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Jadeclaw

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Jadeclaw, unfortunately, they continue talking about the "DoS attack" as if it really happened. But we haven't seen any evidence for that yet.

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Secondly, you might be interested in hearing this from one Stowell: http://computerworld.co.nz/webhome.nsf/UNID/E9D67519306E646FCC256D9B00178AE5 !opendocument SCO may send Unix licence invoices to Linux users "We're not trying to make this into a witch hunt"

Yeah, right!

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SysVr4 code --- /* Algorithm is first-fit. */

Judge: Mr McBride the code is identical, so the SysVr4 cannot be an original work.

McBride: Sure it is your honor. It all depends upon what the meaning of "is" is !

Somehow I think I've heard this argument before.

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SysVr4 code --- /* Algorithm is first-fit. */

Judge: Mr McBride the code is identical, so the SysVr4 cannot be an original work of art.

McBride: Sure it is your honor. It all depends upon what the meaning of "is" is!

Somehow I think this argument's not original either.

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http://www.eweek.com/ article2/0,4149,1257959,00.asp

note Stowell's statement that "SCO legal had green-lighted the project" (project being the much-threatened invoices.)

Assuming SCO's legal team are not insane (insert your own comment here) I would take that to mean that any "invoices" will not in fact be invoices - rather like those billing scam mailings that have "This is not an invoice" in tiny letters on the back. They will be made to look visually like invoices and contain weasel wording that appears to threaten legal action on non-payment without actually doing so, for example:

"Our records show you are operating one or more Linux servers."

"In order to use SCO's Unixware IP within your Linux systems you must purchase n licences at $699 each.." (note, not actually saying you owe them this money because of the 'in order to')

"SCO values its IP and will take legal action if necessary against those who make improper use of it" (not actually threatening the recipient - in fact this statement is a perfectly fair one, just imagine the sentence with IBM instead of SCO)

This is off the top of my head, I'm sure a lawyer could create still more cunning wordings, but you get the idea.

Now, such a missive might still fall foul of some consumer laws (esp in Australia? ;) but it's a lot less clear-cut than "pay up or we sue."

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A SCOX forum user pointed out this link:

http ://http://www.unixreview.com/documents/s=1232/urm0108g/0108g.htm

What this suggests is that a code audit needs to be performed on OpenUNIX 8, to determine what misappropriations of GNU/Linux code, and GPL code, in general, SCO has committed.

Such an audit could dramatically, and spectacularly, turn the table on SCO and send them whimpering back to their dog house. This may be yet another reason why SCO wants the GPL invalidated so badly.

Also, notice the great hypocrisy: on the one hand, SCO is accusing the Linux community of stealing Unix know-how and methods to improve Linux, yet they have committed the same (if not worse) by using Linux know-how and methods to improve their Unix OS. They have also stated that, without the alleged misappropriation of Unix code into Linux, that Linux could not possibly have scaled so fast. However, according to the article, it took SCO/Caldera only a year to accomplish what it seems many though impossible for them to achieve. Notice the amazing irony.

It therefore strikes me, as highly likely, that the very acts - practically every single act, for that matter - that SCO has been accusing the Linux and Open Source Community of committing, are the exact same acts that SCO itself has committed and continues to commit.

It would be beneficial for IBM or RedHat to subpoena SCO for their OpenUNIX 8 source code - including their LKP code, if they have not already done so.

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The German case you mentioned was about a violation of §130 StGB, which is heavy stuff. I doubt you can really compare this case to the caldera.at situation.

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I guess I should do better proof reading. Oh well. :-(

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Question: What exactly are the issues in the "never been tested in court before" GPL that need to be resolved?

I have seen a few copyright holders of music allow unlimited copies of their work for non-commercial use and performance. How does this jive with SCO's "one copy only" argument?

TIA,

Sam

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http://www. unixreview.com/documents/s=1232/urm0108g/0108g.htm

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[1] Pet peeve: I get really mad in RIAA-vs.-P2P users discussions when people repeat record company propaganda about "stealing" music. Same here - even if SCO has dumped GPL code into OpenUNIX 8 without obeying the "provide source" provision of the GPL, the GPL community hasn't been permanently deprived of it. Please can we use more accurate terms like "misappropriate" to describe this sort of action?[2]

[2] #include <obligatory-pj-great-site-praise.h> Been lurking for three months or so now.

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The basic point being, in any case, that these "invoices" are unlikely, if ever sent, to be invoices in the strict sense of the word.

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Section 263 Fraud

(1) Whoever, with the intent of obtaining for himself or a third person an unlawful material benefit, damages the assets of another, by provoking or affirming a mistake by pretending that false facts exist or by distorting or suppressing true facts, shall be punished with imprisonment for not more than five years or a fine.

(2) An attempt shall be punishable.

(3) In especially serious cases the punishment shall be imprisonment from six months to ten years. An especially serious case exists, as a rule, if the perpetrator:

1. acts professionally or as a member of a gang which has combined for the continued commission of falsification of documents or fraud;

2. causes an asset loss of great magnitude or by the continued commission of fraud acts with the intent of placing a large number of human beings in danger of loss of assets;

[...]

See http://www.iuscomp.org/g la/statutes/StGB.htm#263 or http://bundesrech t.juris.de/bundesrecht/stgb/__263.html

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The reason the GPL is as yet "untested" is that in every case so far the defendant (the entity accused of violating its terms) has settled, either by providing source or by ceasing to distribute the offending product. A recent case was brought by MySQL AB against another company. Although this means there hasn't been an explicit judgement upholding the terms of the GPL, the overall weight of these settlements tends to show that a legal team, once it studies the GPL carefully, concludes it has virtually no chance of overturning it in court.

With respect to SCO's "one copy" argument and how it relates to musicians allowing noncommercial copying, you've put your finger on it with your very example. The "one copy" argument is patently nonsense, a copyright holder is entitled to give away his/her rights by declaration, and in fact some lawyers have commented on the record that the "one copy" argument is so bad that they have trouble believing SCO even tried making it.

You will note that of late SCO have stopped pushing the tack that the GPL is invalid and gone back to their previous position, that they never GPL'ed their code because they didn't explicitly sign anything. (This position in itself shows a lack of understanding of the GPL, as covered in GrokLaw) That rather hints that even SCO have realised the "one copy" argument won't fly. It may even have been a pure PR stunt and never even seriously intended.

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"It is possible to use it to compare trees without direct access to the source code itself, leading to a possible use in comparing various proprietary source trees with each other and with Freely available code bases such as Linux and *BSD without requiring actual disclosure of the proprietary source code"

Much of the discussion concerning this tool centers on finding code in 2.4 and 2.5 that may be infringing on UNIX so that it can be removed, but I think there is more value in finding discrepancies in SCO product lines, i.e. GPL & BSD violations in the proprietary SCO products.

In addition ESR has been "looking for ways that Unix trade secrets may have been legally nullified". Before this debacle ends with the crushing of SCO, I believe that the entirety of Unix rights purchased by SCO will be "demonetized" by careful examination of Open Unix sources with the proprietary SCO binaries.

By demonstrating that SCO holds no intellectual property, how could it possibly have been stolen by the Linux kernel developers?

While we all agree that the 1 million LOC Darl keeps babbling about is impossible, more than 1 million LOCs of SCO proprietary code will be declared public knowledge, not the stuff of trade secrets. Much of this “nullification” occurred more than a decade ago with the original Unix lawsuits.

An additional comment concerning ESR’s comparator is that it is released under the GPL. The beauty of Open Source will be revealed once again. If the algorithm works as described, it is merely a matter of time before it is enhanced and validated by the community. I’m sure that an institution such as MIT will provide a team of mathematicians to validate and publish an analysis of their findings, consistent with the scientific method.

BTW, this is my first post here at Groklaw, and I want to thank everyone participating in these discussions for all of their hard work and the gracious sharing of their intellect. I've been visiting daily since July and I amazed at the quality of Groklaw and the efforts of PJ to thoughfully guide all of us through the legal aspects of the lawsuits.

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http://ww w.geek.com/news/geeknews/2003Sep/gee20030910021693.htm

http://www.vnunet.com/News/1143505

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Austrian SCO Web site gone. www.caldera.at no longer exists. Might be connected with injunction against German branch of SCO. Check out 'whois www.caldera.at'. SCO Germany is shining up in'whois'. But SCO Germany was stopped from spreading Linux claims. They even were fined 10000 EUR for violation. They now might have to pay again. I feel so sad for them ;)

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Good news, though!

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I set up a wiki for everyone if you wish to go that route. It is at http://network57.com/wakka/

Simpler than tossing comments or emails back and forth, imo.

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Darl, it seems, thinks we argue that his ownership of IP and/or copyright transferred.

In copyright law, ownership cannot be transferred without the express, written authority of a copyright holder.

I would argue that SCO retains all of it's copyrights (although they aren't even litigating copyrights in court) but has simply irrevocably licensed it's copyrights and IP through it's GPL distribution. (which GPL, I might add, happens to be a written document, "written authority" if you will).

Some have claimed that, because SCO software code was present in software distributed under the GPL, SCO has forfeited its rights to the code. Not so - SCO never gave permission, or granted rights, for this to happen.

Seems to me that the communtiy is claiming not that SCO code "was present" but that all code SCO distributed, including code it claimed copyrights to, was distributed under GPL (licensed), and, assertions to the contrary notwithstanding, does in fact constitute "giving permission" and "granting rights".

No?

I can see this and IANEAL.

Sam

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I self-righteously responded "What do mean FUD?"

He then proceeded to berate me accusing me of acting just like Darl McBride. "You publish statements with absolutely no tangible proof. You start rumors that no one can verify. That's FUD."

I was quite taken aback and replied, "Be specific!"

Bill exclaimed "You trumpet that a certain P.J. is beautiful and gracious without any proof. Sure, it's obvious she is a very gracious person from her exquisite blog "GROKLAW", but how can you claim she's beautiful? No one's ever seen a picture of her posted anywhere. You're just as bad as Darl McBride ... no proof."

I pondered for a moment and then I suddenly realized ... he was right.

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"I would argue that SCO retains all of it's copyrights .... but has simply irrevocably licensed it's copyrights and IP through it's GPL distribution."

That summarises the position quite succinctly, Sam. Evidently you have a far better understanding of the GPL than SCO Group!

SCO's next fallback line of defence is to argue that they didn't realise they were distributing their own code (the "pregnant cow" defence.) Firstly, the case precedent they quote applies to contract law and (at least in the US) the GPL is not a contract. Secondly, given the length of time they were in a position to discover any common code between sysV and Linux, for them not be unaware of what they were releasing appears to be simply negligent. Thirdly, they continued to make the kernel available under GPL for months after making their initial allegations. (Even though their ftp server now says the kernels are for their own customers only, the fact remains that they have not altered the GPL or copyright notices on the kernel.)

In addition, Sun (who have, according to their statements, the right to do anything they like with the UNIX code they licensed) have also released a Linux kernel (2.4.x series) under the GPL, and yes this is their kernel and not a vanilla Red Hat one. This kernel is still available from public FTP, to my knowledge.

Finally, even if somehow SCO (and Sun) were allowed to change their mind and withdraw the permission they have given, this would obviously not create a retrospective liability in any handlers of the code. (But the past record shows (the BSD case for example) that companies who through their own negligence of mispractice allow their code to become more loosely licenced do *not* get to take it back.)

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I am a little confused by the interpretation that "the laws are different down here" (i.e., AU). I am pretty certain that all states have laws against unfair and deceptive trade practices, including laws regarding advertising, making false statements, and particularly making fraudulant contracts. In Massachusetts, the law is Chapter 93A. The relevant section (although others may apply as well) is:

Chapter 93A: Section 2 Unfair practices; legislative intent; rules and regulations Section 2. (a) Unfair methods of competition and unfair or deceptive acts or practices in the conduct of any trade or commerce are hereby declared unlawful.

See: http://www.state.ma. us/legis/laws/mgl/gl-93A-toc.htm

This act also directs the attorney general to act under Section 4.

I must say that I am amazed that no states AG has gotten involved. Certainly many of the public statements made by McBride are proveably false and an inducement to sell their bogus IP license. I would think that some AG would at least investigate. It may be that if SCO actually sends out invoices we may get some action from at least one of the states.

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http://www.ciol. com/content/developer/2003/103091002.asp

http://news.zdnet.co.uk/software/linuxunix/0,39020390,39116198, 00.htm?rtag=zdnetukhompage

http://www.computerworld.com/softwaretopics/os/linux/story/0,10801,84729 ,00.html

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Throsten, you are right that 1 StR 184/00, http://juris.bundesgerichtshof.de/cgi-bin/rechtsprechung/document. py?Gericht=bgh&Sort=3&Seite=3&Datum=2000-12&Art=en&client=8&anz=169&pos=95&nr=20 678&id=1063209247.56 is heavy stuff, but I was manly looking for a ruling showing:

• It doesn't matter if the site is in english
• The regional part of the URL is not even worth mentioning (just think of those *.vu and *.tv "domains")

Business of SCO Group Germany _is_ aming at citizens of Germany. There was no "mechanics" at www.caldera.at to tell a german visitor, that he should quit immediately. That is pretty standard jurisdiction like in http://www.jur-abc.de/de/31110019.h tm.

I got replys from Suse and Univention, that their lawyers are looking for SCO Group Germanys www.caldera.at, but no further information about the actions taken.

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My notes can be found in http://buffy.sighup.org.uk/sco /note01.html

BTW, if you enter a word in the SCO site keyword search form you will see that their SSL certificate has been incorrectly generated (at least Mozilla reports a host name error.)

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http:// asia.cnet.com/newstech/industry/0,39001143,39150546,00.htm

When asked whether the SCO Group's move to secure license fees for the use of Unix in Linux was affecting Dell's Linux plans, Michael Dell replied, "Not at all."

And his answer to the question "Are you paying licence fees"? Michael simply replied "Nope."

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quatermass,

"It does a dis-service to open source, every time, somebody on our side, equates SCO/MS/RIAA. Let's remember, one of IBM's counter claims, is based on infringement of a copyright license (GPL)."

As someone who has used, and will use again, the bolded grouping above I wanted to offer my reason for doing so and why I think it can be both appropriate and helpfull for someone "on our side" (I assume "on our side" means part of "the Community" and that we both are on the same side thus both members of the Community) to do so.

quatermass, we don't know each other, but you seem to me a sensible and facts based poster (qualities I highly regard). I will Grant that I am at times speculative and emotional in my statements, but I believe both derive from the "facts" that I encounter.

_My_ grouping of the organizations in question is not based on the issue that they rely on IP, of whatever type, as their business model.
It is that they negatively and willfully warp our public environment to further their business interests. http://www.aotc.info/archives/ 000152.html/ It is the technological (as well as legal) assault on the First Sale and Fair Use doctrines in the digital medium. http://www.giants tepsmts.com/DRM%20Watch/standards.htm/ http:// www.dtype.org/pipermail/p2p-legal/2001-October/000050.html
It is the coperation and co-ordination of these entities toward a exclusionary and mutually benifical agenda. http://www.e-th epeople.org/a-national/article/11242/view/ http://newsfo rge.com/newsforge/02/07/18/0155208.shtml?tid=6
It is their anti-competitive and predatory business practices that subvert the healthy functioning of the free market system. http://news .findlaw.com/hdocs/docs/riaa/wbcstriaa82703cmp.pdf http://www. windows-sucks.com/content/whatsbad.shtml#predatory
For me "the Community" is about freedom to create and share (legally). Unfortunately all of the organizations in the group above want to control both to their enrichment. It is important to recognize the connections and shared objectives that make the Community a community and it is also important to recognize the connections in the above group that make them a cohesive danger.
I'm with you on not making sloppy group assertions but when made intentionally I believe, the above grouping is both accurate and appopriate.
Respectfully,

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• Why SCO May Be In No Hurry - Authored by: Clifton Hyatt on Sunday, March 21 2004 @ 04:16 AM EST

More specifically, it contractually binds the distributor, not the recipient. If you distribute, you also have to...

The end user doesn't need the GPL at all, provided their distributor has one, but the distributor needs them to have it, to meet *its* license terms.

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One thing: the GPL is not a contract. Very important. That's why the cow case doesn't apply. To have a contract requires certain elements that are very specific and that GPL doesn't have.

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http://zdnet.com.com/2100-1 104_2-5074012.html

Sun plan would protect Java users By Michael Kanellos CNET News.com September 10, 2003, 10:04 AM PT Can fear of SCO help Java grow? Sun Microsystems thinks it just might.

Sun is contemplating adding an unusual provision to some of its Java licenses under which the company would agree to protect licensees from Linux-related lawsuits filed by the SCO Group.

SCO earlier this year asserted that some of the code in Linux infringes on the intellectual property underlying Unix, the 20-plus-year-old operating system that has been owned at different times by AT&T, Novell and now SCO.

"You license Java--we will indemnify you on Linux," is how Jonathan Schwartz, executive vice president of software at Sun, said the program, if initiated, might work. "We would indemnify you against the possibility that SCO comes after you."

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pj: where do I find those "certain elements" to convert GPL into an US contract?

Without having looked into a German discussions about this: I would first tryour BG §151 "silent acceptance" and the principle of "conclusive action".

BTW: I just found two "i" for "mainly" and "aiming" as well as a "/" for "</ul>" that dropped out of my last comment, where I should have added that www.caldera.at was for native speakers of the German language (eh well, sort of;-) anyway.

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Two words: permission slip.

They know what those are. They give them to their kids.

The GPL is a permission slip for the *distributor* that says he has to include a permission slip if he distributes.

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pj: about GPL and contracts in Germany: for Till Jaeger in http://www.ifross.de/ifross_ht ml/art3.html, there is no problem to talk of GPL as "the contract between the user and the distributor".

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It should be apparent to most people by now that SUN absolutely cannot be trusted - not yesterday, not today, not ever. They are like a vulture, waiting for your carcass so they can feed without remorse.

A friend of SUN's is a sucker indeed.

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Help. I can't stop. (Can you *ever* retire old versions without violating the GPL, by the way?)

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John Goodwin: what's a license anyway

In Germany it's simple: a license is something we agreed upon in a licence contract;-)

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John Goodwin: (Can you *ever* retire old versions without violating the GPL, by the way?)

GNU GENERAL PUBLIC LICENSE, Version 2, June 1991,

3. ... b) Accompany it with a written offer, valid for at least three years, to give any third party, for a charge no more than your cost of physically performing source distribution, a complete machine-readable copy of the corresponding source code ...

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(3) says that the distributor must provide source code by one of three mechanisms. (3a) says that it's okay to provide source code by including it with the derived work. An example of that is the "source code" CD's that Red Hat includes in their boxed sets. (3b) says that it's okay to provide source code by including a written offer "valid for at least three years". And (3c) is a clause that is available to non-commercial distributors, and I don't think that it's used much.

So someone who distributes derived works of a GPL product under (3b) would have to keep their FTP site up for three years. That's my interpretation. The code on the site itself is covered by (3a), because the source code is on the same medium as the derived work.

BTW, it's a reasonable position for someone to obey a law or a contract or a license at the same time that they challenge its validity.

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The GPL is a contract "agreement" between a source code developer and a person seeking to "distribute" that source code with "permission" (a "license" to do so). Said agreement is accepted by an affirmative act, namely "distribution". This agreement and act of acceptance for said "permission" is sufficient to establish the legal requirements constituting a unilateral contract:

Law students often study this hypothetical contractual constuct:

Dick promises Jane ten dollars if she will walk across the Brooklyn brigde. Jane starts and as she is half-way across the bridge Dick attempts to withdraw his offer. Is Dick contractually bound ? There was an offer and acceptance by an affirmative act even though Jane made no explicit return promise. Contemporary law says "yes", Dick is contractually bound.

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Response to SCO's Open Letter

Mr. McBride, in your "Open Letter to the Open Source Community" your offer to negotiate with us comes at the end of a farrago of falsehoods, half-truths, evasions, slanders, and misrepresentations. You must do better than this. We will not attempt to erect a compromise with you on a foundation of dishonesty.

Your statement that Eric Raymond was "contacted by the perpetrator" of the DDoS attack on SCO begins the falsehoods. Mr. Raymond made very clear when volunteering his information and calling for the attack to cease that he was contacted by a third-party associate of the perpetrator and does not have the perpetrator's identity to reveal. The DDoS attack ceased, and has not resumed. Mr. Raymond subsequently received emailed thanks for his action from Blake Stowell of SCO.

Your implication that the attacks are a continuing threat, and that the President of the Open Source Initiative is continuing to shield their perpetrator, is therefore not merely both false and slanderous, but contradictory with SCO's own previous behavior. In all three respects it is what we in the open-source community have come to expect from SCO. If you are serious about negotiating with anyone, rather than simply posturing for the media, such behavior must cease.

In fact, leaders of the open-source community have acted responsibly and swiftly to end the DDoS attacks -- just as we continue to act swiftly to address IP-contamination issues when they are aired in a clear and responsible manner. This history is open to public inspection in the linux-kernel archives and elsewhere, with numerous instances on record of Linus Torvalds and others refusing code in circumstances where there is reason to believe it might be compromised by third-party IP claims.

As software developers, intellectual property is our stock in trade. Whether we elect to trade our effort for money or rewards of a subtler and more enduring nature, we are instinctively respectful of concerns about IP, credit, and provenance. Our licenses (the GPL and others) work with copyright law, not against it. We reject your attempt to portray our community as a howling wilderness of IP thieves as a baseless and destructive smear.

We in the open-source community are accountable. Our source code is public, exposed to scrutiny by anyone who wishes to contest its ownership. Can SCO or any other closed-source vendor say the same? Who knows what IP violations, what stripped copyrights, what stolen techniques lurk in the depths of closed-source code? Indeed, not only SCO's past representations that it was merging GPLed Linux technology into SCO Unix but Judge Debevoise's rulings in the last big lawsuit on Unix IP rights suggest strongly that SCO should clean up its own act before daring to accuse others of theft.

SCO taxes IBM and others with failing to provide warranties or indemnify users against third-party IP claims, conveniently neglecting to mention that the warranties and indemnities offered by SCO and others such as Microsoft are carefully worded so that the vendor's liability is limited to the software purchase price, They thus offer no actual shield against liability claims or damages. They are, in a word, shams designed to lull users into a false sense of security -- a form of sham which we believe you press on us solely as posturing, rather than out of any genuine concern for users. We in the open-source community, and our corporate allies, refuse to play that dishonest game.

You invite us to negotiate, but you have persistently refused to state a negotiable claim. You have made allegations of a million lines of copied code which are mathematically impossible given the known, publicly accessible history of Linux development. You have uttered vast conspiracy theories which fail to be vague only where they are slanderous and insulting. You have already been compelled to abandon major claims -- such as the ownership of SMP technology alleged in your original complaint against IBM -- on showings that they were false, and that you knew or should have known them to be false,

Accordingly, we of the open-source community do not concede that there is anything to negotiate. Linux is our work and our lawful property, the distillation of twelve years of hard work, idealism, creativity, tears, joy, and sweat by hundreds of thousands of cooperating hackers all over the world. It is not yours, has never been yours, and will never be yours.

If you wish to make a respectable case for contamination, show us the code. Disclose the overlaps. Specify file by file and line by line which code you believe to be infringing, and on what grounds. We will swiftly meet our responsibilities under law, either removing the allegedly infringing code or establishing that it entered Linux by routes which foreclose proprietary claims.

Yours truly, Eric Raymond Bruce Perens

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I have worked on a software emulator or two back in the old days, and thought it would be very improbable that anyone

could sit down to re-implement the exact behavior of every Linux kernel function exactly, AND NOT NOTICE that they

were re-implementing the exact behavior of their own "misappropriated code". My rather sensitive "BS detector" went full

scale seconds before it failed completely from a severe overload condition...;-)

The LKP Conundrum

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I'm only paranoid when everyone's out to get me.

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Considering how long it takes to get just an update to the Linux kernel released, I highly doubt that the LKP is a emulator - especially given how very quicky it matured and ran flawlessly. Rather, I believe that, if it does not contain line-for-line Linux kernel code, it then is highly likely that it contains many lines of obfuscated Linux kernel code. No one will know for sure until someone gets a look at the LKP sources.

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I am the psychotherapist. Please, describe your problems. Each time you are finished talking, type RET twice.

help

Can you elaborate on that?

is the gpl a contract?

Why do you say is the gpl a contract?

because pj says it isn't

Is it because pj says it is not that you came to me?

yes

I see... Well, what makes you believe this is so?

cause that's what she wrote

Earlier you said pj says it is not?

yes

Yes, hmmm... so, are you sure that this is so?

yes

I understand. So do you really think this is so?

yes

Oh. ...And what makes you think this is so?

i just answered that

I would appreciate it if you would continue.

why ?

Go on, don't be afraid.

who's afraid ?

Why do you say you are afraid of something?

I dont think we're getting any where

Maybe your plans have something to do with this.

what plans

Is it because of your life that you say what plans?

forget it

You mentioned that pj says it is not?

!@#$%^&*!!!!!

I need a little more detail please.

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I'm saying that SCO can't have implemented the Linux kernel interfaces and a Linux application environment directly into the Open UNIX 8 system - without noticing that the interfaces, functions, and code they were working on were stolen from Unix System V. If there ever was any misappropriated Unix code in the Linux kernel they certainly must have known about it.

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Page 13 proudly announces that JFS was ported from AIX by IBM. XFS gets only a brief mention that it is related to IRIX.

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Sorry. I missed the "No, " after the first question you posed. Guess I shouldn't skim so much. :-)

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I concur. And I most certainly appreciate you pointing out the articles. It definitely helps to know what our foes are thinking.

It's just frustrating that so many analysts and journalists are just as corrupt as SCO and Microsoft, spreading lies to the less informed.

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No audit really necessary to nail them for GPL"d code... the article you quote specifies that Gtk++, KDE, Samba, and "all of the actual RPM files
from the Caldera OpenLinux Workstation 3.1 CD" were installed with OpenUNIX8. Bottom line is, unless something has changed since this article was
written, SCO is distributing GPL'd programs with OpenUNIX 8, and this time they can't fall back on their mealy-mouthed explanation of having to support
existing users against their will.

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I very much doubt that the situation has changed, given their product description here: http://www.caldera.com/products /openunix/

However, I believe the GPL requires an infringer to merge proprietary components with GPL code, without releasing the combined work under the GPL license, for there to be a violation.

Though, and obviously, IANAL I do believe that, if there has been no actual misappropriation by SCO, then if it is demonstrated to the court that SCO used Linux methods and know-how to achieve improvements to their product (including, of course, their LKP), the judge may toss out SCO's like claims against IBM. It would be highly inequitable to permit SCO's claims of IBM and the Linux community illegally using Unix methods and know-how - even if such a contractual violation has occurred (though I doubt it, both on account of the AT&T side letters, and the fact that so much on Unix methods and know-how is available publicly) - when SCO itself is guilty of having done and is continuing to incorporate Linux methods into their proprietary products.

Then again, IANAL and the court may be more inclined to strictly enforce the terms (which appear to have been removed via amendment by AT&T) of any such contract; although courts can be lenient where no fundamental breach occurs. I seriously doubt that any breach, let alone a fundamental breach has occurred. That is assuming that the US Justice system applies a doctrine of fundamental breach.

Misguided legal ramblings aside, SCO's goose is cooked.

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Also, while it is arguable whether providing source code with the distribution could legitimately be regarded as a consideration under the law, it is hard to see how anyone could argue that agreeing to provide source code to anyone who asks for a period of at least three years would not constitute a consideration. Thus, at least when companies follow that course, they are indeed expected to provide a consideration. And the fact that distributing the source code alongside the executable is an alternative to something that is clearly a form of consideration (IMO, IANAL) would probably strengthen an argument that including the source code in every distribution (thereby avoiding the responsibility to give the source code to whatever third parties might ask for it) should also be regarded as a form of consideration.

(Dick: I'll mow your grass if you give $10 to my church. Jane: Okay.

Would the above constitute a contract only if Jane would not have given the $10 to the church if Dick did not require it, or does the fact that Dick makes the gift a condition for the agreement make the $10 donation a form of consideration without regard to what Jane would have done otherwise?)

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Firstly, whether the GPL can be regarded as a contract or not may vary on your jurisdiction. I doubt it is in UK law because (a) what the licensor gets back is unlikely to be sufficient "consideration" from the licensee, and (b) the licensor may never know who the licensee is or even if he/she exists, but that's not relevant to SCO in this instance, only US law.

Secondly, pj says the GPL is not a contract because the attorney Dan Ravicher, Esq. told her so (see the feature on the pregnant cow case in GrokLaw.) Perhaps he can be persuaded to give more info on his reason since he *is* a lawyer?

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(1) Arguments that SCO is required to distribute source code cannot possibly justify distributing binaries.

(2) The requirement cannot provide either obligation or permission to send out any new versions (e.g. bug fixes) of files containing proprietary code even in source form. Only source code versions built into previously released binaries could be covered.

(3) To the extent that SCO tries to use the provision at all, they would be just as obligated by it to distribute the source files containing their proprietary code to non-customers as they would to customers. Any discrimination would make it clear that their true motivation is to protect their relationships with their own customers rather than to satisfy that particular requirement of the GPL, since the GPL's requirement is exactly the same irrespective of whether or not the person requesting the code is a customer.

(4) SCO is at least as guilty of negligence in publishing Linux code without adequately checking its pedigree as other vendors are. Jesus had a parable about what happens to people who need forgiveness of their own debts but refuse to forgive others. If SCO is not willing to forgive others' negligence long enough for any infringing code to be removed, they have no basis in justice for expecting any accommodation for their own negligence.

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Dr Stupid: what the licensor gets back is unlikely to be sufficient "consideration" from the licensee

That's what our $151 BGB (civil law) is for (and pj motivated us to discuss the differences of or legal systems right here):

The contract comes off (becomes effective?) by the acceptance of the request (offer?), without the acceptance needs to be explained opposite the offering (necessarily being made known to the offerer?), if such an explanation is not to be expected after the usage or the offering did without it (if explicit knowledge of acceptance is not expected due to usual use or due to the details of the offer?). The time, in which (when?) the request (offer?) expires, determines itself (is determined?) according to the will of the offering (of the offerer?) which can be inferred from the request or the circumstances.

The "request" babblefish talks about is mainly an offer that implies a request (or vice versa) to come to a contract.

And of course, the GPL itself is not a contract, it is an offer to come to a contract, which, when it is accepted, will be the only written part of the contract.

Somebody producing GPL code is considering that this is the best way to

- refund for the code he started with

- motivate others to improve the GPL tools he is using

- ask for assistance in improving his tools.

She is certainly expecting to get "considerations" worth much more than just $10.

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Just to muddy the waters further, I found out that the law of contracts is different in England and Scotland!! %-) In Scotland no consideration is needed, so it's possible GPL is a contract there.

Back in England, the definition of giving consideration is a *promise* to "carry out an act either to the benefit of the party providing the contractual service or alternatively carry out an act to his own detriment." The first option is usually money or services, the second is usually not doing something you otherwise have the right to do.

Now in the case of the GPL, suppose I accept it. By accepting it, I am not promising to benefit the licensor. For example, I might modify the code to create a bespoke application for my friend: to comply with the GPL, I give him the source code too. He never sends you the changes, nor is he obliged to. In short, although my compliance with the GPL *may* benefit the licensor, I am not promising that it will.

Nor, since the GPL only confers rights and does not take them away, am I doing anything to my deteriment. This is the crucial point I believe; although as the licencee I have made various conditional promises (e.g. i will supply sources when I redistribute binaries) there is no way in which I am worse off compared to the situation of not accepting the agreement. (When standard copyright law applies)

That is why in English law (and I must again stress in English law only) there does not appear to be consideration and thus no legal contract. That does not mean the GPL is not legally binding, it just means that if I break the terms of the GPL, I am only liable for the resulting copyright infringement and not for breach of contract.

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Gerhard, I think basically you are right. In Scotland you can have a binding contract where the benefactor is a third party, but not in England (there is case history for the latter.) Also, just "feeling good" doesn't count as a benefit in the eyes of the law. Example: I promise to give you £5 if you get straight A's in school. Even though your getting good marks might make me feel good, that isn't sufficient consideration. Therefore it isn't a binding contract in England.

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