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To read comments to this article, go here
So, Did Someone Steal SCO's Strawberries?
Thursday, June 05 2003 @ 02:21 AM EDT



Judge for yourself. Here is the exact wording of two sections of the 1995 "asset purchase agreement" between Novell and Santa Cruz, now SCO Group:

Schedule 1.1(a) says these are the assets that Santa Cruz bought:
All rights and ownership of UNIX and UnixWare, including but not limited to all versions of UNIX and UnixWare and all copies of UNIX and UnixWare (including revisions and updates in process), and all technical, design development, installation, operation and maintenance information concerning UNIX and UnixWare, including source code, source documentation, source listings and annotations, appropriate engineering notebooks, test data and test results, as well as all reference manuals and support materials normally distributed by Seller to end-users and potential end-users in connection with the distribution of UNIX and UnixWare...
But Schedule 1.1(b) says the following were excluded:
Intellectual property:

A. All copyrights and trademarks, except for the trademarks UNIX and UnixWare.
B. All Patents

So, the question is, does SCO now have the rights to enforce IP violations or not? Clearly Novell was truthful about them not buying copyrights and patents.

Nuff said. So, it appears to be contractual violations or nothing, though the argument may be a long one as to who has enforcement rights.

So, if you are using or selling SCO OpenServer or UnixWare, what should you do? According to this expert, you're hosed one way or another, no matter who wins the IBM-SCO lawsuit, and it's time to migrate over to SUSE or something, anything, else.

Meanwhile in Germany, the SCO website has been taken down temporarily at least. It used to be here , in case you want to monitor developments, but is now a blank page. (NOTE: It just went back up with modified content. It's Thursday 6:27 AM EST. It's worth a visit if you have a taste for irony. The home page now says "Relax. Worry Free Software", which seems odd, unless you're in PR maybe. Spin, spin, spin. Or they're speaking in NewSpeak. I'd post the picture but they might sue me for copyright infringement.)

"In Germany, we have achieved our purpose," LinuxTag spokesperson Andreas Gebhard told NewsFactor. "They (SCO) are no longer allowed to say they have the intellectual property rights on the Linux kernel." LinuxTag succeeded in obtaining a temporary restraining order against SCO, said Ryan Tibbitts, SCO's newly appointed chief legal counsel. SCO shut down the site to be on the safe side, he said. "We didn't want to run afoul of the court," Tibbitts said. The Canopy Group forced SCO to hire in-house counsel to handled "the firestorm". Boies, they say, is still in charge. ...Hmm. This should work out well. Not.

Here is an English translation of part of the LinuxTag press release about their action against SCO Germany:

Until a few weeks ago, SCO itself distributed the Linux kernel GNU General Public License (GPL) as a member of the UnitedLinux alliance. Thus even if SCO owns parts of the Linux kernel, it has made them into Free Software by distributing them under the GPL.

"This situation illustrates the superiority of the Free Software licensing model: If a software manufacturer withdraws from the development of GPL software, its contributions that were published under the the GPL up to that time remain available to users," said Jürgen Siepmann, attorney and founding member of LinuxTag.

Meanwhile, Microsoft's Steve Ballmer apparently had a revelation on his annual retreat, namely: Linux is a threat to Microsoft. He just sent a memo to all employees after the retreat he went on with other top managers, saying: "For some products it makes sense to publish regular builds of new products online, for community feedback."

So...open source is no good, but they will now copy the open source development model a teeny weeny bit. Wait, I get it...Borrowing ideas from open source development, but without that icky GPL which won't let you take the code and then make it proprietary, like nice BSD code. In a Forbes interview on that very subject, Ballmer said:

Non-commercial software products in general and Linux in particular, present a competitive challenge for us and for our entire industry, and they require our concentrated focus and attention.
If there is one thing you don't want, it's Microsoft's "concentrated focus and attention."

Only MS execs go on retreats to think more deeply...about MS. What can you say? The man really loves his company.


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