Bremen. With two different plaintiffs, tarrent(sic) and LinuxTAG.

Hopefully somebody in Europe can do a bit of research, and find out what is going on over there. (I'm in the US, and our press is PP on accurate reporting.)

[ Reply to This | # ]

This is true. I am no lawyer, but it seems to me that even if SCO can somehow show they never intended to sue Redhat or Linux customers, SCO must still present some evidence to back its claims of infringement, or it will lose on the above counts.

[ Reply to This | # ]

http://www.sco.com/scos ource/linuxlicensefaq.html

In other parts of the site, I find this phrase particularly interesting:

"End users who purchase this license will be held harmless against past and future copyright violations of SCO’s intellectual property in binary format in Linux distributions"

So by corollary, end users who do not purchase a license will be not be held harmless. Interesting choice of words: harmless; harm. SCO is saying in reverse that it intends to harm those users who do not purchase a license.

But back to this particular page:

"I have Linux servers deployed in my organization. What options do I have besides purchasing a SCO IP license?

• You have the option to do nothing, adopt a “wait and see” attitude, and hope that SCO is not serious about enforcing its intellectual property rights in the end user community ..."

Dancing around the mulberry bush, SCO is singing 'we will sue end users'.

"SCO is committed to protect and defend their intellectual property and believes that the most cost effective remedy is to purchase the necessary SCO UNIX IP license. However, the action you take should be based on the recommendation of your own legal counsel."

Protect, defend, IP, remedy, necessary, license, take action, legal counsel -- keep your eyes on the watch... you are getting sleepy, sleepy...

--

Sure sounds like they believe in the validity of the GPL from this:

"I am a member of a corporate IT staff (developer) and I distribute a customized Linux OS to internal data centers. What license do I need to obtain from SCO?

... SCO cannot license its source code for use with Linux because SCO’s UNIX source code licenses are incompatible with the terms of the GPL ...

Why doesn’t SCO offer an IP License for Linux to the Linux distribution companies so that they can bundle SCO IP with their Linux distribution?

... SCO doesn’t offer a license to cure the infringement on the part of the Linux distributor because SCO’s source license agreement directly conflicts with the GPL."

[ Reply to This | # ]

[ Reply to This | # ]

[ Reply to This | # ]

Satan Claims Opensource

[ Reply to This | # ]

Man, I sure wish they would send at LEAST one invoice to me- I think there is going to be a hot e-Bay market on original SCO invoices. I actually e-mailed SCO over a month ago, specifying all of the copies of the distros that I have which contain the 2.4 kernel, and that I have used, including Caldera's Linux (it was the worst of all- I tried it for less than a day before scrapping it). Furthermore, I have all of the UnitedLinux code- that should count for something. I am still waiting for my invoices....

[ Reply to This | # ]

If GPL is invalid why does this matter?

And this is VERY interesting >>> harmless against past and future copyright violations of SCO’s intellectual property

NOT "harmless against copyright violations of SCO's copyrights." but "violations of SCO's IP".

VERY interesting choice of words. Could that be because SCO has no copyright claims on Linux, just the now-oft-repeated " misappropriated IP ?" Could it be SCO KNOWS they have NO VALID CLAIM ON LINUX and MUST phrase their theft-attempt that way?

[ Reply to This | # ]

[ Reply to This | # ]

And thanks, ecprod, for getting gumout to acknowledge my beauty and grace publicly. Just think, it'll probably show up on Google someday, and some reporter in the mainstream press will do research for an article about Groklaw and decide it's better to repeat than to have to actually investigate and will include it in an article just the way gumout wrote it, word for word, or maybe like this: "Sources say she is as beautiful as she is gracious". Or: "The beautiful and gracious author of Groklaw..." And then it'll be true, because everybody else will pick it up and repeat it, with maybe just a little rewrite here and there to make it their own ("She is said to have won a beauty contest in her senior year and used her winnings to obtain her paralegal certification"; "Her friends say she is just as beautiful inside as out and always gracious to those around her"), except for one guy, who'll be sure he's on to something and will write, "Although many think PJ is a female, Groklaw is actually written by a man, something obvious by its logical and hardhitting style." And there you have it: Media truth, and how it comes to be.

: )

[ Reply to This | # ]

Regarding this comment in today's story: "A lawyer friend mentioned one other for those who might be customers who bought Caldera's OpenLinux: ask for your money back or that SCO declare that the license you bought it under in good faith, the GPL, is valid, at their choice. As always, speak to your own lawyer before you do anything"

IANAL, but it would seem possible to me, that this might be the kind of claim that might best be pursued by a class action (as pursuing an individual claim on a single copy is probably unlikely to be financially worthwhile) and/or the FTC, attorney generals etc., (or similar agencies in other countries, etc.). Am I right or wrong? Am I way out of line here? If somebody were in this position, how would they go about getting help/interest by class action lawyer/FTC/whatever?

[ Reply to This | # ]

Re: Germany

http://www.in foworld.com/article/03/09/02/HNscofined_1.html

SCO is appealing the fine, Stowell said.

[ Reply to This | # ]

Q&A: SCO's Chris Sontag on how Unix plus Linux equals trouble Story by John Blau, IDG News Service MAY 13, 2003

Are you planning any legal action against SuSE or Red Hat?

We have no action planned at this time. Our focus is on the IBM lawsuit. This does not mean, however, that we will not initiate other actions to protect our intellectual property at a future point.

What about SuSE and Red Hat customers and other Linux users? Could they face litigation or be affected in any way?

Certainly, as the evidence mounts, there could be concerns and issues for end customers. When you're talking about copyrighted materials or trade secrets being inappropriately obtained and released, even the recipients of that information have to have concerns.

[ Reply to This | # ]

Exclusive: SCO's Chris Sontag talks to vnunet.com Peter Williams [16-05-2003]

My understanding is that SuSE says it is protected from anything you are claiming. Have you got a comment on this as you are part of the UnitedLinux consortium?

I have reviewed the agreements we have with SuSE. I would not characterise them in any form whatsoever as providing SuSE with any rights to our Unix intellectual property. They are dead wrong on that issue.

What you are saying then is: if there is Unix code put into Linux by IBM, and SuSE is using Linux, they would therefore be liable by default?

Yes.

Would that also be true of Red Hat?

The same issue in terms of inappropriate intellectual property in Linux being distributed by any commercial distribution would provide them with the same issue. So Red Hat, SuSE or any other commercial distribution would have equal liability.

[ Reply to This | # ]

http://www.news.com.au/common/story_page/0,4057,7155455%255E15306,00.htmlmonkymind

[ Reply to This | # ]

btw Sanjeev, in respect of this statement you pondered: "End users who purchase this license will be held harmless against past and future copyright violations of SCO’s intellectual property in binary format in Linux distributions"

I would also point out that it doesn't say "... *the* past and any future ...", i.e. the statement falls short of saying there is copyright infringement.

Also note that for SCO, purchasing this licence would apparently clear you of liability even if the whole sysV code base was dumped word-for-word into Linux tomorrow, because they refer to "future violations" without reservation.

SCO have just put a price of $699 on the *whole* of their SysV IP. Their FAQ shows how much it is worth to them. This will cap any damages they can seek at a later date.

[ Reply to This | # ]

This is manifestly false, at least in UK law. Once infringing material is destroyed, there is no ongoing liability. Destroying infringing material does not of itself exempt one from paying damages, of course, but as I've pointed out UK law does not permit damages to be awarded for innocent infringement. [Other countries vary.] In fact if an end user were successfully sued for possessing copyrighted material in the UK, virtually the only remedy available to the court would be the removal of the offending code - the situation is no different from the innocent use of a copyrighted image on a personal website.

[ Reply to This | # ]

Because they are habitual and compulsive liars?

[ Reply to This | # ]

SCO: Unix code copied into Linux

By Stephen Shankland Staff Writer, CNET News.com May 1, 2003, 6:42 PM PT

An issue for Linux sellers SCO's accusation of source code copying also could have implications for SuSE and other companies that sell their own versions of Linux, such as Red Hat. Although McBride said SCO is concentrating its legal energies on the IBM case right now, those companies aren't immune from Unix-Linux issues.

"There's a point in time that has to be resolved with those guys too," McBride said, "but that's not currently what our legal approach is about."

SCO doesn't have a desire to take legal action against companies that distribute Linux, McBride reiterated. But that doesn't preclude the possibility. Indeed, the company didn't have a desire to sue IBM either, McBride said, but it has done just that.

Regardless of whether the issue is hashed out in the courts, Linux companies will have to grapple with it, McBride said. "For Linux to move forward in a wide-scale fashion, I believe the intellectual property issues have got to be resolved," he said.

[ Reply to This | # ]

The current version of UNIX, System V Release 4 ("SVR4"), is comprised substantially of code developed by the University and is licensed by USL for a $200,000 plus fee. This high fee is now allowed as a result of the deregulation of USL's predecessor, AT&T. Despite the large amount of University code in SVR4, the University receives no royalties from USL.

Ouch! I had been retired a couple of years by then.

[ Reply to This | # ]

SCO may expand Linux case soon

By David Becker and Michael Kanellos Staff Writer, CNET News.com June 13, 2003, 4:16 PM PT

SCO may also amend its complaint to bring additional causes of action against IBM, he added, and bring subsequent actions against Linux software developers such as Red Hat and SuSE.

"The fact that there are other companies infringing our contract... (means) there could be other complaints," Sontag said.

Linux software companies could also become SCO targets. "Do we have potential issues with Red Hat, SuSE and other commercial Linux distributors--yes, we might," Sontag said, adding that chances for negotiating with such companies appear to be slim.

[ Reply to This | # ]

http://ww w.businessweek.com/technology/cnet/stories/5070583.htm

Stowell said the invoices mark an intermediate stage in SCO's efforts to get a company to pay up, before taking it to court.

"We're not planning on...suing some commercial user of Linux from the start," he said. "We'll give ample opportunities to get the license before we do that."

The companies to which SCO sends invoices are likely high on its list of candidates for lawsuits, according to Quandt.

"SCO continues to use tactics of brinkmanship, and it is certainly possible that the companies that get invoices could become future defendants," she said.

[ Reply to This | # ]

• Tarent (Bremen): http://www.tarent.de /html/tarent-vs-sco/EV-engl.html
• Univention (München): http://www.univention.de/ uploads/verfuegung.pdf

[ Reply to This | # ]

[ Reply to This | # ]

Well, I think they could still claim IP rights (just as Linux kernel developers still hold their copyrights to their works even though
they're GPL'd), but they sure as hell can't claim "trade secrets", since they themselves released such source code to universities et al.

[ Reply to This | # ]

SCO to send out Linux invoices

ht tp://www.zdnet.com.au/newstech/os/story/0,2000048630,20278133,00.htm

"SCO will pursue commercial Linux users who have discussed their Linux work publicly, Stowell said."

Now they threaten those that stand up for Linux publicly. They will be the first! Pure Maffia-style!

"Stowell said the invoices mark an intermediate stage in SCO's efforts to get a company to pay up, before taking it to court."

Dell: No shelter against SCO suits

ht tp://www.zdnet.com.au/newstech/os/story/0,2000048630,20278109,00.htm

"We have seen a change (in the Linux momentum) among really large customers," Dell said."

Linux is losing big money because of SCO FUD.

[ Reply to This | # ]

[ Reply to This | # ]

More SCO lies:

SCO is charging $US699 ($1100) for a single CPU server licence, but has yet to make the licences available in Australia. Once available, the licence prices would be equivalent to what has been charged in the US, SCO Australia and New Zealand general manager Kieran O'Shaughnessy said.

This seems to indicate that SCO has already sent invoices out in the U.S.; anyone heard anything?

"SCO is not trying to kill Linux," Mr O'Shaughnessy said. Rather, the company aimed to help the open source OS rid itself of the
"contamination with other people's IP" that was preventing greater take-up amongst enterprise users.

I sure wish O'Shaughnessy would point to a single instance where SCO actually offered to help get the alleged offending code
out of LInux; all they've done is stonewall when asked to identify the code. As for preventing greater take-up amongst enterprise
users, the SCO FUD is the culprit there rather than any alleged offending code (witness Red Hat's statement of increase in
customers since the lawsuit).

[ Reply to This | # ]

[ Reply to This | # ]

Yeah- my idea is that Darl is running out of ideas. Maybe he unencrypted his top secret 'FUD Instruction List" that Gates-Ballmer provided him, and can't find anything more in it that he hasn't done before. I mean, there are only so many times that you can "issue anti-Linux press releases to friendly media lackeys", "mess with IBM's Linux plans," and "threaten to sue all Linux end users worldwide for IP theft."

[ Reply to This | # ]

Oh boy- the "Jayson Blair theory of media coverage."<G> Unfortunately, I think you are correct. The absolutely dismal reporting of the SCO lawsuit, at least until recently, should give everyone an extremely low opinion of journalists. How many "analysts" in the industry, from DiDio to Dvorak, have writteb absolute slop about this nonsense? It's almost like all SCO has to do is issue a press release, and some media lackey will rewrite it and present it as "op-ed."

[ Reply to This | # ]

[ Reply to This | # ]

Wesley: "In its last annual report, Caldera itself put the value of all the Unix technology it acquired from SCO (OpenServer, UnixWare, System V, System III, etc...) at around $1 million." .... NO!!!! It's worth BILLIONS!

[ Reply to This | # ]

<Under the terms of the 1985 Unix licensing agreement between the two companies, SCO says that all development of the Unix operating system undertaken by IBM belong to SCO, not IBM. However, IBM disputes that interpretation of the agreement.>

i mean they could at least use a little common sense .would it even be believable that ibm would allow code they develop to be owned by someone else?a company famous for fighting the us goivernment for over 10 years is so stupid they give those kinds of rights to a dinky little washed up company like sco.come on at least get the fud to a level of sensible oh that is right i forgot we talking about sco sorry for my confusion hehehe

[ Reply to This | # ]

ecprod:I understand what you are saying, but the license required the licensee and students to maintain the confidentiality of the materials. The software was provided "for educational and academic purposes only", not for production use outside the organization. I know this makes no sense, but that was USL's case (the Regents settled without explaining that one to the judge).

Here is what Dennis Ritchie has to say about the license: http://cm.bell-labs.c om/cm/cs/who/dmr/licenses.html

"The license is full of boilerplate, but probably the important operative clause is that of 4.05, which effectively allows free use within the university, provided the users do not disclose outside the organization. Section 2.01 grants use "for educational and academic purposes only;" 4.05 requires the licensee not to disclose the software "or methods and concepts utilized therein," to anyone except employees or students as necessary for purposes granted. I believe that the wording allowed John Lions to teach his Unix course and prepare his famous Unix commentary, but that the terms were tightened up later to be more restrictive by the time of the Seventh Edition. However, I understand that the restriction against disclosing methods or concepts (as distinct from actual source code) caused ill-ease to some university lawyers. This restriction was indeed a bit peculiar: the concepts had already been published, for example in the C. ACM paper."

[ Reply to This | # ]

I can guess enough about what the invoices will and won't say to form a response. Not a lawyer, but I would be tempted to send back a letter stating, "We have no records indicating that we have ordered any product from your company. Would you please provide a detailed invoice specifying exactly what items this invoice covers, including version numbers, source file names, paths and line numbers if applicable to the items for which you are invoicing? We will be unable to process this invoice until provided with information allowing us to verify that we have indeed received the items for which you are invoicing us."

Wonder if they'd want me to sign an NDA so that they could invoice me?

Chris Beckenbach

[ Reply to This | # ]

[ Reply to This | # ]

The SCO threat is definitely having an effect. For ourselves we took down any reference to Linux on our site as being in our products. SCO has now publicly said that they are going after anyone they see "publicly" announcing they use Linux. I have stopped ALL posting activity to the Linux newsgroups and mailing lists I am involved in. This includes uClinux. Sad. But I know SCO is listening like big brother. It might be too late, but the best policy is try not to bring too much attention to yourself.

Some questions concerning invoices.

1. What does the invoices say? Anyone got one of these babies they are always sending out or going to send out? 2. If I pay the invoice, what do I get? I get a boxed copy of SCO UnixWare 7? With what options? If I get nothing, how can it be an invoice? 3. How do they plan to handle in a practicle sense the $32 embedded fee. Do I get a CD for every license? A piece of paper for every unit? 4. How much time do they provide to pay the invoice? Normal invoices are 30 days, but software can be as much as 90 days with a return clause for full refund (this is normal for very complex pieces of software like UnixWare and is often called the evaluation period). In other words, you give them a purchase order up front. If you return the software in 90 days you get your money back. 5. If they are invoicing me or my business for something I didn't purchase or not providing any product or service for the invoice, is this mail fraud? 6. If I pay the invoice, what legal paper work do I get saying I won't get sued?

As you can see, when you shine the light of normal business practices on SCO's invoices I bet you will see that they are not invoices at all.

BTW, I would recommend we don't pay it if the dreaded thing comes. Honestly, our owner is not fully aware of these issues so if he got an invoice from SCO he may just have accounting throw it out as some dumb mistake or something. :)

[ Reply to This | # ]

Is this the "piercing of the corporate veil" that we're all hoping for?

A man can dream...

[ Reply to This | # ]

I think it quite possible that you would be invited to sign an NDA, whereupon you would be shown the same stuff as everyone else has been (it's fairly clear that the original NDA signers were shown little more than the SCOForum flim-flam - read the LinuxJournal "My Visit to SCO" piece) as "proof" of their claims. Of course the NDA would just give SCO more ammunition to pester you legally, so signing it would be unwise. Instead you ought to say "I don't want to see your UNIX code, just tell me what you are invoicing me for."

One could also pick a single file from the 2.4 kernel (which is materially different from the 2.2 version) and ask them "We were planning to use this code in a GPL'ed utility. It does not appear to bear your copyright notice. Do you dispute this? It is important for us to know since your licence only allows binary use." Then keep asking them to give an answer yes or no. They can either disown copyright (then ask about another file), claim it (which you can then report to the community) or continue to be evasive which will hurt their case.

[ Reply to This | # ]

[ Reply to This | # ]

and

> "Docket Text: Return of service executed re: Subpoena served on Canopy Group c/o Ralph Yanno on 8/26/03"

Could they be connected?

[ Reply to This | # ]

I wonder if they are worried about copyright infringements and SCO invoices? ...;-)

http://www.inter netnews.com/ent-news/article.php/3071551

[ Reply to This | # ]