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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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IBM and FSF Respond
Tuesday, July 22 2003 @ 12:56 PM EDT

An article in Linux Today is very interesting. First FSF's Eben Moglen:
Eben Moglen, professor of law at Columbia University and general counsel to the Free Software Foundation (FSF), though says there is absolutely no reason for anyone to buy SCO's license. "Users don't need a license to use copyrighted programs anymore than they need to pay a copyright fee before reading Gone with the Wind. If you copy, distribute, or modify copyrighted material, then you can be in copyright violation."

But, he adds, if a distributor, such as Debian, were to agree to SCO's license, they would then be in violation of section 7 of the Gnu General Public License (GPL). This section specifies that if legal "conditions are imposed... that contradict the conditions of this License' you cannot distribute GPL protected free software."

Further, he says an end user is not responsible for a copyright violation. He offers to help too:
Still, Moglen believes that, "If SCO really wishes to enforce these claimed copyright rights. I would suggest that they sue a Linux distributor. If the FSF distributed Linux, I would welcome such a lawsuit." And, speaking for himself and not the FSF, "I have renewed my offer to assist free software developers who may feel the need for legal assistance" because of SCO's recent actions.
IBM also says it isn't aware of any UNIX System V code in Linux, according to Trink Guarino, IBM spokesman:
IBM is not aware of any Unix System V Code in Linux. SCO needs to openly show this code before anyone can assess their claim. SCO seems to be asking customers to pay for a license based on allegations, not facts.

2 comments  View Printable Version
Most Recent Post: 07/23 01:43AM by Anonymous

Here's the Copyright
Tuesday, July 22 2003 @ 10:25 AM EDT

This is the new one:

1. Registration Number: TX-5-705-356
Title: UNIX system V, release 4.1ES.
Description: Computer program.
Note: Printout (20 p.) only deposited.
Claimant: the SCO Group, Inc.
Created: 1991
Published: 27Jun91
Registered: 30Jun03
Author on © Application: UNIX System Laboratories, Inc., employer for hire.
Previous Related Version: Prev. reg. 1992, TXu 510-028, et al.
Claim Limit: NEW MATTER: revisions.
Special Codes: 1/C

Here's the prior copyright it refers to:

TXu-510-028
Title: UNIX.
Edition: 5th ed.
Note: Computer program; with programmer's manual by K. Thompson, D. M. Ritchie.
Claimant: Unix System Laboratories, Inc.
Created: 1973
Registered: 25Mar92
Title on Application:UNIX operating system.
Author on Application: American Telephone & Telegraph Company (employer for hire)
Miscellaneous: C.O. corres.
Special Codes: 1/C

Red Hat Responds
Tuesday, July 22 2003 @ 09:53 AM EDT

Red Hat has put up "An Update for Our Partners," in which it says SCO has "never approached Red Hat concerning the claims they've made publicly" and saying they have "no knowledge of any infringing code":
Red Hat's position remains unchanged. We are not a party to any lawsuit over UNIX code. No one has established publicly or in court that any UNIX code has been infringed. . . .

Red Hat's position remains unchanged. We are not a party to any lawsuit over UNIX code. No one has established publicly or in court that any UNIX code has been infringed. We will continue to communicate with our customers and partners as appropriate.

To the question, "Do I need to buy a SCO license?" they answer:
SCO has not demonstrated that any infringement exists, nor has it established that it owns derivative works in UNIX. Nothing has been proven to establish that such a license is needed.
They also state that instead of losing any customers, they generated 1400 new ones in the last quarter. They say they remain committed to the open source model because, for one thing, if you can't see the code, can you know if it's really yours? They also say anyone with further questions can contact them at legal@redhat.com. Don't abuse that process, naturally. It's clear they are directing this primarily at customers and partners.

My take on their statement -- and it's only a guess -- is that legal wrote or screened it, and that their position is that no copyright infringement has yet been proven. In other words, having a copyright gives you rights. But you do have to have some proof of copyright infringement to successfully go forward. Again, this is my best guess as to what this means. I have a call in to the Copyright Office to ask this very question.


It's About Copyright, All Right, and a Licen$e on top of the GPL
Monday, July 21 2003 @ 01:06 PM EDT

I did attend [the teleconference], and I indicated I wished to ask a question, but they did not call on me. Here's the scoop. [ Update: Groklaw's unofficial transcript of this IWeThey twiki's mp3 of the teleconference. The site no longer exists, in 2010, but Internet Archive still has it.]

They announced that they have registered a copyright and that they are offering "enterprise" users of Linux a "run-only" license for binary use of their product which they claim is inside the Linux kernel.


read more (2367 words) 15 comments  View Printable Version
Most Recent Post: 07/23 08:42AM by Anonymous

Microsoft Debunks the Pregnant Cow Argument & Explains SCO Can't License on Top of the GPL
Monday, July 21 2003 @ 01:05 AM EDT

I'm sure they didn't intend what they wrote to be used like this, but here is the page where Microsoft explains in what way it sees the GPL as being viral.

But it also happens to explain how the GPL blocks SCO from any code distribution with a license on top (note the second bulleted item). Later today, we'll find out if they plan any distributions or not, or if they have another scheme in mind, but Microsoft has correctly explained how the GPL blocks any license on top of it. It also debunks the "we didn't release under the GPL because we didn't know our code was in there", the "pregnant cow" argument:

The GPL permits unlimited free use, modification, and redistribution of software and its source code, but imposes three key restrictions on every licensee:
-- If the licensee redistributes any code licensed under the GPL, it must guarantee availability of the code for the entire work for unlimited replication by anyone requesting it.

-- If the licensee redistributes GPL code, it may not charge a licensing fee or royalty, but may charge only for distribution costs.

-- If the licensee includes any GPL code in another program, the entire program becomes subject to the terms of the GPL.

This third restriction is what makes the GPL "viral", because it causes GPL terms to apply to software that incorporates or is derived from code distributed under the GPL, regardless of whether the program's developer intended that result or even knew of the presence of GPL code in the program. Violation of these restrictions may subject the offender to civil and criminal penalties for copyright infringement.

Microsoft does not oppose the use of the GPL by individual developers, but does want developers and researchers to be aware of risks and restrictions they may face in using or developing GPL software.

This is, of course, classic MS FUD. As we pointed out before the restrictions of the GPL only kick in if you are distributing software, not if you are merely using it. And as David Mohring correctly points out in his comments, a company that wishes to dual license [its own code] can also do that. An example of that would be StarOffice, which you can buy as a proprietary version or get as a GPLd version. But my point was simply this: by their own logic, the pregnant cow argument fails.

4 comments  View Printable Version
Most Recent Post: 07/21 06:59AM by Anonymous

Gadzooks! Look What I Just Found
Sunday, July 20 2003 @ 09:25 AM EDT

Talk about your laches and waiver, with a dollop of estoppel thrown in, not to mention a deepening plot.

Here, ladies and gentlemen, are, first, relevant snips from a SCO web page dating back to just after Project Monterey days, the IBM-Santa Cruz-Sequent project IBM killed in 2000. The SCO page has a copyright of 2001 and it's talking about AIX-5L, which was the successor to AIX, Project Monterey, from what I can gather from the two documents I just found. The second document is a news article from 2000 announcing the death of Project Monterey. Put the two together and a lot of things get clearer.


read more (1314 words) 7 comments  View Printable Version
Most Recent Post: 08/11 07:47AM by PJ

"I have the mandate of my colleagues in my office to solicit for your assistance for a business/deal we want to execute wi
Saturday, July 19 2003 @ 11:59 PM EDT

I've been trying to figure if SCO's licensing program announcement is more like a mutant meatspace spam or a Mafia offer of "protection" for a fee, or just a schoolyard bully demanding your lunch money.

Spammers don't care if 99% of the recipients of their offer say no, as long as 1% buy whatever they are offering. The Nigerian spam, and all the other advanced fee copycats, have been around for 10 years, after all, so somebody is buying. When SCO announced their UNIX licensing program, the crowds stayed away, but they still made millions from MS and Sun. Only two, but it was still money in the bank.

I started thinking along these lines when I read the article in Infoworld about SCO readying its new licensing program:

While the majority of Linux customers probably would not participate in a SCO licensing program, Haff predicted some companies might be willing to pay SCO for the security of knowing they would not be sued. SCO is "hoping that even if 99 percent of Linux customers laugh in their face, that there will be sufficient large companies who, for what is presumably going to be a relative drop in the bucket of their IT budgets, can potentially eliminate a cloud over their heads," he said.
I started thinking about the mob because of the quotation from SCO's Stowell:
Stowell declined to provide specific details of SCO's new licensing program, saying only, "we're working on some details to try and create some kind of a licensing program for Linux users to be able to run Linux legally.
He says they will be announcing the new program "within the next month or so." As I recall, they have been announcing this since December. In fact, it was supposed to be July 9. And now they are still working out the details? Excuse my curled lip. How long does it take?

read more (349 words)   View Printable Version
Post a comment

High Noon
Friday, July 18 2003 @ 03:56 PM EDT

There will be a SCO Teleconference at noon July 21, EDT. This is what they promise to talk about:
Latest developments in IBM lawsuit
Details about ownership of UNIX intellectual property, copyrights and opportunities for Linux customers
"Opportunities" for Linux customers? I think I can safely say that there are no Linux customers looking to SCO for opportunities. Perhaps they mean their own customers, who are likely seeking opportunities to escape.

David Boies will be there this time, along with the usual suspects.

US: 800-406-5356
Toll Call: 913-981-5572
Conference code #: 464644

A recorded replay of the teleconference will be made available 2-3 hours following the conference call and can be accessed by contacting Seth Oldfield at soldfiel at sco.com or by calling 801-932-5709.

Who is invited?

Press and industry analysts interested in UNIX and Linux intellectual property issues. Linux customers who wish to receive clarification from SCO on Linux use.

This is it. I'm only guessing, but judging from Linus' recent statements, I think they are going to back down as far as Linux is concerned. How much I don't know, but that is what I am expecting. Or maybe it's just hoping.

I guess it's my duty to show up, huh? Yup.

I would like to ask Boies about the GPL if they announce any licensing scheme. I don't know if they will let me attend, but I'll try. If not, I'll surely listen to the recording and report the news. If I don't make it, it won't be because I didn't try.

P.S. Infoworld reports that SCO's Blake Stowell is saying they will be announcing a licensing scheme, all right, sometime in the next month, but Monday will be just a taste of it. Illuminata analyst Gordon Haff says that while most Linux customers probably won't participate in a SCO licensing program, some companies might be willing to pay SCO to guarantee they would not be sued. SCO is "hoping that even if 99 percent of Linux customers laugh in their face, that there will be sufficient large companies who, for what is presumably going to be a relative drop in the bucket of their IT budgets, can potentially eliminate a cloud over their heads," he said.


read more (761 words) 4 comments  View Printable Version
Most Recent Post: 07/20 05:08AM by Anonymous

Caldera Employee Was Key Linux Kernel Contributor
Friday, July 18 2003 @ 06:09 AM EDT

Christoph Hellwig has been, according to this web page, "in the top-ten list of commits to both the Linux 2.4 and Linux 2.5 tree". The page also mentions another fascinating piece of news, that he worked for Caldera for at least part of the time he was making those kernel contributions:
After a number of smaller network administration and programming contracts he worked for Caldera's German development subsidiary on various kernel and userlevel aspects of the OpenLinux distribution.

read more (1130 words) 10 comments  View Printable Version
Most Recent Post: 12/01 01:47PM by Thomas Frayne

IBM's Affirmative Defenses: Take That!
Thursday, July 17 2003 @ 01:01 AM EDT



So far, Groklaw has covered a number of subjects, in relation to the SCO-IBM case. Here's a list of those that rated separate articles; the rest can be found in the SCO Archives:
Patents and Copyrights
How the 10th Circuit Defines Derivative Code
Declaratory Judgments
Discovery Rules
Trade Libel
Trade Secrets
Judge Kimball's Record
Legal Links to information by others on relevant topics.
Today, we'll cover IBM's affirmative defenses. First, what is an affirmative defense?

read more (4259 words) 8 comments  View Printable Version
Most Recent Post: 04/02 11:10AM by Anonymous

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