decoration decoration
Stories

GROKLAW
When you want to know more...
decoration
For layout only
Home
Archives
Site Map
Search
About Groklaw
Awards
Legal Research
Timelines
ApplevSamsung
ApplevSamsung p.2
ArchiveExplorer
Autozone
Bilski
Cases
Cast: Lawyers
Comes v. MS
Contracts/Documents
Courts
DRM
Gordon v MS
GPL
Grokdoc
HTML How To
IPI v RH
IV v. Google
Legal Docs
Lodsys
MS Litigations
MSvB&N
News Picks
Novell v. MS
Novell-MS Deal
ODF/OOXML
OOXML Appeals
OraclevGoogle
Patents
ProjectMonterey
Psystar
Quote Database
Red Hat v SCO
Salus Book
SCEA v Hotz
SCO Appeals
SCO Bankruptcy
SCO Financials
SCO Overview
SCO v IBM
SCO v Novell
SCO:Soup2Nuts
SCOsource
Sean Daly
Software Patents
Switch to Linux
Transcripts
Unix Books

Gear

Groklaw Gear

Click here to send an email to the editor of this weblog.


You won't find me on Facebook


Donate

Donate Paypal


No Legal Advice

The information on Groklaw is not intended to constitute legal advice. While Mark is a lawyer and he has asked other lawyers and law students to contribute articles, all of these articles are offered to help educate, not to provide specific legal advice. They are not your lawyers.

Here's Groklaw's comments policy.


What's New

STORIES
No new stories

COMMENTS last 48 hrs
No new comments


Sponsors

Hosting:
hosted by ibiblio

On servers donated to ibiblio by AMD.

Webmaster
SCO's "Olive Branch" = Your Money or Your Life
Thursday, September 11 2003 @ 06:52 PM EDT

Computer World has an interview with McBride, in which he "explains" what he wants and what he meant in his open letter to the open source community.

All he wants is money. He wants to be able to tax Linux for the allegedly infringing SCO code, so he can ride on Linux's coattails and attain unimaginable wealth from the labor of others. He has observed that Linux is popular, it seems.

What he fails to grasp is, we don't want his code and would like him to tell us where he thinks it is, so it can be removed. We don't want to pay for SCO code, because we don't want SCO code. Is that so hard to grasp? Here is his position:

"Q: What is your best possible scenario to come out of the letter?

"McBride: It would be to have our intellectual property [IP] that we feel has been misappropriated into Linux getting valued, and we're then able to move forward. We're recognizing the clout that Linux is developing, the fact that it's a worldwide phenomenon and the fact that this can really be a new standard for computing in the business environment. To the extent that we're able to get recognition for what we feel is a significant amount of contribution ... we move forward together, and Linux is able to live and we're able to get recognition for our IP."


So that's his "olive branch", an offer you can't refuse without risking your life. Now there's a business model: force people to buy your product, even though they don't want it, Or Else. I think the Mob might have a patent on that business model already though. Sorry, SCO.

McBride still mistakenly thinks the GPL means free as in beer (he is so slow to catch on to things):

"If we're going into a new business environment around Linux, well, let's ask the question right upfront: Does the free business model work? Everything we've looked at, whether it's free Internet, free telecom, free music, all of these things tend to, for one reason or another, not work over an extended period of time. Clearly, the free model just about killed our company, and I would argue that it's going to kill a lot of other software companies if the GPL [General Public License] is able to gain a foothold and run rampant throughout the industry."

First of all, there is no "we" in this picture. Linux isn't going to partner with SCO under any circumstances. He needs to let go of that fantasy.

He also talks about SGI and the "attacks" and a number of other points in the interview, but I see no reason to give him space to spew his nonsense. I wish to set a good example for other reporters who just print whatever he says whenever he says it.

He reads Slashdot, he indicates, and it's apparently not his favorite part of the day. He can bear it, though, because:

"We believe we've got the moral high ground in this case, so that's what propels you forward."

? ! ? the moral.. sputter...the high...gasp...huh?

You know, I have a sister who doesn't understand the law. We are co-trustees on a trust. It's not a trust that benefits us. At least it isn't supposed to. No matter how many times I try to explain something to her, she still persists in thinking it's a different way, if she reeeeally wants it to be different. I guess money can twist your thinking. It's the bane of my life, because of the high frustration level and the sheer boredom of explaining the same thing over and over, to no apparent effect. McBride, however, has just taken the crown away from her for flat-out, knock-down illogical reasoning. The moral high ground in which alternate universe?

Maybe it isn't a lack of logic skills. Maybe it's like a cat I used to own. She was so sneaky and determined. If I had, say, fish on the counter, that cat would do simply anything to get it. She would try to jump up on the counter, and I'd spank her and say no, and she'd meow in protest, and then she'd walk away as if the matter was settled. But if I left my guardpost for one little minute, she'd be taking her chances and leaping for it again. In a cat, it was funny. Greed is funny in a cat, because you don't expect morals in a cat, so the more blatant they are with their determined greed, the funnier it is. They will go after what they want, no matter what, right or wrong. SCO is like that. They want to make some dough off of Linux. That's it. Take it or leave it.

Or maybe Linus is right. McBride just needs to grow up. Here's what Linus wrote in his Dear Darl letter:

"Dear Darl,

"Thank you so much for your letter.

"We are happy that you agree that customers need to know that Open Source is legal and stable, and we heartily agree with that sentence of your letter. The others don't seem to make as much sense, but we find the dialogue refreshing.

"However, we have to sadly decline taking business model advice from a company that seems to have squandered all its money (that it made off a Linux IPO, I might add, since there's a nice bit of irony there), and now seems to play the US legal system as a lottery. We in the Open Source group continue to believe in technology as a way of driving customer interest and demand.

"Also, we find your references to a negotiating table somewhat confusing, since there doesn't seem to be anything to negotiate about. SCO has yet to show any infringing IP in the Open Source domain, but we wait with bated breath for when you will actually care to inform us about what you are blathering about.

"All of our source code is out in the open, and we welcome you point to any particular piece you might disagree with.

"Until then, please accept our gratitude for your submission,

"Yours truly,

"Linus Torvalds"


Ah, the brushoff. Sorry, Darl, your "olive branch" has been officially declined. And with style and a sense of humor. But that invitation to show the code is serious, and you'd be well-advised to respond long before this goes to court. That's my opinion, which you are free to ignore, and, sigh, like my sister, you probably will.


  


SCO's "Olive Branch" = Your Money or Your Life | 105 comments | Create New Account
Comments belong to whoever posts them. Please notify us of inappropriate comments.
radiocomment
Authored by: Anonymous on Thursday, September 11 2003 @ 04:31 PM EDT
Thanks for the Darl info, but I think I'll take a pass on reading the interview.
Thanks anyway.
sam

[ Reply to This | # ]

radiocomment
Authored by: Anonymous on Thursday, September 11 2003 @ 04:32 PM EDT
Darl: "What we're trying to say is, No.1, intellectual property is very important in establishing this [Linux] platform and to just take this "don't ask, don't tell" methodology [toward IP], we don't think that works. "

Then stop doing your "don't ask, don't tell" act and show us where the "infringing" code is. You wouldn't want to be a hypocrite, would you?

Linux actually has a very effective methodology toward respecting IP rights, so nothing needs to change there. SCO, on the other hand, should start "telling."


Nick

[ Reply to This | # ]

radiocomment
Authored by: Anonymous on Thursday, September 11 2003 @ 04:39 PM EDT
Darl's comments sicken me. When is someone close to Darl going to put him straight about Free and Open Source software?

Even if SCO's "contribution" to Linux was considerable (which I'm sure it isn't), I doubt anyone in the FOSS community wants a single line of that code to remain in Linux. The sooner it's ejected, the better.

I'm not going to read the original interview either, I don't think I could stomach it.


Philip Stephens

[ Reply to This | # ]

radiocomment
Authored by: Anonymous on Thursday, September 11 2003 @ 04:39 PM EDT
My take on that ComputerWorld Q&A article (several links above). P.S. I wrote this before reading the beautiful and succulent PJs latest article.

Q&A 1. "When you wrote the letter, did you envision it as a a peace offering..." Answer seems entirely reasonable. Both sides would like it settled soon.

Q&A 2. "What is your best possible scenario to come out of the letter? It would be to have our intellectual property [IP] that we feel has been misappropriated into Linux getting valued". Aha, he wants money, but softens the demand later to "we're able to get recognition for our IP". Contributers are already recognized in the copyright notices and the contrib file. And I'm sure any errors would be corrected.

Q&A 3. "Why did you send the letter?" "spurred on in large part by the distributed denial-of-service attacks". He's beginning to feel the pressure, not that any of us condone the attacks. "It really started me thinking about what is going on here at the "big picture" level." And about time too! Is he preparing excuses for getting himself or SCO out from under by settling?

The second paragraph shows that he still doesn't understand how and why the GPL and other open source licenses work. The free examples he gives aren't equivalent to Linux. "Clearly, the free model just about killed our company". No, the Caldera/SCO Linux business plan was inappropriate for the new paradigm, and failed.

Q&A 4. Situation report - things are getting bad, dig in and offer to parley.

Q&A 5. "What would you like to see happen now in response?" "a business model around Linux that allows companies like ours to be able to get compensation when their IP is showing up inside Linux". But they donated that code, and SMP hardware for AC for instance, for free and in full knowledge of the GPL when they did it. He admits that the old business model was wrong and now wants to turn back the clock. Sorry, can't do that. Of course the implication is that some IP is in Linux illegally, if so, show us some code. "ensure that the [code] that is going in there is valued and IP-protected." It is valued, but not in direct money terms or if it is ugly, and IP (copyright) protected. He's already got what he wants here :-). He just needs to learn how to leverage it.

Q&A 6. "In your letter, you named Silicon Graphics Inc..." Answer basically that more litigation would spread them too thin.

Q&A 7. "How do you feel about apparently being reviled in the open-source community..." "We're at the center of a hurricane. Clearly, in this case we have one set of forces here that are pro-SCO, and I've characterized them as the silent majority." More like the silent minority. "We believe we've got the moral high ground in this case, so that's what propels you forward." Hypocrite, try money.

Here we see a manipulator at work. Start being resaonable, blame free software instead of bad management for a failing business, try to change the rules and be outraged when nobody else will play, then go for the sympathy vote by trying to claim the moral high ground.

Sorry Darl, we can see through you now.


Chris Priest

[ Reply to This | # ]

radiocomment
Authored by: Anonymous on Thursday, September 11 2003 @ 04:52 PM EDT
When you have to explain what you meant in an open letter, then there's something wrong.

Other then that, I don't really have much to say... Darl is still an uninformed person in regards to many, many things.


K Gardner

[ Reply to This | # ]

radiocomment
Authored by: Anonymous on Thursday, September 11 2003 @ 04:56 PM EDT
he is the theif and cant face it
butr the quote that i liked was
<We're recognizing the clout that Linux is developing, the fact that it's a
worldwide phenomenon and the fact that this can really be a new standard for
computing in the business environment. To the extent that we're able to get
recognition for what we feel is a significant amount of contribution ... we move
forward together, and Linux is able to live and we're able to get recognition
for our IP.>
at least he is feeling the power of the community
the only way he feels power is in the pocket book so that means the money isnt
coming like he thought
and ll those licenses arent lining up like he thought
br3n
brenda banks

[ Reply to This | # ]

radiocomment
Authored by: Anonymous on Thursday, September 11 2003 @ 05:03 PM EDT
Why is it not possible to use the same provisions of the DMCA used by the recently infamouse cases to shutdown the SCO site with a claim of copyright violation?

What are the facts and circumstances that allow a DMCA action to be taken?


Tom Cranbrook

[ Reply to This | # ]

radiocomment
Authored by: Anonymous on Thursday, September 11 2003 @ 05:04 PM EDT
PJ:

Any results from the Sept. 10 subpoena deadline for Canopy?


Stuart Thayer

[ Reply to This | # ]

radiocomment
Authored by: Anonymous on Thursday, September 11 2003 @ 05:05 PM EDT
Why is it not possible to use the same provisions of the DMCA used by the recently infamouse cases to shutdown the SCO site with a claim of copyright violation?

What are the facts and circumstances that allow a DMCA action to be taken?


Tom Cranbrook

[ Reply to This | # ]

radiocomment
Authored by: Anonymous on Thursday, September 11 2003 @ 05:06 PM EDT
I tried to post this in the previous thread but it appears to be full (again!)

I think the lies about what the BPF code example was supposed to show are one of the best weapons we've got to attack Darl's credibility as they are another case of "you only need to read a few lines of what he said you don't need to understand the technical background"

To effectively put up some evidence that the DoS either didn't occur or didn't occur for as long as SCO claimed would really need some traceroute data and some of the netcraft performance graphs that showed the downtime. I've got a couple of the latter saved but I'd need a few more to do an effective job. I've asked netcraft if they are willing to allow them to be reused (they are their copyright) but if anyone has got a reasonable collection please just let me know what you have got here for now.

With regard to what do MS and Sun get for their license money, Sun get some share options which are now worth as much as they paid for the license plus they get to stop a few people defecting from Solaris to Linux and they probably actually wanted the device drivers the license was supposed to be for (as long as they aren't GPLed). I haven't seen any evidence yet as to whether MS got any stock options, a succesful FUD campain could have been worth a lot of Money to MS but I don't think this one has been succesful enough to warrant further funding. I can't see anything MS could have realistically wanted the license for.


Adam Baker

[ Reply to This | # ]

radiocomment
Authored by: Anonymous on Thursday, September 11 2003 @ 05:14 PM EDT
"Clearly, the free model just about killed our company," and yet RedHat, Suse and others are able to profit from it and free software has been around for a lot longer than free internet or free telecom. Just because SCO can't make it work doesn't mean it can't be made to work.

I think pj is right though - Darl really doesn't seem to understand that a binary only license would kill Linux stone dead. It is the free as in freedom that makes the difference.


Adam Baker

[ Reply to This | # ]

radiocomment
Authored by: Anonymous on Thursday, September 11 2003 @ 05:22 PM EDT
I wanted to share an e-mail that I sent a while back to a number of organizations and individuals involved in this dispute. I have actually written directly to a couple journalists now who have posted stories like this one with direct quotes from SCO executives and no skepticism whatsoever. The message follows:

I've seen quite a few articles about SCO recently that were full of utterly false statements such as the claims that there are over 800,000 lines of infringing SMP code in Linux, which is literally impossible since that would be one quarter of the 2.4 kernel.

I'm starting to see the need for an education campaign to teach these journalists, who post their articles that simply quote SCO executives, that they need a healthy dose of skepticism. We cannot have seemingly reputable news sites spouting SCO nonsense as if it's the truth. Many people read these articles and assume the quotes are truthful.

The people who report on the SCO saga need to be shown a mountain of proof that SCO executives are greedy, egotistical, hypocritical liars who cover up their previous lies with more lies and make up preposterous legal arguments that go against years of legal precedents just to make themselves seem credible.

Much of the media would seem to be a SCO ally, spreading FUD, but they need to be persuaded with facts and logic to be an ally of IBM, the open source community and everyone who values honesty.


ProgrammerMan

[ Reply to This | # ]

radiocomment
Authored by: Anonymous on Thursday, September 11 2003 @ 05:22 PM EDT
Tom - the possibility of a DMCA takedown request has been discussed - anyone who holds copyright on a contribution to the 2.4.13 kernel could do it. SCO could respond by saying that that code is correctly covered by the GPL but then they've said 2.4.13 is clear of infringment. They could still claim infringment in some of the latter kernel but they've cut out a large chunk of their territory. All we need now is a volunteer who holds some copyright - it probably needs to be registered in the US first.

Stuart - It is unlikely we will see anything from the Subpoena if IBM received what they asked for. We may see something on Pacer in a day or two if Canopy have asked for its scope to be reduced or for more time but Pacer doesn't get things instantly.


Adam Baker

[ Reply to This | # ]

radiocomment
Authored by: Anonymous on Thursday, September 11 2003 @ 05:33 PM EDT
Adam Baker: They have stated that they will hold their customers harmless and that all 2.4 versions of the Linux kernel violate their rather nebulous property rights.

The requirement to register copyrights only applies to works of US origin. The first kernel copyright infringement notification they were sent was from a non-US kernel contributor.


Harlan

[ Reply to This | # ]

radiocomment
Authored by: Anonymous on Thursday, September 11 2003 @ 05:34 PM EDT
Yes but wouldn't it be so nice if Canopy blew the deadline off. That changes things and judges don't like to be blown off. That could mean a court executed subpeona and having it handled by the government which means cops and state attornies.(SP) Ah but one can dream (EG)

--Shaun


Shaun

[ Reply to This | # ]

radiocomment
Authored by: Anonymous on Thursday, September 11 2003 @ 05:34 PM EDT
With regard to what code has been shown, Darl said the SCO forum stuff wasn't the best they have but it was the easiest to explain. (I can't remember where, anyone else see it?)

To me that means it was the only example of direct copying from SVR4. The other things are areas like SMP and JFS where there are much larger areas of disputed code and the code is more valuable but it is much harder for him to make the case that it is theirs.


Adam Baker

[ Reply to This | # ]

radiocomment
Authored by: Anonymous on Thursday, September 11 2003 @ 05:37 PM EDT
Alex Roston wrote: "Bad journalist. No biscuit. "

Well, I don't think I would go that far, and here is why. Darl didn't quote the Perens webpage, but the Computerwire article in his letter. And this journalist may not have read that article- maybe he didn't have time. There are only so many hours in a day.

A more effective strategy might be to send this journalist a courteous letter, with these links included, and tell him you think Darl isn't being entirely truthful.

Darl certainly has one thing right in his approach- he leaves the anger at home. Anger makes one appear juvenile in situations like this. It doesn't play well- the dopes on Jerry Springer are the ones that show their anger in public. There are ways to <nicely> slit throats and destroy reputations, you know <G>.


wild bill

[ Reply to This | # ]

radiocomment
Authored by: Anonymous on Thursday, September 11 2003 @ 05:48 PM EDT
McBride is still pretending that there is some way that the Linux kernel can be distributed with a required payment to SCO. I am going to assume that by this point his lawyers have read the GPL. I can think of three possibilities:

1) He thinks they can get the GPL invalidated and the kernel code put in the public domain.

2) He thinks he can get everyone who has authored code in the kernel to relicense their contribution under a non-GPL license which permits SCO to charge a fee. (This may involve getting the GPL invalidated but with the code still under copyright.)

3) He'll say any random thing about the future because he doesn't expect SCO to exist for very long anyway.

What other possibility is there?


Chris

[ Reply to This | # ]

radiocomment
Authored by: Anonymous on Thursday, September 11 2003 @ 05:49 PM EDT
McBride is still pretending that there is some way that the Linux kernel can be distributed with a required payment to SCO. I am going to assume that by this point his lawyers have read the GPL. I can think of three possibilities:

1) He thinks they can get the GPL invalidated and the kernel code put in the public domain.

2) He thinks he can get everyone who has authored code in the kernel to relicense their contribution under a non-GPL license which permits SCO to charge a fee. (This may involve getting the GPL invalidated but with the code still under copyright.)

3) He'll say any random thing about the future because he doesn't expect SCO to exist for very long anyway.

What other possibility is there?


Chris

[ Reply to This | # ]

radiocomment
Authored by: Anonymous on Thursday, September 11 2003 @ 05:54 PM EDT
Can someone outside the US issue a DMCA takedown request though? I guess it is possible but as it needs to go through a US court it would probably be a lot easier for a US resident.

I know they have claimed that all 2.4 versions infringe but if they were prented with a situation of having to delete files that they are required to make available to their customers or change their statement to 2.4.14 onwards infringe they might change their mind. I believe they have been known to do that when pressed. :-)


Adam Baker

[ Reply to This | # ]

radiocomment
Authored by: Anonymous on Thursday, September 11 2003 @ 05:55 PM EDT
"3) He'll say any random thing about the future because he doesn't expect SCO to exist for very long anyway."

And the answer is: Door Number 3.!!!


wild bill

[ Reply to This | # ]

radiocomment
Authored by: Anonymous on Thursday, September 11 2003 @ 06:01 PM EDT
After reading the interview with McBride, it struck me that I might finally understand what he's thinking.

Here he is, CEO of this software company that's failing. All of a sudden, they find that their IP (whatever that is) is somehow a part of
this incredibly successful software package that's sweeping the world. (No, I don't think SCO's claims of unauthorized Unix code in
Linux are true or even credible, but assume for the sake of argument that they are.) Of course, a business mentality such as that of
a corporate CEO might see profit-and-loss in everything, so naturally McBride might just see the situation as nothing more than a case
of "hey, we're part of this sweepingly-successful software, we just want our share of the profits." Note that this fits in with the opinion
expressed here on Groklaw by some, namely that McBride actually believes the claims he's making. He just wants what
he sees as his company's fair share. It doesn't occur to him that the Linux kernel (and the rest of the GNU GPL'd software he's still
distributing) wasn't written for financial gain; he can't grok the concept of the Hacker Ethic (I use the term "hacker" here in its
correct sense). He is unable to conceive of the freedom of software. Maybe that's why it seems he just doesn't "get it".

On second thought.... naaaaah, forget it. It doesn't even sound kosher to me, and I wrote it.


Steve Martin

[ Reply to This | # ]

radiocomment
Authored by: Anonymous on Thursday, September 11 2003 @ 06:11 PM EDT
Chris, option (1) does SCO no good. If the kernel code is placed in the public domain, then SCO still can't collect payments. Code in the public domain is free to all.

Option (2) is fine if SCO wanted to fork their own version using the relicensed code. However, it doesn't prevent the continued
GPL development and distribution of the original kernel code, as it has already been distributed under the GPL and it's too late to
rescind that. Existing recipients have already received the kernel code under the GPL, and the GPL includes no provisions for
rescinding the rights granted under the license.

Given these choices, I'd say the only even remotely likely option is (3).


Steve Martin

[ Reply to This | # ]

radiocomment
Authored by: Anonymous on Thursday, September 11 2003 @ 06:30 PM EDT
Just a little update: I contacted the RedHat OpenSourceNow initiative 24h ago
about any kind of assistance they could offer me to ask federal prosecutors to
have a look at SCO for copyright violation (they continue to distribute code I
wrote but reject the only license I granted). I did not receive any response
yet. I am trying to write up a letter to the nearest US attorney myself, but
that is more difficult than it sounds. I still hope to get some professional
assistance in the near future. I will post the letter once I am done with it. style="height: 2px; width: 20%; margin-left: 0px; margin-right: auto;">AG

[ Reply to This | # ]

radiocomment
Authored by: Anonymous on Thursday, September 11 2003 @ 06:31 PM EDT
stewart: I beleive it was postponed until the 29th.
fava

[ Reply to This | # ]

radiocomment
Authored by: Anonymous on Thursday, September 11 2003 @ 06:35 PM EDT
I'd like to echo Stuarts question above about Canopy's Sobpoena on the 10'th.
There was some discussion on the Yahoo scox board as to whether this had been
pushed back. Anyone?
Ron Baughman

[ Reply to This | # ]

radiocomment
Authored by: Anonymous on Thursday, September 11 2003 @ 06:36 PM EDT
BC and Wild Bill wrote:

"The FUD is free, why send money to SCO for it?"

Easily answered- this cash is chump change to Sun and M$. They don't even have to get their hands dirty, and Linux is getting battered and beaten. Wouldn't you do it if your software sales were lagging, and you wanted to stop the Linux juggernaut? the FUD isn't free, for one simple reason. It takes money to stay in business, and SCO didn't have any money. This infusion of cash means more FUD production. Gates-Ballmer and others chuckle- that dope McBride is causing far more damage to Linux than they could have without risking the feds stomping on them."

As a small business owner, I can supply one more item: from a tax accounting veiwpoint, a "license" for software is most certainly accountable as an expense (or capital item on some depreciation schedule) while supporting some other company's legal expenses may not be so. Thus, on the books, these are software licenses, regardless of their real puropse. Which begs the question: if this is so, then should this be an IRS matter?


Marty

[ Reply to This | # ]

radiocomment
Authored by: Anonymous on Thursday, September 11 2003 @ 06:37 PM EDT
oops. Asked and answered. My apologies.
Ron Baughman

[ Reply to This | # ]

radiocomment
Authored by: Anonymous on Thursday, September 11 2003 @ 06:50 PM EDT
What other possibility is there? Chris • 9/11/03; 5:48:38 PM

I think SCO will try to claim the Linux kernel to sell to Microsoft.(even if they don't own it)

Next they Enron the SCO stock, Split the country, try to license ice cubes in Antarctica.

Or they have no future plans at all,

Crack prices rose again in Utah, FUD time again.


nm

[ Reply to This | # ]

radiocomment
Authored by: Anonymous on Thursday, September 11 2003 @ 06:59 PM EDT
I had an interesting thought... actually kinda funny if you think about it.

Maybe all this came about because somebody happened to overhear one of their coders say something like "Hey Steve, check this out... it looks like one of our functions huh? Great minds do think alike I guess". Word might have gone up the chain that "Similar code is in Linux!" to "They stole our code!"... like that telephone game where things would get all distorted.


K Gardner

[ Reply to This | # ]

radiocomment
Authored by: Anonymous on Thursday, September 11 2003 @ 07:00 PM EDT
I really don't want to mix politics here, so I won't name parties or individuals.

But if a politician would back open source against SCO they would get a lot of votes.

Are there enough people, busnesses, developers, users, admins and stock holders mad at SCO to supply votes. (did I miss anyone?)

ie: "Vote for me, I'll have SCO investigated"(or worse)

Would this even be legal? (please tell me it is legal)


nm

[ Reply to This | # ]

radiocomment
Authored by: Anonymous on Thursday, September 11 2003 @ 07:01 PM EDT
Responding to a comment in previous thread

> Dynix license hardly counts

I think the press missed an obvious point. Count back from the announcement of when it was "revoked", and you end up with SCO sending notification of plan to revoke Dynix, at about, or just before, the same weekend as the AIX license was being "revoked". SCO sent notice then. It's not a truly separate event, but continuation of the same event.

I think SCO were really looking to put pressure on IBM that weekend, and were not getting any "traction". Dynix was one of the things they came up with, obviously to no visible effect. The later (June?) Darl quotes about auditing AIX customers, in my opinion, probably fall into the same category.

I think that probably, that was when SCO realized they were probably not going to get a quick settlement or buy out from IBM, and the Linux licenses followed thereafter.

About SGI: Darl and Stowell both keep hinting about talks with SGI. However in an article link recently posted, SGI basically say there is nothing to discuss. SGI said that between (time-wise) the Darl and Stowell quotes, I think.


quatermass - SCO delenda est

[ Reply to This | # ]

radiocomment
Authored by: Anonymous on Thursday, September 11 2003 @ 07:08 PM EDT
Adam Baker: "To me that means it was the only example of direct copying from SVR4"

The code analysis I've seen to date leaves me pretty underwhelmed. I think they are getting the cart before the horse. It all reminds me of that old gag that goes: "If we had some ham, then we could have some ham and eggs, if we had some eggs.

AT&T didn't offer a software product until after 1984. They offered Unix as is with no porting, no bug fixes, and no support. They didn't bother to register a copyright on 32V until 14 years after distributing it - without the required copyright notices. Contrary to reports elsewhere, Title 17 hasn't been changed with regard to the possibility of 32V being placed in the public domain by AT&T/Western Electric choosing that rather odd form of distribution.

SGI has their own MIPS port of Unix that's older than some of Caldera's employees. It went on sale in 1982. They were selling a 64 bit Unix in 1991, That's a decade before Monterey folded up shop. I'll hazard a guess that they had some US copyrights on that non-PDP OS code from the BSD days. I'll also assume that like BSD 4.3 and 4.2 their code became "unencumbered" thanks to the generous Caldera four point BSD-style re-licensing of 32V (from which all things BSD were originally supposed to be derived).

SGI's IRIX, Sequent's Dynix, and SunOS were all originally based on BSD, not System VR4.2. Until the advent of Net2 you needed an AT&T license anyway (that's just the sort of deal Darl would like to strike with Linus now). Under the Caldera license that all became moot, just like some of the USL/BSDI settlement terms with regard to BSD 4.3 and 4.2.

Why not accept the "Copyright 1992-1997 2000-2002 SGI as prima facie evidence of ownership? These folks had been porting BSD to MIPS and etc. long enough to own derivative code of that vintage and to have contributed to any of it's common ancestors. Dr. Warren Toomey of The Unix Historical Society has lately revealed that he had to give SCOG the older UNIX source code. That means SCOG may have only gotten SCO's Unix SystemV/386 from 1989 and the Unixware version 1 SVR4.2 (the real 4.2 deal from November 1992) during the purchase. We know the Regents were complaining that misappropriated BSD code was in that Unixware in the 1993 USL trial.

I'm inclined to let the documents and people speak for themselves when ever that's possible. SGI has said the code they gave to Linux didn't violate their AT&T license. Darl hasn't charged anyone anywhere yet with copyright infringement. Given those circumstances and facts I'm not buying any of the analysis I've seen so far. SGI is innocent until charged and proven guilty in my book.


Harlan

[ Reply to This | # ]

radiocomment
Authored by: Anonymous on Thursday, September 11 2003 @ 07:19 PM EDT
> Well, I don't think I would go that far, and here is why. Darl didn't quote the Perens webpage, but the Computerwire article in his letter.

Well he selectively quotes the Computerwire article too. From Computerwire it's fairly clear where Perens stands. And I think he might have got the date wrong too (Aug 25 instead of Aug 26).

> Hey Steve, check this out... it looks like one of our functions huh? Great minds do think alike I guess

One of their slides at the SCO show is some comment by an IBMer about AIX stuff. Check it out at Perens site.

> namely that McBride actually believes the claims he's making

Nobody except McBride knows what's in his head. The thing I am wondering though is if he believes where did he get $1bn of damages from, and why did it suddenly triple to $3bn (and maybe even grow from there).

It's a fantastic multiple of how SCO valued the UNIX IP, or even their entire company.

Let's say for a moment, that McBride believes IBM did something bad that damaged SCO.

What I'm really struggling to figure out how he thinks they damaged them by - 12.7 times the entire worth of his company (at today's stock price and $3bn damages) - by approx 22.7 times entire worth of his company (June 16 @ $10.21 X ~13m shares, $3bn damages) - by approx 33 times entire worth of his company (March 6 @ $2.33 X ~13m shares, $1bn damages)

P.S.

Not related to above, but interestingly stock ran up quite a bit in few days prior to March 6

http://bigcharts.marketwatch.com/historical/ default.asp?detect=1&symbol=SCOX&close_date=3%2F6%2F03&x=19&y=30


quatermass - SCO delenda est

[ Reply to This | # ]

radiocomment
Authored by: Anonymous on Thursday, September 11 2003 @ 07:26 PM EDT
Continuing my last point. I don't know the max employees SCO ever had, but I suspect less-than 1,000

Okay, they have less now, but let's go with 1000 as being the best/biggest ever SCO. And let's assume McBride, if really believes, thinks IBM did whatever it is, exactly when SCO was at the top of their powers.

$1bn damages, would mean IBM did $1,000,000 damages for each employee at SCO, and that's each employee include executives/programmers/marketing/janitor/coffee-maker.

$3bn damages, would mean IBM did $3,000,000 damages for each employee at SCO, and that's each employee include executives/programmers/marketing/janitor/coffee-maker.

And presumably sometime between March and June, SCO suddenly realized that they had missed $2,000,000 worth of IBM damages for every single last employee.


quatermass - SCO delenda est

[ Reply to This | # ]

radiocomment
Authored by: Anonymous on Thursday, September 11 2003 @ 07:27 PM EDT
And between whenever it was (2000 or 2001?) that IBM was supposed to have misbehaved, and March 2003, SCO hadn't even done anything about the $1,000,000 of damages per employee
quatermass - SCO delenda est

[ Reply to This | # ]

radiocomment
Authored by: Anonymous on Thursday, September 11 2003 @ 07:28 PM EDT
And between whenever it was (2000 or 2001?) that IBM was supposed to have misbehaved, and March 2003, SCO hadn't even done anything about the $1,000,000 of damages per employee
quatermass - SCO delenda est

[ Reply to This | # ]

radiocomment
Authored by: Anonymous on Thursday, September 11 2003 @ 07:30 PM EDT
http://www.eweek.com/ article2/0,4149,1264867,00.asp
quatermass - SCO delenda est

[ Reply to This | # ]

radiocomment
Authored by: Anonymous on Thursday, September 11 2003 @ 07:30 PM EDT
Is there anywhere where links to Sco's execs flapping their jaws are collected?
I must confess, I haven't looked at the links page yet, which is probably where
it all is, but I think it'd be cool to save all the press releases, ETC. to a CD
and look over it for laughs.
Garrett

[ Reply to This | # ]

radiocomment
Authored by: Anonymous on Thursday, September 11 2003 @ 07:31 PM EDT
This afternoon I decided to take a closer look at the Canopy Group and their Linux holdings. I never made it to Trolltech, but spent some time looking at Linux Networx. Linux Networx is very interesting, because they deliver large Linux clusters to the likes of Audi (automobiles), GX Technology (oil), and Boeing (aerospace). They even mix it with the likes of Or acle, offering SANnet storage systems. Big business, big money. Using an Open OS such as Linux creates a remarkable value proposition, so companies like Sun find it hard to compete. Darl, are you taking notes yet?

Linux Networx has also partnered with SGI Federal and Lawrence Livermore National Laboratory to Collaborate on Open Source Projects Using Linux Clusters.

In December, Linux Networx partnered with HP: "The computer and printer maker said it would offer Linux NetworX ClusterWorX software for preferred use with its HP ProLiant server line as a cluster supercomputing management tool. Linux NetworX, in turn, will offer HP Itanium 2-based systems running Linux. The idea is to give customers who want 64-bit capability on Intel (Quote, Company Info) chips without having to spend a fortune."

The latest deal they coined was just last month with Los Alamos:

[the Linux cluster named] Lightning includes 2,816 Opteron processors from Advanced Micro Devices (AMD), making it the largest Opteron system delivered in 2003 and the first 64-bit Linux supercomputer in the ASCI program. Linux Networx won the initial contract for 1,280 dual-processor nodes, and Los Alamos has agreed to exercise an option to boost the number of nodes to 1,408. The total cost of the initial contract, the option and another option for system maintenance is just under $10 million.

That's $3551.14 per cpu, with maintenance. Pretty damn good for one of the largest/fastest Linux Cluster Super Computers in the world.

Now I couldn't find any financial data on Linux Networx but they certainly deliver their share of Linux CPUs!! Lets do some math:

2816 CPUS x $699 (SCO Dollars) = $1,968,384

That is nearly a 20% markup on the $10M Linux Networx has already contracted with the US Government for on this project. The contract was awarded in August 2003, and it will be delivered in less than 2 months. Do you think the Government Contracting Officer would shit if he was handed an SCO invoice that puts his/her project 20% over budget in the first month following contract award?

Somebody call Darl, here's an opportunity the stockholders don't want to miss. Maybe it will finally wake up the Feds.


Bill M

[ Reply to This | # ]

radiocomment
Authored by: Anonymous on Thursday, September 11 2003 @ 07:38 PM EDT
To clarify the point about per-employee amounts. If IBM some how actually did $1m (or $3m) damages to each employee's work at SCO on average, how come SCO didn't act immediately? You'd think they'd be pounding on McBride's or Love's door day and night, about all the nasty stuff IBM is up to. $1m of damages to your work, is just not something you completely fail to notice like dropping change down the back of the sofa.

Okay, I anticipate you might say, that IBM couldn't have done $1m/$3m each to (say) the janitorial staff section's employees - but that would mean - for SCO damages to be real - they would have to do even more damages to some other group, to make up the $1bn/$3bn total.


quatermass - SCO delenda est

[ Reply to This | # ]

radiocomment
Authored by: Anonymous on Thursday, September 11 2003 @ 07:41 PM EDT
Bill M: Los Alamos has been managed by the University of California for over six decades. Those are the same folks that tangled with USL over the rights to their beloved BSD. I don't think SCO wants to start another argument with them over who copied what...;-)

http://labs.ucop.edu/


Harlan

[ Reply to This | # ]

radiocomment
Authored by: Anonymous on Thursday, September 11 2003 @ 08:15 PM EDT
garrett they are scattered thru the comments and
lots in the links section also
br3n
brenda banks

[ Reply to This | # ]

radiocomment
Authored by: Anonymous on Thursday, September 11 2003 @ 08:17 PM EDT
Ahh he forgot a couple of other "free" analogies. Um free speech, free will, free press, freedom in general. I don't think these are values he holds in high regard. He probably thinks these should be licensed too.

Mojo


Mojo Nichols

[ Reply to This | # ]

radiocomment
Authored by: Anonymous on Thursday, September 11 2003 @ 08:32 PM EDT
@Bill M: Investor Info on Trolltech: http://www.trolltech.com /newsroom/investors.html

Trolltech is a critical point, as KDE is based on their libraries, however Canopy holds only 4.1%, followed by SCO with 1.6%, so I see no immediate danger here...


Jadeclaw

[ Reply to This | # ]

radiocomment
Authored by: Anonymous on Thursday, September 11 2003 @ 08:45 PM EDT
And of course as usual Darl is playing fast and loose with the term "Intellectual Property"

He claims IBM (in the form of Sequent) broke its contract with SCO and he wants every Linux user to pay SCO the supposed damages caused by IBM, before he even establishes in court that IBM has caused any damages at all.

Once journalists stop letting him get away with confusing copyrights, which Linux users could infringe, with IBM contracts, which Linux users cannot infringe, the ability of SCO to deceive its way into the headlines will be crippled.


r.a.

[ Reply to This | # ]

radiocomment
Authored by: Anonymous on Thursday, September 11 2003 @ 09:24 PM EDT
If McBride says 'going forward' one more time -- or any of the other biz vapourspeak he spouts continuously... I'm going postal for sure. Only politicians rival his ability to yap incessantly and say absolutely nothing the whole time.

I doubt that I'm the only one who's developing the 1000-yard SCO stare.

If only a mob of penguinistas would converge on Darl and drown him out with a verbal DDOS 24/7... that would give us some relief. Maybe organise team shifts to sustain it for two years until court.


Belzecue

[ Reply to This | # ]

radiocomment
Authored by: Anonymous on Thursday, September 11 2003 @ 09:45 PM EDT
It seems like one of SCO's big lies - tand the press seems to buy this one every time - is that they were taken by surprise to discover that Linux has evolved into a world class operating system. I've found some very interesting material that speaks to this idea. It seems that in the course of doing work with both IBM and TurboLinux, "Old SCO" was in at least two situation where they would have been required to view Linux code.

I don't know how well "due diligence" arguments will hold up in court, but if there is something wrong with the Linux "IP," SCO certainly didn't notice. Take for example this URL:

http://lwn.net/Comments/36053/

According to LWN, SCO, in October of 1999, (nearly a year prior to being bought by Caldera,) "...entered into strategic agreement with TurboLinux to develop services for TurboLinux's TurboCluster Server and provide Linux Professional Services for TurboLinux customers. Old SCO also made a sizable investment in TurboLinux, Caldera and LinuxMall."

Even more interesting, when we go to the web page below, we find out that SCO knows about IBM and AIX and Linux compatibility because they worked on it together along with Cygnus Solutions, (Cynus is a RedHat subsidiary which specializes in implementing the gcc compiler on new chipsets) EPC, Geodesic, Merant, Parasoft and Roguewave.

http://web.archive.org/web/20011006104536/http://www.sco.com/monterey/aix 5l.htm

How could they have worked with IBM, Redhat, etc., on AIX and Linux compatabilty without noticing that IBM was copying proprietary code into AIX and Linux?

Does SCO's case fall apart here? It sure looks like old SCO deliberately donated code to a Linux effort, expecting it to be part of the Linux kernel or some associated program.

If there was infringement, they sure as hell didn't notice it then.

Even more interesting is this little nugget:

http://www.vnunet.com/News/88805

Doug Michels, the president of old SCO, talking about IBM and the Trillian project.

"IBM has joined so many things over the years, it’s not funny. I don’t think it’s put a significant amount of money into Trillian and it’s a small amount of money to be part of a trend. It’s important to look at internal sponsorship in IBM. Monterey is supported by Bob Stevenson, who’s head of IBM’s server group and Lou Gerstner [IBM’s chief executive] has also bought it off as a strategic initiative."

"IBM is not looking at Trillian as an alternative to Monterey. The real interest in Linux is coming from all the software companies that sell databases and transaction based tools because they are frustrated that Microsoft more or less gives these things away as part of the Back Office bundle. So they say ‘if you give us a free OS, we’ll make money from it.'"

"Linux may be there sooner than 10 years, but I don’t see any efforts there yet. Trillian is not that type of project and I don’t see them adding enterprise class services or performance management capabilities. No one is doing it. SGI has made some noises and people are talking about it, but it’s not coming this week, next year or before Merced ships."

SCO's "partner" IBM was working on a major, 64 bit, Itanium initiative with a UNIX-like operating system and SCO's management didn't care. Talk about a lack of due diligence! Also note the language Michels uses, it sounds very similar to the language in SCO's legal complaints.


Alex Roston

[ Reply to This | # ]

radiocomment
Authored by: Anonymous on Thursday, September 11 2003 @ 10:16 PM EDT
AG,

e-mail my wife, while she isn't likely to become your attorney (it's a time thing - and she absolutly refuses to do litigation any more, long story...) she may be willing to help you write the letter & figure out who it needs to get sent to. Just put in that her husband thought she might be willing to answer some questions and you would apreciate any help imensly as you don't live here in the U.S. and are somewhat confussed about it all... - she believes in doing good in the world...

ladyofthelake@cox.net

Thomas


Thomas LePage

[ Reply to This | # ]

radiocomment
Authored by: Anonymous on Thursday, September 11 2003 @ 10:29 PM EDT
The smoking gun?

This is from an interview with Doug Michels in ComputerWorld in April of 1999

Q: But you see Linux providing modules for SCO?

A: As far as I'm concerned, it's free R&D. A lot of developers who have always preferred Unix are developing on Linux. The last thing in the world I want is some cool app and have my customer go, "Oh, God, if I only had Linux, I could get that app."

http:/ /www.computerworld.com/news/1999/story/0,11280,35431,00.html


Alex Roston

[ Reply to This | # ]

radiocomment
Authored by: Anonymous on Thursday, September 11 2003 @ 10:38 PM EDT
AG-

Forgot, her name is April ;), a "to Who it may concern" likely would get the trash! Thomas


Thomas LePage

[ Reply to This | # ]

radiocomment
Authored by: Anonymous on Thursday, September 11 2003 @ 10:58 PM EDT
Dear Darl,

There will be no negotiations.

As Linus Torvalds kindly pointed out, there is nothing to negotiate between your company and the Open Source Community. The only negotiations you should be concentrating on would be with your personal attorney in the form of a plea bargain when criminal charges are finally brought against you.

This is not about protecting IP, certainly not yours at any rate. This is about you and your company using misleading statements, lies, misdirection, sleight-of-hand and other criminal means to hijack an operating system that does not belong to you and to profit from doing so in order to keep your failing company in the black.

We see through you now, Mr. McBride. Caldera was a failing Linux distributor and after becoming SCO, you were brought on board to make it profitable. Instead of doing so through ethical, competive and fair business practices you apparently decided to try and re-brand Linux like a steer with the IP legal poker and pass it off as yours or partly yours in order profit from it. Failing that, you threaten to sue anyone who partakes of the Linux steer with legal action unless they pay you.

Your plan is an idiot's fantasy, Darl. A fool's scheme in which you and your conspirators will likely face criminal prosecution for your willful and malicious actions. Hell of a way to end a career as either a fugitive from justice or a convicted felon but its your call to make. You brought this all on yourself and its time to face the consequences.


Z

[ Reply to This | # ]

radiocomment
Authored by: Anonymous on Thursday, September 11 2003 @ 11:19 PM EDT
AG & everyone- some thoughts from the wife -

She just got up for a glass of water - so I prepared her for an e-mail :), she made a comment about "I guess I better start looking stuff up...", so I'd take that as a she'd be willing to help you get started.

She also made some comments about doing a "class action" that I thought were rather interesting, so here it is for the group, and any one with information please share :) - oh, and I'm paraphrasing here. While she is pretty sure the copyright holders could likely do a class action (at a minimum it would lower the costs on a per person bases...), it is very likely that there may not be a clear leagal direction for something like this. To have so many copyrights in one work is rather unusual, to say the least, and it is likely that such an action has not previously been done. As I said, she is prety sure it could get class action status, but I found it intresting that she felt it was actually something she would have to do some research on. As previously stated, I.P. is not her area, and although it has been several years sense she did much in that area at all, the fact that she showed a puzzled look over how it could be put into a class action gives me the impression that it may well be new territory. That might not be a bad thing, as I believe it was P.J. who pointed out attorneys take cases for many reasons - the chance to make law is a big ego thing, and that fact alone might be enough for an attorney to take it even if they realise they might have a bankrupt company to try to collect from - it would "put their name on the map", and lead to potentially major clients down the road...

Thomas


Thomas LePage

[ Reply to This | # ]

radiocomment
Authored by: Anonymous on Thursday, September 11 2003 @ 11:20 PM EDT
Hi guys, I'm posting this again to make sure we all see it. I'm still hoping to finish the Darl letter by Monday. I hope you are making a collection by topics. Meanwhile, I have been looking into how to get our finished dear Darl letter noticed by the press.

I asked a reporter acquaintance about getting the finished product out. Here is his suggestion:

"About distributing to news outlets -- unless you're already hooked up at a newswire (or someone on Groklaw has an account they'll offer), setting that up might take too long. Besides, PR Newswire content is considered spin by definition and devalued for it. I'd think you can do as well or better by simply making a list (or two lists -- one for the full article and one for the summary) of the media outlets you want to release it to, then sending your response(s) to those with an embargo date/time request (which most should honor, if they like your copy and ever want any more) and do it that way. You've got an important technology news story here.

"Enlist your troops. Cover the globe. Start at the top, and keep going. List all the leading newspapers and wire services, get your readers that want to help get the word out to commit to posting the documents to some general news, financial, and IT trade outlets. Make a list and check it twice. Use email to collect volunteers, assign resources to targets and gather sent confirmations. If you do it right, it will bomb the planet."

So, wherever you are, pls. make a list of reporters where you are that you think would be interested. Find out how to contact them and how they like to be contacted, whether by email or snail mail or Fax. List the names here in the comments section. When we are ready, we each send to the ones in our particular area. If we make a list here in the comments section, where each volunteer says "I'll send to so-and-so", we won't duplicate. This doesn't need to be only US.

If you prefer to email me instead, just click on the envelope on the left. Someone needs to coordinate it. And it's most effective if it all gets sent at the same time. I'll give further details when we are ready. For now, we need to make up a list of reporters. Alex, you seem to be good at coordinating, so do you think you could handle that, either here or on the twiki? Brenda, you are fantastic at finding stories, so would you be able to help with researching for the reporter list? quatermass, you've already contributed so mightily I don't dare ask for more, but if you feel lie doing more, your keen eye for detail would make you the obvious one to organize and figure out in the end what fact goes where to disprove what words of Darl's. I will be responsible for the one-page or so summary. We will post both the summary and the supporting proof document permanently here. I may have a better place even than that, but I can't say for sure yet. So, we have two documents to produce: one chock full of urls and proof, and the summary cover letter. We will distribute them, with Darl's Open Letter attached for reference, to all the reporters on the list. I will figure out where it can best be highlighted. Some of you have written and sent me actual letters you plan on mailing yourself. If any of you want to have those attached in the package as well, we can do that too. That provides reporters with contacts to call and ask followup questions. So let me know who wants to do that, if anyone does. Obviously there are legal issues to consider in all of this, so do check with your attorneys as appropriate. Sound OK to everyone?


pj

[ Reply to This | # ]

radiocomment
Authored by: Anonymous on Thursday, September 11 2003 @ 11:28 PM EDT
Belzecue, you made me laugh. thanks.

Thomas, ask your wife about something like maybe a class action lawsuit not for copyright (unless we have kernel coders on Groklaw, which we do, who want to go forward) but under consumer fraud statutes. I was reading today the McDonald's decision, which she can get from Findlaw as a pdf in the Featured Documents section. It failed, but only because of some mistakes made. But reading the explanation of how Gen. Bus. Law 349 and 350 works in NY, I wondered if it might be possible for any who actually bought and paid for Linux, particularly from Caldera, to bring an action that they only bought it because of the GPL and never would have bought it otherwise and now they are being forced to pay $699 for a license which takes away from them certain rights they thought they paid for.

I culled some snips, because I am thinking of doing an article, so here they are, in case the order isn't still up on Findlaw:

The three remaining causes of action are based on deceptive acts and practices in violation of the Consumer Protection Act, New York General Business Law Sections 349 and 250. Count I alleges that McDonald's misled the plaintiffs, through advertising campaigns and other publicity, that its food products were nutritious, of a beneficial nutritional nature or effect, and/or were easily art of a healthy lifestyle if consumed on a daily basis. Count II alleges that McDonald's failed adequately to disclose the fact that certain of its foods were substantially less healthier, as a result of processing and ingredient additives, than represented by McDonald's in its advertising campaigns and other publicity. Count III alleges that McDonald's enagaged in unfair and deceptive acts and practices by representing to the New York Attorney General and to New York consumers that it provides nutritional brochures and information at all of its stores when in fact such information was and is not adequately available to the plaintiffs at a significant number of McDonald's outlets.

The plaintiffs allege that as a result of the deceptive acts and practices enumerated in all three counts, they have suffered damages including, but not limited to, an increased likelihood of the development of obesity, diabetes, coronary heart disease, high blood pressure, elevated cholesterol intake, related cancers, and/or detrimental and adverse health effects and/or diseases.

. . . .

Section 349 of New York General Business Law makes unlawful "[d]eceptive acts or practices in the conduct of any business, trade or commerce or in the furnishing of any service in this state." N.Y. Gen. Bus. Law Section 349(a). <ftnt 1> Section 350 prohibits "[f]alse advertising in the conduct of any business." N.Y. Gen. Bus. Law Section 350. To state a claim for deceptive practices under either section, a plaintiff must show: (1) that the act, practice or advertisement was consumer-oriented; (2) that the act, practice or advertisement was misleading in a material respect, and (3) that the plaintiff was injured as a result of the deceptive practice, act or advertisement. E.g., Stutman v. Chem. Bank, 95 N.Y.2d 24, 29, 709 N.Y.S.2d 892, 731 N.E.2d 608 (2000); St. Patrick's Home for Aged and Infirm v. Laticrete Inern., Inc., 264 A.D.2d 652, 655, 696 N.Y.S.2d 117, 122 (1st Dep't 1999); BNI NY Ltd. v. DeSanto, 177 Misc. 2d 9, 14, 675 N.Y.S.2d 752, 755 (N.Y. City Ct. 1998). See also Baerrios v. Sprint Corp., 1998 WL 199842, at *3 (E.D.N.Y. March 16, 1998). The standard for whether an act or practice is misleading is objective, requiring a showing that a reasonable consumer would have been misled by the defendant's conduct.. Marcus v. AT&T, 138 F. 3d 46, 64 (2d Cir. 1998); Oswego Laborers v. Marine Midland Bank, 85 N.Y.2d 20, 26, 623 N.Y.S. 2d 529, 533 (1995). Omissions, as well as acts, may form the basis of a deceptive practices claim. Stutman, 95 N.Y.2d at 29 (citing Oswego Laborers, 85 N.Y.2d at 26 (delineating different inquiry in case of claim of deceit by omission)). Further, traditional showings of reliance and scienter are not required under Section 349. Blue Cross and Blue Shield of New Jersey, Inc. v. Phhilip Morris, Inc., 178 F. Supp.2d 198, 231 (E.D.N.Y. 2001)

. . . .

In New York... a claim under Sections 349 or 350 "must show that the defendant engaged in a material deceptive act or practice that caused actual . . . harm." Oswego laborers, 85 N.Y.2d at 26.

..... The most formidable hurdle for plaintiffs is to demonstrate that they 'suffered injury as a result of the deceptive act.' Smith v. Chase Manhattan Bank USA, N.A., 293 A.D.2d 598, 599, 741 N.Y.S.2d 100, 102 (App. Div. 2d Dep't 2002). . . .

Causation under New York's Consumer Protection Act differs from proximate cause as applied under the common law. See Blue Cross, 178 F. Supp.2d at 241 ('Cases in consumer fraud expand the reach of proximate causation . . . Causation is thus more broadly construed to carry out state policy against fraud on consumers.") It would therefore be inappropriate to apply the standard from plaintiffs' voluntarily dismissed negligence action to the statutory claims. The plaintiff need not "establish that the defendat's conduct was a substantial cause in bringing about the harm." Pelman, 237 F.Supp.2d at 538 (emphasis added). Nevertheless, "[t}he causation element is essential: 'The plaintiff . . . must show that the defendant's material deceptive act caused the injury.'" Petitt v. Celebrity Cruises, Inc., 153 F. Supp. 2d 240, 266 (S.D.N.Y. 2001) (quoting Stutman, 95 N.Y.2d at 29). In Petitt, the district court first dismissed the plaintiff's negligence claim under the more rigorous standard of proximate causation, and then dismissed the statutory claims because "plaintiffs are unable to show that Celebrity's actions resulted in such injuries, directly or indirectly." Id. . . . .

The causation requirement is also distinct from the reliance requirement. As explained by the New York Court of Appeals,

'Reliance and causation are twin concepts, but they are not identical. In the context of fraud, they are often intertwined. . . . But there is a difference between reliance and causation, as illustrated by the facts of this case. Here, plaintiffs allege that because of the defendant's deceptive act, they were forced to pay a $275 fee that they had been led to believe was not required. In other words, plaintiffs allege that defendant's material deception caused them to suffer a $275 loss. This allegation satisfies the causation requirement. Plaintiffs need not additionally allege that they would not otherwise have entered into the transaction. Nothing more is required.'

Stutman, 95 N.Y.2d at 30. the absence of a reliance requirement effectively allows plaintiffs to allege a deceptive practice and then to show some connection between that practice and the injury without having to allege specifically that the individual plaintiff was deceived or that the deception was the only reason that the plaintiff purchased the product or, as in the present case, purchased it as frequently as they did. . . . .

In order to demonstrate, under section 349, that a practice or advertisement is deceptive or misleading, it must be shown objectively that a reasonable consumer would have been misled by the defendant's conduct. Marcus, 138 F. 3d at 64; Oswego Laborers, 85 N.Y.2d at 26. It is appropriate for a court, given particular facts and circumstances, to determine whether or not a given practice is or is not deceptive as a matter of law. See S.O.K.F.C. v. Bell Atlantic Triton Leasing Corp., 84 F.3d 629, 636-37 (2d Cir. 1996) (determining, on the basis of the complaint and attached exhibits, that a reasonable consumer would not have been misled by defendant's conduct); Oswego Laborers, 85 N.Y. 2d at 26 (same).

Robert W. Sweet U.S. D. J. New York, NY Sept. 3, 2003 united states district court, southern district of new york

Ashley Pelman et al v. McDonald's Corporation


pj

[ Reply to This | # ]

radiocomment
Authored by: Anonymous on Thursday, September 11 2003 @ 11:40 PM EDT
If there is one thing that is pretty clear from Darl McBride's Open Letter, it is that he still very much wants to hijack Linux for the SCO Group's profit: there is no other way to interpret his references to a need for Linux to change business models and his proposal to "monetize" the contributions of individual OSS developers. Well, if I really wanted to make money, I wouldn't pick Darl McBride as a business partner under any circumstances. I am glad that OSS is telling him where he can put his offer.

I believe that the SCO Group is feeling the pressure of the IBM and RH lawsuits, which is growing as time goes by. The SCO Group could send its "invoices" by Oct. 15, but that kamikaze run would end with a quick big bang as we bring in more outside forces such as the government into the fray. The SCO Group has alienated business partners, licensees, many of its own customers and of course its own end users - I don't know of any end users who would want to do business with a man who has been quoted as saying that the "vast majority of end users is with us", even as he is trying to extort them. In the meantime, OSS is relentlessly and systematically deconstructing the SCO Group's FUD campaign. We have no reason to stop what we are doing.


blacklight

[ Reply to This | # ]

radiocomment
Authored by: Anonymous on Thursday, September 11 2003 @ 11:51 PM EDT
P.J.,

I copied your whole post above & e-mailed it off to her, so she'll likely look at it first thing in the morning. We'll see what she thinks :) She is likely a bit rusty on N.Y. law, but I know she had studied & passed the bar there (did not keep it current though as she ended up staying here in AZ.), and as she def. likes to base her opinions on her understanding of the statute in question I'm sure she will appreciate your inclusion of the relevant sections - saves her a lot of looking :)

Thomas


Thomas LePage

[ Reply to This | # ]

radiocomment
Authored by: Anonymous on Thursday, September 11 2003 @ 11:52 PM EDT
Hey quatermass- Check the earlier messages about this: "Well he selectively quotes the Computerwire article too. From Computerwire it's fairly clear where Perens stands. And I think he might have got the date wrong too (Aug 25 instead of Aug 26)."

Computerwire was informed about this, and they posted a rebuttal to Darl's claims. The URL is posted in an earlier message.


wild bill

[ Reply to This | # ]

radiocomment
Authored by: Anonymous on Thursday, September 11 2003 @ 11:55 PM EDT
Marty wrote: "As a small business owner, I can supply one more item: from a tax accounting veiwpoint, a "license" for software is most certainly accountable as an expense (or capital item on some depreciation schedule) while supporting some other company's legal expenses may not be so. Thus, on the books, these are software licenses, regardless of their real puropse. Which begs the question: if this is so, then should this be an IRS matter? "

You might be right. Accounting for software is a very complex issue. I believe that there is an SFAS out there dealing with this topic, and also one dealing with software developers. Hardware depreciation is pretty straightforward, and I have enough accounting education to sit for the CPA if I wanted to, but I would have to study the SFAS's to give an answer on this one.


wild bill

[ Reply to This | # ]

radiocomment
Authored by: Anonymous on Friday, September 12 2003 @ 12:05 AM EDT
Adam Baker wrote: ""Clearly, the free model just about killed our company," and yet RedHat, Suse and others are able to profit from it and free software has been around for a lot longer than free internet or free telecom. Just because SCO can't make it work doesn't mean it can't be made to work."

This is another outright lie by Darl. "His company" is Caldera, which started out as a Linux distributor. the Linux tools they developed went the way of the horse and buggy because they sucked. Not only did they squander their IPO cash, they squandered 155 million they received from their settlement over DR-DOS (acquired from Novell) from M$.

DR has to be the stupidest company ever to emerge in the IT industry. Not only did they sell DR-DOS for something like 400K, they were the ones that dropped the ball with IBM and allowed Billy Gates to sell DOS to IBM as the original OS for the PC. The DR execs blew off the IBM execs when they came calling to inquire about buying DR's OS- evidently they had some sort of company outing to attend and couldn't be bothered with meeting with IBM.


wild bill

[ Reply to This | # ]

radiocomment
Authored by: Anonymous on Friday, September 12 2003 @ 12:38 AM EDT
PJ,

"I wondered if it might be possible for any who actually bought and paid for Linux, particularly from Caldera, to bring an action that they only bought it because of the GPL and never would have bought it otherwise and now they are being forced to pay $699 for a license which takes away from them certain rights they thought they paid for."

I don't think those who bought it from Caldera are being forced to pay $699. IIRC, SCO says in their FAQ that their customers can get the license for free.


Lev

[ Reply to This | # ]

radiocomment
Authored by: Anonymous on Friday, September 12 2003 @ 12:48 AM EDT
Thomas LePage: I may have started all of this when AG bemoaned the fact that SCOG were distributing thousands of copies of his code without honoring his license, and wondering about joining a class action suit. I pointed out that if he was giving away his code under a GPL license that recovering monetary damages under a civil action might not be what he was interested in. He replied that he couldn't get and answer from SCOG or even the Free Software Foundation or Red Hat folks. Apparently he already contacted SCOG and asked them to stop distributing his copyrighted work 4 weeks ago.

My point was that what SCOG is doing is then a "Criminal Offense" under Title 17 section 506(a), and that he might get some help in that regard for free from the nearest US Attorney's office. There are various reports of from 400 to over 2300 Linux kernel copyright holders worldwide. That many people demanding action based on the criminal offenses might get some traction, more easily than a purely civil action.


Harlan

[ Reply to This | # ]

radiocomment
Authored by: Anonymous on Friday, September 12 2003 @ 12:50 AM EDT
PJ! Are you really an Indian man? :)

This column, in what is apparently an Indian equivalent of newsweek.com, is telling the story of the SCO episodes as favorably to Linux as if it was written by a Groklaw regular!

What a breath of fresh air.

Some US columnists/analysts should read this for tips.


r.a.

[ Reply to This | # ]

radiocomment
Authored by: Anonymous on Friday, September 12 2003 @ 01:26 AM EDT
Lev,

Past Caldera customers may be able to get the licence for free, but it confers less rights than the licence Caldera originally sold them (GPL.) Essentially, SCO is saying *to its own customers*:

"You know that licence we sold you? Well, we are now unilaterally changing the terms of the licence to our benefit. You can accept the new terms, or we may sue you in future. And no, we won't give you a refund of the price of the old licence either."

Doesn't sound very legal, does it?


Dr Stupid

[ Reply to This | # ]

radiocomment
Authored by: Anonymous on Friday, September 12 2003 @ 02:25 AM EDT
I think a countersuit by the copyright owners of Linux would be quite poweful,
and I know from Slashdot that kernel authors are already talking [but not yet
organizing] around such an idea. The big difficulty I see (IANAL) is that the
copyright must be registered with the Library of Congress before legal action
can begin. How do you register "Certain modifications Copyright 1997 Joe Blow.
Additional code Copyright 1999 Jane Smith. Mark Evans changed ate_begin()
Copyright 2000" and so on for a function that was (legally) modified by a dozen
unafilliated authors??
Billy Harris

[ Reply to This | # ]

radiocomment
Authored by: Anonymous on Friday, September 12 2003 @ 03:08 AM EDT
quarter mass:

Your guess that SCO has around 1000 employee's is far overestimated. They employee 110!


Stephen Henry

[ Reply to This | # ]

radiocomment
Authored by: Anonymous on Friday, September 12 2003 @ 03:21 AM EDT
In this interview, McBride is saying SCO has intellectual property that got into Linux somehow. SCO is suing IBM for allegedly putting the offending IP into Linux, and perhaps they will go after SGI too.

But it seems he's also saying now that SCO's IP (no proof offered) is in Linux, isn't that great? SCO can charge money to folks who didn't want to buy it when it was in Unixware or wherever else it may or may not have been, but unknowingly acquired software from other sources that (allegedly) contains it.

Now, as a coder (i.e. not someone with a legal background), I'm left asking what does he actually mean by "intellectual property". The two legal concepts that get discussed a lot in this case are patents and copyright. We know that SCO doesn't hold any patents that the Linux kernel could be infringing. So, we're left with copyright.

My question for the legal eagles is this: Does copyright law allow the owner of the copyrighted work to forbid the owner of the infringing work from removing the portion that violates their copyright and to say instead: you must pay me a license or royalty for the right to use my work?

Its perhaps a naive example, but consider a publisher, A, who publishes a book containing chapters by different authors. After some time, it transpires that one of the chapters in the book was not written by the author who contributed it, but that he copied from another book, the copyright on which is owned by publisher B. Publisher A offers to pulp the remaining copies of the book and reprint it with a new original chapter in place of the offending one. Can publish B say to publisher A, "No! We want you to continue to distribute the original form of the book and pay us a license fee for each copy"?

This seems to be what SCO wants to do, except that it doesn't want to get the money from "publisher A" in the example, it wants to get the money from everyone who has a copy of the book. That may be because of the more complex way Linux is distributed, or (far more likely) they believe it will make them more money. SCO, of course, won’t even tell us what’s being infringed except under a NDA. I hope that Eric Raymond’s new codebase comparison tool will allow SCO’s bluff to be called.

It would be really nice if the complete two-facedness of SCO's current stance (IBM & SGI are bad guys 'cause they stole our code, IBM & SGI are good guys 'cause they smuggled our code into Linux and threw us a financial lifeline) could somehow legally bite them on the arse. I'd smile continually for several days were that to happen.

/cc


CluelessCoder

[ Reply to This | # ]

radiocomment
Authored by: Anonymous on Friday, September 12 2003 @ 03:25 AM EDT
Looks like another SCO Insider (BROUGHTON REGINALD CHARLES) dumped another 5000
yesterday (9/11); surely this can't be legal?
Stephen Henry

[ Reply to This | # ]

radiocomment
Authored by: Anonymous on Friday, September 12 2003 @ 04:16 AM EDT
IANAL, but as far as I can see, one problem with suing for copyright violations is that SCO is talking about how the GPL is invalid but not really taking actions that very clearly violate it.

Selling licenses violates the GPL, but has SCO really sold a license? Will they go to court and say they made a mistake in characterizing these contracts as licenses when really they were something else?

SCO has to keep the source available and it is.

SCO has to allow recipients of its code to distribute it under the same GPL terms, but has SCO really tried to stop anyone from distributing anything?

Saying the GPL is invalid is not a clear violation of the GPL. There are things SCO could do to really violate it but it is steering clear.

The GPL is likely to be one of many reasons we will never see real invoices sent. The closest we may see will be warnings that SCO legal and Heise agree are vague enough to prevent SCO for being sued, either for fraud or for copyright infringement of the GPL programmers.

A copyright case may well be possible now, but it would be weaker than if SCO's actions matched its talk.


r.a.

[ Reply to This | # ]

radiocomment
Authored by: Anonymous on Friday, September 12 2003 @ 04:24 AM EDT
I am minded to respond in an open fashion to Belzecue's (tongue-in-cheek, I'm sure) comment regarding the desirability of
a sustained DDoS attack on SCO.

We know that, if he doesn't actually read it, Darl McBride at least is aware of Slashdot and other such places where the SCO
case against IBM is discussed. It's not a far stretch to suppose that, if he's not reading Groklaw, he at least has some of his
people watching it. The last thing we want to do is give the appearance of inciting to further attacks on his site (I can see the
press release now... "OpenSource felons incite further attacks on poor ol' SCO <snif>"). I submit that we might want to curb our
enthusiasm when it comes (even in jest) to calling for such attacks. Let the facts speak for themselves; they're proving to be
damning enough in themselves.


Steve Martin

[ Reply to This | # ]

radiocomment
Authored by: Anonymous on Friday, September 12 2003 @ 04:28 AM EDT
"Does copyright law allow the owner of the copyrighted work to forbid the owner of the infringing work from removing the portion that violates their copyright and to say instead: you must pay me a license or royalty for the right to use my work?"

In a word, no.

Copyright gives you the right to stop others copying your work, it does not give you the right to stop them stopping.

A copyright holder can license his work to others, but no-one can be forced to license it. They always have the option not to copy it. Since to sue for breach of copyright you must indicate what is infringing, the defendent always has the option (if he/she loses) to stop distributing the infringing material.

SCO's argument seems to be that since IBM (they alledge) broke a contract with them, and IBM won't give them any money, the rest of the world owes them compensation. Unfortunately (for them) neither the world of business nor the law works that way.

However I am suspicious over whether SCO really cares about getting much in licence revenue. I'm inclined to agree with the posters who feel that the licence scheme's primary intent was to generate FUD - to pressurise IBM, and generate publicity for the stock price's benefit.


Dr Stupid

[ Reply to This | # ]

radiocomment
Authored by: Anonymous on Friday, September 12 2003 @ 04:28 AM EDT
cc:

Darl is not talking about copyrights. He is talking about SCO's contracts with IBM.

He expects that if he keeps calling his contracts "IP" you will be hypnotized into believing that he owns the copyright to something in Linux and therefore you have to pay him. Really.

The truth is that he claims IBM broke its licensing contract. IBM denies breaking any contract. If he's right, IBM owes SCO money. If he's wrong IBM doesn't owe SCO money.

If IBM broke its contract with SCO that does not mean you owe SCO money (unless you're IBM). Darl tries to get around that by calling his contracts "intellectual property" and literally hoping that you mistake contracts for copyrights. Really.

SCO has claimed that two companies have already fallen for this, but as usual, SCO can't give any further information.

You'll find a very clear statement of SCO's real position on copyrights in the middle of th is page.

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.


r.a.

[ Reply to This | # ]

radiocomment
Authored by: Anonymous on Friday, September 12 2003 @ 04:38 AM EDT
Ooh, Darl gives me the gibblies. Generally you find folks this delusional
either wandering the streets yelling at their invisible antagonists or locked
away in an institution to protect them and the general public. Can the
plaintiff in an IP case use the insanity plea? How would that work? style="height: 2px; width: 20%; margin-left: 0px; margin-right: auto;">Chris

[ Reply to This | # ]

radiocomment
Authored by: Anonymous on Friday, September 12 2003 @ 04:43 AM EDT
r.a., SCO may not have sold a licence, but look again at section 4 of the GPL:

"4. You may not copy, modify, sublicense, or distribute the Program except as expressly provided under this License. Any attempt otherwise to copy, modify, sublicense or distribute the Program is void, and will automatically terminate your rights under this License."

Note, "any *attempt*... to sublicense". By stating that users may need their license, and offering it for sale, they are attempting to sublicense GPL'ed code. This is essentially IBM's countercharge.

I agree that the actual sale of licenses would be a step further, but on my reading - and that of IBM's lawyers - SCO have already voided their license to the kernel's GPLed code by breach of section 4.


Dr Stupid

[ Reply to This | # ]

radiocomment
Authored by: Anonymous on Friday, September 12 2003 @ 04:44 AM EDT
"I am minded to respond in an open fashion to Belzecue's (tongue-in-cheek, I'm sure) comment regarding the desirability of a sustained DDoS attack on SCO."

Steve M. -- you misread my post or I did not make it plain enough: I said a sustained 'verbal' DDOS. You leapt to the conclusion that I was writing about a web DDOS. Not so (and the jury is still out as to whether there *was* any DDOS this time around).

I had this hilarious image in mind of linux users surrounding *McBride himself* whenever he left the office to walk to his car, visited the shop to buy his lunch, tried to hold a press conference to promulgate more of his FUD, etc. Whenever he might venture out in public he would face this smothering, yammering crowd that would drown out anything he might try to say... hence blocking his biggest FUD channel: his constantly flapping mouth. Kinda like the flash mob concept but on a grander scale.


Belzecue

[ Reply to This | # ]

radiocomment
Authored by: Anonymous on Friday, September 12 2003 @ 04:44 AM EDT
A note on the DMCA idea: SCO's ISP is Center 7, another Canopy company. So anyone who invokes the DMCA on SCO's web site or ftp site is gonna be in hostile territory right away. Expect anything that you write to be forwarded to SCO's professional spin-masters.

Stephen -- Reginald Broughton has a 10b5-1 plan, which is irrevocable as of the date he entered into it, several months ago. It's completely legal for him to sell stock. In fact, he would have legal trouble now if he tried to cancel the plan (it's irrevocable for a reason).

The Delaware PACER has a new entry in Red Hat versus SCO:

2003-09-09 CERTIFICATE OF SERVICE by Red Hat Inc. re (1) 1st req. for prod. of doc. and things; and (2) 1st set of interrog. (rd) [Entry date 09/10/03]

There are index numbers on some of the docket entries, but I can't find any way to click them. Either I'm deficient in skills or the Delaware PACER is deficient in providing the information. Probably the latter.

SCO's answer in this case is due Monday.


mec

[ Reply to This | # ]

radiocomment
Authored by: Anonymous on Friday, September 12 2003 @ 04:55 AM EDT
Someone mentioned the possibility that Darl or one of his minions/flunkies may be reading Groklaw. I have assumed he is from the start, so here is a message for Darl:

You're in a real spot, baby. You are being called on your lies, and no one will negotiate with you. If any of SCO's IP is ever found in Linux, and that appears highly doubtful, it will be written out in short order. You are destroying what remains of your business. You will find that much of the open source software you include in your UNIX products will be rewritten so that it no longer functions under your UNIX, leaving you in the unenviable position of either not using it (and what would those UNIX users do without gcc or Samba), or hiring a great many programmers to modify the code to work. And if you choose the second route, when these programmrs try to contact the project people to ask questions and receive aid, they will be ignored.

Open Source does not exist to bring profit to your company, Darl. You have not played by the rules, and your bluster and bravado scares no one. Your game is over, Darl. When I called about that "Linux IP License" your website threatened me with, SCO couldn't deliver. Thank you for the entertainment. The next time you step on a penguin, make sure it isn't Tux, the rabid, angry penguin. Tux bites.


wild bill

[ Reply to This | # ]

radiocomment
Authored by: Anonymous on Friday, September 12 2003 @ 05:04 AM EDT
pj: "...now they are being forced to pay $699 for a license which takes away from them certain rights they thought they paid for."

Forgive me for being picky, but I believe they didn't actually *pay* for the rights (that is against the GPL). They paid for the
physical act of distribution. The rights themselves came freely as a consequence of the GPL, therefore it seems that argument
would fail. As for the license taking away rights, yes, if the license still substantially follows the form of the text shown on LWN,
it seems that it contradicts and attempts to remove the rights granted under the GPL.

(By the way, congratulations on being promoted from simply "beautiful" and "gracious" to also "luscious".)


Steve Martin

[ Reply to This | # ]

radiocomment
Authored by: Anonymous on Friday, September 12 2003 @ 05:12 AM EDT
Dr. Stupid:

You're absolutely right. I agree they have broken but I also think they are trying to skirt the edge, contrary to their bluster.

Interestingly, the IBM response was most likely complete and being proofread when, in response to Red Hat's suit, SCO had its emergency conference call announcing the program and rushed the website up typos and all.

SCO decided to lead with its chin just when IBM was throwing the uppercut. <*BAM*>

More legal strategy from the folks who brought you the SCO Forum.


r.a.

[ Reply to This | # ]

radiocomment
Authored by: Anonymous on Friday, September 12 2003 @ 05:12 AM EDT
Well, if McBride really does read slashdot.org, I hope he caught this user's comment:

"Wow, after all the religious wars on slashdot over microsoft, linux, apple, star wars, diablo, etc, etc, we have finally found a topic that everyone agrees on -- SCO sucks."

- By Weave in the following post:

http://yro.slashdot.org/article.pl?sid=03/09/1 0/1459243&mode=thread&tid=130&tid=185&tid=187&tid=190&tid=88


Jim Storch

[ Reply to This | # ]

radiocomment
Authored by: Anonymous on Friday, September 12 2003 @ 05:18 AM EDT
Belzecue: my apologies, I did in fact miss the term "verbal". In honesty, I do find the image you raise entertaining.
Steve Martin

[ Reply to This | # ]

radiocomment
Authored by: Anonymous on Friday, September 12 2003 @ 05:23 AM EDT
Folks,

http://www.it-dire ctor.com/article.php?articleid=11236

Bloor Research has said in this article that should other open letters appear they would publish them. Hopefully Robin Bloor is good for his word.


Paul Penrod

[ Reply to This | # ]

radiocomment
Authored by: Anonymous on Friday, September 12 2003 @ 05:29 AM EDT
h ttp://www.varbusiness.com/sections/technology/tech.asp?ArticleID=44410

Seems Linux acceptance in the enterprise truly isn't suffering all that much...


Steve Martin

[ Reply to This | # ]

radiocomment
Authored by: Anonymous on Friday, September 12 2003 @ 05:55 AM EDT
"I know this is going to sound a little anal, and I'm as guilty as anyone, but going forward can we all try to ..."

John G. -- you just made my day, mate! ;-) Who knows. One day, perhaps Darlspeak will join the hallowed ranks of Klingon and Bork-bork!


Belzecue

[ Reply to This | # ]

radiocomment
Authored by: Anonymous on Friday, September 12 2003 @ 05:59 AM EDT
http://tinyurl.com/n4ey

do you think someone is catching on to the lies sco was dishing out?


brenda banks

[ Reply to This | # ]

radiocomment
Authored by: Anonymous on Friday, September 12 2003 @ 06:10 AM EDT
Billy Harris, r.a., Dr Stupid, & Harlan,

Sent your comments from above her way too, there are a lot of angles on this one and such thoughts are helpfull. Most people don't realise the cookie cutter nature that most legal stuff follows - the details may vary, but the procedure and flow are well understood & always the same... could well be that figuring out what procedure this one follows is not so straight forward... We'll see what she thinks after she has a chance to ponder what I sent her.

Thomas


Thomas LePage

[ Reply to This | # ]

radiocomment
Authored by: Anonymous on Friday, September 12 2003 @ 06:10 AM EDT
Steve - Caldera Linux customers *did* pay Caldera/SCO for the right to use and
redistribute Linux. Contrary to what many people believe, if you write some
code and distribute it under the GPL to, say, pj, I have no rights to it. My
rights under the GPL only start at the point where I receive the GPL'd program
(in source or binary form) from you, or from pj, or from someone who has
received it from one of you, etc. No-one has to give me that program unless
they want to. If I were a Caldera customer, Caldera would have given me the
program *in exchange for my money* and given me the right to redistribute the
program along with it. Since Ransom Love is on record singing the praises of
the GPL, I would have a good claim that the redistribution rights of the GPL are
part of the package I paid Caldera good money for.
amcguinn

[ Reply to This | # ]

radiocomment
Authored by: Anonymous on Friday, September 12 2003 @ 06:40 AM EDT
<-- the notion of "Hackers" against Big Business -- but because of recent advances in Linux, the community now has the opportunity to develop software for mainstream American corporations and other global companies. If the Open Source community wants its products to be accepted by enterprise companies, the community itself must follow the rules and procedures that govern mainstream society.>

2 things

1) the linux community already has the ability and doesnt need to be taught as a child to develop software and is already being used by businesses

2)If business wants to use GPL/LINUX they must abide by the GPL to use it.that could not be any simpler it is businesses choice.

challenge to sco post your code so it can be monitored as GNU/LINUX is. let us see how yours can stand the scrutiny that we do.


brenda banks

[ Reply to This | # ]

radiocomment
Authored by: Anonymous on Friday, September 12 2003 @ 06:43 AM EDT
If Darl is reading Groklaw, he's probably busy figuring out how to 'monetize' all this free writing! He could copyright himself as a fictional character, then try to sieze the archives. Look for What I Read On Groklaw by Darl McBride on store shelves this Christmas!
http://timransomsfeeblemind.blog spot.com
Thanks again
Tim Ransom

[ Reply to This | # ]

radiocomment
Authored by: Anonymous on Friday, September 12 2003 @ 08:00 AM EDT
Dr. Stupid,

I was only correcting the $699 part. But now that you bring up the license terms, I think it's an interesting question. They never explicitly say that they are revoking the GPL, or that the new license supercedes the GPL. Yes, they've been saying that the GPL is invalid, blah blah, but have they done anything that has legal weight in their relationship with individual Caldera customers? I could see one arguing that they are just getting an extra license (that they may or may not need).


Lev

[ Reply to This | # ]

radiocomment
Authored by: Anonymous on Friday, September 12 2003 @ 08:10 AM EDT
P.J.,

Her mind is a working - she had VERY intresting thoughts this A.M., guess it had her thinking half the night. Be patient, she implied a desire to look a bunch of stuff up...she needs to catch up on this area a bit before she makes her thoughts public. There might just be several valid things & very different fronts that they (the coders) can look into....

Thomas


Thomas LePage

[ Reply to This | # ]

radiocomment
Authored by: Anonymous on Friday, September 12 2003 @ 08:19 AM EDT
PJ what ever you need me to do
i am more than willing to help in anyway possible
br3n
brenda banks

[ Reply to This | # ]

radiocomment
Authored by: Anonymous on Friday, September 12 2003 @ 08:25 AM EDT
> Your guess that SCO has around 1000 employee's is far overestimated. They employee 110

I know they have less now employees now than they used to have. I ran across some articles about lay offs they had a while ago.

My point is, even if they had 1000 employees at their largest ever size, and IBM is supposed to have done whatever bad stuff it's alleged to have done at that *exact* time, SCO would seem to be claiming to $1m/$3m damages per employee. If they had 500 employees, SCO would seem to be claiming $2m/$6m per employee. Etc.

That's an awful lot of damages not to notice (or at least, not publicly complain about) for say 2-3 whole years. It's also interesting that between March and June, they suddenly realized that they were out by a factor of 3X as to their damages - suddenly noticing several million more $ of damages per employee.

Or to put it another way, let's go with $3m per employee. Let's say an average employee earns $200K per year (presumably an over estimate for an average employee). SCO's damages of $3bn would be equivalent to IBM destroying years and years of each employee's work - possibly more years of work than the entire life of the company.

IANAL, so maybe that's why, but I'm struggling to understand how SCO could think they can have suffered so much damage from IBM. If anybody has an explanation, I'd be interested... I presume IBM is also interested, as I noticed an item in the PJ's list of items in the Canopy subpeona.


quatermass - SCO delenda est

[ Reply to This | # ]

radiocomment
Authored by: Anonymous on Friday, September 12 2003 @ 08:28 AM EDT
I find Darl's concept very curious that people shouldn't put their effort into anything they aren't directly paid money for, and that doing so is somehow against human nature or wrong.

Consider how many people decide to have and raise children without anyone having to pay them any money to do it. Does Darl consider the average parent a naive sucker?

Darl seems confused about what life is about and what money is for.

Chris Marshall


Chris Marshall

[ Reply to This | # ]

radiocomment
Authored by: Anonymous on Friday, September 12 2003 @ 09:06 AM EDT
Just now happened to look at the day's and week's SCOX price fluctuations. Somebody/thing seems to want the price to be bang on $18, and to want it very badly.

What's magic about that particular number?


Frank Brickle

[ Reply to This | # ]

radiocomment
Authored by: Anonymous on Friday, September 12 2003 @ 09:10 AM EDT
Chris Marshal: add to that all of the other volunteers in the world, amateur radio operators in emergency situations
are they naive as well? (I am a ham radio operator as well as a Linux advocate/programmer) Cuso, Red Cross, Salvation Army
Habitat for humanity? I guess they are just plain foolish too. Human nature, it seems, is in the eye of the beholder.


KPL

[ Reply to This | # ]

radiocomment
Authored by: Anonymous on Friday, September 12 2003 @ 09:21 AM EDT
In case any of you feel the need to file a complaint against MS you can now do so by clicking HERE.
Z

[ Reply to This | # ]

radiocomment
Authored by: Anonymous on Friday, September 12 2003 @ 09:32 AM EDT
My cat was not amused by being compared to Darl!

On another front, I have been systematically writing journalists who have interviewed McBride, asking them why they aren't clarifying his use of "intellectual property" (does he mean trade secrets, patents or copyrighted code?) and asking them to ask him how the earlier unification efforts by Love might have let the supposedly secret sauce into the kernel through an approved corporate route.


Tsu Dho Nimh

[ Reply to This | # ]

radiocomment
Authored by: Anonymous on Friday, September 12 2003 @ 09:47 AM EDT
I don't consider myself to be on Mr. McBride's radar when it comes answering my questions. But apparently several tech journalists are having better luck. So why aren't they asking the *GOOD* questions? I took the opportunity to write to Mr. Weiss who wrote this article. I am pasting that message below. I suggest we politely ask these journalists who are interview SCO executives to include some of our questions.

Mr. Weiss,

Thank you very much for your article, "Q&A: SCO's McBride on his open letter to the Linux Community."

As an linux user and advocate I have been paying close attention to SCO's claims regarding Linux and open source software.

I was disappointed that you did not ask Mr. McBride questions regarding removing SCO's code from Linux. The open source community has made it very clear in open letters and online commentaries that nobody wants SCO's intellectual property in Linux. This was even presented at SCOForum in an open letter to SCO and Mr. McBride: identify by file and line number the code that is in question and it will be removed.

If you can do a followup interview or article, please ask Mr. McBride the following questions on my behalf and on behalf of the whole open source community:

1. If the Linux community has agreed to remove any SCO intellectual property from Linux, why hasn't SCO taken advantage of the opportunity by providing file names and line numbers to the Linux development community?

2. Since all of the Linux source code is openly available for public viewing, why is it necessary to require a Non-disclosure Agreement before identifying any infringing code?

3. Can SCO survive as a viable company if a non-infringing version of the Linux kernel were released -- a kernel that doesn't infringe on SCO's intellectual property? Does SCO need Linux intellectual property revenues to continue doing business?

4. In your open letter to the open source community you refer to the fact that Linux is considered "free" software. Members of the open source community use this term with regards to their rights to innovate and cooperate on software projects. Is it inconceivable to you that quality, enterprise software could be developed under those circumstances, especially when the community is millions strong and has been working on Linux for over ten years?

5. Companies like IBM and HP are reporting that they have built a solid business model around open source software. Why did Caldera (now SCO) fail to do the same?

6. Considering the role Caldera (now SCO) played in Linux development between 1999 and 2002, is it possible that SCO has overlooked its own contributions to the Linux kernel as it alleges infringement by others? Certainly there are plenty of examples of former Caldera/SCO executives touting plans to merge UNIX into Linux?

7. SCO has claimed ownership of intellectual property in the Linux kernel, but that ownership has certainly been called into question by IBM, Novell, and members of the open source community, among others. Based on your understanding of "playing by the rules" of business, as you addressed in your open letter, how is sending out invoices to companies and businesses who have not bought anything from SCO "playing by the rules?"

8. When SCO was ordered by a German court to either show evidence of infringement in the Linux kernel or pay a fine, why did SCO decide to pay the fine? Wouldn't showing some of the infringing code have bolstered your case, not to mention saving your company over $10,000?

9. You certainly don't have a policy of not commenting on pending litigation, so what will SCO's response be to claims that SCO's products infringe on four of IBM's patents? Will you be removing the offending code from your products or are you considering honoring IBM's intellectual property?

10. If RedHat wins a declaratory judgement that its products do not infringe on SCO's intellectual property, will you still continue to pursue licensing fees from RedHat's customers? They're still using the Linux 2.4 kernel, right?

Again, Mr. Weiss, thank you very much for your time and thank you for your hard work covering this turbulent industry.

Best Regards,

Israel J. Pattison


Israel J. Pattison

[ Reply to This | # ]

Groklaw © Copyright 2003-2013 Pamela Jones.
All trademarks and copyrights on this page are owned by their respective owners.
Comments are owned by the individual posters.

PJ's articles are licensed under a Creative Commons License. ( Details )