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The information on Groklaw is not intended to constitute legal advice. While Mark is a lawyer and he has asked other lawyers and law students to contribute articles, all of these articles are offered to help educate, not to provide specific legal advice. They are not your lawyers.

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More on Red Hat Lawsuit
Monday, August 04 2003 @ 05:31 PM EDT

I checked Pacer for DE, and the complaint isn't up yet. I'll keep checking. Meanwhile, more detailshere on ComputerWorld: We just want to make sure we protect the franchise ... and get the facts so we can fix anything if there is anything to fix [in the Linux code]. And more here on InformationWeek:
"We're seeking a resolution ... to all the rhetoric as fast as possible," said Matthew Szulik, Red Hat's chief executive officer."
Their other claims are these, according to ComputerWorld again:
"We also brought a claim under the Lanham Act for false advertising and unfair competition under federal law that the statements that SCO was making are deceptive and untrue," he said.

Sims said Red Hat also filed a complaint under the state of Delaware's deceptive trade practices act.

"We also filed three other claims [under state law], one for unfair competition, one for trade libel, meaning they disparaged our trademark by making these untrue and unfair statements, and one saying they intentionally and wrongfully interfered with our business relationships," Sims said.
You can read the Deceptive Trade Practices Act here. Sims is Bryan Sims, Red Hat's VP of business affairs and general counsel.

You can read about trade libel here and here. The Lanham Act is here. Check the Legal Links [Update: Legal Research] page for more.

read more (696 words) 7 comments  View Printable Version
Most Recent Post: 08/04 10:16PM by Anonymous

Red Hat Sues SCO
Monday, August 04 2003 @ 04:21 PM EDT

Here's the press release. I'm on the phone trying to get more. Meanwhile, enjoy the glow.

OK, they filed in the U.S. District Court of Delaware. They are asking for a permanent injunction. They are asking that SCO be made to stop asserting that Red Hat's Linux violates SCO's IP. They are also asking for a declaratory judgment, which you can read about here.

They are also asking for damages, triple the financial damages caused to Red Hat "for harm caused by SCO's unfair competition and false advertising...unfair and deceptive (trade) well as for violations of common law, including trade libel, unfair competition and tortious interference with prospective economic advantage."

Red Hat is setting up a legal fund to help cover legal expenses associated with infringement claims against any company "developing software under the GPL and non-profit organizations supporting the efforts of companies developing software under a GPL license":

The company also stated that it has set up a fund, the Open Source Now Fund, to defray any legal costs that may be incurred by the Linux community. It is pledging $1 million to the fund, which will help cover the legal costs of open-source developers performing work under the GPL (General Public License) and nonprofit institutions that become involved in the SCO actions.
They have put $1 million in the fund. If you want to get more information, email More details here and here

Note the url to get the pdf of the complaint [PDF] is in MathFox's unbelievably fast comment, if you are a subscriber to LWN. I'm looking for a better link for the rest of us.

Update: It's on Groklaw now, both as PDF and as text. All the Red Hat filings are here.

There is also a video interview of Red Hat's then-CEO Matthew Szulik by CNET's Dan Farber.

read more (1171 words) 8 comments  View Printable Version
Most Recent Post: 08/04 05:23PM by Anonymous

A Criminal Lawyer's Take on SCO:
Monday, August 04 2003 @ 03:07 AM EDT

A Criminal Lawyer's Take on SCO:
They Not Only May Lose, Sanctions Possible

I had a long email conversation with Webster Knight, a lawyer who does criminal law. Of course, I wanted to pick his brain on the SCO thing. He gave me permission to share with you his personal views on the SCO case. As always, when lawyers write for Groklaw, I preface it by saying that he isn't working on this case, and he hasn't researched it the way he would if he were, and this isn't legal advice, and not all the facts are yet known, and this was originally a personal email, written to me, not the public, but with that disclaimer, here are his personal opinions and thoughts on what he has seen so far:

"SCO has already given away what they now seek to protect. They are telling the court 'oops, excuse me, we did not mean to give up our control of that code. We did not realize Caldera gave it away. We also didn't realize that when we sold our Linux we were using the GPL on our own stuff. Since we didn't realize this, let us take it back. All of the people that benefitted from our errors or were accidently misled, must now pay.' [I guess they are subject to a counter claim for negligence. They should not be able to benefit by their own negligence.]

"Further by their actions they are saying: 'We want people to pay. We don't want them to correct our error by telling what is the violated code so they can stop using it. We will not give them an opportunity to mitigate damages any sooner than necessary.' In the old terms of equity court, they do not have 'clean hands.'. . .

"Your site alone has given him [Boies] some nearly impossible facts to choke down. Namely the SCO-GPL and the Caldera voluntary contributions. They may well lead to a quick summary judgment . . . .

"Indeed SCO and their attorneys may have to confront the possibility of Rule 11 sanctions, such as legal fees. Certainly due to your and IBM's digging, they have less than they started with. They may be paying to get out of the suit if it becomes glaringly apparent that it has no merit. Further discovery and more Hellwig-like disclosures might render all claims frivolous. . . .

"SCO is presumed to know what they did with their own code. They gave it to Linux; they gave it to IBM; they then distributed Linux themselves under the GPL. They are now saying they erred, and that they were negligent but that also IBM snuck it past them what they gave away. They are trying to regain their virginity. It is inconceivable that SCO can benefit from its own ignorance (of the GPL and their own contracts) and their own negligence. They are a corporation with perfect, superhuman memory. They can't say I was too busy and didn't understand. What their employees did, short of a crime, they did.

"[SCO to Court or Jury: 'Your honor, please make these people pay us. We didn't realize we had let the cat out of the bag! If we had asserted our rights, they wouldn't have used our stuff and violated anything. Because we were asleeep at the switch, they have used our stuff. Through our error we have tricked the world. Give us a windfall, deserved or not!]'

"If they knew all this when they started, then they may face some stiff civil liability. I guess it could rise to criminal intent. Certainly if it could be found that MS or some other force put them up to this, knowing the frivolity of abandoning their own GPL; the frivolity of denying their voluntary contribution of the code to Linux; and the frivolity of denying their contractual grant to IBM, then we may have a conspiracy. One of the above may be enough, particularly if there is a quick summary judgment."

When he says frivolity, he doesn't mean ha ha party time. He means it as in frivolous lawsuit. That's what you can get fined for, if you bring a meritless lawsuit. Here is a Utah case (a different circuit, but the idea is the same) where a judge ordered sanctions against the party bringing the lawsuit. It's near the end. Meritless claims are an abuse of the process, and both the party and the lawyer can be sanctioned. So, let's keep digging, until we win. He's saying we're making a difference. I was sure you'd want to know this, outside of Utah, that is.

It's DiDiotic Time

Here's my all-time favorite quotation from our favorite "analyst":

"'Linux says it is free and it is open, but it has not stepped up to the plate and said how much it costs,' says Laura DiDio, an analyst with The Yankee Group.

"She says her research shows that one-tenth of one percent in difference on reliability from one operating system platform to another can result in an additional 63 hours of downtime and generate US$700,000 to $3.5 million in additional support and administration costs depending on the size of an organization."

Heh heh. She's a riot, Ms. DiDio. How much it costs? Downtime? If MS now plans to argue that we should use their products instead of GNU/Linux to avoid downtime costs, the end of the world must be nigh, for sure. At least lightning from heaven ought to strike them. Of course, standing so close to MS as she does, the lovely and tireless Ms. DiDio might be struck, too... hmm, we can't have that. She's so funny, I'd actually miss her.

Downtime costs, of all things to choose to research -- the single least likely to convince of all the topics in the universe in any discussion about the comparative merits of Windows and GNU/Linux. Are analysts not allowed to try GNU/Linux, I wonder? They're allowed to read freely, though, aren't they, to find out what's going on and all? Maybe she didn't get to read about the two Windows security flaws just this week, speaking of down time. She actually gets paid for this research. And I'm doing all of mine for free. Hmmm. There does seem to be an imbalance in the universe.

Gartner is my second favorite, and here's their latest, which certainly deserves an Honorable Mention in funny:

"LINUX penetration within Australian enterprises may reach 90 per cent within three years, but it will remain a niche technology, with only 10 to 15 per cent of IT infrastructure running on the open source software, according to Gartner.

"According to a survey of 121 large Australian companies, about 52 per cent of businesses now use Linux in their server environment - up from 39 per cent last year. Australian companies follow Taiwan in being the Asia Pacific region's highest adopters of the technology."

Now, when I read that, after I wipe away the tears of laughter so I can see, I read that Linux is growing in Australia, compared with last year. The headline? "Linux to Remain Niche: Gartner". It's to laugh. I've written headlines in my time, and I'd never have come up with that one from that story.

Meanwhile, an IBM spokesman compares open source to a tidal wave and says they have customers flocking to them:

"'The tsunami of open source, it's definitely coming now,' he said. 'It's no longer a glimmer in someone's eye as it was 10 years ago. It's real, and it's real for business.'"

Of course, that's PR, but it tells me that the legal team isn't concerned, and the word now is Go. Their legal analysis is complete. And they are not backing down. Remember how SCO's complaint quotes IBM people? The fact that they are silent no more tells me they aren't worried. I am really starting to look forward to their legal filing, probably some time this week.


I just learned that Sun's Jonathan Schwartz, of all people, is going to speak there. So, if you're goin' to San Francisco, ask him about Linux being "irrelevant" and let me know what he says, will you?

12 comments  View Printable Version
Most Recent Post: 08/06 11:57PM by Anonymous

What's Good for the Goose... Is Good for the Gander
Sunday, August 03 2003 @ 12:08 AM EDT

Can't tell them apart, can you? And that's my theme today.

Remember the part in the complaint about IBM allegedly violating export controls? I was thinking about it myself quite a lot today, while I was doing some food shopping, when all of a sudden, I had one of those Eureka moments. I remembered reading about Amazon being fined for violating export controls that regulate the very countries listed in the complaint. This is going to get a bit complicated, but it's great at the end, so if you follow the bouncing ball all the way, I think it's worth it.

read more (1506 words) 16 comments  View Printable Version
Most Recent Post: 08/04 09:32PM by Anonymous

2 Attorneys Explain Some Details; Sun Predicts SCO Will Go After Linux Users
Saturday, August 02 2003 @ 12:46 AM EDT

Tom Carey, partner with intellectual property firm Bromberg & Sunstein, explains the side letter to the AT&T-IBM license agreement, now Exhibit C to SCO's complaint:
"IBM negotiated with AT&T [the original holder of the Unix copyrights and patents] a very detailed side letter to their license agreement," Carey told "That side letter is Exhibit C to the SCO complaint. That side letter negates many of the key license terms that SCO relies upon in its complaint. For example, the basic license agreement says that IBM is authorized to create derivative works, but those derivative works will become the property of AT&T. The side letter says exactly the opposite, that those derivatives will become the property of IBM."

He added, "The format of this is unusual. It appears that AT&T insisted that IBM sign their standard form agreement and that any changes be set forth in a separate document. The side letter clearly takes precedence."

In addition, Carey said, the side letter spells out the conditions under which IBM could keep ownership of derivative works. Carey explained that the letter permits IBM to have its employees use ideas they learned from seeing the Unix code and incorporate those ideas into other products, under certain conditions: the programmers could not refer to Unix code or manuals while doing their coding.

"That provision allowed, I believe, IBM to essentially reverse engineer Unix, provided that it did so in a kind of a 'clean room' method, and incorporate those reverse engineered modules into its products," Carey said. "It seems hard to imagine that if IBM followed those procedures that someone who bought a product from IBM or acquired software indirectly from IBM could be found guilty of infringing SCO's copyrights in the Unix operating system."

[Emphasis added]

read more (1367 words) 22 comments  View Printable Version
Most Recent Post: 08/05 11:03PM by Anonymous

IBM Will Answer SCO's Amended Complaint by Next Week
Friday, August 01 2003 @ 05:54 AM EDT

I went to the Utah District Court's web site, and I found out that when SCO filed a motion to amend its complaint , IBM said that was fine with them, but they reserved certain rights. SCO filed their Amended Complaint with the court, changing their name from Caldera Systems to SCO and adding their Sequent claims, on July 22.

Now, IBM says they will be responding by as early as next week, or it's been leaked this is going to happen. IBM hasn't officially said it. The article calls it a "response" and an "answer", but I'm not sure what legal form it will actually be, because the writer doesn't seem to be using the words in a legal sense.

read more (1010 words) 26 comments  View Printable Version
Most Recent Post: 08/04 12:10PM by Anonymous

Sun: Falling Down the Rabbit Hole
Thursday, July 31 2003 @ 01:44 PM EDT

Sun has invited us all to their tea party. Bring money. Their new Linux distribution, named -- apparently without intended irony -- MadHatter will cost you $50-$100 per employee (not per user) per year. Can't wait? It'll be ready for you in September.

I certainly feel like Alice sometimes in the SCO mess. Don't you?

They hope to sell 50 million of these. If they do, I'll eat my hat. Scott McNealy has a word for you:
"Don't touch open source software unless you have a team of intellectual property lawyers prepared to scour every single piece [of the open source code]. We offer indemnification, but many suppliers do not. A lot of companies are going to get very disappointed as we move forward. It will become a very challenging intellectual property issue."
Who's "we", Kimosabe? Coming out of the closet, Scott? Let me get this straight. You would like to make money from Linux. Gobs and gobs of it. But you would like to kick sand in the face of the creators of the software you wish to make your money from... am I missing something in this business plan? More on his vision, or hallucination, here. Watch what you do in your Wonderland, Scott. You might find yourself getting really, reeeeally small.

Eben Moglen has written a new position paper for OSDL. The actual pdf is here.

There is an interview with me on Linux Online. They wanted to ask me why I do this and other questions. So, I explain. Yesterday, it was The Inquirer.

More on Caldera contributions to Linux.

Greg T. Hill decided to look under the covers of 2.4.19 and here is what he found, with some explanation, in case you still aren't convinced that Caldera officially contributed to the Linux kernel knowingly:

Just a simple "grep -r 'Caldera' /usr/src/linux/*" and "grep -r 'caldera' /usr/src/linux/* on kernel sources for 2.4.19 (patched for SGI's xfs) turns up all of the following

/usr/src/linux/CREDITS:S: Caldera (Deutschland) GmbH
N: Stefan Probst
E: D: The Linux Support Team Erlangen, 1993-97
S: Caldera (Deutschland) GmbH
S: Lazarettstrasse 8
S: 91054 Erlangen
S: Germany

/usr/src/linux/Documentation/networking/tlan.txt:(C) 1997-1998
Caldera, Inc.
*first copyright listed

/usr/src/linux/Documentation/smp.tex:The author wishes to thank
Caldera Inc.
( )
The author wishes to thank Caldera Inc. ( ) whose donation of an ASUS dual Pentium board made this project possible, and Thomas Radke, whose initial work on multiprocessor Linux formed the backbone of this project.

/usr/src/linux/Documentation/sound/CMI8338: b. Caldera OpenLinux 2.2 b. Caldera OpenLinux 2.2
Use LISA to load the cmpci module.

/usr/src/linux/arch/i386/kernel/smpboot.c: * (Original development of Linux SMP code supported by Caldera.)

/usr/src/linux/drivers/net/tlan.c: * (C) 1997-1998 Caldera, Inc.
*first copyright listed

/usr/src/linux/drivers/net/tlan.h: * (C) 1997-1998 Caldera, Inc.
*first copyright listed

/usr/src/linux/drivers/scsi/advansys.c: AdvanSys driver in the Caldera releases.
Erik Ratcliffe has done testing of the AdvanSys driver in the Caldera releases.

/usr/src/linux/net/ipx/af_ipx.c: * Portions Copyright (c) 1995 Caldera, Inc.

* Portions Copyright (c) 1995 Caldera, Inc.
* Neither Greg Page nor Caldera, Inc. admit liability nor provide
* warranty for any of this software. This material is provided
* "AS-IS" and at no charge.


/usr/src/linux/net/ipx/af_ipx.c: KERN_INFO "IPX Portions Copyright (c) 1995
Caldera, Inc.n"

/usr/src/linux/Documentation/ LocalWords: caldera
Preloading slowdowns schoebel uni NBD nbd prog

/usr/src/linux/drivers/net/slip.c: * from Jim Freeman's

* Matti Aarnio : Dynamic SLIP devices, with ideas taken * from Jim Freeman's

/usr/src/linux/drivers/char/drm/drm_context.h: * 2001-11-16 Torsten Duwe

* ChangeLog:
* 2001-11-16 Torsten Duwe
* added context constructor/destructor hooks,
* needed by SiS driver's memory management.

/usr/src/linux/drivers/sound/maestro.c: * v0.15 - May 21 2001 - Marcus Meissner
* History
* v0.15 - May 21 2001 - Marcus Meissner
* Ported to Linux 2.4 PCI API. Some clean ups, global devs list
* removed (now using pci device driver data).
* PM needs to be polished still. Bumped version.

/usr/src/linux/drivers/sound/sonicvibes.c: *

* 18.05.2001 0.30 PCI probing and error values cleaned up by Marcus
* Meissner

/usr/src/linux/drivers/sound/esssolo1.c: *
* 15.05.2001 pci_enable_device moved, return values in probe cleaned
* up. Marcus Meissner
* 22.05.2001 0.19 more cleanups, changed PM to PCI 2.4 style, got rid * of global list of devices, using pci device data.
* Marcus Meissner

/usr/src/linux/drivers/sound/nm256_audio.c: *
19-04-2001 Marcus Meissner
* Ported to 2.4 PCI API.

usr/src/linux/fs/freevxfs/vxfs_olt.c: printk(KERN_NOTICE "vxfs: please notify n");

read more (575 words) 13 comments  View Printable Version
Most Recent Post: 08/01 10:35AM by Anonymous

Caldera's Linux Contributions Were Official, not by Rogue Employees
Wednesday, July 30 2003 @ 12:30 PM EDT

Back on July 18, I reported that then-Caldera employee Christoph Hellwig contributed to the Linux kernel. One commenter opined that if he broke an NDA, he was going to be in trouble. Ever since, I have been looking for proof positive that Caldera's employees -- and we have found more than one -- contributed with the knowledge and approval of their employer. Here's what I found, plus something helpful from mathfox, a Groklaw reader:
I scanned the linux-2.6.0-test2 source tree for the name Caldera and found a few occurrences: In the file net/ipx/af_ipx.c the following text can be found:
* Portions Copyright (c) 1995 Caldera, Inc.
* Neither Greg Page nor Caldera, Inc. admit liability nor provide
* warranty for any of this software. This material is provided
* "AS-IS" and at no charge.
They knew the implications of the GPL. It is likely that the code was contributed to Linux a few years after 1995, but before 2000.

In 1997-1998 Caldera contributed the ThunderLAN (tlan) drivers. During the year 2001 several bugfixes were provided by engineers from Caldera Germany. As an example: Marcus Meissner contributed to the sound/oss/esssolol.c and sound/oss/maestro.c drivers.

This doesn't prove that they knew of each and every individual contribution, but it shows that they knew contributions were being made and that they were made officially, with Caldera's blessing.

read more (471 words) 3 comments  View Printable Version
Most Recent Post: 07/31 02:41PM by Anonymous

Sun Is Currently Distributing the 2.4 Kernel Under the GPL
Tuesday, July 29 2003 @ 06:53 PM EDT

My readers are the best. Here's a note from Dr. Stupid, which I decided to put up here, in case some of you don't read all the comments:
Check this: sunlinux/5.0/en/updates/i386/SRPMS/

kernels as recent as 2.4.20.

"Dr Stupid"

Well, then, it's under the GPL. No protest from SCO. License says they can do it anyway. You do the GPL math.

Heh heh.

SCO, Sun, and MS are the Keystone Kops of the GPL.

5 comments  View Printable Version
Most Recent Post: 07/30 10:19AM by Anonymous

Sun Finds a New Way to be Repulsive
Tuesday, July 29 2003 @ 05:11 AM EDT

Just when I think I have seen it all, Sun springs into the spotlight and does some new, seriously off-putting thing that makes me wonder, once again, if they are behind this whole SCO mess.

Now they are thinking of putting out their own version of Linux, offering customers indemnification based on their license with SCO.

read more (901 words) 27 comments  View Printable Version
Most Recent Post: 08/01 12:13PM by Anonymous

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