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To read comments to this article, go here
What's Good for the Goose... Is Good for the Gander
Sunday, August 03 2003 @ 12:08 AM EDT

Can't tell them apart, can you? And that's my theme today.

Remember the part in the complaint about IBM allegedly violating export controls? I was thinking about it myself quite a lot today, while I was doing some food shopping, when all of a sudden, I had one of those Eureka moments. I remembered reading about Amazon being fined for violating export controls that regulate the very countries listed in the complaint. This is going to get a bit complicated, but it's great at the end, so if you follow the bouncing ball all the way, I think it's worth it.

First, here are the two relevant paragraphs from the Amended Complaint:

116. Export of UNIX technology is controlled by the United States government. Thus, SCO, IBM and all other UNIX vendors are subject to strict export control regulations with respect to any UNIX-based customer distribution. . . . [PJ: SCO allows that IBM in later amendments to the agreement were given the right to export to several countries.] However, no permission has ever been granted by SCO or its predecessors to IBM to allow it to indirectly make available all or portions of the Software Product to countries outside the United States that are subject to strict technology export control by the United States government: viz., Cuba, Iran, Syria, North Korea and Libya. IBM is ignoring and attempting to circumvent the export control restrictions that apply to UNIX as it accelerates development of Linux for enterprise use.

117. Thus, IBM has breached Section 4.01 of the Software Agreement by, inter alia, making extensive, advanced multiprocessor scaling functions of the Software Product, including derivative works and methods based thereon, available for free distribution to anyone in the world with a computer. As it relates to Linux 2.4.x and 2.5.x releases, IBM is indirectly making the Software Product and and operating system modifications available to countries and organizations in those countries for scaling single processor computers into multi-processor supercomputers that can be used for encryption, scientific research and weapons research.

They couched it as a contract issue, and it may be, depending on what the contracts say, not all of which we have yet seen. But by listing those particular countries and phrasing it the way it did, it was also a public slur, and one that seemed gratuitous. Putting those words in the complaint, SCO gives us a big hint as to why they may have decided to bring this up.

These are the countries US companies can't trade with under export regulations monitored and enforced by the US Treasury Dept. Here's the news article I remembered, listing Amazon and American Airlines and a lot of other mainstream companies fined for trading with the forbidden countries. Here's a story about Boeing paying a fine for trading with a forbidden country a couple of years ago. Notice the headline. And here is the US Treasury list of offenders, month by month. Here are the sanctions, country by country. Encryption in any software product is regulated with respect to export. Here is the US Bureau of Industry and Security, a branch of the Commerce Department. Here's their compliance and enforcement page. These are the regulations. And here's a snip from Microsoft's page Exporting Basics [PDF]:

Many Microsoft products are subject to export restrictions under U.S. law because they include encryption technology. . . .Just because an item is subject to U.S. export controls does not necessarily mean it cannot be exported. In the case of Microsoft encryption products, a one time government technical review is required prior to export. . . . Once a review has been completed, software may become eligible for a particular licensing authority. This authority may then be used by all exporters, not just Microsoft.
Could it be that SCO, by adding this item to the complaint, thought IBM would have criminal charges brought against it, with concomitant fines, and end up a headline, like Boeing and Amazon? I can just see the headline: "Linux Violates Law Against Trading with the Enemy" or some such nonsense.

But here is the funny part. Also the fun part. Both SCO and Sun have themselves continued offering Linux, the kernel, and the GNU tools up until this very day, kernels with at least some, if not all, of the high-end stuff they are saying IBM put into Linux that they claim is violating the export restrictions. We've presented the evidence for that here on Groklaw.

And SCO employees helped write the kernel and added to its high-end functionality, and we've posted evidence of that. If IBM is guilty, why isn't SCO? And Sun? Now Sun says it will be distributing its own Linux. My, my.

And in case SCO plans on arguing that it merely distributed for free but didn't sell after it found out about the high-end code, I beg to differ, as you can see in my earlier article, Psst, Want to Buy OpenLinux? It's Still Being Sold Online, which I posted June 5. If you go to Caldera's site, you can still buy OpenServer even today, with the following warning at the bottom of the page:

Please note that the electronic transfer of this data to a destination outside of the United States constitutes an export (as defined by the U.S. Bureau of Export Administration) and is authorized ONLY to the buyer. Any subsequent re-exportation of this data requires that the buyer obtain an additional export license. Also note that it is ILLEGAL to re-route SCO product to Cuba, Iran, Iraq, Libya, North Korea, Sudan or Syria and that you must file a special license if you intend to re-route goods to the embargoed regions of Serbia or the Taliban controlled areas of Afghanistan. Placement of this order constitutes an agreement to comply with these stipulations.
Could this be the clue as to what they are claiming: that contributing to Linux, which is then downloaded by ftp, IBM was contributing to an illegal route/re-route? If so, SCO did it themselves too, if offering the Linux kernel is enough to be guilty. I checked all the links in the June 5 story, and they are all still good. You can buy OpenLinux here [http://linux.tucows.com/ preview/73977.html] [PJ: Note that in 2009, the url no longer resolves; however thanks to Wayback, you can see the offer as I did in 2003 here, and if you click on OpenLinux, you will get to the actual offer, and notice the date in the Internet Archive url is April 30, 2003, *after* SCO sued IBM in early March] and OpenLinux Server here [PJ: Note it's not available there in 2009, but it's not available on Wayback, so it's not possible the trace the exact day it disappeared. And you can get both OpenLinux and SCO Open Server here. And, as we reported, you can ftp it every which way, any time you like. Not that I am recommending SCO products, by the way. Not today. Not ever.

They can hardly argue they don't know that high-end code is in there now, so many months after they "first" found out, if you believed that story about not knowing about this particular code being in there, which I don't, when they continue to sell and allow free distribution so many months after their alleged "discovery". And now Sun says it plans on doing a Linux distro. With or without the high-end code? They've been allowing downloads of this kernel all along, as we reported yesterday, so what are these folks thinking?

Here's their dilemma. They can't take the infringing code out without letting us all know what the code is, can they? So either Sun plans on "violating export regulations", according to SCOThink, or this claim in SCO's complaint is just FUD in the first place. Or we are about to learn what the infringing code is, when Sun removes it from its new Linux distro. Or maybe they'll just change their minds. They know how to do that. It is conceivable that this has something to do with some kind of evidence only SCO knows about, but that seems hard to believe, especially about IBM.

Question: Do the indemnifications offered by SCO and Sun indemnify their users against charges of export regulation violations? This whole thing is so ridiculous.

So, bouncing the thought along to the end, I trust this means that if anyone on the dark side was thinking how great it would be if only some FUD could make it into headlines about Linux being on a list of violators of export regulations, they will now realize that they appear to be vulnerable to the same accusation, in the same goose pen with IBM, and with Linux. I can't believe the government would bring charges selectively against IBM or a Linux distributor without having to do the same to SCO and Sun, if anyone violated any regulations at all in the first place, which isn't, as usual, proven.

So, unless I'm missing something, I'd say SCO hit itself in the head with another boomerang by bringing this issue up at all.

Of course, we helped. There are days when writing Groklaw is just a plum pleasin' pleasure.


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