Jadeclaw

[ Reply to This | # ]

[ Reply to This | # ]

If you buy a bicycle and it turns out to be stolen, you do not have the right to keep it. If it turns out that SCO is correct you have no right to the software either until you accept the terms of the rightful owner (which in this case would be SCO and thus means $199, $699 or more).

[ Reply to This | # ]

If I buy a book, and it turns out that the author plagiarised it WORD FOR WORD from another book, I am under NO obligation to pay anything to the author of the original book.

If I buy a super new toaster, and it turns out that the maker of the toaster infringed upon the patents of another manufacturer, I am - once again - under no obligation to pay anything to the original manufacturer.

[ Reply to This | # ]

It would be "good faith" if you had no reason to suspect that the goods were stolen, e.g, the price wasn't obviously too low and you got a written receipt and didn't buy out of the back of a car in a dark alley, and so on.

[ Reply to This | # ]

About:
___ # of source files with sco trade secrets.

In the very beginning Torvalds was quoted as saying he wasn't interested in the contract dispute between SCO and IBM and it didn't affect him or Linux.

In their June conference call, SCO said that Linus had made a good point, but now they have registered the copyright so they could press claims against Linux users.

IANAL, but even if there are trade secret issues, they are between IBM and SCO and do not affect Linux users. The trade secrets are enforced by a contract that IBM signed along with very few other companies.

Am I wrong or does SCO have no way to enforce its "trade secret" "IP" except with companies that have signed contracts with them?

If I'm correct, those who have not signed contracts only have to worry about the "direct copying" of System V that is not copied from older public products or BSD, if SCO has an enforceable copyright on that code. (We've seen how convincing their case is for "direct copying".)

Even when joking, we should be careful not to give SCO a free ride in its claim that Linux users are liable for any IBM contract violations SCO accuses them of.

[ Reply to This | # ]

I am not sure whether those laws also apply to software licensing. (I'ld have to ask a lawyer about it). What I am certain about is that these rules govern consumer transactions and don't apply automaticly to business to business transactions. I have the feeling that that's the reason that SCO is targetting business Linux users first.

[ Reply to This | # ]

Law enforcement say it was primarily to make it harder to sell stolen goods like bikes, mopeds and expensive sports gear, but I suspect that behind the change was really pressure from the EU to "harmonize" -- and what the EU wants the EU gets.

Personally (IANAL, etc, etc) I thought it was a good law, as long as the Good Faith argument was solid. Now we just replace one victim with another. Under a working Good Faith regime the thief would have to make good with both of the other parties, not just the original owner like it'll be now.

[ Reply to This | # ]

[ Reply to This | # ]

[ Reply to This | # ]

Personally, I do not think this analogy works very well, at least as far as concerning those people who bought Linux from SCO/Caldera.

Let's say I buy Darl's bicycle from Darl.

I ride it for a while, and use it, and enjoy it. I even learn to do tricks on it.

A year or two later, Darl says, he didn't realize that the bike had been upgraded in various ways, before he sold it. Darl alleges that somebody sneaked into his garage, and improved some stuff, transfered some bits from his other bike to the one I bought, and did it a year or two before Darl sold me the bike.

Darl is a little vague about exactly how the bike was illegally upgraded, but says it's lot of things. Perhaps even as much as 25% of the bike is illegal.

Now Darl says, he's only just discovered the "theft". I think this a little odd, as one or two of the illegal upgrades that he is complaining about, appeared in Darl's advertising flyer that he used when trying to sell the bike.

Darl now says that I can keep the bike that I bought from him, provided I sign an agreement: to only ride it on week days, and not to do do any tricks.

[ Reply to This | # ]

[ Reply to This | # ]

2. If you wrote a program and I changed the splash screen and licensed it to GM for $7,000,000, don't you think you are entitled to either a) tell GM they can no longer use it or b) pay you for it?

I am not saying SCO has a valid claim, but if they somehow win their ridiculous suit, I believe our choices are: a) pay SCO a fee (most likely vastly reduced from what they want and set by the court) , b) stop using the software or c) continue using the software but be technically in violation. I would think that the court would also set up a period of time where people would not have to pay - a reasonable period for them to migrate to something else, during which time progammers would also be removing the infringing code and rewriting it.

[ Reply to This | # ]

(Found on Yahoo)

What SCO can charge for.

Can SCO charge for "hundreds of files" and "millions of lines"?.
Those numbers are so big because SCO is claiming ownership of all of these things that SCO does not own.
RCU - patented and copyright IBM and Linux Kernel team
SMP - authored by Alan Cox and Linux Kernel team
NUMA - patented, copyrighted IBM, SGI, Stanford and LK team
JFS - patented, copyright IBM, Linux Kernel team

BEYOND ALL THAT, BEYOND the patents and copyrights,
BEYOND the fact that Novell waived SCO's right to do anything to IBM.
BEYOND the letter from AT&T to IBM (and a similar letter from AT&T to all licensees),
the letter that said "you own all derivative works prepared for you or by you" side letter,

BEYOND ALL THAT, why do IBM own RCU & JFS and the respective parts of NUMA and SMP?
Here's why - help://www.pbs.org /cringely/pulpit/pulpit20030619.html

So, No copyrights, no patents, no derivative code, no contractual claims, no trade secrets.
Why no trade secrets? Look it up on the internet. On Google search for 'trade secret status lost internet published".
Once something is on the Internet it's not a secret. Thus it's not a trade secret.

When SCO claims they can get money for IP violations SCO IS LYING.

SCO also has claimed there was "80 lines" copied directly from SysV into Linux.
SCO's been showing the "80 lines" under NDA. 2 people who saw these were Ian Lance Taylor and Bill Claybrook

Even before Vegas these "80 lines" were found by Ian Lance Taylor outside Linux on the internet, probably in a OS textbook (the textbook thing was a guess based on what Taylor had written at the time, before SCOFuneral in Vegas)
Bill Claybrook (again, this was before Vegas) "the 80 lines have more to do with altix than x86"

When the "80 lines" WERE SHOWN IN VEGAS - THEY'RE FRMO BSD. Caldera released them under BSD style licenses.
The 80 lines from Vegas match what both Claybrook and Taylor wrote. They DID turn out to be from Altix.

So what does SCO own in Linux that they can charge Linux users for?

[ Reply to This | # ]

The contracts are now broken, whether by SCO or IBM is not important to us. From what I've read and several people have told me, if SCO gets money from IBM, any ownership rights granted to SCO (and remember these are not copyright ownership or patent ownership) by those contracts vanish.

[ Reply to This | # ]

If you got 7 million from GM, I would go after YOU for the money that you got from GM (you are the infringer, they are the duped end purchaser) and also ask GM to continue licensing the software from me, or stop using it. If GM hired you to take my code and write a new splash screen for it ... only then would I go after them first, and you later.

[ Reply to This | # ]

I think that Mr. O'Shaughnessy not only has a difficult name to pronounce, but he's probably very concerned about the future of his job. SCO either is going to hit the jackpot (highly unlikely) or go down in flames like the Hindenburg (highly likely).

[ Reply to This | # ]

So what is this example supposed to show?

As far as the GM example, I don't know how that plays out, you probably could stop GM from using it.

But it's a totally inapplicable metaphor. SCO didn't write anything that's part of the IBM suit and doesn't own anything that's part of the IBM suit.

[ Reply to This | # ]

I too want to know what IP am I using before I buy a license. SCO is thinking like a typical old school software developer. There is a binary image, there are few options. Anyone running "linux" must be running basically the same stuff. In my case I don't think I running ANY of the SCO IP they are complaining about. I'm not running SMP, JFS, NUMA, RCU or any of that stuff. Possibly JFS. I'm talking mostly about our embedded systems here which really use a pretty simple file system.

Why would I pay for something I'm not using? SCO DOES NOT DEFINE THEIR INTELLECTUAL PROPERTY in the license hence it is an invalid license.

Its like a deal for a car. With no description of the car. It's just "the car"

[ Reply to This | # ]

SCO bets that their targets are uninformed. (add some misinfomation...) I expect that the larger companies that switched to Linux would have had their legal staff analyse the GPL and the risks involved in deploying Linux. A few well-researched articles in the business journals would cause SCO's invoice to be forwarded to the legal department... Chances are slim that it ends up with the cashier soon.

[ Reply to This | # ]

Jadeclaw

[ Reply to This | # ]

Jadeclaw

[ Reply to This | # ]

There is an apparent disconnect between SCO US and SCO Australia. I'm starting to wonder if Mr. O'Shaughnessy is getting annoyed with headquarters.

We need to keep in mind that this "sales force" that SCO claims to have is a purchased item. The resellers, and probably most of the Country Manager SCO employees like Mr. O'Shaughnessy, came along with the UNIXware business when Caldera bought it. These people have zero loyalty to the current "SCO" or to its management. They are people who grew up with the real SCO, the one in Santa Cruz. They've had a nice life for a decade or more peddling their vertical market apps on this platform provided by SCO. To them, most of what's happening now looks like unnecessary risk to their own lives and businesses. Most are probably sorry that the business was ever sold to Caldera, and their interests would be best served if "their" operating system could be ripped free of current management... lest it be destroyed when they are.

The management in Utah will know this. There is no loyalty to them outside their own walls. It is highly likely that Mr. O'Shaughnessy is out of the loop, and in fact is regularly lied to by his U.S. managers, as are all the other Country Managers. His and his Australian resellers' only role in this game is to make whatever sales they can, for as long as they can, so that SCO can keep the lights on one more month. In the end the resellers will all be abandoned, for they are no longer important to SCO management.

Here's the good news: resellers aren't that dumb. Both they and the SCO field employees are loyal to their product. They all need it to make the nice living they are used to. Their interest is in getting rid of this management, and to get the product they depend on into the hands of someone who will protect it and maintain it.

No reseller who has been around more than five years has failed to cultivate a network of spies inside the headquarters. Everybody always wants to know what's coming before it's announced. By now those resellers know things that we can only speculate about... things that could probably put McBride & Co. in jail.

And it will come out. At the right time, these people will make their move to topple current SCO management. They have to... in order to save their own businesses.

Put the resellers and people like Mr. O'Shaughnessy down as a future source of Very Interesting Testimony.

[ Reply to This | # ]

Glenn

[ Reply to This | # ]

The bicycle analogy is bogus for another reason. A bicycle is tangible property. When I steal it, you no longer have it. When I steal your IP, you still have it. I despise the term 'Intellectual Property' for just this reason - It is used to attempt to confer tangible properties to intangible things. If I steal your idea, it does not deprive you of the idea.

I love this guy in Ireland. He is asking the questions I want answers to. The license SCOG is selling only refers to IP. I want to know what they are licensing: Copyrights, Trademarks, Patents, or Trade Secrets.

I don't like how B.S(towell) is using the term IP in the press to imply that Copyright provides for the protection of Ideas when it does not, only Patents (and Trade Secrets) protect ideas. B.S., your initial are appropriate and you are wrong, we CAN replace the code if and when you ever get around to identifying what code infringes your copyrights. Copyright does not protect ideas. It only protects a particular embodiment. If we change our embodiment to one that does not infringe yours, it can still implement the same idea.

I too am convinced that they do not ever plan on going to court against IBM. The current management will be long gone before that ever happens. If it does go to court, the Judge and Jury will get a most excellent lesson on the history of UNIX from IBM. I hope this happens. There is much about the proprietary *nixs that has not been publicly documented.

I also am convinced that IBM plans to not just win this case, but to punish with extreme prejudice. I suspect that only a smoking crater will be left at 355 South 520 West, Lindon, Utah. I expect that they will annihilate the Canopy Group as well.

[ Reply to This | # ]

My site http://groups.yahoo.com/group/no2sc o/ has links to several online documents, articles, opinions and other substantial material. I also have a few files that can be downloaded. Honestly most of that material was found from reading the comments here. Some of it was found using search engines but not nearly as much.

IANAL but from what I can gather reading from USPS regulations if SCO actually sends an invoice to anyone they will be in violation of mail fraud laws. They cannot enforce payment of a product that hasn't been proven in a court of law as their property while under dispute. So until they go to court and actually PROVE that the code in question is actually theirs they will be breaking the law by so much as sending even one invoice.

If they threaten a lawsuit without properly identifying the property in question they are suing over. Which if they do sue, they will be required to divulge what they are actually suing for and that would destroy anything they have I promise.

SCO is in a FUD campaign period. The fact that people have actually called SCO and asked to get a license only to be told it is not available yet smacks of a con game.

--Shaun

[ Reply to This | # ]

We've all been gloating over the possibility that SCO would send someone a Linux IP invoice, thereby committing mail fraud. Well,
what if they don't use the USPS?? Do mail fraud statutes apply if the invoice is sent via (for example) Federal Express Letter?

Anyone?

[ Reply to This | # ]

[ Reply to This | # ]

You have a devious mind. If you weren't one of the good guys, you could work for SCO.

If SCO gets around the mail fraud laws by sending by courier or something they still run into plain old fraud when they sent a bill for a specific property they don't have the right to bill for.

It's much safer for SCO to just keep *threatening* to send invoices. Last week they went from "around a thousand" to "several thousand" in one afternoon, but they still say they haven't even printed one.

[ Reply to This | # ]

Your collection has a great feature: it's alphabetical. Great idea. Feel free to use whatever you find here. That's why we do it.

[ Reply to This | # ]

BTW I do know for a fact that even if SCO uses a private delivery service to send out the so called invoices it still falls under fraudulant billing laws. However you will only be able to initially report it at the FTC web site. You will have to file a complaint with the private carrier company who must in turn file with the Government. I would love to be one of those who got an invoice from SCO personally. I maybe only one guy but I could nail them to the wall for it.

--Shaun

[ Reply to This | # ]

Esp when the Open Source Vic group have already lodged a complaint about SCO's actions.

As for Mr O'S being so guarded in his wording. It's fairly normal for Aust. Subsidiaries to NOT get access to USA based stock options. Unsure of the why's but it's along the lines of "expensive; difficult" - or at least that's what we (the staff) have been told in previous companies with USA stock options. Perhaps he simply doesn't have a stake in the company beyond his salary - and consequently won't get a big payoff if SCO did hit the jackpot.

Oh, and PJ? Fantasic job!

- Steve M

[ Reply to This | # ]

On a different point. IBM had a fully paid up SVRx license, does anyone know if SGI do or if they are still paying royalties. If they don't and SCO were to claim to terminate it that would prevent SGI from paying their royalties which go 95% to Novell and 5% to SCO. At that point Novell are likely to bring another court case over the SCO cannot terminate licenses without our approval agreement as they would have demonstrable financial losses - something they don't have with IBM.

[ Reply to This | # ]

r.a.: No, No, No! Just trying to think ahead. (Sorta like a chess game... you have to try to anticipate so you can counter.)
I'm definitely one of the good guys! (At least the penguin on my screen seems happy and content, I guess I'm treating
him pretty well...)

[ Reply to This | # ]

If a court choses to read it that way then this is basically a case of breach of contract and the court would be in a position to decide whether to enforce the terms of the contract or award monetary damages. Anyone know which they are likely to do?

[ Reply to This | # ]

Hmmm, I wonder if the EU has something like the US "laws of agency"? Does anyone know? It may bore some but other's, from the EU, might like to comment on any differences that exist with EU law? If anyone knows more about this from any other country it would be interesting to learn about those places too!

In the case of SCO maybe really sending out the invoices... if the user does not pay the invoice amount, then SCO will have to start a collection process. I wonder how many days SCO will give a user to pay up before SCO hands the collection process over to a collection agency? Does the EU have any laws governing invoicing and how much time one has to pay? What court in the EU hears and rules on collection cases? A local court or a regional one?

In the US, and most places one would assume, Linux is typically acquired by downloading LINUX from an agent's site for free, or a CD version is bought from an agent (where one may have also contracted for support from an agent), or LINUX can be acquired on a CD as a gift from an agent. Todate, the only understanding that the LINUX user has about LINUX is that it is open source and it's use is affected by the LINUX version of the GNU GPL (for more reading on this go to http://www.orei lly.com/catalog/opensources/book/appb.html ). This is the only legal understanding that has been presented to all past users of LINUX and also any current new user of LINUX. NO SCO license footnote is mandated by SCO for any distribution to include with their legal distribution of LINUX. However, if SCO does start an action that involves distributors/agents then as far as the SCO situation is concerned at this time what is important about any GNU/LINUX acquistion transactions are these questions: who they happened with, when they happened, what happened, where did it happen, why did it happen, how much did it happen for, and is there any evidence to prove any of the above! Hmmm, in the EU how would you prove that you acquired or downloaded your LINUX on an exact date (other than by using paid receipts as proof)?

SCO is claiming to be a principle of LINUX, but why is SCO allowing agents to still distribute LINUX with the GNU/Linux GPL, and why is SCO not forcing a change to this license at this time so that innocent 3rd party LINUX users would then be acquiring SCO's license at the time they acquire LINUX? SCO has not lifted a finger to stop any current and historical activities of any LINUX IP distribution agents! This is strange as normally, when a principle finds out that someone else is distributing their product and not paying them for it, they move quickly to stop all the future transactions of that agent! In the EU, is there a legal notification process that a principle has to follow in order to legally notify consumers of an agent that no longer has authority to act as that principle's agent?

If SCO is a principle, then the innocent 3rd party consumer (commercial or non-commercial), would have gotten their copy of LINUX from an agent of SCO. Agents appear to innocent 3rd parties in different ways. Agents can be actual agents, apparent agents, or ostensible agents. How an agent has acted is important! How SCO acts or reacts during the time that SCO's agents were acting, is important. Also important is when did SCO notice that agents were acting on SCO's behalf. Then, what did SCO do to legally notify the innocent 3rd party consumers that these agents were NOT legally distributing LINUX on behalf of SCO..., and when! Then, what did SCO do to legally terminate the actions of the agents, and when? Did SCO make any effort to bring these agents back under SCO's control, and when? Hmmm, is acquiescence a factor, and if so, how? A trial is needed in order for the court to look at the facts of the situation and establish the roll of the principle, the agent (either actual, apparent or ostensible), and the roll of the innocent 3rd party consumer! If the jury (or judge, as some jurisdictions may allow for a judge to rule in such cases) hears the case and rules that indeed the SCO agent in question is an actual, apparent, or ostensible agent of the principle SCO... then, the judge or jury would be saying that the principle SCO has to live with the facts that surround the dealings that SCO's actual, apparent, or ostensible agents have made on the principle SCO's behalf! In the EU, are the legal definitions for actual, apparent, and ostensible agents the same...see pj's law dictionary on the top of the main page? Also - IN the EU is an arguement involving "apparent authority, etc" heard by a jury or does a a judge decide?

A SCO vs LINUX user case based on agency law would be interesting! In the EU if, an innocent 3rd party LINUX user were found by the court to have acted in good faith... then, does this allow an innocent 3rd party consumer of LINUX to *not only* use the GNU/LINUX they acquired, but also does it allow them, going forward into the future, a right to perpetual use of the LINUX software as implied by the Linux version of the GPL (meaning perpetual access to historical support for LINUX and perpetual access to the use of all past, current, and future versions of LINUX as implied by the wording of the GNU/LINUX GPL)?

Disclaimer, Like pj says, it is a good idea to talk to your lawyer or your jurisdiction's consumer protection agency (in the US maybe your attorney general too) about what the laws of agency are and how your situation might be affected by these laws (if the laws exist depending on where you live and/or do business)! pj has also said that there are many layers to the law and what you don't know about the law could be the most important point that you miss. For example: laws differ depending on the jurisdiction! It would be interesting to chart any difference in the laws by national and international jurisdiction for this SCO situation - US laws and comparisons with states and, Canada, EU the same, Austrialia... etc!

Search google for more information on any terms mentioned above... PS - pj, RE: your new site... it might be interesting if you broke up the site into different areas, as the issues concerning SCO vs LINUX can be broken down into at least two catagories. I may be wrong but the issues pertaining to the consumer protection laws seem to be somewhat different than the IP law issues that pertain to the IBM-SCO-RH case(s)? Some way to search past posts and comments would be nice too?

[ Reply to This | # ]

[ Reply to This | # ]

caldera n : a large crater caused by the violent explosion of a volcano that collapses into a depression

[ Reply to This | # ]

That you, brenda?

[ Reply to This | # ]

Steve (the geek formerly known as ecprod)

[ Reply to This | # ]

[ Reply to This | # ]

[ Reply to This | # ]

Adam, why don't you try going to the SEC site and searching for SGI stuff? Your questions are great. So, since you thought of them, likely you'll do the best research, because of your interest. Let us know what you find, pls. Part of the purpose of this site is to encourage knowledge of how to research. Many eyes are better than just one pair.

[ Reply to This | # ]

[ Reply to This | # ]

The dates on your sales are a little off. You are reporting the "date of earliest transction", but the important date is the date that the stock was actually sold. This is typically a couple of days earlier on the form.

Also I would not even bother with MSN or Yahoo Finance; they just get their information from sec.gov anyways.

I love your blog. It's a fantastic morale booster and it inspires me to keep working hard on gcc and gdb. :)

[ Reply to This | # ]

1) "Insider trading" is illegal in Australia, by definition. The term doesn't have the same exact meaning as the US use of the term. Which goes to explain O'Shaughnessy's choice of words.

2) Many overseas branch offices of companies don't know what is going on at HQ. O'Shaughnessy is a sales person at the Australian branch office of SCO and pretty much admitted that he wasn't in the loop with the SCO/IBM litigation and was simply on the AUUG Conference panel because it would have looked even worse if no one from SCO appeared.

3) I'm not surprised that invoices won't be sent in Australia. The competition regulator, the ACCC, has been monitoring SCO's behaviour and has stated that if people received invoices then it would be taking action.

Also, determining Australian holders of AT&T source licenses is difficult. Yet if SCO don't take action not to invoice those people for binary licenses then they are making a fraudlent demand for payment (ie, re-invoicing for services which have already been paid). Because of international licensing rules for UNIX, a much higher proportion of Oz firms hold AT&T UNIX source licenses than in the USA.

[ Reply to This | # ]

In regards to supposed "invoices", I've found another way to explain that they are bogus as things stand now. I think that is also a good way to explained it to management.

The copright notices on copyrighted works are assumed to be valid unless otherwise proven different. It's from the LOC's FAQ (or similar) about copyrights. I don't remember where I read it. (It probably was from a comment or link on GROKLAW. I've learned a lot more on copyright law since I've started reading GROKLAW.)

[ Reply to This | # ]

Just curious!

[ Reply to This | # ]

I am not a lawyer, but I trade stock for a living, so I have to know about these things.

The actual crime is: "trading on the basis of material non-public information".

One of the elements of the crime is that the information is non-public. Obviously, information in a press release is public (after a short period of time to give people a chance to absorb the press release). So, issuing a press release, waiting a day or two, and then selling stock is actually the cleanest trade there is.

A dirty trade would be: buying stock, and then releasing good news the next day; or selling stock, and then releasing bad news the next day.

The whole idea of the crime of "trading on the basis of material non-public information" is to prevent trades where the insider knows something important ("material") and the other party does not know it ("non-public")

You might be thinking of a different crime, which is issuing false press releases. That's different.

This crime is all about trading stock before news (usually bad news) gets out. It's about taking advantage of an information gap. It's what Sam Waksal of Imclone got convicted for -- he knew that his company's drug had been rejected, but other people did not know yet, and he sold stock before issuing the press release about the FDA rejection.

The 10b5-1 affirmative defense works like this. Consider an executive who is VP of sales at a dynamic company. Every day of the year, this executive knows confidential information about the company -- what sales are in the pipeline. How can the executive ever sell any stock, legally?

The answer is: they set up an irrevocable plan today such as "on the first day of every month, starting in January 2004, my broker will sell 5000 shares at the market". The idea is that any news that affects the stock in January 2004 is unknown to everybody, including the executive, back in September 2003 when they set up the plan. Their trades are locked in, irrevocable, committed, before any human being could have known any news that is important three months from now, so the trades are not "on the basis of" MNPI (yes, those words in the law are meaningful).

So if any of the SCO executives set up their 10b5-1 plans in, say, August 2001, before McBride ever showed up, then they are very safe from 10b-5 proseuction. On the other hand, if they set up their 10b5-1 plans after SCO hired Boies, then they will probably have more trouble. There's no set period of time that makes a 10b5-1 plan an effective defense; it depends on the facts of the case.

[ Reply to This | # ]

I haven't been able to find that. I've found that registration early enough is prima facie evidence of ownership of a copyright but I haven't found the same thing for copyright notices.

Here is something that may be even better to show management:

MozillaQuest Magazine: Does SCO have registered copyrights for JFS, NUMA, and RCU?

Blake Stowell: No we don't, but this is not a copyright case. This is a contracts case. We have taken IBM to court because they are in breach of contract.

MozillaQuest Magazine: If so, is that the same JFS, NUMA, and RCU code that is in the Linux kernel?

Blake Stowell: I can't give you the exact location, but yes, it is in Linux.

MozillaQuest Magazine: Does SCO have registered copyrights for the Unix extensions developed by IBM?

Blake Stowell: No, IBM has those copyrights, but this is not about copyrights. It is about the breaking of a contract.

MozillaQuest Magazine: If not, does SCO claim that it is entitled to register copyrights for the Unix extensions developed by IBM?

Blake Stowell: SCO will not register those because they do not belong to SCO. They belong to IBM.

[ Reply to This | # ]

Where did find the above? I've not seen any offical statements from the ACCC ....

[ Reply to This | # ]

Another unattributed BSD code in Sys V allegation ......

Said Rose: "I was in the University of New South Wales way back in the '70s and we wrote code and contributed to the Berkeley Software Distribution. Later on, I found that some of my code had made its way into Sys V Unix. The attribution had been removed."

[ Reply to This | # ]

Here is a similar quote from VNUnet.com

"While IBM owns the copyrights on these derivative Unix programs, SCO owns the control rights to these and they cannot be contributed to open source. The contracts between IBM and SCO state all of this," explained Stowell.

[ Reply to This | # ]

I believe I have found most of the sources for the quotes in this document.

Amended complaint:

http://www.sco. com/ibmlawsuit/amendedcomplaintjune16.html

Paragraph 91, looks to me, to quote from:

http://www.freeos.com/articles/2985

Paragraph 96, looks to me, to quote from:

http://www.nwfusion.c om/news/2001/0814linuxibm.html

Paragraph 97, looks to me, to quote from:

http://www.crn.com/sections/BreakingNews/breakingnews.asp?ArticleID=39561

Paragraph 100, looks to me, to quote from:

http://www.theregister. co.uk/content/4/28183.html

[ Reply to This | # ]

[ Reply to This | # ]

SCO cannot sue Linux users for breach of its "control rights" contract over the "derivative works" because very few Linux users signed any contract with SCO granting it control rights.

As far as Linux users are concerned the only threat from SCO is copyright violations on the "80 lines" or similar instances where SCO claims (falsely so far) that System V code was pasted directly into Linux.

The Linux licenses have nothing to do with derivative works. The derivative works claims are just a deliberate attempt to confuse journalists and the non-Linux public.

[ Reply to This | # ]

http://www.sco.co m/scosource/quotes_from_complaint.html

"e-Business Developer" appears to me, to be quoted from:

http:/ /www.intelligententerprise.com/010810/412e_business1_1.shtml

IBM / Red Hat press release

http://www.we bhostnews.com/press/august2000/15/0815ibm.shtm

[ Reply to This | # ]

Note that I am not a lawyer but the basics of corporate law was a necessary unit of study for the MBA.

[ Reply to This | # ]

I wrote: 3) I'm not surprised that invoices won't be sent in Australia. The competition regulator, the ACCC, has been monitoring SCO's behaviour and has stated that if people received invoices then it would be taking action.

You asked: Where did find the above? I've not seen any offical statements from the ACCC ....

Which is a fair point. Let me re-phrase as "employees of the ACCC have stated to me personally that is people started receiving invoices...". Encouragingly, the ACCC seems to be totally across SCO's actions (and not the least due to Groklaw).

[ Reply to This | # ]

[ Reply to This | # ]

"The complaint alleges that defendants violated the federal securities laws by issuing and selling Caldera common stock pursuant to the March 21, 2000 IPO without disclosing to investors that some of the underwriters in the offering, including the lead underwriters, had solicited and received excessive and undisclosed commissions from certain investors."

[ Reply to This | # ]

Re stolen bikes: Firstly, from a strictly legal definition copyright violation is not "stealing" (because you haven't deprived the copyright holder of his work), so laws pertaining to stolen goods don't apply. However, if you possess a CDROM which contains software which was put there in breach of copyright, you are not necessarily safe; it depends on the exact law in your country. I'll summarise the main points of UK law here, you can investigate and compate in your own jurisdiction.

1) It is not an offence for a private individual to *possess* material which was illegally copied, provided he/she wasn't the copier. Therefore, personal copies of retail boxed linux are ok to own.

2) If you legally obtained your boxed set of Linux (as an individual or company), you have a right to make one backup copy and the right to run the software (like US law.) You do not need a licence from the copyright holder to do these things.

2a) You *do* need a licence from the copyright holder(s) to run the software on more than one machine, make copies for other than backing up, etc.

3) If you are a business, it *is* an offence to merely possess copies of software that were made without the copyright holders permission - *if* you have reason to believe it infringes. If you have no good reason to suppose you are infringing, you are ok.

4) Making a copy (other than the special cases above) of copyrighted material without permission is a civil offence, even if you made the copy innocently. (e.g. you thought you had permission from the copyright holder.) However, you are not liable for damages for innocent infringement. You can (and probably will) be made to surrender all the copies you made.

5) If a business is found to have made (or knowingly possess) infringing copies of someone else's work, the court can make an order on that business to deliver up all the infringing copies to the copyright holder for disposal. But the order is on the infringer only: no-one else is thus obliged to surrender their copies. The copyright holder has to get a court order individually for each business.

5a) If a private individual has a copy of an infringing work, then providing he/she does not him/herself violate copyright, the owner *cannot* get a court order requiring him/her to surrender the goods.

[ Reply to This | # ]

Without getting into whether the contracts in fact give SCO "control rights", the plain fact is that, given that IBM owns the copyrights, any control rights only apply to IBM and not to anyone else who has not signed a similar contract with SCO. Moreover, given that SCO concedes that IBM owns the copyright, any breach of contract by IBM does not invalidate whatever rights IBM has as copyright owner, nor the licences (GPL) it has issued. Their contribution to open source cannot be undone, even if IBM broke the contract: all that could happen is the award of monetary damages against IBM. If SCO claimed that they owned the copyright on JFS etc, it would be more complex - but SCO do not make this claim. (Yet ;)

[ Reply to This | # ]

"However, if you possess a CDROM which contains software which was put there in breach of copyright, you are not necessarily safe;"

Except for the now-debunked "80 lines" there is no claim that Linux violates SCO copyrights. SCO claims portions of Linux were added in breach of contract. As far as I know in the US, one party is not liable for another's breach of contract, especially if the party in question didn't even sign the contract.

[ Reply to This | # ]

All: Sorry for any confusion I caused.

[ Reply to This | # ]

Some or all of RCU, NUMA, and etc. are patented and owned by IBM/Sequent. The technology and claims have been made public by the USPTO (a third party with a statutory right to do so). They are not subject to the confidentiality clauses in the old AT&T Software License Agreement. Even if they had been, they have now been disclosed by a third party and IBM/Sequent are free to license them as they see fit. Patents are a property right.

The idea that IBM owns the copyrights (section 106: the exclusive right to copy, distribute, and prepare derivative works), but that SCO controls the release via the provisions of contract law is silly. Computer Software is subject to copyright under Title 17 sections 102 and 103. In fact, SCO is fond of applying the specific mention of an exception to exclusive rights in computer software copyrights in section 117 (one backup archival copy, and etc.). They almost always mention this exception in regards to the concept of Federal Pre-Emption. Here is what section 301(a) says:

Sec. 301. - Preemption with respect to other laws

(a) On and after January 1, 1978, all legal or equitable rights that are equivalent to any of the exclusive rights within the general scope of copyright as specified by section 106 in works of authorship that are fixed in a tangible medium of expression and come within the subject matter of copyright as specified by sections 102 and 103, whether created before or after that date and whether published or unpublished, are governed exclusively by this title. Thereafter, no person is entitled to any such right or equivalent right in any such work under the common law or statutes of any State.

There are a few exceptions, but none that SCOG can avail themselves of.

[ Reply to This | # ]

[ Reply to This | # ]

[ Reply to This | # ]