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SCO's IP Rights After Distributing UnitedLinux Under the GPL
Sunday, January 03 2010 @ 11:59 PM EST

Since Chapter 11 Trustee Edward Cahn's lawyer, Bonnie Fatell, reportedly opined at the most recent bankruptcy hearing that SCO would never have given away its Unix intellectual property rights to UnitedLinux, I thought I would show you exactly what was in UnitedLinux -- some, if not all, of the very code they now claim IBM had no right to put into Linux and others can't use without infringing SCO's rights. But they put it in their very own SCO Linux Powered by UnitedLinux distribution themselves, and under the GPL.

There may be all kinds of arguments to be made about exceptions and hold backs in the UnitedLinux contracts as to ownership. But the knowing distribution under the GPL does affect SCO's rights, and it's not in dispute that they did it. If Ms. Fatell had an IP expert knowledgeable about the GPL to ask, here's what I believe he or she would tell her: that it doesn't matter about ownership. In fact, it's worse for SCO if it *does* prove someday that it owns every bit it contributed to UnitedLinux, because then it would mean that it knowingly and voluntarily donated it all under the GPL.

And you know what that means? I believe it means that SCO can't sue anybody for anything that is in SCO's very own UnitedLinux distribution. Here's why: You can't distribute your code under a license that allows recipients to copy, modify, and distribute and then sue them for doing those things.

Well, you can sue, as SCO has demonstrated, but you can't win in the end, as you will see someday. Warning to those on dialup, there will be a lot of graphics coming up.

I believe Ms. Fatell is struggling with understanding these things, because her orientation isn't the world of FOSS. In traditional intellectual property scenarios, companies in fact do fight hard to protect what they write in their software. And as you saw in the Apple v. Psystar litigation, ownership rights generally prevail. So that is how she may be thinking here, that no company in its right mind would give away IP rights. Here's the essence of what she said, from my notes from the hearing:

SUSE's claim is grounded on the unsupported allegation that in 2002 by signing contracts for UL, it gave away its IP rights to its proprietary UNIX operating system, its most valuable asset, that it gave it away to SUSE and every other user of Linux. It's SCO's position, under any fair interpretation SUSE's claims lack merit. There is no way it would have entered into those agreements to give away its entire business. Ridiculous to believe that in entering into those UL contracts, SCO intended to put itself out of business, which is effectively what SUSE's position is.
But consider what we know for sure SCO did do, distribute its code in UnitedLinux under the GPL. In the FOSS marketplace, they do that, and back then SCO was a Linux company. And what is simply true is that you can't operate in the FOSS space unless you do share under the GPL or some other Open Source license that indeed can affect your rights, especially with respect to suing people for copyright infringement. And both Santa Cruz and Caldera, now SCO Group, understood that, and complied with the terms, grudgingly but they at least pretended that it was a great thing. For example, here's a couple of screenshots for you from the goode olde dayes, when they each wanted to cooperate with the FOSS world. First, Caldera announces it was opensourcing LIZARD, code it wrote and thought gave it a leg up in the market:

And here's Santa Cruz offering some code and linking to Caldera for more:

And here's the release of Free OpenServer for educational and noncommercial use, speaking of sharing methods and concepts and knowledge:

And here's how Santa Cruz and Caldera felt they would benefit from joining forces:

So her premises are false. Sharing IP isn't as out-of-character as it might seem, if all you judge by is more recent SCO management. They did a U turn, for sure, and it's probably true that Darl McBride would never have shared any code if he could help it, but as I'm going to show you, in a Linux distribution, you have no choice. If you want to sell Linux, you have to share. In the FOSS world, which is a world that includes large and successful companies like Red Hat and Google and Amazon, just so you realize that sharing or using Linux doesn't put you out of business, but rather enables businesses, you share to progress faster. When Caldera found it couldn't beat Red Hat, they mobilized to form UnitedLinux, because when two or three or four or more smaller entities pool their IP and skills, they can accomplish things none of them alone can accomplish. So that was the goal.

Here's the old UnitedLinux website in February of 2003, just before SCO sued IBM. Here's the audio (MP3) of the press conference with the four CEOs of Caldera, Conectiva, SuSE and Turbolinux and major industry players on May, 30, 2002. Here's page two of their news page, featuring among other things a press release about IBM becoming a UnitedLinux technology partner, dated January 14, 2003. Let's read the entire press release, so you can see what it meant to be a partner in UnitedLinux, and also because such things tend to disappear:

FOR IMMEDIATE RELEASE

For additional information:
UnitedLinux
Margot Rodger
mrodger@virtualmgmt.com
781-876-6299

UnitedLinux Signs IBM and AMD as First Technology Partners WAKEFIELD, Mass. - January 14, 2003 - IBM (NYSE:IBM) and AMD (NYSE:AMD) have joined UnitedLinux as Technology Partners, UnitedLinux announced today. UnitedLinux is the result of an industry initiative to streamline Linux development and certification around a global, uniform distribution of Linux targeted at the business user. The role of Technology Partner includes, among other benefits, participation in the UnitedLinux Technical Advisory Board and its committees, pre-release access to UnitedLinux deliverables, the right to propose enhancements for consideration by the UnitedLinux Technical Steering Committee, and joint marketing activities. IBM and AMD are the first companies to engage with UnitedLinux at the Technology Partner level.

"UnitedLinux welcomes IBM and AMD as our inaugural Technology Partners. In joining forces with Linux industry leaders, we are making great strides toward our goal of the widespread proliferation of Linux in the enterprise," said Paula Hunter, general manager of UnitedLinux. "UnitedLinux is proud to announce this major milestone, coming on the heels of our successful launch of UnitedLinux Version 1.0, and we look forward to the results of this world-class collaboration."

Founding companies of UnitedLinux are Linux industry leaders Conectiva S.A., The SCO Group (NASDAQ:SCOX), SuSE Linux AG, and Turbolinux, Inc. UnitedLinux Version 1.0, released in November, is the engine that powers products sold by the four companies, each with its own value-add features, services and pricing.

"Fostering Linux collaboration accelerates value to customers," said Karen Smith, vice president, Linux strategy, IBM. "Such collaboration with UnitedLinux has already yielded impressive solution offerings spanning IBM's complete eServer product line, enabled with key middleware, and supported worldwide through IBM Global Services."

"AMD and UnitedLinux share a common goal to provide scalable, reliable and affordable Linux-based solutions for the enterprise," said Rich Heye, vice president, platform engineering and infrastructure, Computation Products Group, AMD. "Companies choosing systems based on the upcoming AMD Opteron™ processors will have an x86-based option for capturing the advantages of 64-bit UnitedLinux products. Together, AMD and UnitedLinux plan to enable rapid and efficient ports of 32- and 64-bit Linux-based applications and systems."

Built on top of a solid and tested foundation, UnitedLinux 1.0 is an enterprise-class operating system with exceptional stability, scalability and reliability, and its high level of quality has been previously available only in expensive proprietary operating systems. UnitedLinux Version 1.0 incorporates a wide range of features that enhance its usefulness for enterprise environments. Details are contained in a UnitedLinux white paper at www.unitedlinux.com.

Distributed virtually everywhere in the world and supported by leading global ISVs and IHVs, UnitedLinux Version 1.0 is initially available in English, Japanese, Simplified Chinese, Korean, Portuguese, Spanish, Italian, German, French and Hungarian. UnitedLinux Version 1.0 has local language and local time zone support for customers around the world, with access to a channel of more than 16,000 resellers and a global pre- and post-sales support team.

Products powered by UnitedLinux are being offered by the four founding companies. Details are available on request from Conectiva S. A. - unitedlinux@conectiva.com; The SCO Group - unitedlinux@sco.com; SuSE Linux AG - unitedlinux@suse.com; Turbolinux, Inc. - unitedlinux@turbolinux.com.

About UnitedLinux

UnitedLinux is a partnership of industry-leading Linux companies combining their intellectual property, geographic mind share, sales, support and marketing expertise to produce a uniform distribution of Linux designed for business. UnitedLinux applies the collaborative development model of open source to the business model to enable a one-stop shop for developers, partners and customers to install, support and maintain quality business solutions based on Linux anywhere in the world. UnitedLinux is actively recruiting membership for both industry software developers and those who provide Linux as an integral part of their business solutions. For more information, visit
http://www.unitedlinux.com or call UnitedLinux at +1-781-876-8989.

### Linux is a registered trademark of Linus Torvalds. All other trademarks and service marks are the property of their respective owners. Editors' Note: Hear additional announcements at the UnitedLinux press luncheon (12:30 PM) and news conference (1:15 PM) on January 22 at LinuxWorld, Room 1E18, Javits Center, New York. Call or email Margot Rodger, 781-876-6299, mrodger@virtualmgmt.com, to register.

I think it's clear that SCO knew IBM was involved and that the entire purpose of UnitedLinux was to create a distribution of Linux for the enterprise, with high end features, and that they shared IP. Did you notice the press release said one way to streamline things for businesses was to create the distribution by the partners pooling their IP? No matter what carve outs there might have been, surely we can assume that the contracts were written to ensure none of the partners sued any of the others after the pooling.

By the way you can still get the technical paper on UnitedLinux, thanks to Internet Archive, here [PDF] and a data sheet here [PDF] off of page one of the news page from February of 2003.

The technical paper, on page 4, explains why the partners would consider pooling intellectual property:

1 Introduction

1.1 What is UnitedLinux?

Industry leaders Conectiva, SCO Group, SuSE and Turbolinux have formed a consortium to develop the high quality operating system called UnitedLinux.

Under terms of agreement, the four companies will streamline development efforts around one common version of Linux. Designed to be an enterprise-grade and industry standard Linux operating system, UnitedLinux provides a stable and uniform platform for application development, certification and deployment.

Being developed to unify rather than to fragment Linux offerings, UnitedLinux helps Linux vendors, ISVs, IHVs and OEMs to support a single, high value Linux offering, instead of many different versions. This focuses more resources on the advancement of Linux, thus creating a much higher quality, more functional product than could be developed otherwise.

UnitedLinux defines a common base (“UL base”) to be used as a foundation for all Linux offerings of the participating Linux vendors. Sharing the core system simplifies certification for OEMs and ISVs, who can certify against one platform instead of multiple distributions.

Participants can rebrand UnitedLinux with their own “look & feel” and value-added extensions. Therefore, UnitedLinux must clearly define what constitutes the UL base, which parts are vendor-added extensions and how they interact with this foundation. UnitedLinux shall also provide a “sample look & feel”.

They pooled their resources for very much the same reason the GPL does -- so that each would contribute a piece and get back a lot more pieces from the others. It was the only way to compete with Red Hat, they thought. So that is why they did it.

Each could customize on top of the standardized features. And they did that. But it remained under the GPL. I happen to own a copy of the media for the UnitedLinux distribution 1.0 source, as do thousands of others -- there were over 15,000 downloads the first month it became available, and here is a screenshot from my trusty emacs showing the license:

See that part I highlighted for you? It says "SCO Linux Powered by UnitedLinux SCO GPL". So that was the license. For the geeks:
rpm -qpi kernel-source-2.4.19.SuSE-333.nosrc.rpm

Name : kernel-source
Relocations: (not relocatable)
Version : 2.4.19.SuSE
Vendor: UnitedLinux LLC
Release : 333
Build Date: Thu 17 Jul 2003 01:19:44 PM EDT
Install Date: (not installed)
Build Host: D109.suse.de
Group : Development/Sources
Source RPM: (none)
Size : 40870822
License: GPL
Signature : DSA/SHA1, Thu 17 Jul 2003 01:24:31 PM EDT, Key ID a84edae89c800aca
Packager : http://www.unitedlinux.com/feedback
Summary : The Linux kernel (the core of the Linux operating system)
Description : Linux Kernel sources with many Improvements and Fixes.

Authors:
--------
Linus Torvalds
see /usr/src/linux/CREDITS for more details.

For nongeeks, that is showing what my Fedora distro found for me when I asked it for the info about that package. Not installed means that it's not installed on my computer, but the package is there for me to examine, after I moved it from the CD to my home area. And if you noted the date, 17 Jul 2003, that's because the beta was still available in October of 2003, when I got it. That is months and months after SCO sued IBM, in March of 2003.

The UnitedLinux's kernel, of course, was distributed knowingly and on purpose under the GPL. as you see. It was a GPL distribution. You can't distribute the kernel under any other license. And guess whose kernel SCO chose to use in that distribution? The common kernel for United Linux was the one done by.... SUSE:

That's the one SCO chose, and it included patches and improvements for the purposes of UnitedLinux:

As you see, they took a vanilla kernel, as it's called, the one that Linus offers, and added improvements to it for their particular purposes, and the license, you'll notice, remained the GPL, because that's how the GPL rolls. And may I point out it's the 2.4 kernel, the very one SCO then claimed and claims is infringing?

So what were some of the other features of UnitedLinux? On page 6 of the technical paper, there's a graphic that tells you. They shared the kernel, which SCO now is suing over, and they shared also the following:

Common hardware
database and
Common autoprobe
backends

Common packages
libraries, kernel,
drivers and
DriverUpdate

Common config
File location,
Syntax and Semantics

On that same page, they list the platforms that UnitedLinux was designed to run on:
2.2 Supported platforms

UnitedLinux will initially be available for the following platforms: x86 32-bit, IA64, x86-64 and IBM z, i and pSeries.

You can see from the list that they were aiming at the enterprise, the high end, which is exactly what SCO is now suing about, and after listing all the standards that UL respected, here's what they deliberately put into UnitedLinux:
2.4 Enterprise features

UnitedLinux offers support for a number of standard and emerging hardware and soft- ware technologies, briefly summarized in the following list:

Automated installation....
Installation methods....
High Availability....
Journaling file systems
see Section 4.2
LVM
see Section 4.4.
NGPT
The Next Generation POSIX Threads is a derivative of the GNU Pthreads and achieves near full POSIX compliance. It will add MxN threading capability and improve significantly on the POSIX compliance of pthreads on Linux. This will allow significant performance improvements for all applications that make use of the pthreads library, particularly on SMP machines. It will also enable Linux to provide threading services that are more in line with the capabilities of commercial UNIX operating systems, such as IBM AIX and SGI IRIX.

POSIX Asynchronous I/O
The asynchronous I/O (AIO) facility implements interfaces defined by the POSIX standard. With split-phase I/O, the initiating request (such as an aio_read) truly queues the I/O at the device as the first phase of the I/O request; a second phase of the I/O request, performed as part of the I/O completion, propagates results of the request. The results may include the contents of the I/O buffer on a read, the number of bytes read or written, and any error status. Raw I/O Raw I/O enhancements provide high-bandwidth, low-overhead SCSI disk I/O capabilities by transferring data directly to a buffer in the application address space, bypassing the kernel buffers and I/O queueing code for SCSI and FibreChannel devices....

Notice JFS, SMP and AIX listed? SCO is suing IBM over that now. And you noticed that it said to go to Section 4.2 to learn about Journaling File Systems, so let's do that:
4.2 Journaling File Systems...

4.2.3 JFS

The Journaled File System (JFS) is a full 64-bit file system. All of the appropriate file system structure fields are 64-bits in size. This allows JFS to support both large files and partitions. JFS was developed by IBM under the GPL license and is ported from its AIX systems.

JFS provides a log-based, byte-level file system that was developed for transaction-oriented, high performance systems. Scalable and robust, its advantage over non-journaled file systems is its quick restart capability. JFS can restore a file system to a consistent state in a matter of seconds or minutes.

While tailored primarily for the high throughput and reliability requirements of servers (from single processor systems to advanced multi-processor and clustered systems), JFS is also applicable to client configurations where performance and reliability are desired.

Table 4 lists JFS limits.

What? SCO didn't know it was in there? They put it there themselves, along with linux-abi:

See the credit to hch? That's our old friend Christoph Hellwig, who was paid by Caldera to do exactly that.

By the way, JFS wasn't ported from AIX, but rather came from OS/2 but the fact that SCO itself decided with three other partners to include it in UnitedLinux under the GPL ought to completely kill any claims by SCO for copyright infringement over ANYTHING that is in JFS, no matter where it came from. Repudiating the GPL by suing for copyright infringement of code you distributed under the GPL can lead to losing your GPL license, as SCO, oldSCO management, learned the hard way. By the way, guess what other file systems were included? BFS (UnixWare. boot file system) and SYSV (SCO/Xenix/Coherent). Also in there were UMSDOS (UNIX-like FS for DOS disk images) and Minix. And remember XFS? SCO wanted to sue SGI about it. Well, here you see they included it in their kernel for UnitedLinux:

Funny, no? It gets worse for SCO. The next section in the technical paper is a list of "essential core components" and what do we find there? More items SCO is suing about:

glibc >2.25
textutils
fileutils
sh-utils
sharutils
util-linux
Standard Linux and UNIX shells: bash, csh, ksh
SysVinit
vixie-cron
Remote shell tools: ssh, scp
Networking tools (ping, traceroute, nslookup)
IPv6 (basic tools like ifconfig/route and config location)
Firewalling tools (ipchains, iptables, masquerading)
Scripting languages: python, perl, PHP, TCL/TK, ruby
Java runtime
XFree86 >4.2 (libs and server)
X print service (libXp.so.6)
Free fonts for wide character support
Free input methods for wide character support
KDE 3.0 libraries
GNOME 2.0 libraries
High availability
Postgresql
SNMP
CUPS
I18n (pt_BR, es, XFree deadkeys patch)
Hardware monitoring tools (lmsensors, etc)
Remote boot (TFTP, PXE, etc)
UL also included make (GNU make), GNU automake and autoconf, and GNU binutils. It used GCC 3.1 as the default compiler but you had the option to install GCC 2.95 instead. "All dependent packages (like C++ libraries) are provided in two versions." Think about *that* for just a minute or two.

Here's glibc, showing Caldera's name:

Here are some Linux how tos SCO included in its UnitedLinux, written by Caldera, in case some of you persist in thinking they didn't know what was in there:

Here's ELF in glibc included in SCO's UnitedLinux:

Here's binutils:

The spec sheet on page 3 tells us that UL also came with a "Developer Environment":

UnitedLinux 1.0 provides a development environment for ISVs that includes the compilers, includes, libraries, sources, text editors, graphical user interface support and other tools to enable the building of applications for UnitedLinux.
Here's what the Developer Environment website looked like in 2004. SCO had been involved in developer support since at least October of 2002, as you can see by this page about SCO's UnitedLinux Developer Education Series launch, although SCO has removed the link, so we won't know that they did that, I suppose, but they did. And guess who they, that is UnitedLinux, asked to help them? IBM, of course, as you can see in this January 22, 2003 press release:
IBM is assisting UnitedLinux to provide a robust ongoing program for software developers by offering a Linux Software Evaluation Kit (SEK). The SEK, available at no charge through the UnitedLinux Developer's Zone, contains trial code, training and support to help developers get up and running with Linux and include evaluation copies of IBM's most popular software offerings: Eclipse-based WebSphere Studio tools, WebSphere Application Server and Web Services Toolkit, DB2® Database, Lotus Domino collaboration software, and Tivoli Management Software. The SEK offering is part of IBM's popular Speed Start Your Linux Apps program, which is available at developerWorks, IBM's resource for developers at: www.ibm.com/developerWorks.

For the certification program, the joint work of LPI and UnitedLinux will lead to two new UnitedLinux certifications during the first quarter of 2003: a UnitedLinux Certified Professional (ULCP) certification and a UnitedLinux Certified Expert (ULCE) certification.

"UnitedLinux has received tremendous positive feedback on the idea of a developers program, and we are looking forward to addressing the significant interest in this program from the development community," said Paula Hunter, general manager of UnitedLinux. "We're delighted with IBM's assistance and support with the UnitedLinux Developer's Zone. It's another example of collective accomplishments that demonstrate the value of teamwork at UnitedLinux, and, with the enthusiastic reception of the marketplace, validate our initial assessment of significant pent-up demand for enterprise-class Linux."

We mentioned that the UnitedLinux kernel was personalized. Some of those improvements were to make UnitedLinux usable by the large enterprises, which is why it included high-end functionality like JFS. But the license on JFS remained the GPL, and you can verify that in this screenshot:

Including things like that of course required some patches, as you can see in this screenshot of fixes to the kernel:

But it was SCO, as part of UnitedLinux, that was doing these things, not outsiders somehow sneaking in code.

For any Doubting Thomases, here are a few more screenshots, which add to the evidence that code SCO has been suing people like IBM about is code they themselves knowingly and voluntarily distributed under the GPL and LGPL licenses.

Here's SMP packages in SCO's UnitedLinux, under the GPL:

Here's SMP patches, from the k_smp package in SCO's United Linux:

Here's a mention of SystemV in glibc-2.2.5-179:

Here's NUMA and NUMAQ in SCO's United Linux:

Notice in line 2 that the kernel accepted the following changes because UnitedLinux asked them to:

Here's ELF and asm mentioned in glibc:

Here's KDEbase:

Some libraries in libc for backward compatibility:

In short, they ought to just sue themselves and leave the rest of us alone.

Update: For the purists:

binutils:

rpm -qpi binutils-2.12.90.0.15-50.src.rpm
Name : binutils
Relocations: (not relocatable)
Version : 2.12.90.0.15
Vendor: UnitedLinux LLC
Release : 50
Build Date: Wed 16 Oct 2002 06:28:14 AM EDT
Install Date: (not installed)
Build Host: levi.suse.de
Group : Development/Languages/Other
Source RPM: (none)
Size : 9066758
License: LGPL Signature : DSA/SHA1, Wed 16 Oct 2002 06:31:30 AM EDT, Key ID a84edae89c800aca
Packager : http://www.unitedlinux.com/feedback
Summary : GNU binutils
Description : C compiler utilities: ar, as, gprof, ld, nm, objcopy, objdump, ranlib, size, strings, strip.

These utilities are needed whenever you want to compile a program or a kernel.

This version has been compiled by SuSE with the corresponding C library. It is not designed for cross-compiling to other architectures.

Authors: [long list]

k_smp:

rpm -qpi k_smp-2.4.19-113.src.rpm
Name : k_smp
Relocations: (not relocatable)
Version : 2.4.19
Vendor: UnitedLinux LLC
Release : 113
Build Date: Mon 21 Oct 2002 04:04:32 PM EDT
Install Date: (not installed)
Build Host: D63.suse.de
Group : System/Kernel
Source RPM: (none)
Size : 193122
License: GPL
Signature : DSA/SHA1, Mon 21 Oct 2002 04:21:33 PM EDT, Key ID a84edae89c800aca
Packager : http://www.unitedlinux.com/feedback
Summary : Kernel with multiprocessor support
Description : CONFIG_SMP=y
SuSE series: images

common-licenses:

rpm -qpi common-licenses-1.0-1sco.src.rpm
Name : common-licenses
Relocations: (not relocatable)
Version : 1.0
Vendor: SCO
Release : 1sco
Build Date: Wed 23 Oct 2002 02:10:27 PM EDT
Install Date: (not installed)
Build Host: javaman.uss.ca.caldera.com
Group : System/Base
Source RPM: (none)
Size : 22556
License: GPL
Signature : DSA/SHA1, Wed 23 Oct 2002 03:00:00 PM EDT, Key ID 6e5b99b2c4970d31
Packager : Ronald Joe Record
Summary : Contains the various common licenses uses by the distribution
Description : Contains the various common licenses uses by the distribution. Instead of including the COPYING file in every package, just refer to this one.

gcc:

rpm qpi gcc-3.2-45.src.rpm
RPM version 4.6.0
Copyright (C) 1998-2002 - Red Hat, Inc.
This program may be freely redistributed under the terms of the GNU GPL

glib:

rpm qpi glib2-2.0.6-47.src.rpm
RPM version 4.6.0
Copyright (C) 1998-2002 - Red Hat, Inc.
This program may be freely redistributed under the terms of the GNU GPL

jfsutils:

rpm qpi jfsutils-1.0.24-1.src.rpm RPM version 4.6.0 Copyright (C) 1998-2002 - Red Hat, Inc. This program may be freely redistributed under the terms of the GNU GPL

Etc. As you can see, the emacs screenshots are very accurate.


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