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SCO and O'Gara Need to Read More Groklaw, I'm Thinking
Saturday, September 18 2004 @ 07:32 PM EDT

Maureen O'Gara, that pro-SCO gal reporter, has a new one, except that it's an old yarn warmed over about how the heartless bounder IBM left SCO at the altar and ran off with the much younger Linux. You know, the Project Monterey-Power story we covered already the last time O'Gara wrote about it. It's a little hard to tell for sure what Mr. O'Gara means, because vital words are randomly missing from her story, raising ever so many interesting questions in my mind as to what Ms. O'Gara does on her Saturdays, but the main point is that SCO plans to, she claims, and heaven only knows she should know, that SCO plans to sue IBM for fraud. The discovery fishing trip, according to them, has paid off. I guess they forgot they told us this story pre-discovery. I therefore have reached a different conclusion as to what SCO should do. I think, quite seriously, that they should spend more time reading Groklaw. At least then, they'd get the history right. It would have helped them not to violate the GPL with their SCOsource SCO Intellectual Property License for Linux", too. They are in a pickle now, I think.

No. Instead, they wish you'd *stop* reading Groklaw: " . And they are setting up their own legal page so people "don't have to" come to Groklaw to get their legal news.

"SCO has also finally decided to set up a site of its own to house all the myriad legal documents the suit has created so people won't have to go to Groklaw and read its anti-SCO philippics."

Mwaa ha ha ha ha ha ha. I'm sure our stats will go way down, now. SCO has been putting legal documents up on their site since the very beginning. Their credibility issue was they only put up the "good" ones, from their perspective, which led to long gaps in coverage, as SCO's legal train kept getting derailed.

We are really the pebble in their shoe, I gather. Or a burr in their saddle, as Ms. O'Gara might put it. But all Groklaw does is look for facts and put them where people can easily find them. That leads to great embarrassment in courtrooms, when lawyers read long lists of what SCO has said to the media and then contrast it with what SCO says in courtrooms, but we can't help it. We love truth.

Grokaw is a pro Linux site and a pro GNU/Linux site and a pro GPL site and above all a pro truth site. If IBM does something bad, we'll cover it too. Groklaw's position on patents is not identical to IBM's, for example, but we write about that subject steadily and all the time. So it's really not accurate to say we are a pro IBM site. It's the facts that, so far, tip so heavily in IBM's favor.

I will acknowledge that I am thankful for IBM's willingness to fight for Linux and the GPL, and I feel grateful to them for that, and I won't forget it. I admire their attorneys from the heart, and I truly believe that classes will be taught on how to be a lawyer from the documents we are making available to the world to study and learn from. That's one reason we make it all available as plain text, because I know some of the students will be blind, and they will need plain text so the computer can read the material to them.

At the beginning, I didn't know who was right in the contract dispute, and I said so here and in interviews, so saying Groklaw is a pro-IBM site is to distort the truth, not that that bothers SCO, I've observed, and it is just part of SCO's attempt over many months now to discredit Groklaw, so people won't read all the devastating information we find here or at least won't believe it. O'Gara has just jumped on that train, now, with both feet.

Groklaw gathered evidence about Project Monterey and the Power issue. Anyone can read it, even SCO, and I hope they do.

What really stands out from O'Gara's article is that I gather SCO thinks IBM will win on the motion they argued on September 15, seeking a partial summary judgment that IBM is not guilty of copyright infringement. When you read between the lines, and fill in some missing words, that is what I see:

"At the risk of practicing law without a license - and with due reverence for Cravath, Swaine's abilities to move the ball even you're look plum at it - this motion and its little friends look like one of those red herrings that may fetch IBM a lot of PR yardage, but may not ultimately score a touchdown.

"IBM's premise started with asking the court to declare Linux free of any SCO copyright claims. Again near as we can figure out given all the easily misleading legal talk, Cravath, Swaine's boys, IBM's lawyers, modified their position at the hearing the other day and simply asked Judge Kimball to rule that the widgetry IBM contributed to Linux didn't infringe on any claimed SCO copyrights.

"Well, now, Cravath, Swaine accomplished that maneuver quite nicely - with help from some stylistic faux pas by SCO's side - and will probably win that round for all we know - but darned if we can remember SCO ever charging IBM with that.

"The only copyright charge we remember SCO making has to do with IBM continuing to distribute AIX after SCO claims it pulled its AIX license."

What is she saying? That those notebooks full of clippings that SCO's CEO flashed at SCOForum last year never happened? How can she not remember? She wrote about it herself, as wmarvel points out on Yahoo, with thanks to brenda for finding the links:

"SCO would base any claims it makes on the Unix patents and copyrights that it acquired when it took over the Santa Cruz Operation. Its press release claims it "owns much of the core Unix IP" and that it has the right to enforce it." -

"Provided IBM is satisfied with what SCO turns over [today, Monday January 12], SCO expects to be back in court on Friday January 23 pursuing its own motion to compel IBM to turn over its AIX Unix source code to SCO. IBM previously turned over to SCO the Dynix UNIX source code that it acquired when it bought Sequent. SCO claims Linux got many of its high-end skills like SMP from the Sequent code.

"SCO, which has a $3 billion breach-of-contract suit lodged against IBM, continues to maintain that having to spell out its case against Linux is an idle exercise because IBM knows darn well what Unix code it put in Linux. The motion to compel order also requires SCO to say what it thinks other vendors besides IBM poached from Unix and stuck in Linux."

Obviously, she does remember. But SCO is probably telling her the same thing it told the judge, that they never "charged" IBM with copyright infringement except in the AIX context in the *legal* case. As a memory aid for those with lapses, here are some places where SCO in fact did charge IBM with copyright infringement, and in a courtroom, too:

  1. "As it continues its legal fight to enforce its ownership claims for Unix System V source code, The SCO Group Inc. today said it has now received U.S. copyrights for the code. In a related move, SCO said it will begin selling special UnixWare licenses to enterprise Linux users that will allow them to bring their Linux use into conformance with what SCO claims are its legal rights to the Unix source code. The announcement will be the topic of a news briefing later today with SCO officials, including CEO and President Darl McBride.

    "Lindon, Utah-based SCO said the copyright registrations are a 'jurisdictional pre-requisite to enforcement of its UNIX copyrights' as it proceeds with its $3 billion lawsuit against IBM. That suit, filed in March, alleges that IBM misappropriated SCO Unix trade secrets by putting some of the code into Linux.

    "The specially tailored UnixWare licenses will support run-time, binary use of Linux for all commercial users of Linux based on kernel Version 2.4.x and later, according to the company. Buying a license would allow users to comply with SCO's copyrights, the company said, adding that if enterprise Linux users do so, SCO won't pursue legal challenges against them related to the code. Pricing hasn't yet been announced.

    "'For several months, SCO has focused primarily on IBM's alleged UNIX contract violations and misappropriation of UNIX source code,' McBride said in a statement. 'Today, we're stating that the alleged actions of IBM and others have caused customers to use a tainted product at SCO's expense. With more than 2.4 million Linux servers running our software, and thousands more running Linux every day, we expect SCO to be compensated for the benefits realized by tens of thousands of customers. Though we possess broad legal rights, we plan to use these carefully and judiciously. 'Today, we're delivering a very clear message to customers regarding what they should do,' McBride said." Computerworld, July 2003

  2. "This new SCO license is a binary, right to use SCO Intellectual Property in a distribution of Linux. It is applies to commercial uses of a Linux operating system that contains a 2.4 or later version of the kernel, and cures the IP infringement issue for binary use only. Customers who purchase this license are held harmless by SCO for past infringements, as well as the on-going use of the infringing code.

    "There are 3 types of licenses to correspond to different uses of Linux.

    Client license A license is required for each desktop system that is using SCO IP in a commercial distribution of Linux. The client license grant is for a single user desktop system, irrespective of the number of CPUs on the desktop.

    Server license A license is required for each server that is running SCO IP in a distribution of Linux that is deployed for commercial use. The server license grant is per server, is based on the number of physical CPUs and is available bundles with either one, two, four or eight CPUs Additional CPUs are available for any configuration.

    Embedded license A license is required for each embedded system that is using SCO IP in a commercial distribution of Linux. The embedded license grant is for a single CPU, irrespective of the number of users of the embedded device.

    "The license is a perpetual, right to use license applies to the system (client, server or embedded device) running Linux in binary form. No additional license is necessary to apply Linux patches and updates to an existing system.

    "The license does not grant any rights to use SCO IP in source format, nor does it grant any distribution rights. It is therefore inadequate to cure infringements for distributors, or any entity that uses, modifies or distributes Linux source code." -- SCOsource's description of "SCO Intellectual Property License for Linux"

  • "Let me be clear. Red Hat is selling Linux that contains verbatim and obfuscated code from UNIX System V. Red Hat is also selling Linux that contains derivative works from UNIX that have been contributed to Linux in violation of UNIX licensing agreements. Some of these companies, like IBM and Sequent, have now had their license agreements terminated for acting in violation of the terms and agreements. . . . The code that the court will review in this case contains verbatim code from UNIX and misappropriated derivative works from UNIX. That has to be clear to the people that have reviewed the example code that we have shown." -- Darl McBride, teleconference, August 5, 2003

  • "McBride: There's two types of infringements here. As it relates to the derivative works code, actually we can be very open about that. It's not something that's under protective provision that we have in our contract. So we've been very clear that the NUMA, the RCU contributions that have come from IBM into open source and into Linux, into the Linux kernel, are direct violations of our...

    "Lee Gomes: (interrupting) Do you have actual specific examples in there?

    "McBride: Absolutely. That's one of the things that we've been showing . . . The legal system, copyright laws do matter, and in fact that should be the recognition going forwared, that we need to step back and take a look at this business model we have on the open-source side, which in fact doesn't have any inherent protections. . . .

    "I think the summary of the whole thing in terms of where we stand right now is, you know, the reality here, IBM and Red Hat have painted a Linux liability target on the backs of their customers, and due to IBM and Red Hat's actions, we have no choice but to fight the battle at the end-user level." Darl McBride, teleconference Q & A, August 3, 2003

  • "McBride added SCO is identifying Linux users for possible litigation. He said SCO had for the last month gathered information on Linux users, and identified about 10% of the total Linux servers sold last year. McBride added that he expected that figure to rise to 40% over the coming weeks before SCO would take action.

    "SCO has three groups working on identifying and approaching Linux users. The first is drawing up the list, the second will send out letters offering the chance to license the code SCO says has been copied into Linux, and the third will take legal action against those who refuse.

    "McBride said SCO was likely to be selective about who it targets, probably choosing a company using IBM Corp's AIX and Dynix operating systems as well as Linux, so it can settle several legal arguments in one go."

  • Computer Business Review Online, August 20, 2003

  • 2. Additionally, even if Red Hat were able to successfully establish the jurisdictional requirements for declaratory relief, this Court should decline to exercise jurisdiction because there is no practical reason to do so. The infringement and misappropriation issues Red Hat seeks to adjudicate in this case are currently before U.S. District Judge Dale A. Kimball in the SCO v. IBM Case pending in Utah Federal District Court. 3. Red Hat's claims under Counts III through VII seeking tort damages and injunctive relief based upon SCO's so-called "campaign" of filing suit against IBM and publicly discussing that case and other potential legal liabilities are barred by the First Amendment to the U.S. Constitution and by the common law doctrine of litigation immunity. The nature of SCO's statements complained of by Red Hat do not give rise to liability under the Lanham Act or the associated state law claims. Further, any governmental interest served under the Lanham Act is heavily outweighed by fundamental governmental interests in protecting copyright interests, ensuring full and free access to courts, providing litigation immunity, promoting judicial economy and fairness in litigation, and safeguarding freedom of speech and the press. Therefore, Counts III through VII must be dismissed with prejudice. . . . "In Counts I and II of their Complaint, Red Hat seeks declaratory judgments. In Count I, Red Hat begins by requesting a declaratory judgment that 'it does not infringe any SCO copyright.' Then, in a sweeping effort to obtain a declaratory judgment on behalf of the entire Linux industry, Red Hat seeks a declaration that 'any SCO copyright to cover Linux software is unenforceable.' Finally, again on behalf of the entire Linux industry, Red Hat requests the declaration that 'SCO is equitably estopped from asserting any SCO copyright with respect to any Linux software.' These broad claims for declaratory relief far exceed the scope and purpose of the Declaratory Judgment Act. . . . "The examples Red Hat uses to claim apprehension of suit belie its assertion. As detailed below, when the entire quotes, not the biased excerpts that have been placed out of context, are carefully examined, the conclusion is undeniable that Red Hat has no reasonable apprehension that it will be sued for copyright infringement or misappropriation. In paragraph 50, for example, Red Hat identifies a quote from Darl McBride, the Chief Executive Officer of SCO, in which he says simply "[t)here will be a day of reckoning for Red Hat ...when this is done." 50 (emphasis added). On its face, this quote makes clear that any action against Red Hat would take place only when litigation against IBM is completed. Moreover, when this quote is read in the context of the very next sentence, which Red Hat failed to provide, there is no doubt as to SCO's intentions: 'But we are focused on the IBM situation.' CRN article attached as Exhibit E. With the quote presented in context there can be no legitimate claim by Red Hat of 'reasonable apprehension' of suit by SCO. Lest there be any doubt about Red Hat's complete lack of a 'reasonable apprehension' of being sued, SCO's Vice President Chris Sontag was asked in an interview to explain Mr. McBride's comment about 'a day of reckoning:'

    What he meant was that if SCO prevails in their lawsuit with IBM, companies like Red Hat and SuSE may need to revisit their distributions and remove any UNIX system code from their distributions and compensate SCO in some way for the software code that they benefited from by using our UNIX code. . . . "The previously filed SCO v. IBM Case addresses most, if not all, of the issues of copyright infringement and misappropriation." -- SCO's SCO's Opening Brief in Support of its Motion to Dismiss Red Hat's complaint, September 2003

  • "16. Denies the allegations of paragraph 16 and alleges that Linux is, in actuality, an unauthorized version of UNIX that is structured, assembled and designed to be technologically indistinguishable from UNIX, and practically is distinguishable only in that Linux is a 'free' version of UNIX designed to destroy proprietary operating system software. . . . "122. Admits that IBM has placed copyright notices on certain of its AIX and Dynix contributions to UNIX, but denies it has the legal authority to do so, denies the applicability or enforceability of the GPL, and denies the remaining allegations of Paragraph 122 not specifically admitted herein. . . . "FOURTEENTH AFFIRMATIVE DEFENSE IBM's purported copyright registrations are invalid and/or IBM has violated copyright laws in respect to its claims alleged and the claims based on, or related to, copyrights are barred. FIFTEENTH AFFIRMATIVE DEFENSE On information and belief, one or more of the copyrights at issue is, or may be, unenforceable by reason of IBM's inequitable conduct, acts or omissions before the United States Patent and Trademark Office." -- SCO's Reply to IBM's Amended Answer with Counterclaims, Oct. 2003

  • "DM: Right, so when we started off this problem with IBM, it was very clear that IBM had donated things improperly into the open source community. That was the basis for our lawsuit against IBM, among other things, but that was the primary driver. "And during the period of time shortly after filing the lawsuit until recently when they came back and responded, we had a 60 day period there where we turned 3 different teams of code programmers loose on the codebases of AIX, Unix and Linux. And they came back with - independently - we had the three teams - one was a set of high-end mathematicians, rocket scientist, modeling type guys. Another team was based on standard programmer types. A third team were really spiffy on agent technology and how all of this technology was built in the first place. So the three teams came back independently and validated that there wasn't just a little bit of code showing up inside of Linux from our Unix intellectual property base. There was actually a mountain of code showing up in there. Now if you look at the types of code, we really see them in three different buckets. . . . "DF: Did the symmetrical multi-processing actually come from SCO or its licenses, or did it come from IBM or some other organization? "DM: When you look at the types of code that are in Linux today that are violating, there's really three types. There's line by line code that came right out of our System V source tree. There's derivative works code that came from vendors that we have license protections against them donating. And then there is basically non-literal implementations where they've munged code or obfuscated it to make it look like it's not. "The biggest concerning areas are the direct line by line and these derivative works code. The derivative works is the main area that IBM has been in violation of. . . . "We're basically saying in the late 2000's or pre-2000, you had two codebases that had the NUMA technology - non uniform memory architecture - that allows high end scalability inside of them. It was Unixware and it was Dynix that Sequent held. OK, so IBM buys Sequent while we're doing Project Monterey. Within the last 18 months, two years, they have in fact donated the Sequent NUMA code, the Sequent RCU code into Linux. OK, so part of it is code that we had as part of our Unixware product. Other parts such as RCU were things that were clearly derivatives. I mean if you look at the RCU code it could not be more clear that it's a derivative because in the copyright statements where IBM donated it into open source -- you can go out and look on sourceforge yourself -- it lists out that in fact RCU is a derivative work of Dynix, and Dynix is in fact a derivative work of System V. . . .What creates the violations are when they actually go out and take our code, contribute that into open source that in fact does boost Red Hat. It does boost the other distros. And at the same time our revenue comes down from 230 million down to 60 million. At the same time the Linux marketplace is just booming." -- Face to Face interview by Dan Farber of Darl McBride, July 22, 2003 Personally, I never use any documents from the SCO web site. I stopped in August of 2003, after they told us they had filed an amended complaint in June, and in August, I found out that they had filed a proposed amended complaint in June but that the judge hadn't accepted it until July. I didn't trust them after that to be accurate.

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