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
Your contributions keep Groklaw going.
To donate to Groklaw 2.0:

Groklaw Gear

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


To read comments to this article, go here
SCO: We never knowingly released code under the GPL. PJ: Did too. - Updated 2Xs
Sunday, July 08 2007 @ 08:35 PM EDT

SCO seems to have started something, when, after releasing software under the GPL for years, it now claims it never knowingly did so. As you know, Microsoft has now declared its GPL-virginity as well.

Methinks their lawyer doth protest too much, but now that it's becoming so trendy to disown one's previously assumed legal responsibilities, may I forthwith state for the record that I hereby declare that I am not a party to the Microsoft EULA, and none of my actions, such as opening the cellophane wrapper, and then installing and using the software after clicking I Agree, are to be misinterpreted as me accepting status as a contracting party of Microsoft's or assuming any legal obligations under such a EULA?

Well, that was easy. Who knew? Just a little snoop, and I'm free! Why didn't I think of that years ago? Because I am just a paralegal. What do we know? Lawyers are such smarties. Now that they've shown us the way to escape our IP license chains, we should all celebrate with an "I am not a party" party.

Alas! Better not. This might not actually work. I may not be a lawyer, but dopey para that I may be, I'm virtually certain that the courts won't join our little party. And so, sadly, no more monkey business -- starting with SCO, I fear I must provide a little harsh reality as an antidote to all this spinning fantasy law.

For an example of a SCO disclaimer, here's a snip from SCO's Memorandum in Opposition to IBM's Motion for Summary Judgment on SCO's Contract Claims:

IBM Ex. 105 (Caldera Systems, Inc.'s October 2000 Form 10-K/A) at 15,22,26:

The cited source refers to Caldera Systems, Inc. ("Caldera Systems"), which did not own any copyrights in UNIX. (Disputed Facts Nos. 9,34-37, 104 to SCO's Memorandum in Opposition to IBM's Motion for Summary Judgment on Its Tenth Counterclaim (Nov. 11,2006).) The cited source shows that Caldera Systems sought to deliver Linux-related products (p. 15), would be forced to contribute to the development of Linux if independent third-parties ceased such development (p. 22), and competed with Linux providers (p. 26). The source does not mention SCO and does not support the assertion that either SCO or Caldera Systems contributed source code to the Linux kernel or any non-proprietary, Linux-related software. Rather, the source stresses that "most of the components of [Caldera Systems'] software offerings are developed by independent parties" (p. 26).

Let's go back in time to the year 2000, that heady year for Caldera, now calling itself The SCO Group, when it was about to IPO as a Linux company. In Caldera's February 25, 2000 Amended S-1A filing, their amended IPO filing, including information from the first quarter as of Jan 31, 2000, here is how they described the business to those who might wish to invest:

The fourth graphic depicts the Company's product offerings with the following caption: ADDING VALUE TO AN OPEN SOURCE, FREE TECHNOLOGY OpenLinux, the core of Caldera's product offering, is a combination of open source community software that has been "scrubbed" to improve performance and stability, and our own software development contributions to open source....

Other services that we offer include technical support to assist end users during installation and operation of our products, consulting and custom development, optimization and certification for specific hardware platforms and documentation on Linux usage. ...

Caldera Systems, Inc. has operated as a separate legal entity engaged in developing and marketing Linux software since September 1, 1998. ...Neither Mr. Torvalds nor any significant contributor to the Linux kernel is an employee of ours, and none of these individuals are required to further update the Linux kernel....

Our business model also depends upon incorporating contributions from the open source community into products that we open source....Our products consist of many different software components and applications, most of which are developed by independent third parties over whom we have limited or no control. While we use rigid engineering standards in testing the products or applications that we integrate in our products, we cannot guarantee that we have selected or will select in the future the most reliable components available in the market or that we will successfully integrate the many components of our products.

You can't "scrub" GPL'd code and improve it and develop it and make it more stable and customize it and incorporate it into your products that you then open source and then release it -- except under the GPL. Forevah. That's how the GPL works. And any code of their own would be included.

That means that the significant contributions of employees like Christoph Hellwig were also released under the GPL. It all was. Whatever they put in there. Note that when they say that "no significant kernel developer" was in their employ, aside from it being not accurate by my estimation, since Hellwig remains a significant kernel contributor, last I looked, it is not saying there were none at all, is it? So assuming they could write in the English language, one must conclude there were some, and all of their contributions to the kernel would be under the GPL.

And of course, Santa Cruz employees also contributed code to the kernel under the GPL. Here's one who says he did so with the approval of his boss on company time. According to SCO, Santa Cruz obtained the copyrights to Unix from Novell. I don't believe that, but it's their story and they're stuck with it now. So when Tigran wrote SMP code, it's significant. But take a look at this note about the UnixWare boot filesystem:

9.4 BFS - UnixWare Boot Filesystem

UnixWare BFS filesystem type is a special-purpose filesystem. It was designed for loading and booting UnixWare kernel. BFS was designed as a contiguous filesystem. BFS supports only one (root) directory and you can create only regular files; no subdirs or special files such as devices or sockets can be created.

For more information about BFS see http://uw7doc.sco.com/FS_admin/ _The_bfs_File_System_Type.html.

* http://uw7doc.sco.com/FS_admin/_The_bfs_Superblock.html - superblock
* http://uw7doc.sco.com/FS_admin/_bfs_Inodes.html - inodes
* http://uw7doc.sco.com/FS_admin/_bfs_Storage_Blocks.html - storage blocks

You can access BFS filesystem from Linux:

* Homepage: http://www.ocston.org/~tigran/patches/bfs/
* Download: In the Linux kernel, patches available at homepage.
* Author: Tigran A. Aivazian
* License: GPL
* Access: Read/write (write part is limited, no compactification yet)

The support for BFS is included in the Linux kernel since version 2.3.25.

That would mean, since 1999, when Tigran announced Linus had accepted his patch.

And the thing about the GPL is that it really is like losing your virginity. You can't actually get it back and pretend it never happened, despite Microsoft's "we were only kissing" alibi. I know: they are booking all the money they made from Novell's vouchers under "GPL Immaculate Conception".

Furthermore, getting back to our other avowed virgin, I believe from this language that Caldera knew back then that they were distributing their products and modifications under the GPL, and of course history shows they continued to do so at least up to and after the release of UnitedLinux in 2003, long after they claim to have obtained the UNIX copyrights:

The Linux kernel and certain other components of our products have been developed and licensed under the GNU General Public License and similar licenses. These licenses state that any program licensed under them may be liberally copied, used, modified and distributed freely, so long as all modifications are also freely made available and licensed under the same conditions....

We believe that contributing back to Linux much of our research will facilitate more of an industry standard as well as industry cooperation. ...

Certain components of OpenLinux have been developed and made available for licensing under the GNU General Public License and similar licenses, which generally allow any person or organization to copy, modify and distribute the software. The only restriction is that any resulting or derivative work must be made available to the public under the same terms. Therefore, although we retain the copyrights to the code that we develop ourselves, due to the open source nature of our software products and the licenses under which we develop and distribute them, our collection of trademarks constitutes our most important intellectual property.

I feel like a cad, pointing out SCO slept with the GPL, but there you are, in black and white, ladies and gentlemen (and, as Groklaw member pem points out, a little bit of red too). Caldera certainly said it released its own code under the GPL, and it appears to have understood quite well at the time precisely what it was doing.

Incidentally, there is another paragraph I'd like to bring to the attention of Sun Microsystems in that SCO memorandum:

IBM has put forth no evidence that any UNIX copyright holder contributed the infringing Linux material to Linux or placed an appropriate GPL notice on Linux, or that other Linux contributors actually owned the copyright in the material they contributed. For instance, Mr. Torvalds admits to having incorporated system calls taken from a Unix licensee - Sun Microsystems. (Disputed Fact No. 2 to Yet, IBM has put forth no evidence showing that Sun granted rights to use such material in Linux.

So, what do you say, Sun, now that you are nuzzling the FOSS community? Care to step up the plate and answer SCO?

Update: Groklaw member Aladdin Sane did some research:

In the current kernel source, 2.6.21, as distributed in Debian Sid, these are
the credits that are given to "caldera".

I used

grep -A 1 -B 1 -r -i caldera *

under

/usr/src/linux-source-2.6.21

and got:

arch/x86_64/kernel/smpboot.c- * Pentium Pro and Pentium-II/Xeon MP machines.
arch/x86_64/kernel/smpboot.c: * Original development of Linux SMP code supported
by Caldera.
arch/x86_64/kernel/smpboot.c- *
--
arch/m32r/kernel/smpboot.c- * Pentium Pro and Pentium-II/Xeon MP machines.
arch/m32r/kernel/smpboot.c: * Original development of Linux SMP code supported
by Caldera.
arch/m32r/kernel/smpboot.c- *
--
arch/i386/kernel/smpboot.c- * Pentium Pro and Pentium-II/Xeon MP machines.
arch/i386/kernel/smpboot.c: * Original development of Linux SMP code supported
by Caldera.
arch/i386/kernel/smpboot.c- *
--
CREDITS-N: Stefan Probst
CREDITS:E: sp@caldera.de
CREDITS-D: The Linux Support Team Erlangen, 1993-97
CREDITS:S: Caldera (Deutschland) GmbH
CREDITS-S: Lazarettstrasse 8
--
Documentation/networking/tlan.txt:(C) 1997-1998 Caldera, Inc.
Documentation/networking/tlan.txt-(C) 1998 James Banks
--
drivers/net/slip.c- * Matti Aarnio : Dynamic SLIP devices,
with ideas taken
drivers/net/slip.c: * from Jim Freeman's

drivers/net/slip.c- * dynamic PPP devices. We
do NOT kfree()
--
drivers/net/tlan.h- *
drivers/net/tlan.h: * (C) 1997-1998 Caldera, Inc.
drivers/net/tlan.h- * (C) 1999-2001 Torben Mathiasen
--
drivers/net/tlan.c- *
drivers/net/tlan.c: * (C) 1997-1998 Caldera, Inc.
drivers/net/tlan.c- * (C) 1998 James Banks
--
drivers/char/drm/drm_context.c- * ChangeLog:
drivers/char/drm/drm_context.c: * 2001-11-16 Torsten Duwe

drivers/char/drm/drm_context.c- * added context
constructor/destructor hooks,
--
drivers/scsi/advansys.c-
drivers/scsi/advansys.c: Erik Ratcliffe has done
testing of the
drivers/scsi/advansys.c: AdvanSys driver in the Caldera releases.
drivers/scsi/advansys.c-
--
net/ipx/af_ipx.c- *
net/ipx/af_ipx.c: * Portions Copyright (c) 1995 Caldera, Inc.

net/ipx/af_ipx.c: * Neither Greg Page nor Caldera, Inc. admit liability nor
provide
net/ipx/af_ipx.c- * warranty for any of this software. This material is
provided
--
sound/oss/nm256_audio.c- * Added some __init
sound/oss/nm256_audio.c: * 19-04-2001 Marcus Meissner
sound/oss/nm256_audio.c- *

No doubt you noticed the dates. SCO's story is that it allegedly obtained the copyrights when it did two transactions with Santa Cruz in 2000 and 2001. So the above dates showing contributions in 2000 and 2001 would of necessity be *after* Caldera allegedly obtained the Unix copyrights.

Update 2: And anonymous contributes this link to Caldera's Open Source UNIX[tm] Tools page on Sourceforge, which begins:

Welcome! You have reached the homepage for the open sourced UNIX utilties project powered by Caldera. The project consists of two primary components:
* Regular Expression Engine Library (libregex)
* Sample Utilties (awk & grep)

I know. Hilarious. And what's even funnier, given SCO's weird accusation about downloading Linux being a felony for IBM, note the instructions for downloading from the repository:

CVS Repository:

You can now browse the repository as well as download direct via anonymous login using SSH!

To download direct, please do the following:

export
CVSROOT=:pserver:anonymous@cvs.unixtools.sourceforge.net:/ cvsroot/unixtools
export CVS_RSH=ssh

cvs login

(when prompted for a password just press enter)

Yup. The standard process for such matters: just press enter, if prompted for a password. Of course, it's not there any longer, the repository, but this vestigial remnant remains to tell the tale. The page was authored by Alexander Sack, as you can see if you view source, and questions were to be directed to unixtools at caldera.com. This was a Caldera-hosted page and project, also on Sourceforge. How ever will they explain all this away? The page has been there since August of 1991, according to Archive.org. It was still there, unchanged as to the information on it, in April of 2003, right after SCO sued IBM. And it's still there.


  View Printable Version


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 )