I thought it'd be fun to answer SCO's expert report from Dr. Gary Pisano, some more, on one point in particular, namely his inability to find any other reason SCOsource wasn't popular other than Novell's counterclaims to ownership of the code. Here's a list of media reactions, community and mainstream, that may illuminate him. Please note that not a single one even mentions Novell, and every single one would provide a sensible man with a reason, I think, to avoid SCOsource.
I focused on 2003, for now, both before and after Novell's public statement. You can do the same for any year. Just go to Google News, choose your year and follow the trail, as I just did, and you'll be amazed how hard it is to find anyone even mentioning Novell as a reason not to buy a license.
Of course, there was Groklaw, methodically answering SCO's FUD on a daily basis, beginning in mid-May of 2003. But as you'll see, the reaction to SCO was already formed, prior to Groklaw saying anything at all. Also, prior to Novell's statement, which it made on May 28. It was immediate, it was negative, and it was international and across the board.
Eric Raymond and Rob Landley also spoke for the community with Halloween IX, if you recall, that summer, analyzing SCO's complaint against IBM and comparing their claims and "facts" with reality. And Karsten Self and the gang set up a wiki to chronicle SCO's claims and answer them, from early June of 2003 to December of 2006, when he suggested they come to Groklaw and help out here. I can't think of a single tech site that didn't attempt to answer SCO's FUD and slander. Can you? And who can forget WeLoveTheSCOInformationMinister? When I say the community laughed at SCO's claims, I meant it literally.
As soon as SCO began to make its claims, you saw skepticism and anger. Sun and Microsoft wanted Linux to die, so their interest in SCOsource is, in my view, no indication that anyone else had any positive reaction to SCOsource from day one.
Let me show you. Here's a random collection for you, beginning on May 2, 2003, organized roughly chronologically, through November of 2003, to show you how deep and widespread that negativity was. I tried to avoid duplicate reasons to not want a SCOsource license, so each article stands on its own here as representing another reason a rational person wouldn't be interested, but there are many more articles out there, if I'd wanted to repeat the reasons. Imagine you are a commercial Linux user back then, and you are reading all this:
- SCO to enforce its intellectual property in Linux world, Juan Carlos Perez and Stephen Lawson, ComputerWorld, January 23, 2003: Note that when SCO first announced SCOsource, it didn't claim to own *all* the copyrights and other IP lock, stock, and barrel, but it did claim to own UNIX patents. Anyone who wanted to know whether to buy a SCOsource license could simply check the USPTO records, and they'd find that SCO owned no UNIX patents, so that would surely be a brake on desire. Incidentally, Microsoft claimed to have licensed patents from SCO via SCOsource, which is hard to explain, since there were none to license:
In its statement, Lindon, Utah-based SCO claims that it's "the majority owner of Unix intellectual property" and that although Linux is an open-source software, "it shares philosophy, architecture and [application programming interfaces] with Unix." Thus, SCO's licensing push, which involves launching new licensing programs, will be geared toward making sure that users and vendors combine Linux and Unix technology "legitimately," the statement said.
The company's CEO, Darl McBride, said in the statement that "SCO owns much of the core Unix intellectual property and has full rights to license this technology and enforce the associated patents and copyrights."
- SCO Challenges IBM and Linux Community - Olliance Group Response for Customers [PDF], March 2003:
Alternatively, there is nothing appearing either in the text of the [IBM] lawsuit or the other public statements issued by or on behalf of SCO that, in our opinion, constitute a legitimate threat to the long term growth of Linux and open source. Consequently, there is no apparent reason at this time to avoid Linux or to "wait and see what happens" before deploying Linux.... In our view, the GPL is not at risk as a result of the claims made by SCO. The marketplace has demonstrated a remarkable and increasing desire to utilize open source whenever possible and to find legitimate ways for proprietary and open source software to co-exist. The larger players in the market appear interested in expanding open source opportunities. Therefore, while this is a natural question to ask as a result of recent events, we believe there is no apparent real threat to GPL arising from those events.
It's Official: SCO Declares IP Jihad on Linux, Open for Business, Timothy R. Butler, May 2, 2003:
Well, it seems to be official. After more rumblings, denials of rumblings, rumblings about the denials of rumblings, SCO is now playing hardball (or is that harderball?). The beleagured Linux company formerly known as Caldera is now claiming that some UNIX code is hidden in the Linux kernel, but will not release the information Free Software developers need to try to fix the problem. Instead, SCO CEO Darl McBride refuses to release that information out of fear the community would "launder the evidence."
Yeah, right McBride. A community that publishes all of the source code to its kernel is some how going to be able to obfuscate the alleged SCO IP into apparently legal IP? If you believe that, I have this really nice piece of prime swamp land for sale down in Florida — blank checks are accepted.
- Tragedy to farce--the SCO vs IBM lawsuit Eric Raymond, ZDNEt, May 23, 2003:
It's been said that history repeats itself--the first time as tragedy, the second as farce. When AT&T commercialised Unix after 1984, that was tragedy. SCO's lawsuit against IBM is the farce....
Thus, from tragedy proceeded farce. Caldera doesn't have a case. Its public statements are not just full of lies; they're full of lies that can easily be falsified just by looking at Caldera's own past press releases. (A number of these are in the Open Source Initiative's position paper on the lawsuit.) Their story changes from week to week. First the kernel wasn't involved, now it is. First there was no action contemplated against Linux distributors, then there was. And recently McBride's merry crew has been threatening Linux customers. This is the desperate thrashing of a company that is hoping somebody will buy them out just to shut them up.
The SCO vs IBM lawsuit might have remained low comedy, nothing but the routine sort of greed-head manoeuvring we've come to expect whenever a company with a pathetically weak product line starts to rave on about defending intellectual property rights. But SCO did something exceptionally stupid this time. They insulted the people who actually wrote the code they were selling.
In order to make its case against IBM, Caldera has had to push the claim that Linux was a pathetic makeshift until the corporate hand of IBM injected into it secrets stolen from the ancient Unix code. Besides being ludicrously false, this enraged every Linux developer on the planet. Accusing us of trafficking in stolen goods was bad; implying that we were incompetent was far worse.
OSI's dissection of SCO's case was published just four days after the original complaint against IBM. SCO's early statements suggest that it thought it could somehow pacify the Linux community into staying out of its attempted shakedown against IBM--but, recognising both the insult and the threat this lawsuit poses, hundreds of programmers from all over the world have written to help amplify and develop the counter-case. In many cases they have supplied important documentary evidence of SCO's mendacity.
And it's not just Linux programmers who are angry. Much of the mail is coming in from old Unix hands who are finally, terminally fed up with the theory that any one corporation owns the code they spent two decades writing before Linux even existed. Morally, if not legally, the Unix code belongs to the hacker community that wrote it--the same community that gave the world the Internet and the World Wide Web, and is now behind open-source software.
- Torvalds Sounds Off On SCO Lawsuit , Paula Rooney, InformationWeek, May 23, 2003:
Torvalds wrote he sees no "smoking gun" in the Linux code, nor does he hold IBM responsible for the dispute.
"I haven't seen anything that would imply that IBM has done anything wrong, so until I hear otherwise, I'm just assuming it's just a case of business as usual--when SCO can't make it in the market, sue and go after the deep pockets."...
At least one attorney who specializes in intellectual property said that while he doesn't believe the case has legal merit, IBM might settle to prevent the case from dragging on and hampering its ability to migrate customers to Linux.
"I don't think there's a smoking gun, and it'll take a lot of hard work to identify what SCO thinks has gone wrong," said Tom Carey, a partner and chair of the business department at Bromberg & Sunstein, a Boston law firm that specializes in intellectual property. "My belief is that IBM is far too sophisticated a company not to create a Chinese wall between its AIX and Linux development groups and that they carefully thought through what AIX development work they might have created by itself, and what it would contribute to the open-source community. It's far too cautious a company with policies and procedures in place for that situation to occur. There's a low probability that there's a valid trade secret claim."
Linux users dare SCO to sue them, SMH.com, May 22, 2003:
Over 2500 Linux users have signed an online petition calling on the SCO Group to sue them over allegations made by the company that its intellectual property has been unauthorisedly used in the Linux kernel.
Titled, "Hey SCO, sue me", the petition says: "I am a Linux user. I feel that SCO's tactics toward an operating system of my choice are unjust, ill founded and bizarre.
"I am willing to be sued because I am confident that SCO's tactics toward Linux will fail. If I have published my email address as part of this petition it is so SCO representatives can email me and begin the process of serving me a court order."
LinuxTag has given notice to SCO Group GmbH to desist from unfair competitive practices, DesktopLinux, May 23, 2003:
Lawyers representing the LinuxTag association have given notice to SCO Group GmbH to desist from unfair competitive practiices. The notice, dated Friday, May 23, maintains that SCO Group is sowing uncertainty among the community of GNU/Linux users, developers and suppliers. "SCO needs to stop claiming that the standard Linux kernel violates its copyrights, or they need to lay the evidence for their claim on the table," said LinuxTag's Michael Kleinhenz.
The association demanded that the German SCO subsidiary retract its claims regarding ownership of Linux kernel code by this Friday, May 30, or make its evidence public. "SCO must not be allowed to damage its competitors by unsubstantiated claims, to intimidate their customers, and to inflict lasting damage on the reputation of GNU/Linux as an open platform," Kleinhenz added.
- SCO Still Providing Linux Source Under GPL, Steve Hastings, LinuxJournal, May 27, 2003:
On May 12, The SCO Group sent a letter to commercial Linux customers announcing "the suspension of our own Linux-related activities". On May 14, SCO announced they are ceasing to sell Linux.
However, SCO is still, as of this writing (May 22), providing Linux source code.
Unix users call on SCO to stop 'destructive actions', SMH.au, May 29, 2003:
The AUUG said that in the past SCO has been a valued contributor to the Open Source industry, publishing OpenLinux and UnitedLinux under the GPL for many years. It had also released "Ancient UNIX" under a BSD style license in January 2002.
"Since then SCO appears to have completely changed its position. Its recent attitude towards perceived IP violations include threatening statements and letters to corporate Linux users and industry partners. There is no evidence of any constructive actions. SCO's actions appear to be intended to cause maximum harm to the Linux industry. This leaves SCO's motives open to ridicule and speculation," the AUUG said.
It commented that these actions had made SCO the target of a counter lawsuit and believed that there would be more.
"SCO has implied that identifying specific IP problems will allow the Linux community to fix the problems and erase the evidence. The latter is clearly false: Linux source code is on historical record on CDs and servers across the globe.
"Further, AUUG believes that 'fixing the problem' must be the priority both for SCO and the Open Source industry. If SCO does not help fix the problem, it can only weaken their position," the AUUG said.
"In summary, AUUG condemns SCO's actions." said Lehey. "We believe that it will do good for neither Linux, UNIX nor SCO. We believe that the manner in which SCO is attempting to protect their intellectual property is inappropriate and damaging to SCO. We have already seen the first cases of legal action against SCO, and it is reasonable to expect more.
- Lindows gives anti-SCO camp fresh ammunition, SMH.au, May 30, 2003:
LindowsOS has no issues with the SCO Group because of a contract which has been in place since 2001, allowing the use of SCO's technology for certain initiatives, the CEO of Lindows.com, Michael Robertson, says in a media release.
LindowsOS, produced by Lindows.com, is an operating system based on the Linux kernel.
This opens up fresh problems for the SCO Group, which has accused commercial Linux users and also filed a lawsuit against IBM, alleging that copyright, which it holds on certain Unix properties, has been violated.
If code belonging to SCO has indeed been used in the Linux kernel which is distributed with LindowsOS, this would mean that that code is freely available to all and sundry.
Fujitsu Siemens: PC boom days are over, ZDNet, June, 2003:
Fujitsu Siemens has been increasing its involvement with Linux, recently forming deals with leading Linux providers Red Hat and SuSE that will increase the companies' software in Fujitsu Siemens products. Von Hammerstein said he is unworried by legal threats by SCO Group, which is alleging that companies that use Linux could be leaving themselves open to legal action.
He said it would be difficult for SCO to prove that any overlap between the source code of Unix and Linux was the result of illegal copying.
"You have to remember that Berkeley Unix has been used as a teaching tool in California universities for many years," he said. "Everybody who went to school there is contaminated. They worked on the source code, they built extensions, they looked at it. I don't really see how this legal challenge can go anywhere."
- No Business Like SCO Business Slashdot, June 13, 2003:
One observer of the SCO case has compiled some notes about Caldera's active participation in the IA-64 project. Note that the link no longer resolves, but Wayback helps you to get there. Interestingly, the FAQ [PDF], available from that Trillian Project page, says the following:
Q10: What is the contribution of each of the members of the Trillian project?
Was Caldera, now SCO Group, in a position, therefore, to know that SMP was put in the Linux kernel by a group it was an active participant of? On what basis, then, could it turn around and sue IBM, when it knew Intel and VALinux contributed SMP to the Trillian Project with the goal of putting their contributions into the main Linux tree? Just asking. This project was first demoed in 1999, according to the FAQ, which is dated February 2, 2000.
A10: Caldera will provide a distribution.
CERN is providing glibc.
HP provided the initial kernel and glibc port, and continues to work on the kernel.
IBM is providing performance tools, measurement, and analysis.
Intel is providing IA-32 support, IA-64 platform support, Apache port, EFI, FPSWA, SCSI, SMP and libm support....
VA Linux Systems is leading the project and providing kernel support, SMP, platform, boot loader, commands and libraries, Xfree86, E, E-Term and IA-32 support....
Q12: How will Linux for IA-64 be distributed?
A12: The port will be added to the standard Linux tree and will be available as part of many standard distributions.
- Analyst who saw SCO's evidence says origin of code a matter of debate, Sam Varghese, Sydney Morning Herald, June 13, 2003: This is an interview with Yankee Group's Laura DiDio, who Pisano apparently believes is credible and reliable, who sings SCO's praises as much as she can, but still says no one knows for sure and wouldn't know until there was a trial, so why would anyone buy a SCOsource license until somebody was sure? Incidentally, the code she vouched for turned out not to belong to SCO, assuming it was the same code they showed in public, and in fact the MIT deep divers she praises SCO for hiring never showed up in the court case and when we found them, it turned out they were not from MIT either:
Q: Given the history of Unix - with which you are, no doubt, familiar - is it possible, in your opinion, for the common code to have come to both Linux and Unix from a common ancestor like BSD?
DiDio: Anything is possible. The real issue is how likely is it that such a situation occurred and does proof exist that this actually happened? At this stage, no one can answer that question definitively. That's what the trial is all about. Certainly, there are examples of code that could have been developed by BSD and then incorporated by AT&T. But SCO claims it has identified code that it has positively identified as originating from AT&T.
SCO hired three separate teams of code experts, including a group from the Massachusetts Institute of Technology. According to SCO, these groups all found code in Linux that purportedly originated in the Unix System V kernel and not BSD.
It now remains to be seen whether IBM and its teams of legal experts can refute the findings of SCO's experts in court.
- The legal waters grow muddy in a dispute over a company's rights to Unix, Steve Lohr, NYTimes, June 9, 2003:
As the SCO story moves ahead, the most important question is: do Linux customers have a real cause for concern? The best answer, according to lawyers who have looked at the documents made public to date, is that as a legal matter it may be debatable, but as a practical matter almost certainly not.
First, the SCO suit against I.B.M. is essentially a contract dispute. That is, the accusation is that I.B.M. breached its contract with SCO by taking code covered by the Unix contract and putting it into Linux. The end users of Linux -- like the 1,500 industrial, financial and other corporations that received the warning letters from SCO -- typically do not have contracts with SCO....Legal experts say that if SCO thought it had strong intellectual property claims, it would probably have included those assertions in the I.B.M. suit.
- I.B.M.'s Opponent in Suit Criticizes Linux Advocate, Steve Lohr, New York Times, June 13, 2003: Here's an example of SCO's slanderous claims against Linus Torvalds and his response, which would provide an observer with yet another reason not to hurry out and buy a SCOsource license:
In a new court document, the SCO Group criticizes Linus Torvalds, the guardian of the freely shared Linux operating system. People knew that only the Mob makes an offer you can't refuse. SCO had no right to compel people to take a license and continue to use SCO's code, even if it had been in Linux. You take out such code, and work around it, and the community was absolutely willing to do that from day one, but SCO wouldn't identify the code. And later, it turned out that what they did identify was not something anyone needed to pay SCO for.
SCO's amended suit against I.B.M., filed late Monday, contends that Mr. Torvalds, who has overseen the development of Linux, appears to have a casual attitude toward intellectual property rights. Linux is distributed free and improved upon by a far-flung network of developers....
"Me, I prefer the open approach," Mr. Torvalds explained. "Does it guarantee that everybody is honest? No. But it, fundamentally, makes it much more likely that people are honest, and the transparency in the process also means that if dishonesty happens, you can go back and see what went on."
Indeed, because Linux code is published publicly, it is easier to track what I.B.M. contributed to the operating system. But the issue, of course, is whether SCO's Unix license covered any of the code I.B.M. put into Linux.
Should the SCO suit turn up any offending code, the open nature of Linux — and the many programmers working on it — will ensure a quick solution, according to open- source software experts.
SCO irks just about everyone in tech — except Microsoft,Kevin Maney, USA Today, July 7, 2003:
A few months ago, SCO sued IBM for $1 billion, because IBM is a big backer of Linux. More recently, SCO sent letters to 1,500 companies that bought computers that run on Linux, demanding those companies send SCO a check to buy a SCO license, or face a possible SCO lawsuit.
This whole thing is not unlike finding your grandmother's recipe for Bundt cake, realizing it's similar to the recipe in a number of cookbooks, suing the biggest cookbook publisher, then sending letters to everyone who makes a Bundt cake saying they should send you some money or risk legal action. Not a good way to make friends.
- Linux Users Standing Fast Despite SCO Legal Threats, InternetWeek Readers Say ,InformationWeek, Mitch Wagner, July 8, 2003:
SCO's Linux lawsuit and threats seem to be having little affect on IT managers except to make them angry. Fully 91 percent of people responding to an InternetWeek Reader Question said they will not change their Linux deployment plans as a result of SCO's actions. We received 10 times the normal rate of response....Here's what some of you had to say:
Eric O'Dell, senior systems and database administrator, Visionary Networks, Portland, Ore.: "We are not considering eliminating Linux largely because we are completely dependent on it -- it would be very costly to switch to another platform -- and because we do not believe that SCO's claims have merit, or that they have the financial resources to fight IBM even if they did have merit.
"In any event, if we are forced to abandon Linux, which we do not view as a significant short-term risk, we will look first at FreeBSD and OpenBSD, and failing that, at Sun. SCO's offerings are so primitive and obsolete in comparison to every other general-purpose server OS on the market that they would simply never be seriously considered by us.
"In many ways, that's the most infuriating thing about this whole debacle: SCO doesn't offer enterprise-level features, so how could IBM and Linux steal those features from SCO? This is just a sad case of a mismanaged company without any talent or innovation of its own using lawyers to parasitize the IT industry."
Tom Treder: "The horse is already out of the barn: any infringing code has been released under GPL by SCO itself in its branded Linux distribution....
Jeremy Gross, president, CW Electronic Services, Greensboro, NC: "In my opinion, end users, including corporate users, should not be held liable for any infringement, if liability is an issue. Would a driver be held liable if their Ford car used technology owned by Mazda? Of course not. Why should this be any different?"
- OSDL questions SCO's licence extortion, Egan Orian, The Inquirer, August 1, 2003:
Questioning SCO: A Hard Look at Nebulous Claims
[by] Eben Moglen
Users of free software around the world are being pressured to pay The SCO Group, formerly Caldera, on the basis that SCO has "intellectual property" claims against the Linux operating system kernel or other free software that require users to buy a "license" from SCO. Allegations apparently serious have been made in an essentially unserious way: by press release, unaccompanied by evidence that would permit serious judgment of the factual basis for the claims. Firms that make significant use of free software are trying to evaluate the factual and legal basis for the demand. Failure to come forward with evidence of any infringement of SCO's legal rights is suspicious in itself; SCO's public announcement of a decision to pursue users, rather than the authors or distributors of allegedly-infringing free software only increases doubts.
It is impossible to assess the weight of undisclosed evidence. Based on the facts currently known, which are the facts SCO itself has chosen to disclose, a number of very severe questions arise concerning SCO's legal claims. As a lawyer with reasonably extensive experience in free software licensing, I see substantial reason to reject SCO's assertions....
SCO, it bears repeating, has long distributed the Linux kernel under GPL, and continues to do so as of this writing. It has directly given users copies of the work and copies of the license. SCO cannot argue that people who received a copyrighted work from SCO, with a license allowing them to copy, modify and redistribute, are not permitted to copy, modify and distribute. Those who have received the work under one license from SCO are not required, under any theory, to take another license simply because SCO wishes the license it has already been using had different terms.
In response to this simple fact, some SCO officials have recently argued that there is somehow a difference between their "distribution" of the Linux kernel and "contribution" of their copyrighted code to the kernel, if there is any such code in the work. For this purpose they have quoted section 0 of the GPL, which provides that "This License applies to any program or other work which contains a notice placed by the copyright holder saying it may be distributed under the terms of this General Public License." The Linux kernel contains such notices in each and every appropriate place in the code; no one has ever denied that the combined work is released under GPL. SCO, as Caldera, has indeed contributed to the Linux kernel, and its contributions are included in modules containing GPL notices. Section 0 of the GPL does not provide SCO some exception to the general rule of the license; it has distributed the Linux kernel under GPL, and it has granted to all the right to copy, modify and distribute the copyrighted material the kernel contains, to the extent that SCO holds such copyrights. SCO cannot argue that its distribution is inadvertent: it has intentionally and commercially distributed Linux for years. It has benefited in its business from the copyrighted originality of tens of thousands of other programmers, and it is now choosing to abuse the trust of the community of which it long formed a part by claiming that its own license doesn't mean what it says. When a copyright holder says "You have one license from me, but I deny that license applies; take another license at a higher price and I'll leave you alone," what reason is there to expect any better faith in the observance of the second license than there was as to the first?
- SAMBA teams' Statement on SCO's Claims, Linux Today, August 13, 2003:
Community: SCO Use of Samba Code Under the GPL
Over the past few months, the SCO (Santa Cruz Operation) Corporation (formerly Caldera International, Inc. a Linux distribution vendor) has been complaining about violations of its Copyright works by the Linux kernel code.
Recently, Darl McBride, the Chief Executive Officer of SCO has been making pejorative statements regarding the license used by the Linux kernel, the GNU GPL. In a keynote speech he recently said :
"At the end of the day, the GPL is not about making software free; it's about destroying value."
In light of this it is the depths of hypocrisy that at the same event SCO also announced the incorporation of the Samba3 release into their latest OpenServer product. Samba is an Open Source/Free Software project that allows Linux and UNIX servers to interoperate with Microsoft Windows clients. The reason for this is clear; Samba3 allows Linux and UNIX servers to replace Microsoft Windows NT Domain Controllers and will add great value to any Operating System which includes it. However, Samba is also developed and distributed under the GNU GPL license, in exactly the same manner as the Linux kernel code that SCO has been criticizing for its lack of care in ownership attribution.
We observe that SCO is both attacking the GPL on the one hand and benefiting from the GPL on the other hand. SCO can't have it both ways. SCO has a clear choice: either pledge not to use any Open Source/Free Software in any of their products, or actively participate in the Open Source/Free Software movement and reap the benefits. For SCO to continue to use Open Source/Free Software while attacking others for using it is the epitome of hypocrisy.
The strength of Open Source/Free Software is that it is available to all without restrictions on fields of endeavor, as the Samba Team believes the ability to freely use, modify and learn from software code is one of the grounding principles of computer science, and a basic freedom for all.
Because of this, we believe that the Samba must remain true to our principles and be freely available to use even in ways we personally disapprove of.
Even when used by rank hypocrites like SCO.
Christopher R. Hertel,
Jean Francois Micouleau,
- Why SCO's attack on the GPL will fail, Con Zymaris, CEO of Cybersource Pty Ltd, a Melbourne-based IT & Internet Professional Services company, Sydney Morning Herald, August 21, 2003:
The most probable reason for SCO to try and undermine the GPL is that they have realised that they themselves have indeed, over the past few months, published (and are continuing to publish) under the GPL, these same codes which they claim that IBM illegally released. As of this writing (August 2003), SCO are still shipping the same 2.4-series kernel that presumably has these disputed codes which are at the heart of the SCO vs. IBM civil suit. (Source: ftp://ftp.caldera.com/pub/updates/OpenLinux/3.1.1/Server/current/SRPMS/linux-2.4.13-21S.src.rpm)
SCO claimed to have realised that the Linux kernel had 'disputed codes' near the start of this year, stating that they themselves never gave permission to publish this code under the GPL. Whilst one might give SCO some leeway to have removed this source code package from their site, the fact that they continue to openly publish this code in a bundle which states the contents are GPL'd many months after this realisation, considerably weakens their case against Linux users. Under the re-distribution clauses available in the GPL, SCO's action gives total freedom to anyone to use these 'disputed codes' just as they would any other piece of GPL software. Furthermore, by making these 'disputed codes' available under the GPL, this explicitly prevents that distributor from adding any additional impediment, which in turn makes SCO's request for 'licence' payment from Linux users invalid. All in all a tough legal spot for SCO to be in. Therefore, in order to wriggle out of this corner they have unskillfully wedged themselves into, SCO's only emergency exit is to claim that the GPL itself is invalid. Clinching this will be a difficult manouevre to pull off.
Open Letter from SSC President to The SCO Group, Phil Hughes, LinuxJournal, August 21, 2003:
Dear SCO Folks:
Being on your press release list, I regularly receive your musings. The fact that they first appear to be legal in nature but actually come from a PR firm amuses me.
That said, on to the important stuff. I would like to inform you that SSC is a Linux user--a long-term Linux user. In fact, we upgraded from SCO UNIX to Linux about ten years ago....
SCO FUD has made for great entertainment, interspersed with articles about governments around the world embracing Linux on our new WorldWatch Web site.
So, why this letter? Well, I would like to make it easier for you folks to know where to find another Linux user if you still are running your protection racket. The office address for SSC is in your copy of Linux Journal (I know there are people at SCO that get Linux Journal).
Finally, this letter is being written on one of my Linux systems. There are six others here. Send your lawyers to Calle Paula, 100m este, Carretera Alajuela a Carrizal, Alajuela, Costa Rica. I will be happy to give them a quick introduction to Linux.
- Embarrassing Dispatches From The SCO Front, Slashdot, August 23, 2003:
"In the ongoing battle between SCO and the Linux community, German publisher Heise has shown that not only was the Linux implementation of the Berkeley Packet filter written outside of Caldera (now SCO), but that it was common practice there and at other companies to remove the BSD copyright notices from the internally used source code. In effect, SCO has proven publicly that they violated the BSD license."
- Analysis of SCO's Las Vegas Slide Show, Bruce Perens, perens.org, "With help from Linus Torvalds and the Open Source community. ", August 2003:
I will start with SCO's demonstrations regarding "copied" software. It is likely that SCO would present the very best examples that they have of "copied" code in their slide show. But I was easily able to determine that of the two examples, one isn't SCO's property at all, and the other is used in Linux under a valid license. If this is the best SCO has to offer, they will lose.
Slide 15 purports to show "Obfuscated Copying" from Unix System V into Linux. SCO further obfuscated the code on this slide by switching it to a Greek font, but that was easily undone. It's entertaining that the SCO folks had no clue that the font-change could be so easily reversed. I'm glad they don't work on my computer security :-)
The code shown in this slide implements the Berkeley Packet Filter, internet firewall software often abbreviated as "BPF". SCO doesn't own BPF. It was created at the Lawrence Berkeley Laboratory with funding from the U.S. Government, and is itself derived from an older version called "enet", developed by Stanford and Carnegie-Mellon Universities. BPF was first deployed on the 4.3 BSD system produced by the University of California at Berkeley. SCO later copied the software into Unix System V....
- Torvalds Slams SCO, eWeek, September 1, 2003:
eWEEK: What are your views on the lines of "offending" code that SCO showed this week and the thousands of other lines of code it claims are also illegally in Linux?
Torvalds: The code SCO showed represents an algorithm that can be used to manage a computer's memory...Not a very interesting piece of code in itself, this is very basic "allocate a smaller chunk of memory out of a list of bigger chunks." The function is described in a lot of places, and exists in original Unix code and is apparently written by Ken Thompson himself. It shows up in the Lions book (a commentary on the traditional Unix), and the code is described in [Maurice J.] Bach's "The Design of the Unix Operating System." In other words, it's not only 30 years old; it's actually been documented several times. It's also part of BSD Unix, which was shown to not be a derived work of the AT&T copyrights 10 years ago.
It's part of the "original Unix" archives that Dennis Ritchie has made available, and from a legal perspective (and also of ironic interest), it's also part of all the code that Caldera made freely available back when they still remembered that they were a Linux company and had made all their money on the Linux IPO. Ironically, the piece of code that [SCO demonstrated this week] had already been removed in [the Linux kernel] 2.6.x and not because of copyright issues, but because developers complained about how "ugly" it was. So not only is the code available under the BSD copyright, it had been removed in new versions of Linux even before SCO made it public.
But what I find interesting is how it shows that the SCO people are having such a hard time with the truth. They've said several times that the code they have found is not "historic Unix" code and "not BSD" code (which they know you can't infringe, since BSD has been shown to be independent, and Caldera itself released the historic code in 2002). To counter the open-source peoples' contention that any shared code is likely of BSD or "ancient Unix" origin, [SCO's] claimed several times how it's "modern System V" code that they have clear ownership of. That's despite massive proof to the contrary, going back three decades.
eWEEK:There is also a movement afoot in the open-source community, spearheaded by Eric Raymond and Jeff Gerhardt, to get SCO to allow the community to see the code under a less restrictive NDA so that any offending code can be removed. Do you support such a move?
Torvalds: Absolutely. If SCO can actually show code that is truly infringing, I (and a lot of other people) are going to figure out where it came from and remove the offending code. That goes without question. However, I clearly don't expect that to be the case. We expect to see more of the same: BSD code (or other code that is just commonly available to both parties, like the ancient Unix archives), or code that just looks similar because it is based on public standards.
So the main reason we want to see the allegedly infringing code is that we think it's likely that it's not infringing at all. And I'm certainly willing to back that up with a promise to remove any code they point to that we can't show is ours or open.
eWEEK: For its part though, SCO has said that there are so many lines of code, and a variety of applications and devices that use that code, that simply removing the offending code would not be technically feasible or possible and would not solve the problem. Do you agree?
Torvalds: They are smoking crack. Their slides said there are [more than] 800,000 lines of SMP code that are "infringing," and they are just off their rocker. The SMP code was written by a number of Linux people I know well (I did a lot of the SMP IRQ scalability myself, personally), so their claims are just ludicrous. And they claim they own JFS [journaled file system technology] too. Whee. They're not shy about claiming ownership of other people's code --while at the same time beating their breasts about how they have been wronged. So the SCO people seem to have a few problems keeping the truth straight, but if there is something they know all about, it's hypocrisy.
- SCO may not know origin of code, says Australian UNIX historian, Sydney Morning Herald, September 9, 2003:
More doubts have been cast on the heritage of System V Unix code, which the SCO Group claims as its own, by an Australian who runs the Unix Heritage Society.
Dr Warren Toomey, now a computer science lecturer at Bond University, said today: "I'd like to point out that SCO (the present SCO Group) probably doesn't have an idea where they got much of their code. The fact that I had to send SCO (the Santa Cruz Organisation or the old SCO) everything up to and including Sys III says an awful lot."
He said that even though SCO owned the copyright on Sys III, a few years ago it did not have a copy of the source code. "I was dealing with one of their people at the time, trying to get some code released under a reasonable licence. I sent them the code as a gesture because I knew they did not have a copy," he said with a chuckle.
Dr Toomey's statements come a few days after Greg Rose, an Australian Unix hacker from the 1970s, raised the possibility that there may be code contributed by people, including himself, which has made its way into System V Unix and is thus being used by companies like the SCO Group.
Dr Toomey said this was one reason why the code samples which the SCO Group had shown at its annual forum had turned out to be widely published code.
SCO was unaware of the origins of much of the code and this "explains how they could wheel out the old malloc() code and the BPF (Berkeley Packet Filter) code, not realising that both were now under BSD licences - and in fact they hadn't even written the BPF code," Dr Toomey said.
Dr Toomey, who served 12 years with the Australian Defence Force Academy, an offshoot of the University of New South Wales, before joining Bond University, said he had source code for Unices from the 3rd version of UNIX which came out in 1974 to the present day. "I don't have Sys V code but there are people with licences for that code who are members of the Unix Heritage Society. We can compare code samples any time," he said.
He agreed that the codebase of Sys V was a terribly tangled mess. "It is very difficult to trace origins now. There is an awful lot of non-AT&T and non-SCO code in Sys V. There is a lot of BSD code there," he said.
Boies Joins SCO Shakedown, Lisa DiCarlo, Forbes, November 18, 2003: How's that for a title? What does it tell you Forbes thought of SCO's claims that it used the word 'shakedown'? Later, for the record, Boies decided not to accept that great honor and asked for stone cold cash, but we're looking at history now:
SCO's executives said the payments to Boies' firm are contingent upon events that have already occurred. "We've had some successful [licensing] events occur, and we've shared that with David. He's coming in at a partnership level," says McBride, who said Boies' firm will share in any windfall that occurs in the event of judgment, licensing or sale of SCO.... License or litigate, eh? I remember at the first SCO v. Novell trial, on the stand Darl McBride was asked if that was the deal, license or litigate:
The alleged intellectual property violations "touch not just IBM but others, and the violations are not easily repaired," says McBride.
He says SCO has shown some Linux customers a sample file of the allegedly illegal source code. Linux developers, he says, "cleaned up" a simple portion of the code but "the ability to yank one million lines of code out of five million is substantial."
SCO has apparently shelved an earlier plan to send invoices to Linux customers, in favor of one-on-one licensing negotiations. "It's license or litigate," McBride said.
Q. So what you're telling these companies in May of 2003, is, look, our core intellectual property dating back to AT&T is in Linux; right?
I don't know if that performance is quite as nauseating to new folks, but to the community who clearly remembered the "license or litigate" words, it was truly appalling to hear him testify *under oath* like that. And what's all this about a
million lines of code? Where are they? The community knew there would never be any million lines of code showing up, and you know why? Because Eric Raymond wrote Comparator. And because Linux is written in public, on the internet, so if you wanted to look for infringing code, you certainly could look. And where, pray tell, do you hide a million lines of UNIX code in the open air? It was a crazy sounding claim, and sure enough, in the IBM litigation, after what, a half decade of discovery, SCO showed up with a feeble list of a hundred and some lines of what isn't even all code, more like a list, and all distributed by SCO for years and years, including after it sued IBM, which made even the Magistrate Judge Brooke Wells ask SCO, "Is that all you've got?" When we saw all that, how would you expect someone using Linux to feel? Like running out to buy a SCOsource license? That SCOfolk reliably told the truth, the whole truth and nothing but the truth?
Q. And you're using Linux; correct?
A. That's correct.
Q. Therefore, you're going to have to take a license from us.
A. I don't see anything in here that says you have to take a license from us....
Q. And then you told them you not only put them on notice, you flat-out told them:
"We intend to aggressively protect and enforce these rights."
A. That's absolutely correct.
Q. You're basically telling them, take a license or we're going to sue you.
A. You're going to have to show me where it says that.
Q. Well, you then told them:
"We intend to aggressively protect and enforce our rights."
And then you told them:
"We already sued IBM."
A. Yes. So where does that say we're going to go out and sue everybody else? I don't see that in there.
- SCO postpones license fee increase and invoicing commercial Linux users, ars technica, October 20, 2003:
The SCO group has graciously extended Linux users another two weeks time before doubling license fees according to Network World Fusion. Evidently they have also backed off plans to send invoices to known commercial users of Linux this month....
The time extension for obtaining a license from SCO makes sense, given that the industry response thus far has been underwhelming (they may as well extend the deadline out a few years). It also sounds as though someone has been feeding SCO sound legal advice for a change, given that they are indefinitely delaying plans to invoice commercial Linux users. Doing so could expose SCO to further litigation:
"It's one thing to file a lawsuit against a specific company, and it's another thing to present invoices to a large number of end-user companies, many of whom will regard them as fraudulent and take counter-action."
- Small companies' cash is not good enough for SCO, Ashlee Vance, The Register, October 23, 2003:
It turns out that the Utah clean crusaders will only accept payments from companies that make up the Fortune 1000 list. Call it a curse; call it a blessing - small businesses simply cannot buy the peace of mind that comes with a Linux license, according to a report by Robert "Server Bob" McMillan of IDG News Service.
"We're trying to execute on this licensing plan (by) really starting to deal with the very top players and working our way down," Blake Stowell, a spokesman for SCO told IDG. "After the company has rolled this out to the Fortune 1000 and we're satisfied with how the program is going ... we'll then roll it down to small to medium businesses."
Under this plan of attack, it would seem small and medium-sized businesses have little to fear. SCO is having a hard time convincing Fortune 1000 companies to take it seriously. There is no telling how long it will take to sign up a "satisfactory" number of companies. That must mean more than one, right?
- Weapons of Mass Infringement InfoWorld, Robert X. Cringely,
Feb 21, 2005, p. 8: This one is from a couple of years after Novell's copyright announcement, and I include it just to demonstrate how little folks thought of SCO's claims, not only immediately in 2003, see above, but for years and years, so why would they buy a SCOsource license?
The SCO Group, which has yet to produce a single piece of evidence that bits of the company's copyright Unix code were used in IBM's Linux build, seems perilously close to having its $5 billion suit against Big Blue dismissed. And if it is, well, CEO Darl McBride might want to start thinking about a second career. Then again, maybe he can blame the CIA for providing faulty intelligence.
I think onlookers were also very likely influenced over time by what they saw happening in the court orders that eventually began to issue. They saw SCO lose on summary judgment in September of 2004 every claim that mattered in DaimlerChrysler, for example. (And maybe they read William Broderick's Affidavit in that litigation, and decided they'd never in their right mind enter into any deal with SCO as long as they lived, after seeing what DaimlerChrysler was sued for and how it was treated, a company that had not used SCO's products for seven years.) And they saw things like this section of an early order dating back to June of 2004 from Judge Kimball in the Novell case, when SCO tried to remove the case to local Utah state court:
"The Amendment also contains no transfer language in the form of 'seller hereby conveys to buyer.' Given the similarly ambiguous language in the APA with respect to the transfer of assets -- seller 'will' sell, convey, assign, and buyer 'will' purchase and acquire -- it is questionable on the face of the documents whether there was any intention to transfer the copyrights as of the date the amendment was executed. Moreover, the use of the term 'required' in Amendment No. 2 without any accompanying list or definition of which copyrights would be required for SCO to exercise its rights in the technology is troublesome given the number of copyrighted works involved in the transaction. There is enough ambiguity in the language of Amendment No. 2 that, at this point in the litigation, it is questionable whether Amendment No. 2 was meant to convey the required copyrights or whether the parties contemplated a separate writing to actually transfer the copyrights after the 'required' copyrights were identified. Therefore, this is not a case where the court can immediately conclude that there is a writing under Section 204(a). Why would anyone want a SCOsource license if it looked likely that SCO didn't own the copyrights, which is what Kimball was saying here? So for anyone, labeled an expert or not, to claim that Novell's statement was the sole reason folks were not enthusiastic about SCOsource is I think demonstrably incorrect, and any "damages" sustained, even calculated in a kangaroo court in Alice's Wonderland can't possibly do the money calculations based solely on that and have it be true. How, I ask myself, could an expert not know that?
"Although the case will obviously require contract interpretation, at this stage of the litigation, the agreements raise substantial doubt as to whether the APA as amended by Amendment No. 2 qualifies as a Section 204(a) writing."
And just for fun, when SCO announced the SCOsource license for Linux was available early in 2004, here are some of the comments on Slashdot that day, to give you a feel for what Linux users thought of the offer:
But... (Score:5, Funny)
Do you get the impression the Linux community thought SCO was running a scam? And while they were horsing around, obviously, they didn't miss much that would matter to anyone thinking about purchasing a license, did they? In fact, I believe they noticed several impediments to SCO's dream$ that SCO's expert, Dr. Pisano, seems to have overlooked.
by Tuxedo Jack (648130) writes: on Sunday February 22 2004, @07:40PM (#8358374)
Do they take Monopoly money?
Re:But... (Score:5, Funny)
Price (Score:5, Funny)
by Anonymous Coward writes: on Sunday February 22 2004, @07:41PM (#8358391)
Yes, they took Microsoft's money.
Re: But... (Score:5, Funny)
by Black Parrot (19622) writes: on Sunday February 22 2004, @07:51PM (#8358481)
> Do they take Monopoly money?
Yep, it was specially designed for pretending to buy pretend property....
by Anonymous Coward writes: on Sunday February 22 2004, @07:44PM (#8358415)
Hmm... lets see. Only $149.00 for annual license for one CPU, eh? What a bargain! BTW, I sell annual leases to vacant lots on the moon, but due to court proceedings I can't show you proof that I actually own the moon at moment...
Disclaiming of 'misrepresentation' (Score:5, Interesting)
by sanermind (512885) writes: on Sunday February 22 2004, @07:47PM (#8358438)
I note that in the limitation of liability, they disclaim 'misrepresentation'?...
As I've said before... (Score:5, Interesting)
by quandrum (652868) writes: on Sunday February 22 2004, @07:54PM (#8358504)
Licensing linux code from SCO invalidates the GPL on the rest of the kernel code. The licenses are not compatible. You will never get hundreds of kernel developers to re-license the code for your use. If you really think you need to buy this, give up. Install FreeBSD....
Re:The EULA (Score:5, Interesting)
by somneo (108745) writes: on Sunday February 22 2004, @08:24PM (#8358679) Homepage
"Desktop System" means a single user computer workstation controlled by a single instance of the Operating System. It may provide personal productivity applications, web browsers and other client interfaces (e.g., mail, calendering, instant messaging, etc). It may not host services for clients on other systems.
Running sshd or Samba makes your computer a server. Between those two applications, I'd say that nearly no one qualifies for the "Desktop" license. How is SCO planning to enforce that, anyway? Does each license come with a free portscan?
Did anyone read the EULA? (Score:5, Insightful)
by Spruce Moose (1857) writes: on Sunday February 22 2004, @08:15PM (#8358630)
The EULA [thescogroup.com] seems to craftily say you can use 'SCO IP' without actually saying whether there is any SCO IP in the kernel or exactly what it is. From the EULA:
"SCO IP" shall mean the SCO intellectual property included in its UNIX-based Code in Object Code format licensed by SCO under SCO's standard commercial license.
and a bit further down:
"UNIX-based Code" shall mean any Code or Method that: (i) in its literal or non-literal expression, structure, format, use, functionality or adaptation (ii) is based on, developed in, derived from or is similar to (iii) any Code contained in or Method devised or developed in (iv) UNIX System V or UnixWare(R), or (v) any modification or derivative work based on or licensed under UNIX System V or UnixWare.
Provided You comply fully with this Grant of Rights and Obligations, SCO will not consider such use of the SCO IP licensed by You under this Agreement to be in violation of SCO's intellectual property ownership or rights.