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They "Show" the Code
Tuesday, August 19 2003 @ 04:27 AM EDT

Well, those slides went to SCOForum, even if Boies didn't. Here's the mainstream account:
Sontag then showed, in a series of slides, Linux code that he claimed has been literally copied from Unix. He said numerous comments, unusual spellings and typographical errors had also been copied directly into Linux.

Much of the Unix code in the slides was obscured, because the company wants to keep its intellectual property under wraps, but SCO is allowing people who want to see a more extensive side-by-side comparison during the conference to do so if they sign a nondisclosure agreement.

For Your Eyes Only, I guess. Somebody at the conference is posting to Yahoo! Finance as Korbomite, and his account of what he saw isn't exactly the same:
McBride showed a number of what I would have thought were classroom exercises in a first-year c programming class. One side was marked as "Linux," one as UNIX®. The code seemed to be basic iterative programming and set-up code, as you would see in any text or on a test. Primarily, it seemed to be initializations of variables and set-up of stacks and heaps. At no time was there any explanation of or provision to provenance of either code example. No one brought up the general availability of the Linux source tree and the time it has been available vs. the date of SCO's filing. No one questioned the sheer AMOUNT of claimed code vs. the total in the kernel/module space. There WERE striking similarities in the examples, but there were also differences."
I see CNET reporting that the crowd burst into applause at one point. Korbomite says there were "far fewer" than 1,000 people there. I haven't seen that pointed out anywhere else. And when they applauded, it was about OpenServer's features, which include ... um... Samba, a GPLd product. Bit of a disconnect there.

ITWorld reports that they are now claiming a million lines of code, derivative code, not direct copying. eWeek says the same thing, adding that Sontag says "it's highly unlikely the matter could be resolved by removing that code". No, you won't let us remove it. Then the case would be over. Talking derivative code instead of copying means nothing can be fixed until we go to trial and hear their "rocket scientists" testify to how they used "spectral analysis" to find common code. Rocket scientists found the allegedly infringing code. Anything sound fishy to you about that?

Here's the CRN description:

While it was difficult to ascertain the exact code being shown on screen, attorneys pointed to exact copying of some code from Unix to Linux and claimed that IBM improperly donated almost a million lines of Unix System V code to the Linux 2.4x and Linux 2.5x kernel that infringe on its Unix System V contract with SCO -- and SCO's intellectual property.

SCO claimed that much of the core code of Linux including Non-Uniform Memory Access, the Read Copy Update for high-end database scalability, Journaling File System, XFS, Schedulers, Linux PPC 32 and 64-bit support and enterprise volume management is covered by SCO's Unix System V contracts and copyrights.

"For example, 110,000 lines of Unix System V code for read copy update, 55,000 lines of NUMA code and more than 750,000 lines of symmetric multi-processing code from Unix System V has made its way into Linux, attorneys and SCO executives claimed.

Again, McBride compared GNU/Linux users to pirates:
"We're fighting for a right in the industry to make a living selling software," McBride said. "The whole notion that software should be free is something SCO doesn't stand for. We have drawn the line. We're supposed to be excited about that and we're not. . . .

"Globally, it's not just about Red Hat and IBM. There are a lot of issues around IP with music, and in Hollywood. We are in the software industry having these issues and this can have a significant impact going forward. The evidence we have is strong."

So, you've been warned, coders. SCO won't stand for it if you let people use your code for free.

And this tidbit: It seems HP is their new best friend, to hear McBride tell it:

But SCO's McBride said that there are two companies he has no intention of going after: Hewlett-Packard Co. and Sun Microsystems Inc. "We have no problems with Sun and HP with regards to infringement as both have honored the conditions of their Unix license contracts and operated within these," he said.
Seems they are planning on rolling out a 64-bit UNIX for Itanium 2 one of these days:
SCO Group Inc is proving its commitment to the future of Unix on Intel Corp processors by announcing plans for new versions of its OpenServer and UnixWare flavors and a new 64-bit version for Itanium 2.

The Lindon, Utah-based company has been through multiple projects to develop a 64-bit version of Unix for Intel in the past, most recently Project Monterey with IBM Corp, which led in part to the current legal battle between the two companies.

SCO said it will be careful not to infringe on any information gained through those projects in the development of SCO Unix 9, the new 64-bit variant due for release in 2005.

What are the odds of this staying out of the case? My favorite quotation? One SCO exec said, "Under the microscope we're in, I'm sure we'll do the right thing." That's as opposed to when they are not being watched closely, I presume. Here it says they have formed a partnership with Open Systems, Inc. , a company that does accounting software for Windows, UNIX, and Linux. Here's what Open Systems, Inc.'s VP of Marketing Mil Miketic has to say about what they will be working on together with SCO:
"SCO is a strategic partner for Open Systems," said Miketic. "Both of our organizations share a common target market, and we can leverage our combined channel strengths to take advantage of the rising popularity of Linux applications in creating accounting solutions for small to medium-sized businesses."
So, maybe the actual explanation is that SCO wishes to grab Linux for itself, claim ownership, get the GPL invalidated, get paid royalties, and then...profit! And this is about honoring IP? What about the owners of the GPL code? Planning on at least sharing the loot with the guys who actually wrote the code and didn't turn over their copyrights to you, you SCO pirates? Of course, I could be hallucinating, I suppose.

A bit more explanation from Moglen in the Register, on the GPL.

44 comments  View Printable Version
Most Recent Post: 08/20 09:21AM by Anonymous

James Bond on a Mission to Sell and a Note About the Levenez v. SCO Unix History
Tuesday, August 19 2003 @ 02:18 AM EDT

I do wonder sometimes what will become of my synapses after I spend so many months trying to figure out the way McBride and his band of merry men think. Translating SCOSpeak can't be neuronally healthy.

read more (1276 words) 8 comments  View Printable Version
Most Recent Post: 08/22 06:17PM by Anonymous

SCO Explains a Bit About the GPL
Monday, August 18 2003 @ 09:34 PM EDT

That's the title of a surreal interview Tuxedo did with SCO's Blake Stowell. Note the Alice in Wonderland logic in this snip:
Q: Why has SCO not taken any steps to minimize the alleged copyright infractions?

Blake Stowell responds: "How can SCO identify this code and still keep it confidential as our contractual obligations specify that we must do? That is the quandary that SCO is in. To address that, we have folks view the code under non-disclosure. The Linux community cries fowl because we require a non-disclosure and refuses to view the infringing code. So what are both sides to do? . . .

"I'm not sure that there is a law that says we can bill users, but if users are going to continue to use our intellectual property, then they should pay for it. If they don't want to pay for it, then they shouldn't use it. The law does say that we can keep others from infringing our copyrights."
So...we shouldn't use it, but we can't see it, so we can't remove it. Curiouser and curiouser. It's the second article down. Meanwhile, some open source folks have asked SCO today to come up with an NDA that programmers that actually program can sign without destroying their ability to code in the future. Oh, you mean a normal NDA? Why, yes.

Funny, Alice thought to herself. SCO never answered my email, and this one got answered the same day. How very peculiar.

This article, "Sontag and Heise also presented some short snippets of source code that they claimed had been directly copied from SCO's Unix to Linux" at the James Bond-themed SCOForum. I had it right. The metaphor is that SCO will escape seemingly impossible odds. They are David against Goliath, it seems. In alternate universes, anything can happen. If any of you real coders were there, what, pray tell, did you see? I'm hearing rumors, but I need confirmation before I'll run with it. Anybody attend?

28 comments  View Printable Version
Most Recent Post: 08/19 07:41AM by Anonymous

SCO Scuttles Sense, Claiming GPL Invalidity
Monday, August 18 2003 @ 08:53 PM EDT

--Eben Moglen, Monday 18 August 2003

Now that the tide has turned, and SCO is facing the dissolution of its legal position, claiming to "enforce its intellectual property rights" while actually massively infringing the rights of others, the company and its lawyers have jettisoned even the appearance of legal responsibility. Last week's Wall Street Journal carried statements by Mark Heise, outside counsel for SCO, challenging the "legality" of the Free Software Foundation's GNU General Public License (GPL). The GPL both protects against the baseless claims made by SCO for license fees to be paid by users of free software, and also prohibits SCO from its ongoing distribution of the Linux kernel, a distribution which infringes the copyrights of thousands of contributors to the kernel throughout the world. As IBM's recently-filed counterclaim for copyright infringement and violation of the GPL shows, the GPL is the bulwark of the community's legal defense against SCO's misbehavior. So naturally, one would expect SCO to bring forward the best possible arguments against the GPL and its application to the current situation. But there aren't any best arguments; there aren't even any good arguments, and what SCO's lawyer actually said was arrant, unprofessional nonsense.

According to the Journal, Mr Heise announced that SCO would challenge the GPL's "legality" on the ground that the GPL permits licensees to make unlimited copies of programs it covers, while copyright law only allows a single copy to be made. The GPL, the Journal quoted Mr Heise as saying, "is preempted by federal copyright law."

This argument is frivolous, by which I mean that it would be a violation of professional obligation for Mr Heise or any other lawyer to submit it to a court. If it were true, no copyright license could permit the licensee to make multiple copies of the licensed program. That would make not just the GPL "illegal." Mr Heise's supposed theory would also invalidate the BSD, Apache, AFL, OSL, MIT/X11, and all other free software licenses. It would invalidate the Microsoft Shared Source license. It would also eliminate Microsoft's method for the distribution of the Windows operating system, which is pre-loaded by hard drive manufacturers onto disk drives they deliver by the hundreds of thousands to PC manufacturers. The licenses under which the disk drive and PC manufacturers make multiple copies of Microsoft's OS would also, according to Mr Heise, violate the law. Redmond will be surprised.

Of course, Mr Heise's statement is nothing but moonshine, based on an intentional misreading of the Copyright Act that would fail on any law school copyright examination. Mr Heise is referring to section 117 of the US Copyright Act, which is entitled "Limitation on exclusive rights: computer programs," and which provides that:

(a) Notwithstanding the provisions of section 106, it is not an infringement for the owner of a copy of a computer program to make or authorize the making of another copy or adaptation of that computer program provided:

(1) that such a new copy or adaptation is created as an essential step in the utilization of the computer program in conjunction with a machine and that it is used in no other manner, or

(2) that such new copy or adaptation is for archival purposes only and that all archival copies are destroyed in the event that continued possession of the computer program should cease to be rightful. As the language makes absolutely clear, section 117 says that although the Act generally prohibits making any copy of a copyrighted work without license, in the case of computer programs one can both make and even alter the work for certain purposes without any license at all. The claim that this provision sets a limit on what copyright owners may permit through licensing their exclusive right is utterly bogus. It has no support in statutory language, legislative history, case law, or the constitutional policy that lies behind the copyright system. Were this argument actually presented to a court it would certainly fail.

The release of this astounding statement is actually good news for developers and users of free software. It shows that SCO has no defense whatever against the GPL; already it has resorted to nonsense to give investors the impression that it can evade the inevitable day of reckoning. Far from marking the beginning of a significant threat to the vitality of the GPL, the day SCO scuttled sense altogether confirmed the strength of the GPL, and its importance in protecting freedom.

Copyright © Eben Moglen, 2003. Verbatim copying of this article is permitted in any medium, provided this notice is preserved.

Eben Moglen is professor of law at Columbia University Law School. He serves without fee as General Counsel of the Free Software Foundation.

13 comments  View Printable Version
Most Recent Post: 08/19 08:04AM by Anonymous

What SCO Really Wants
Monday, August 18 2003 @ 04:04 PM EDT

eWeek did an interview with McBride Sunday. Here's the latest from SCO in Wonderland:
. . .there are some 2.5 million servers running Linux and . . . SCO has "identified by name those companies running many of them."

"We are in the process of contacting them about coming into compliance and taking a UnixWare license from us. If they refuse to do so, we will sue them directly and see them in court," he said.

When asked by eWEEK if SCO intended to first sue a large Linux user like a Wall Street financial firm or an enterprise-level Linux customer, McBride said that would probably be the case as smaller companies tend to settle when faced with litigation. . . .

"In a nutshell, this litigation is essentially about the GNU General Public License and all it stands for. That license has not yet been challenged or tested in court, but it is now going to be. We are also firmly and aggressively challenging the notion that Linux is a free operating system," McBride said.

One thing I like about this guy: he's too aggressively hormonal to be able to be subtle, so now he's spilled the beans, and we know who they are and what they're after. He doesn't want a settlement, he says. He wants to challenge the GPL and all that it stands for.

Think a judge will like those words at trial? Heh heh.

read more (254 words) 70 comments  View Printable Version
Most Recent Post: 08/19 10:40AM by Anonymous

Rule 10b5-1 - Trading "on the Basis of" Material Nonpublic Information
Monday, August 18 2003 @ 02:51 PM EDT

If you're like me, you had never heard of Rule 10b5-1 before McBride alluded to it in his remarks about insider trading, reported here:
Bench submitted a sale plan in January, months before any legal action against IBM was contemplated, McBride said. His agreement called for the sales to begin on March 8. He planned to sell 5,000 shares a month for the next 12 months, according to the plan.
If so, you might like to know what he was referring to and how insiders can trade under a sales plan.

read more (1178 words) 5 comments  View Printable Version
Most Recent Post: 08/18 05:49PM by Anonymous

HP VP Pulls Out of SCO Forum Keynote Speechifying
Monday, August 18 2003 @ 02:11 PM EDT

I was expecting this. eWeek is reporting:

"It appears that Hewlett-Packard Co. also got cold feet. As late as last week, SCO was telling attendees that HP would be giving a partner keynote at the forum on Tuesday morning. But on Sunday the schedule of events given to attendees when they registered makes no mention of an HP keynote.

"The keynote that was to be given by an HP executive is now scheduled to be made by Maggie Alexander, a vice president at SCO partner Progress Software.

"However, whatever the reason for the withdrawal of its keynote speaker, HP still sponsored the Sunday night welcome reception at the MGM Grand for Forum 2003 attendees, which was well attended and included food and drinks."

Well attended by whom? Passersby? Or people in the industry outside of SCO and Canopy group? If anyone attended, Groklaw would love a first-hand report. Relying on the mainstream press, well... you know.

17 comments  View Printable Version
Most Recent Post: 08/19 08:27AM by Anonymous

An Answer to the Indemnification FUD
Saturday, August 16 2003 @ 10:41 PM EDT

There has been quite a chorus of frogs in the pond calling out, indemnification, indemnification, indemnification. Red Hat's CEO says his customers have not been asking for it, but SCO's McBride says we GNU/Linux users need it and so he has taken it upon himself to lobby on behalf of other companies' customers:
"For the first time in the history of the industry, we have a major operating system platform that's being pushed on end users and at the same time the users take it, they're being told "Buyer beware -- you own all the inherent intellectual property risks with this product," said Darl McBride, SCO's chief executive.
I'm pretty clear he doesn't have a soft spot in his heart for Linux lovers, so that couldn't be his motivation, do you think, a paternal concern for us? The lovely and tireless Ms. DiDio also repeatedly says we want indemnification, and we absolutely, positively must have it. She is, as usual, wrong.

read more (2981 words) 76 comments  View Printable Version
Most Recent Post: 08/19 01:04AM by Anonymous

Miss Otis Regrets
Friday, August 15 2003 @ 09:43 PM EDT

The SCOForum 2003 Sponsors page has been taken down. Instead you find:

"Document Not Found

"To find the document you're looking for, please see our company sitemap.

"If you're having problems with a broken link, send us your e-mail and we'll find the page for you. If the page is on the Linux Documentation Project site (, email"

You certainly get ample chances to give SCO your email address. Linux gets special mention, I see. Maybe because so much of the pages on Linux have simply disappeared. There one day and then, no explanation, just poof. Desesperado.

There is a search engine on the page, so I typed in "Sponsors" and got a list of pages. Number four on the list took me to the old, now removed, page, where you can see who was on the list previously as Bronz and Silver sponsors. It has been reported that Intel was once on the list "by mistake" but I don't see it on this page. Perhaps the report was about a different, even earlier, page. Anyway, there was a flap about it, as you can read in the article.

HP is number one on the list on the removed page. They are certainly in an awkward position, thanks to SCO, but then, who isn't? It'll be interesting to see who actually shows up and who the actual sponsors turn out to be in the end. The article says there has been pressure from the IT world on HP to drop the sponsorship. That article says the pressure is falling on deaf ears, but the page came down, and it looks like it just happened today.

SCO's McBride in the recent teleconference said "the silent majority" in the IT world supports SCO and hopes they win. Maybe in an alternate universe, but back on this planet, in this galaxy, in our universe, SCO doesn't appear popular, judging from this SCOForum episode or the reaction already from the IT world to his remark, intense enough to warrant a second story by Computer World just about the reaction. The emails they received were not from lunatic fringe types, either, as you can see when you read them. Here's one, from the president of a consulting company:

"Joey Mele, president of JBT Production Services, a small consulting company in Las Vegas, wrote that McBride is off-base in claiming that the silent majority of the IT world is behind him. 'I just couldn't believe the guy could say something like that,' Mele said in an interview. 'It's so detached from reality.'"

It's sad when you see someone throw a party and people everywhere suddenly remember they have to wash their hair that day and can't make it. But when things like that happen to you, you just might take it as a clue as to how popular you actually are. Or are not.

45 comments  View Printable Version
Most Recent Post: 08/17 04:23PM by Anonymous

Methinks He Doth Protest Too Much
Friday, August 15 2003 @ 07:54 AM EDT

Or else he doth need to get his story straight.

Bloomberg News has an article, appearing in The Salt Lake Tribune, reporting that Darl McBride says that SCO's CFO submitted a sales plan in January "months before legal action was contemplated", presumably as proof that there is no connection between the stock sales and the lawsuit:

"Chief Financial Officer Robert Bench began the selling by SCO insiders, four days after SCO filed the suit against IBM. Bench is selling to help pay a $150,000 tax bill, McBride said. Under the Sarbanes-Oxley law, companies are no longer able to loan executives money to pay taxes or other expenses.

"Bench submitted a sale plan in January, months before any legal action against IBM was contemplated, McBride said. His agreement called for the sales to begin on March 8. He planned to sell 5,000 shares a month for the next 12 months, according to the plan."

Now, I'm no stock expert, but as for SCO not "contemplating" any legal action in January, here are some news stories from January of 2003 that I believe indicate that they were contemplating legal action in that month. All emphasis added by me.

It was on January 10 that the story first broke, in an article entitled, "SCO Threatens to Press IP Claims on Linux", by Maureen O'Gara:

"Informed sources, who would only talk on the guarantee of anonymity, say SCO has been proposing to charge users $96 per CPU for a so-called one-time System 5 for Linux software license to protect their systems from SCO-enforced patent issues if they ante up as soon as demand is made. . . .

"Sources say the scheme, which pretty much sounds like a protection racket - we won't sue if you pay -- isn't engraved in stone but an undated weeks-old draft SCO press release that details the plan and was read to us has been quietly making the rounds. At press time, we got word that a major player, believed to be IBM, thought it had dissuaded SCO from going through with the idea.

"A usually reliable source swears a SCO executive told him that SCO has hired the redoubtable David Boies, who prosecuted the Microsoft antitrust case for the Justice Department, to press infringement claims not against users but against the other Linux distributions."

If IBM, or whoever it was, was having discussions with them at that time, they are in a position presumably to testify as to the content of those discussions and as to the truthfulness of McBride's assertion that they were not contemplating legal action until "months" after January.

read more (1559 words) 25 comments  View Printable Version
Most Recent Post: 08/22 05:38AM by Anonymous

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