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If they were going to be truthful, they would say they own the code to certain Unix implimentations, including SVV4 (and even that is in doubt, given how the AT&T versus U of C and BSDi lawsuit turned out). But if they said that, then people would think "Oh, they own some Unix code but not all, and so maybe they don't own any of the code in Linux"

But they want people to think they basically own everything, and so they have a right to sue anybody, and are going to become enormously rich as a consequence. And for that reason they talk like Unix is this single thing and they own it.

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Part One:

http://weblogs.java.net/pub/wlg/414

Part Two:

http://weblogs.java.net/pub/wlg/426

On the subject of SCO controlling UNIX, I don't think this is much of an issue. There's just too much evidence showing that their case is not just contaminated, but no damn good at all.

However, if they succeed in starting another big round of the UNIX wars, they do stand a good chance of screwing things up for ALL forms of UNIX. It's not hard at all to imagine an older manager saying, "You know, we went through this in the nineties when USL sued BSD, were going through it again now, and the uncertainty just isn't good for our business. We'll go with Windows."

And you know what? He'd be right. Not on the technical or moral issues, but on the issue of having a supplier who's not constantly troubled by earth shaking lawsuits. In many ways, SCO is at war with all UNIXes, including themselves, and they don't know it.

The guy who KEEPS CAPITALIZING STUFF is RIGHT, he's just NOT PHRASING IT very WELL.

Just my .02

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--Shaun

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I have out to Eric and Rob that the purpose of Para 2 and Paras 22-27 (scroll down) are included to support the following false atatement in Para 28:

All commercial UNIX “flavors” in use today are modifications of and derivative works based on the UNIX System V Technology (“System V Technology”). Were it not for UNIX System V, there would be no UNIX technology or derivative works available for IBM and others to copy into Linux.

The existance of S/390 proves this statement false. I believe that S/390 is a commercial, proprietary, and trademarked UNIX&mark; that is not a modification of and derivative of System V.

In addition, Tru64&mark; UNIX&mark; is a derivative of OSF/1 and is also commercial, proprietary, ... and is also in use today. HP is certainly shooting it in the head along with the Alpha processor, but it is about the best HPC platform currently available.

OSF/1 is a microkernel OS based on the MACH spec from CMU. It was a product of the 'UNIX wars' and a desire for a commercial MACH implementation. The Open Systems Foundation is/was the keeper of the OSF/1 code. I don't remember who all of the members where, but DEC was the only one to bring OSF/1 to market and keep it there - first as Digital Unix, and then renamed to Tru64 after DEC was acquired by Compaq.

If anyone in Nashua is lurking and can provide more info on Tru64 and OSF/1 wrt how much, or if any System V code in used in the OSF/1 kernel (sic), I would appreciate knowing this. There isn't much online since most of the important history predates the widespread use of http.

In closing, big thanks to pj and MathFox for running the best 'wassup wid Smoking Crack Often Group' site. I've been lurking since mid July (whenever the link to here appeared at the Inq), but didn't want to decrease the signal to noise ratio just by posting to say thanks. This site has the best S/N ratio of any I have seen that allow comments. The regular posters are outstanding and everyone seems to keep posts interesting, insightful, and on topic. The few off topic posts that I have seen have been worthwhile anyway. Here's to hoping it stays that way.

Note that comments are overflowing regularly now within hours of pj's most recent article.

Tim Ransom - Your blog is hysterical.

Thanks again to all here.

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If Microsoft can't even sew up the development market on their own OS, they sure won't make a dent on Open Source OSes... and Thank God for that!!

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Interesting articles you linked. The author, however, says nothing about how the GPL thwarts that possibility. Maybe that's why Microsoft=SCO hates the GPL so much, and they (SCO=Microsoft) is working desperately to try and get the GPL invalidated.

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Call me a shell-shocked survivor of the first Unix Wars. Back then, I think Unix accounted for 35% of the server market. The open Group has a little timeline about this stuff for nonveterans, where they state: "The Open Source movement is building on this stable foundation and is creating a resurgence of enthusiasm for the UNIX philosophy. In many ways Open Source can be seen as the true delivery of Open Systems that will ensure it continues to go from strength to strength. " It's at http://www.unix.or g/what_is_unix/history_timeline.html.

Oh, SCO is up, SCO is down- at least their website. But here is a paste from their website where they explain their Linux license:

"Many customers are concerned about using Linux since they have become aware of the allegations that Linux is an unauthorized derivative work of the UNIX® operating system. These customers unknowingly received illegal copies of SCO property and many are running critical business applications on Linux. Some customers have asked their Linux distributors to indemnify them against intellectual property infringement claims in Linux. The Linux distributors are unable to do so because of the terms and conditions in the General Public License (GPL).

SCO has an obligation to stockholders, customers and employees to protect the value of its assets. SCO is also sympathetic to the end-user’s predicament. SCO has determined that it can accommodate both conditions by offering a license that cures the IP infringement in Linux. This new license is called “SCO Intellectual Property License for Linux” and applies to commercial use of the Linux 2.4 and later versions. The license insures that Linux end users can continue to run their business uninterrupted without misusing SCO’s Intellectual Property.

End users who purchase this license are granted the right to use the SCO IP in Linux in binary format only. The license is available immediately and can be obtained by contacting your SCO sales representative or by calling SCO at 1-800 726-8649. "

Notice how a real weasel wrote this crap- SCO doesn't actually come out here and say they own Unix. However, they do clearly threaten business users of Linux, which is what I think will get them into hot water.

During the height of the first Unix Wars, everybody was just as worried about the future of Unix, especially its free variants, as they are now. Back then, all they did was whine and wait for the courts. This time, people are fighting back, which is good. Sure would like to know what exactly M$ did, the role they really played, during the first Unix Wars- that's really never come out. But they were the biggest beneficiary of the whole mess.

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Also, &mark; should have been ™ and I used a 'where' where I meant 'were'.

I hope geeklog has a preview ;-)

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From: Dennis Ritchie <dmr@bell-labs.com> Newsgroups: alt.folklore.computers Subject: Re: Coherent Date: Fri, 10 Apr 1998 08:05:27 +0100 Organization: Bell Labs, Lucent Technologies Lines: 70 Message-ID: <352DC4B7.3030@bell-labs.com> References: <3528ff87.19065567@news.nabi.net> <6gc5mt$hg4$1@news.sas.ab.ca> <6gjmu6$e32$1@roch.zetnet.co.uk> Reply-To: dmr@bell-labs.com NNTP-Posting-Host: cebu.cs.bell-labs.com Mime-Version: 1.0 Content-Type: text/plain; charset=us-ascii Content-Transfer-Encoding: 7bit X-Mailer: Mozilla 3.01 (Win95; U)

An anecdote: sometime fairly early after the Mark Williams company started offering their Coherent system (a Unix clone), some AT&T legal people asked me to visit Mark Williams for purposes of determining whether what they were offering was a rip-off (i.e. essentially a copy) of the currently licensed Unix done by us. I find it hard to reconstruct the date this happened, but it was a long time ago; probably early 1980s. I went to Chicago with Otis Wilson, who was then involved in Unix licensing.

It was a rather strange experience. The Mark Williams company was a paint producer, and I was given to understand that the subsidiary that was doing Coherent was, approximately, a corporation arranged by a father who, approaching retirement, had more or less shut down the older business and was using the corporate name and legal setup to help his son in a new venture.

Otis and I visited the offices of Mark Williams on the outskirts of Chicago and were received with courtesy and some deference. We talked to the father and the son (Bob Swartz, i.e. the guy behind Coherent). There had been communication before, and from their point of view we were like the IRS auditors coming in. From my point of view, I felt the same, except that playing that role was a new, and not particularly welcome, experience. The locale of the company was in an industrial section and it definitely retained the flavor of a the offices of a paint company being recycled.

What I actually did was to play around with Coherent and look for peculiarities, bugs, etc. that I knew about in the Unix distributions of the time. Whatever legal stuff had been talked about in the letters between MWC and AT&T didn't allow us to look at their source. I'd made some notes about things to look for.

I concluded two things:

First, that it was very hard to believe that Coherent and its basic applications were not created without considerable study of the OS code and details of its applications.

Second, that looking at various corners convinced me that I couldn't find anything that was copied. It might have been that some parts were written with our source nearby, but at least the effort had been made to rewrite. If it came to it, I could never honestly testify that my opinion was that what they generated was irreproducible from the manual.

I wrote up a detailed description of this. I can't find it, probably because at the time I was advised that it was privileged lawyer/client material. Partly at the time, partly thereafter, I learned that a variety of Unix enthusiasts (several from U. Toronto) had spent time there.

In the event, "we" (=AT&T) backed off, possibly after other thinking and investigation that I'd wasn't involved in.

So far as I know, after that MWC and Coherent were free to offer their system and allow it to succeed or fail in the market.

I suppose there's a second story about the suit by USL against BSDI and then UCB, but my own involvement was far tinier and didn't get me a trip to Falls Church or Berkeley to snoop. What advice I offered in this situation was exactly in line with that about MWC/Coherent, and as it turned out the resolution (though more costly for all) was pretty much the same.

(As a capper, Bob Swartz came by Bell Labs a week or so ago, and we had a pleasant social visit.)

Dennis

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The first part of the analysis is facinating. Some months ago I suggested that one part of IBMs defence will be to try an attack the legality of the transfer of the source from AT&T to it's eventual current holder SCO. This analysis suggests that an even deadlier attack is possible -- that the source SCO owns isn't Unix and basing any legal action on claims that it is Unix is building a castle on sand.

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Well see, that's the thing, SCO does own the original Unix operating system, and does have some rights (not unlimited, but rights nonetheless) to use those trademarks. They aren't telling the whole story, but the claim isn't entirely false either. I'm sure IBM is going to have a field day with those claims when the time comes, but the statemetns are slippery enough that Open Group might have a really tough time gagging SCO. An action like that would also put IBM in an uncomfortable spot, since they are one of the Open Group's major sources of funding. IBM want to portray themselves as the good guys in this thing.

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Regards Jadeclaw

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>>>> This analysis suggests that an even deadlier attack is possible -- that the source SCO owns isn't Unix and basing any legal action on claims that it is Unix is building a castle on sand.

There is a story making the rounds, possibly true more in spirit than in fact, that during IBM's anti-trust trial their lawyers delivered a motion which filled an entire filing cabinet. According to my source it took the Justice Dept two years to read and respond to the motion...

geoff, I suspect that IBM will be making a number of motions like the ones you've suggested during the trial, and that they will all be huge, long and weighty, full of legal precedents dating back to just after the Code of Hammurabi was first published way back in Babylon.

Or as one guy on slashdot put it, "I live in New York, and not long ago, the Black Gate of Armonk swung open. The lights went out, my skin crawled, and dogs began to howl. I asked my neighbor what it was and he said, "Those are the nazgul. Once they were human, now they are IBM's lawyers."

That's not an exact quote, but it captures the feel of the post. Of course if they can get the judge to rule that the Open Group owns the right to grant an that an OS is UNIX compliant, the nazgul can then spend a profitable six months arguing that the Open Group made a mistake giving SCO a UNIX certification...

I'll be very interested to see whether the purpose of the lawsuit will be merely to win, or to both win and punish.

Alex

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Anyone trying to make head or tail of the different meanings of the term unix is advised to read the OSI position paper. The fact that X/Open have provided some minor corrections to that should mean it is a reasonably definitive source.

I'm not sure that most people would call S/390 Unix even though it meets the requirements to be a Unix because it is also much more than Unix. SCO didn't use the term Unix <®> or Unix <&mark> in their complaint so we can't automatically assume that that is the definition they intend there. They do use Unix <®> in their press releases so they are wrong however.

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Apparently this is getting prime time showings in the US.

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I think it is as much UNIX(R), as any other product certified to the same level of UNIX(R) compliance. That's what the definition of UNIX(R) is.

That's what the people who own the UNIX(R) trademark, say what the definition means. And that's what they say S/390's status is.

Yes, some operating systems may offer UNIX(R) *and* extras, including I guess S/390. Sometimes the extra elements might even outweigh the UNIX(R) element. But that doesn't mean the UNIX(R) element, isn't UNIX(R).

> But here is a paste from their website where they explain their Linux license:

Well, in my opinion, there a number of problems with their explanation

> "Many customers are concerned about using Linux

Perhaps they are concerned, because of the risk of receiving invoices and/or being sued by SCO

> since they have become aware of the allegations

Allegations made by SCO. I have not seen allegations of these type made by anybody else.

> that Linux is an unauthorized derivative work of

To be proven, i.e. allegation

> the UNIX® operating system.

Hmmm, UNIX® (note that registered trademark symbol).

Use with a registered trademark symbol, I think it must be referring to the Open Group's definition. That is a definition for a group of similar operating systems that need not share any code - and not any single particular operation system.

> These customers unknowingly received illegal copies of SCO property and many are running critical business applications on Linux.

Alleged, but to be proven.

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I don't know if they share common code with AT&T versions, although it sounds like they don't. But arguing they are UNIX, seems problematic to me.

I would think:

If they existed prior to UNIX(R) definition/trademark being separated from the particular AT&T code base, even if they shared no code, and offered very similar features to UNIX, they weren't actually UNIX.

If they existed after to UNIX(R) definition/trademark being separated, they are UNIX only if the fit the Open Group's definition. If they don't fit the definition, they ain't UNIX. Of course, that doesn't stop them offering some similar features to UNIX.

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In this case, the hotly contested issues surround OSCAR 3.5. As recounted above, OSCAR 3.5 is the product of Altai's carefully orchestrated rewrite of OSCAR 3.4. After the purge, none of the ADAPTER source code remained in the 3.5 version; thus, Altai made sure that the literal elements of its revamped OSCAR program were no longer substantially similar to the literal elements of CA's ADAPTER.

According to CA, the district court erroneously concluded that Altai's OSCAR 3.5 was not substantially similar to its own ADAPTER program. We disagree."

About the OSF: "In 1988, two major competing UNIX groups emerged: the OSF (Open Software Foundation) and UI (UNIX International). OSF was lead by IBM, Digital, and HP, whereas UI was lead by AT&T and Sun Microsystems.

The OSF was first formed to counter AT&T's alliance with Sun Microsystems to license and enhance the UNIX Operating system. OSF wanted to write their own version of UNIX, based on IBM's AIX." Unix History

You can still read about the AT&T and Sun stuff here and there. I have a lot of it archived too:

"The American Telephone and Telegraph Company said today that it would acquire up to 20 percent of Sun Microsystems Inc. ...Together, AT&T and Sun, which announced a cooperative technology development agreement in October, hope to create a major new camp in the computer industry that will challenge the two industry giants: the International Business Machines Corporation and the Digital Equipment Corporation." AT&T to Buy Stake in Sun Prelude to the USL and NCR financial fiascos: AT&T to sell Stake in Sun, Buy NCR Instead AT&T sells USL to Novell: Analysis Note: This whole article is great but the last two sections are very interesting. The author recommends switching to an OSF or similar OS product instead of Unix.

It's possible for AIX to contain only overlaps owned by AT&T in 1989, (but only those necessary to meet extrenal standards, or even some that were available from the public domain).

Here's the SCOG amended complaint: "26. IBM’s UNIX-based operating system is known as “AIX.” AIX is a modification of, and derivative work based on, UNIX System V source code."

Here's IBM's reply: "26. Denies the averments of paragraph 26, except admits that IBM markets a UNIX product under the trade name "AIX".

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what is UNIX may well be to be open to discussion, but that's an entirely different discussion.

I think the question is what SCO thinks is UNIX. Sometimes SCO appears to think UNIX = the AT&T code base for an operating system. Sometimes SCO appears to think UNIX = same definition as Open Group.

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To add more noise to the signal, there many true belivers who will argue 'till sunrise that the only pure *nix is BSD derived...

All that SCOG owns are the questionable copyrights and the right to administer the old licenses.

Nothing else.

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Oh yeah- just wait till Darl McBride starts claiming that SCO owns the rights to Multics, and therefore every other non-M$ operating system ever designed. <G>. Actually, Multics on a pc might be pretty cool...

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S/390 (System/390, rebranded as zSeries in 12/2001) is an architecture (hardware). OS/390 (rebranded as z/OS in 12/2001) is an operating system for that architecture.

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All of this presupposes that there is a good case to be made for trademark abuse against SCO in the first place...

DES

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Discussions about what might have been, or what could be are inane. We all know that.

My suggestion is to reduce the noise to signal ratio. Can you, and other clueful contributers agree?

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Thanks for the correction Lev, I did mean OS/390.

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"The UNIX System Trademark is the owned by The Open Group. How can SCO claim that they own the UNIX System? The Open Group owns the UNIX trademark, which means they control the use of the name. SCO owns all rights, title, and ownership to the IP and copyrights, which means they own the actual code that constitutes the UNIX System. "

SCO is saying that they own any OS that has been designated as "Unix" by the Open Group. This won't fly. Source was SCO's own FAQ about the Linux IP license.

"If I am running SCO Linux or Caldera OpenLinux do I need to obtain a SCO IP License for Linux? Yes. SCO will distribute an IP License for Linux to all SCO Linux users. To receive this license, you must register your SCO Linux license on the website. If you already registered the SCO Linux license, you must update your registration to be eligible for the license. This special license is limited to the right to use SCO IP with SCO Linux and Caldera OpenLinux. It is not valid for any other distribution of Linux. Unlike the SCO IP license for a non-SCO Linux distribution, these licenses do not have to be registered after they are issued. The only registration required is the initial registration (or update) of the SCO Linux license. "

Interesting- if I already have a SCO license (receiving the Caldera UnitedLinux code, I am pretty sure that I do), SCO is demanding to change the license terms on me. Just from these 2 items in the FAQ, it should be apparent that SCOs claims are totally bogus. Always have been- this has been turned into a FUD campaign....Fol;low the money, and you will see who is directing it.

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Also, the business of Ritchie brings up the issue of expert witnesses? What qualifications does an expert witness require? Does anyone know anything or have some intelligent speculation about who will be called as a witness?

Lastly, what about the issues of pre-trial motions, jury selection, etc?

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Here's quote from the Appeals Court in that case about expert testimony:

As a threshold matter, expert testimony may be used to assist the fact finder in ascertaining whether the defendant had copied any part of the plaintiff’s work. See Arnstein v. Porter, 154 F.2d 464, 468 [68 USPQ 288] (2d Cir. 1946). To this end, “the two works are to be compared in their entirety . . . [and] in making such comparison resort may properly be made to expert analysis. . . .” 3 Nimmer Section 13.03 [E], at 13-62.16 .

However, once some amount of copying has been established, it remains solely for the trier-of-fact to determine whether the copying was “illicit,” that is to say, whether the “defendant took from plaintiff’s works so much of what is pleasing to [lay observers] who comprise the audience for whom such [works are] composed, that defendant wrongfully appropriated something which belongs to the plaintiff.” Arnstein, 154 F.2d at 473 . Since the test for illicit copying is based upon the response of ordinary lay observers, expert testimony is thus “irrelevant” and not permitted. Id. at 468, 473 . We have subsequently described this method of inquiry as “merely an alternative way of formulating the issue of substantial similarity.” Ideal Toy Corp. v. Fab-Lu Ltd. (Inc.), 360 F.2d 1021, 1023 n.2 [149 USPQ 800] (2d Cir. 1966).

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>>>IBM responded to the SCOG complaint by denying that AIX is a modification, or derivative of System V. IBM does claim that AIX is somehow a "Unix" product though.

AIX is a UNIX because it is certified as UNIX by the open group according to the latest standard, UNIX 98. See:

http://www.opengroup.org/ope nbrand/register/

Oddly enough, neither the SCO products nor the OS/390 product meets any form of the UNIX 98 specification. (UNIX 98, UNIX 98 Workstation, and UNIX 98 Server) Only Solaris, AIX, and Tru64 are actually UNIX 98 or UNIX 98 Workstation, and only AIX is certified as a UNIX 98 Server.

Per the Open Group Website, the UNIX 98 standard differs from the UNIX 95 standard by providing "(1) Threads interfaces, (2) Multibyte Support Extension (MSE), (3) Large File Support, (4) Dynamic Linking, (5) changes to remove hardware data-length dependencies or restrictions, and (6) Year 2000 changes. In addition the following optional enhancements are included: Software Administration facilities and a set of APIs for realtime support."

To get UNIX 98 Workstation certification, a product must also have, "conform to the Common Desktop Environment Product Standard."

To be a UNIX 98 Server, a product must also, add "...interoperability to the UNIX 98 Product Standard to support Internet and intranet services. This includes support of network computer devices and the presence of a mandatory Java execution environment. The UNIX 98 Server Product Standard complements the Network Computer Profile providing the server side of that definition. The emphasis is towards services and applications support. A standard server will provide a set of core services to support Internet applications. The additional functionality over the UNIX 98 Product Standard includes: the Internet protocol suite, Java support and Internet capabilities to support network computer clients. This Product Standard includes the following mandatory Product Standards: UNIX 98 and Internet Server."

Becoming accepted for these certifications includes passing a dozen or so test suites and standard definitions.

SCO Unixware is considered a UNIX 95, and OpenServer is a UNIX 93. From these certification standards, it would appear that AIX has substantially more capabilities than any SCO product.

Also Harlan, thanks for the quote on expert witnesses, but the business about how expert witnesses can't help the trier of fact determine whether the IP copying was illicit confuses me.

How far can a lawyer go in questioning an expert witness? Obviously it's not okay to ask, "Was this code stolen?" but can the lawyer ask questions like, "Is this code in the public domain?" or can the witness say, "I teach this code in my Advanced C Coding class?"

Where does the line get drawn between discussing whether the code is illicit and discussing something else?

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There's quite a bit more to the story of what the "Unix" name means. In common usage, it refers to a class of systems designed along the principles of the early Unix of Kernighan, Thompson, and friends. According to this definition, there are Unix systems that do not qualify for the "Unix" trademark (such as Coherent from Mark Williams), as well as systems that are clearly not Unix but do qualify for the trademark (such as OS/390).

At the same time, Unix's lawyer infestation is not exactly new, so people building new systems have generally been careful not to call them "Unix", no matter how close they are to the original design. Instead, they are generally known as "Unix-like", which seems to be a legitimate use of the trademark. Other terms you'll see in historical documents include *nix and the like. Two of the most famous examples, of course, are Linux and GNU (Gnu's Not Unix).

A lot of people go with the Open Group's definition of Unix, but not everybody. Here's one exception in particular:

http://www.apple.com/macosx/ jaguar/unix.html

I wasn't really close to the Unix wars of the '90s, but I get the sense that the Open Group's ownership of the Unix trademark is derived much more from business deals than from their competence at stewarding the technical specifications. Indeed, the schisms and alliances that forged the current structure of the Open Group are partly responsible for the fragmentation and loss of momentum of Unix at that time, and they don't show many signs of having reformed. So perhaps they legally own a trademark which they do not deserve. But that's probably OK (if unfortunate for the original inventors of Unix), because Linux is fast becoming a more appealing brand name.

Last, I might point out that teenage hacker wunderkind Aaron Swartz's father is the very same Bob Swartz responsible for Coherent. Small world, isn't it?

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>>> The case is about contracts and copyright license agreements relating to System V code and trade secret knowledge shared that the parties agreed not to

Joe while I see your point, I must also respectfully disagree with you. I believe that IBM will strongly challenge the idea that SCO can own any part of UNIX, including patents, copyrights, methods, trademarks, etc. If they admit in any way that SCO owns any part of UNIX, they may well lose the case, and they will certainly be at a terrible disadvantage.

What I'm expecting (and IANAL) is that before the jury shows up, IBM will ask for some kind of judgement on whether SCO actually owns the right to license UNIX to anyone. Proof that they do not would include the BSD court papers, particularly the judge's decision that AT&T was not entitled to pre-trial relief, all the times that AT&T, USL, Novell, and SCO didn't defend their copyrights/tradesecrets, the open nature of the UNIX code for the last thirty years, the use of UNIX code in classrooms for the last thirty years, the availability of many different versions of the UNIX source code, the ability of UNIX to run on architectures other than the X86, SCO's lateness in filing for copyright (AT&T had a similar problem IIRC,) the fact that SCO doesn't own any basic UNIX patents, the fact that the code was seperated from the trademark and specifications, and the fact that IBM and SCO have different UNIX specifications from the owner of the trademark/standards.

I don't expect IBM to ask the Open Group to officially get involved in proving these last two points. However, I would expect to see IBM use the Open Group standards (and possibly some Open Group personel) to make clear the differences between SCO's UNIX and their UNIX, both with an eye to making it clear that their UNIX is better, and to arguing that if IBM had stolen SCO's code, their UNIX wouldn't meet the higher standards for UNIX 98.

The only way I would expect the Open Group to get involved directly would be if their lawyers concluded that SCO was somehow damaging their trademark. In fact, I wasn't even suggesting that the Open Group would or should get involved, I was simply asking if anyone thought SCO had done anything which did enough damage to the Open Group's UNIX trademark to make is appropriate for the Open Group to get involved. (And I apologize if my earlier post didn't make that clear.)

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I think that will be part of the legal battle. I think 2 people have essentially "solved" this whole mess- Cringely, and Greg Lehey. In an article, Cringely writes:"So SCO/Caldera spent two years "unifying" Unix and Linux and is now outraged to find some of their intellectual property in Linux. Well duh! That's exactly what they said they were going to do. " (http://www.pbs.org /cringely/pulpit/pulpit20030605.html)

Lehey has presented a similar viewpoint (Linux source code is freely available. UnixWare source code is not, even less than many other proprietary UNIX implementations. Thus it would be easier to copy code from Linux to UnixWare then from UnixWare to Linux. ), and you can read his views at OReilly and at his home page http://www.lemis.com/grog/index.html . Lehey's stance is what most of the BSD people seem to agree with. I think he's probably correct, one of the reasons being that the Linux kernel developers have always been very paranoid about not using anyone else's code for fear of being sued. They rewrote BSD code they could have used freely, because of this paranoia. And it's alot easier to steal code behind closed doors than when the whole world is watching your development efforst.

If this train of thought is correct, and much suggests that it is, SCO is in very deep water without a life preserver. If ANY GPL'd code is in SCO's UNIX products, SCO will be forced to open source them immediately. That's what the GPL states. SCO will lose all of their IP, and all AT&T-derived UNIX code will essentially be in the public domain, which is IMHO as it should be.

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Instead maybe: The case is about contracts and copyright license agreements relating to System V code. One party alleges that trade secret knowledge has been shared that the parties agreed not to. The other party denies it.

Or even: The case is about contracts and copyright license agreements relating to System V code. One party was facing bankruptcy and decided suddenly to try to extract money from lawsuits and their associated FUD after/because it failed to ever make a profit selling products.

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Afraid not. The GPL can't force anything because it's a license. If the GPL violators did not agree to the license then the only forceable action is to sue SCO for copyright infringement. In the past, most GPL violators have capitulated and released their code under the GPL rather than face the possibility of losing a court case and paying damages. In some cases, the GPL-code owners have been benevolent and allowed the GPL violators to remove the code without paying damages. Though I don't think anybody is going to be nice to SCO, given their recent behaviour.

The FSF is still waiting for somebody (anybody) stupid enough to take a GPL violation to court. Everybody knows that they will lose. But even a court is unlikely to force code into the GPL. More likely the judge will award damages or something of that nature.

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A minor point: you're right that the GPL wouldn't force SCO to put anything under the GPL, unless they continued to
distribute the product containing the GPL code. In that case, their product would fall under Section 2(b) of the GPL:

<blockquotei>You must cause any work that you distribute or publish, that in whole or in part contains or is derived from the Program
or any part thereof, to be licensed as a whole at no charge to all third parties under the terms of this License.

This requirement only kicks in if one distributes the work based on GPL'd code. (Of course, it'd be a little silly for
SCO to include GPL'd code in UnixWare or OpenServer and not distribute them, but that's OT.)

As far as awarding damages, AP, that makes me wonder: if a judge did find SCO to be guilty of copyright infringement as
described and did award damages, to whom would the award be made? I think it might be a little unwieldy to enumerate the
theoretically damaged parties. Would it be Linus, because of his copyright on the composite work? Would it be all the kernel
programmers separately? If so, how would one divide up the award? By total number of lines of code donated by each
programmer? What a nightmare.

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If SCO doesn't agree to be bound by the GPL then section 2(b) doesn't apply. Remember, the GPL is a license. SCO can say "we never agreed to the GPL therefore we are not bound by it". That's fine. They can do that. And they won't be bound by any of the GPL terms (because they never agreed to them). Unfortunately SCO would then be guilty of plain-jane copyright infringement. That leaves them open to lawsuits from everybody who has code in the kernel.

ecprod says "As far as awarding damages, AP, that makes me wonder: if a judge did find SCO to be guilty of copyright infringement as described and did award damages, to whom would the award be made?"

Good question. No idea. Presumably to the person who brings the lawsuit. I don't think you're allowed to sue over anybody elses code except your own. So Linus could sue SCO for infringing his bits of code, but couldn't sue on behalf of Alan. I don't really know for sure, though.

ecprod says "Would it be Linus, because of his copyright on the composite work?"

I don't think Linus owns copyright on the composite work. Individual owners own each bit. You can see this by browsing the source code. Most files have several copyright holders listed in the comments at the start. Linus is the sole owner of the Linux(R) trademark so maybe that's what you're thinking of?

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Would be made to the plaintiffs whose names were on the suit. Persons who had copyright material in SCO's Unix products who didn't make a formal complaint would not get damages (you have to complain).

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Which is precisely the way M$ wants you to feel....

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Ummm...That's CopyLeft <G>. Looks like the victory may go to the "code communists" of the open source movement. I love it.

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perhaps you misunderstood my comment. i was merely reffering to the fact that the SCO may end the days linux free, open source goodness. M$ has nothing to do with that, though, i think that they are indeed waist deep in the fight against linux (quite anti-competitivly, might I add)

*cough*monopoly*cough*

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Actually, you have that backwards. Novell separated the UNIX trademark from the source to AVOID confusion. No one company would "own" UNIX or the specifications. All they could claim was to have a system that was compliant with the UNIX specification. This would prevent a monopoly from arising in the UNIX world as happened with Windows. It is SCO who is sowing confusion. They have NO RIGHT to claim they own UNIX. They own the source code to a system which is UNIX (93/95) compliant. THAT IS ALL! The Open Group DOES take abusers of the UNIX trademark to court. They are currently suing Apple in court because Apple is claiming that their version of BSD (Darwin) that underlies OSX is UNIX compliant, even though they have not been through the compliance tests. The Open Group is probably building a case against SCO right now for taking liberties with the UNIX trademark, something they feel strongly about. If they will go after Apple, they wouldn't have any qualms about a little pissant company like SCO Group.

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Not only from those who have code in the kernel, but a wider range of programmers as well. Remember that SCO not only
distributed and continues to distribute the Linux kernel, they are also distributing all the other GNU software that
normally goes with a packaged Linux distro, and have announced plans to bundle Samba (another GPL'd package) with their
upcoming OpenServer Legend product. (SCO claiming that they are limiting the distribution to "only" their customers does not change the
reality that they are indeed distributing the code.) Rejecting the terms of the GPL means they are committing copyright violations
over all of this.

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Seems like it would be a "class".

IANAL but every now and then I see an advertisement in the newspaper that says if you used this drug or worked in this factory or had a child in this hospital, please call our law firm. These law firms are dividing settlements among all of the people who identify themselves as members of the class. Same could be done for GPL developers whose work was stolen by SCO.

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SCOs figure for number of lines of code has varied between 70 and 1 million! The lower figure refers to code which was eventually revealed and turned out to be code that was originally in Version 3 unix back in the late 60's / early 70's. Due to errors by AT&T a judge has already once ruled that this code is not covered by copyright. The 1 million lines requires SCO to interpret derivate works in a way that is inconsistent with all previous rulings that anyone here can find and then apply that same definition to derivative works of those derivative works. The case against IBM is purely based on this derivative works argument (although it also requires them to claim something is a trade secret that has possibly been widely distributed with the NDA not always required). If they were to try and make the code copying argument based on the sample that has been seen it would need to be against either SGI or HP. Another chunk that they claimed was also an independent reimplementation of BSD code that just looked similar as it was based on the same standard.

MicroSoft have bought a "license" from SCO but don't appear to have actually got anything for their license money. That is what is leading many people to suggest that MS is behind this. pj and others are trying to chase the ownership links to work out if Bill Gates and Co through various holding companies own enough of SCO and the various analyst companies that have been promoting SCOs case that their influence through that route also needs consideration.

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So, M$ has nothing to do with SCOs FUD campaign? Sorry, I can't agree. Here are some reasons- SCO was almost broke, and M$ gives them 10 million or so in "license fees" so that they can continue the shenanigans. In the IT Industry, analysts and reporters with connections to M$ spread FUD. Even the Gartner Group, implicated a few years back in the M$ campaign against Linux, is up to their old FUD tricks again and calling it "analysis." I posted a link earlier from an article by Gartner Group VP and analyst George Weiss, recommending that users delay deployment of 2.4 distros. the article was free to read- all of the other articles available online by Mr. Weiss cost money.

Also, others have posted here about buys of SCO stock by a company that has Mrs. Gates on the Board. Cute. What happens if you are a SCO exec and try to sell 10K shares at the market price of $15/share, and noone buys? The price of SCO drops. Nice to have a friend ready to buy up what you dump.

This is called FUD, and Gates-Ballmer are experts at it. They've just never tangled with an angry rabid penguin before.....

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As for copyrights to Linux, the comments about each individual author having their own individual copyright is correct. The GPL doesn't transfer any ownership rights to Linus or the FSF. A class action for multiple copyright ownners? Even in a class action the plaintiff would have to prove ownership, infringement and damages for every individual. Without registered copyrights for most of the code it would be difficult to link up each individual to their individual copy given the derivative nature of open source software. Overtime a single block of code could have hundreds of individual contributors. These individuals could be from a dozen different countries with different copyright laws. I think injunctive relief is the most that could be prayed for in a class action GPL violation case. The individual authors would probably have to make own copyright infringement claim.

Novell split UNIX code and trademark and code to prevent confusion? Now I am confused, it seems by may comments in this forum that the term UNIX is anbiguous one. Do you mean legacy UNIX, Trademark UNIX, UNIX-like, or sort of based on the theory of Ritchie et al. It looks more like Novell did what most land developers and corporate raiders do, divide up the property and receive more for the individual parts than sold as a single whole.

Finally, having something published in a textbook or learned treatise doesn't void someones copyrights. Publishing UNIX code for scholarly analysis and critique, or with the authors permission is permitted under copyright law. Copyrights allow creative works to be published or publically displayed and still protects the author from others copying them. That is the point of copyrights. BTW porting software from one platform or processor to another is considered a derivative work and isn't allowed without a license from the copyright holder. Trade secret protection is what can be lost with publication.

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IANAL, but depending on the text book, it might grant a license to use the copyrighted code - If, for example, the text book were to say "You are free to use the code in this book, with no restrictions for any purpose that you like", then I would have thought it harder to claim somebody is infringing your copyright if they actually do what you agreed to let them do. I do not know what various UNIX books and K&R might say about using the code.

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Linus makes number editorial decisions on which submitted patches to accept or reject. He decisions not only deal with portions of code but entire technolgies. Linus rejected IBM's Enterprise Logical Volume Management from inclusion of the mainstream linux kernel. (And that rejection I think proves beyond a doubt that IBM doesn't control Linus or Linux).

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>>> Nobody has said that copyrights are lost if code is published in books or taught in universities, however trade secrets involved directly with the code certainly should be.

If I recall the finding in the USL vs BSD case correctly, the judge ruled that AT&T had given up trade secret status by making the code available to universities (and perhaps other people as well.) He also ruled that AT&T had failed to protect their copyright by including copyright notices in their distribution. On this basis, he refused to grant AT&T any injunctive relief against BSD.

That being said, copyright law has since changed, and I doubt one could advance the same argument successfully, except perhaps by referring to the old case and claiming that the decision to settle has left SCO without rights. How a judge will feel about this is an open question.

That being said, my point is not that copyright law applies. My point is that IBM's lawyers can't afford to accept SCO's ownership of the code as being in any way factual. To do so would mean ceding vast amounts of semantic territory to McBride & Co., so they'll do everything they can to demonstrate that SCO has no special rights to the code.

Also, of course, as the deep pockets in the case, IBM will do their best to make the case expensive.

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Perhaps I am off on my history, but it is my belief that the AT&T code in the BSD case was version 7, not the later System V. So unless the two code bases almost completely overlap, that ruling has minimal precedential value.

Then you said,"That being said, my point is not that copyright law applies. My point is that IBM's lawyers can't afford to accept SCO's ownership of the code as being in any way factual. To do so would mean ceding vast amounts of semantic territory to McBride & Co., so they'll do everything they can to demonstrate that SCO has no special rights to the code." As I understand it software is intellectual property that can be protected from unauthorized copying by either a trade secret, patent or copyright. I am not sure what you mean by "..SCO has not special rights to the code." IBM has to show SCO have none of the above rights. Semantic territory isn't a property right theory I have heard of. SCO doesn't need to own the term UNIX in a semantic way or in a trademark way to recover damages from copyright infringement, or breach of contract. The court, as the finder of fact, will look at the license agreements, perhaps AT&T's and Novell's as well, between the parties, hear expert testimony on what code belongs to who, and probably look at thousands of lines of code from various sources and rule on a more probable than not basis who is right. The hired guns can try all they want to Razzle-Dazzle'm with what cup the "UNIX" pea is under, but I doubt that will lead the court far from the literal territory of contract and copyright law.

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I do think that IBM can argue that the NUMA and JFS code etc developed and later contributed to the Linux kernel is perfectly legal and NOT infringing on SCO' source code ownership or IP material.

I do also think that in co-junction with the FSF and GPL, IBM will countersue SCO group for copyright and IP infringement under the terms of the GPL - remember SCO is still distributing and selling open unix. That contains some 2.4 kernel code and GPL related material. Therefore a copyright infringement remains.

Since i'm in Australia, i'm currently investigating whether I have the legal right (as a worried Linux user) to subpoena SCO Australia to provide proof on said infringements or fall foul of anti competition laws and misleading the public with the intent of garnishing money (i.e fraud).

That said, copyright law in the US does NOT apply in Australia, or any other country. Yes, Australia does recognise international copyright law, but I also have the right to challenge anything under the Australian legal system (irrespective of whatever court decision might have been reached by the US court systems). So...copyright infringement in the US does not automatically grant copyright in Australia if disputed. Since Australia relies on british common law (and the US law does not), it could get very interesting...

My advice (and i'm not a lawyer) is for people to group together and sue SCO for misleading activities on the 'supposed' IP infringement. Group cases in nearly every western country would cripple SCO.

As to others statements, I do agree that Microsoft is wholly behind this. Microsoft knows that it can't beat Linux or open source on technology grounds, but it will try to do it on FUD. Microsoft doesn't give 10 million dollars away for nothing. It's a ruthless monopoly for christs sake (something it's received multiple corporate convictions for). Microsoft wouldn't give ten million dollars away for supposed IP infringement without seeing the 'affected code base'. So? Have Microsoft seen the code? Did they sign a NDA? SCO aren't saying anything on this...interesting. I believe IBM is pretty smart and will also attack this angle, and if they can show that SCO and Microsoft are in this together, they'll discredit some of the argument, as it could be argued that Microsoft is seeking to ALSO control the Unix market (not only Windows) and therefore is being anti competitive (and in breach of the DOJ settlement).

Funny thing is, Microsoft got away practically scott free in that case and judgement - i've said it before and i'll say it to the cows come home, the US legal system is corrupt, and Microsoft knows people in power. The US government isn't going to hurt Microsoft because they contribute huge funds to the US economy. Therefore any legal system judging Microsoft has been leaned on to provide either a not guilty verdict, or a lenient punishment. Fortunately the EEC isn't going to be so nice to Microsoft. China is going to kill Microsoft software in Asia. Open source is running riot in South America.

As to the Open Group and ownership of the trademark Unix and Unixware - it's relevant in the case that SCO has sued IBM on. Sure, IBM or the open group could sue SCO for innappropriate use (and win i'd say). If any court argued that the Unix term is common place now, and therefore SCO didn't infringe, then IBM et al could counter argue that Unix source code is also common place now, and therefore 'open source' and NOT a 'trade secret' and therefore no IP violation exists by IBM or anyone else. Oh and then the DOJ can step in and grind SCO into many small bits for an attempt at monopolisation etc. Interesting eh?

Oh and if people from SCO are reading this forum, i'm still using Linux, still will use Linux and i'll personally disobey any court system or verdict that I potentially may have to pay SCO money to continue to use Linux. They can sue me to the cows come home, they won't get a right royal cent out of me!

Dave W Pastern

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"IBM’s UNIX-based operating system is known as “AIX.” AIX is a modification of, and derivative work based on, UNIX System V source code."

Actually there are 2 sentences in there, and more than one assertion.

Just in first sentence, at least 4 concepts

A. IBM

B. UNIX-Based

C. Known as AIX

D. Kind of implies it's IBM's only UNIX

(2nd sentence, several concepts two).

IBM response:

Denies the averments of paragraph 26, except admits that IBM markets a UNIX product under the trade name "AIX".

Which leaves open for IBM to say about B & D

B. It's not UNIX-based. It is instead complaint with the UNIX spec - i.e. it is UNIX. And it is UNIX, just as much as any other UNIX, including SCO's, or for that matter OS/390.

D. We're IBM. We have these other UNIX operating systems....

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The Regents filed their own suit against USL: "USL failed to include the University's copyright notice in its Unix System V, Release 4.

10. Substantial portions (perhaps as much as 50%) of the current version of USL's Unix Operating System, "System V, Release 4," is comprised of the University's BSD code. USL has paid no royalties for its use of the University's BSD software, although USL currently licenses its Unix Operating System for approximately $200,000."

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Also much of BSD code that found its way into SVR4 came by way of Sun Microsystems and their partnership with USO/USL. We joked at the time that OSF stood for oppose Sun Forever.

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Actually, the same thing could be said for AT&T. AT&T acknowledged the University's ownership rights in the University's derivative BSD code in June 1986, when AT&T signed license agreements with the University for 4.2BSD and 4.3BSD. That's quite a few years before they sued the Regents anyway.

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Mr. Pastern also said, "If any court argued that the Unix term is common place now, and therefore SCO didn't infringe, then IBM et al could counter argue that Unix source code is also common place now, and therefore 'open source' and NOT a 'trade secret' and therefore no IP violation exists by IBM or anyone else." This is mixing trademark protection and copyrights, and they are not related. A trademark is granted when there is strong consumer identification between a term or phrase and a particular company. If I say Big Mac we all recognize it as a McDonald's product. If I say UNIX most consumers that recognize the term probably think of University of Berkeley or AT&T, not Open Group. The Big Mac example is a strong trademark, the second is considerably weaker.

Copyrights are not weakened by common usage or wide distribution. Try selling copies of The Beetles' or Elvis albums in any above board market and see how long you stay in business. Most of us will be old and gray or dead when the copyrights on those works expire.

Mr. Pastern didn't specifically mention this, but it is worth saying, open source is not the same as public domain. Public domain has no copyrights, open source code does, that is why the GPL is required. The GPL can't effect public domain material. No one can license something they don't own.

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Because it's perfectly legal to copy unprotected elements of a copyrighted work. Ask George Lucas about funny little furry creatures with human-like qualities that live on a planet far away. These creatures are called Ewoks. That was all in a screenplay that was sent to him before those ideas were used in his Star Wars series. He didn't use the screenplay, and those elements I've just mentioned were not protected by copyright. An expert may be needed to determine if substantial similarities exist, but it's up to the judge or jury to decide if the copying was illegal.

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I also note that RedHat, SuSE, and MontaVista (all of whom are Linux Distributors) are also regular members.

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That is what I was getting at in my first post. In Halloween IX, Eric and Rod shoot down para 28 by using BSD. I am suggesting that they also use Tru64 (OSF1), and OS390 as further examples of "proprietary, commercial Unix in use today" that are not based on System V.

With OSF/1, I am not certain however of "How Much" or "If Any" of System V kernel code might be used within. That is why I was soliciting info from someone in Nashua (where the Tru64 developers are) to state wheter or not Tru64 contains System V kernel code.

In any case, IBM would know whether OSF/1 used any System V kernel code since they where one of the founding members of OSF. I was just hoping not to have to wait until 2005 or 2006 to find out, assuming it actually ever gets to trial, which I doubt.

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I didn't mention Public Domain vs Open Source as I expected that everyone would recognise the difference between the 2 types of software...

I do see the differences that you point out regarding copyright vs trademark protection (remember i'm not a lawyer and I clearly stated that in my comment) and you are i'd say right going by logic.

Part of the problem (and i've read this on other forums previously - doesn't mean it's right though hehehe) is that copyright law that the US exists on is several hundred years old and very outdated in both it's thinking and application. Pretty much all other worldwide countries copyright law is in a similar mess i'd say, since most of the world economy/politics is either directly or indirectly driven by decisions made in the US (dmca or palladium anyone?).

I recognise the need to protect ownership of ideas via copyrights et al but from a logical point of view (not much law is done by logic though...) I would consider it reasonable to make the presumptions that I made on common usage of either trademark of a term (unix) or source code in this instance as being non copyrightable etc due to them being both commonly known.

How can you justifiably protect items that are publicly known. Sure if at&t have NEVER released ANY unix code to anyone at all I would define that as being copyrightable...but when that code has been publicly released to the extent of the Unix system source code, then I think it would be quite logical to argue that it's now 'public domain'.

I know that law does not work this way, that's the major problem with law imho - it's not logical and it's designed to keep those that have power, in power. As an example to my point, if I have 2 people, one is poor with no money, the other is rich. They both have identical valid legal claims. Which one will win in court? Now, according to the legal system, everyone has equal rights - BUT this is not the case in practice. The person that is rich will be ABLE to fight his case in court and win - purely because he has the money to do so. Therefore, because I am poor, I do not have the ability to properly protect my legal rights due to a 3rd party influence (money). See how illogical current law is?

Surely, though - we must be able to force SCO group to reveal said infringements by a court order or subpoena, then invalidate them and ask the courts to dismiss the case in question that SCO has filed. This shouldn't have to wait for 2 or 3 years - this will be devestating to open source and the GNU Linux systems...

For that matter, what SCO is doing, is by logic illegal. They are saying 'please pay us money for something that we haven't proved yet in a court of law'. That's misadvertisement and fraud - see the oxford dictionary quote below:

fraud // n. 1 criminal deception; the use of false representations to gain an unjust advantage. 2 a dishonest artifice or trick. 3 a person or thing not fulfilling what is claimed or expected of him, her, or it. [Middle English via Old French fraude from Latin fraus fraudis]

Dave W Pastern

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