| And They Call Linus Careless |
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Wednesday, June 18 2003 @ 11:10 PM EDT
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SCO's Amended Complaint attacks Linus for allegedly being careless, allowing code in without checking for IP problems first. This is worse than laughable. There is no company in the world, no matter how large or how rich, that can give you a guarantee their code doesn't violate someone's trademark, copyright or patent rights, not that I have ever heard of. I'd be most interested to hear what procedures Caldera had in place regarding code they incorporated into their distribution of Linux. Did they certify to their users that there was no possibility that there were any violations of anyone's patents, copyrights, or trademarks? That is more than unlikely, because it'd be unreasonably Herculean to do the kind of investigation that would be required to find out, and even then, how could any company really be sure? Aside from the magnitude of the task, there is the fact that everyone who files tries to make it as hard as possible for others to find out what they have. Even when filing for copyright, when it comes to software, companies don't deposit the entire program on paper, but rather they may print out one page on paper and the rest is deposited on disks, for that very reason. How about UNIX? Do they make such guarantees, so as to demonstrate to us the superiority of proprietary, comporate ownership? Let's take a look at SCO's Exhibit A. Literally.
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| Cringely: AT&T May Have Reserved Rights in UNIX |
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Wednesday, June 18 2003 @ 06:36 PM EDT
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Robert X. Cringely says AT&T still has reserved rights on UNIX and may step in legally soon:
"Within the halls at AT&T, folks were chattering just last week that AT&T still has reserved rights on Unix. Naturally, the company is paying close attention to the various legal claims that SCO is making and may join the battle soon. My spy said the word around AT&T is that this will all be resolved shortly. But one has to wonder how long SCO could survive if it had opponents in multiple courtrooms [~] those being, of course, IBM and AT&T."
In case that doesn't prove true, or until it does, I will keep digging. Some on the Yahoo SCOx message board have been debating who the mystery second licensee is, and some have wondered if it could be Sun, because it began an ad campaign today in essence saying we aren't under a legal cloud. It started me thinking.
Here's a list of who SCO says went to their annual shindig last April, to discuss the future of UNIX and Linux:
"PARK CITY, Utah, April 7 /PRNewswire-FirstCall/ -- The SCO® Group (SCO) (Nasdaq: SCOX -News ), a leading provider of Linux and UNIX business software solutions, gathered industry leading IT companies, vertical solution providers, and hardware manufacturers at the company's annual Retail Summit today to discuss future trends and technologies in the retail market, with a special focus on UNIX and Linux based retail solutions. Attendees at the SCO Retail Summit include Datavantage, DELL, GERS, HP, ICM, Oracle, Radiant Systems, Retek, TOMAX, Triversity, Vigilant and Wincor Nixdorf."
I'm thinking our mystery company is likely in that list. If I recall, they identified the mystery corporation as a major hardware manufacturer.
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| Hold Your Nose and Then Read Forbes on SCO's Brilliance |
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Wednesday, June 18 2003 @ 01:36 PM EDT
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Forbes' Daniel Lyons just put up an article, "What SCO Wants, SCO Gets", in which he sneeringly warns "the crunchies in the Linux community" to pay more attention to SCO's lawsuit. The article explains how the same players, Canopy principally, have successfully sued other large corporations in the past. It also lays out their financials, so you can see clearly what they stand to gain from this caper, and particularly who stands to gain the most:
"SCO is basically owned and run by The Canopy Group, a Utah firm with investments in dozens of companies. Canopy's chief executive, Ralph J. Yarro III , is chairman of SCO's board of directors and engineered the suit against Microsoft in 1996. ...The IBM lawsuit could bring a windfall to Canopy, which owns 46% of SCO. Another beneficiary could be John Wall, chief executive of Vista.com , a Redmond, Wash., company that last August struck a licensing arrangement with SCO. Wall got 800,000 shares of SCO stock in the deal and still holds 600,000, making him SCO's biggest individual shareholder after Canopy. Those shares, which were worth about $1 each when Wall made the deal, now trade above $10."
He obviously admires SCO.
However, I hope and trust that IBM's attorneys read Forbes. Or my blog. I think this article can end up Exhibit A buttressing their claim (in the opening words of their Amended Answer) that SCO is only doing this to make a killing by destroying Linux:
"In answer to the allegations of the complaint of Caldera Systems, Inc. d/b/a The SCO Group ("Caldera"), defendant International Business Machines Corporation ("IBM") by and through its attorneys, states that, contrary to Caldera's allegations, by its lawsuit, Caldera seeks to hold up the open source community (and development of Linux in particular) by improperly seeking to assert proprietary rights over important, widely used technology and impeding the use of that technology by the open source community."
One of IBM's affirmative defenses is "unclean hands". It's kind of like saying, "These plaintiffs don't deserve relief, because because they are bad themselves." Read the linked definition for more precision.
Obviously, Mr. Lyons didn't think about ending up an exhibit in a court of law, and on the wrong side, from his perspective. At a minimum, he has provided IBM with a very handy map, showing them a big X where they ought to start digging. He who laughs last, Mr. Lyons.
The Laughing Penguin by kind permission of Tiki.
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1 comments 
Most Recent Post: 06/18 02:23PM by Anonymous
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| The SCO Show: In Tonight's Episode... |
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Wednesday, June 18 2003 @ 01:08 AM EDT
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The Open Source Development Lab, or OSDL, where Linus is going, was formed in 2000, and has financial backing from IBM and others according to Reuters:
"The group has financial backing from Computer Associates International Inc. CA.N , Fujitsu 6702.T , Hitachi 6501.T , HP, IBM, Intel Corp. INTC.O , NEC 6701.T and others, and is pushing industry efforts to make Linux ready for use in corporate data centers and in telecommunications networks, OSDL said in its statement."
SCO's accusations got this reaction from Linus:
"Torvalds took issue with SCO's position. 'I care deeply about IP (intellectual property) rights. I've personally got more IP rights than the average bear, and as the owner of the copyright in the collective of the Linux kernel, I shepherd even more. It's what I do, every day. I personally manage more valuable IP rights than SCO has ever held, and I take it damn seriously,' Torvalds said in an e-mail interview."
It's all very ironic. He believes in IP, where Stallman doesn't even think the term "IP" is a correct term to use, and yet it's Linus holding the bag. The FSF was so careful to keep out proprietary code, and most particularly UNIX code, that I guess SCO couldn't touch him, although I'm sure they would have if they could have. Evidently he gave them no opening. Linus, who has always been so much more relaxed about proprietary code, ends up on the hot seat. I can't help but wonder what all the folks who criticized Stallman's stand for being too extreme, including Linus, are saying now? One thing is for sure: they can't say he didn't try to warn them.
John Chen, the CEO of Sybase says this lawsuit is about the big boys trying to slow down the innovative process:
"I and my customers are going to watch and see how the thing unfolds. As an industry person, I think it's rather a shame. The Linux platform serves a segment of the market, and I hate to see this being challenged by a very established player. Ultimately, it hurts our industry and innovation. If you stop the open-systems movement because of something like this, it limits innovation and it only favors the big boys. You want an open environment that players can add value to and thereby expand IT budgets -- not shrink them. I think it's very unfortunate that this garbage is being thrown around. A small group of players just wants to protect the status quo."
I hope he is wrong, because if he's right, and this is just a battle, not between open source and proprietary but between which proprietary player can own Linux in the business space, I just lost interest. He also mentions that Merrill Lynch was thinking of going to GNU/Linux, but now they've decided to stay with UNIX. Another client too has decided to wait and see. That goes into the damages column for anyone suing SCO, by the way.
eWeek has a quote from McBride that is hilarious. "We're not going to play softball at this point, we are simply going to go in and enforce our rights by seeking a permanent injunction." He says they are asking for IBM's entire revenue stream from AIX from June 13 onward, in addition to the other relief they are asking for.
MozillaQuest Magazine has taken their stand on the SCO code shown to the analysts so far, and they say:
"Our conclusions about SCO's code-review side-show, based upon Bill Claybrook's report, our discussions with Bill Claybrook, and previous interviews with other people, is that so far SCO-Caldera has failed to produce any probative evidence that Linux was derived from Unix. Likewise, so far SCO-Caldera has failed to produce any probative evidence that there is SCO-owned Unix code in either the kernel.org Linux kernel or the GNU/Linux operating system (OS)."
They then go on to discuss the controlling issue in this case -- How do you define "derivative work"?
"There are provisos to our conclusion, however. One proviso centers on how one defines a derivative work. The way SCO-Caldera wants to define derivative work, the Journaling File System (JFS) code, the Nonuniform Memory Access (NUMA) code and the Read, Copy, and Update (RCU) code would be Unix derivative works included in the Linux kernel.
"That basis appears to be a matter of the structure of SCO's Unix licensing agreements, rather than the definition of derivative work pertaining to copyrights. (17 U.S.C. 501, et seq.) In other words even if the donation of JFS, NUMA, and RCU code to the Linux kernel developers by IBM is contrary to its Unix license from SCO, it might not constitute a copyright infringement under the U.S. Copyright ACT. (17 U.S.C. 101, et. seq.) Copyright infringement is not part of SCO's Caldera v IBM lawsuit."
That final point, however, is the problem here. If the contract defines derivative code as expansively as SCO now is, then that definition should trump any other definition. You are allowed to contract away some rights. That's why EULAs can be as restrictive as they are. The law of the land doesn't give Microsoft et al those expansive rights (unless UCITA passed in your state or passes everywhere. You do, when you accept the EULA . Similarly, if the contract IBM signed defined derivative code as broadly as SCO does in its Amended Complaint, the court will hold IBM to what it signed, no matter what copyright law says. Until we see their evidence at trial, and particularly the contract terms, it's impossible to know what they think they are standing on as their foundation, but I'm sure Boies isn't standing on thin air completely. He has a theory he thinks he has at least a shot at persuading this judge. But if it was any other attorney, I'd be mocking. When I started this blog on May 16, it wasn't intended to be just about SCO. I began with the Grokster decision, (http://127.0.0.1:5335/?d=2003/05/16) with an article called "Ode to Thomas Jefferson and David Boies", and in it I expressed admiration for his skills. I know he still has those skills. If you want to read, or reread, Wired's 2000 interview with Boies, it is here. And yes, I am puzzled he is representing SCO. And I hope it's because he isn't a geek and "knows not what he does", so to speak. I also hope, in this case, he doesn't know what he is doing.
MozillaQuest also interviewed Bill Claybrook, one of the analysts who examined the code and he details exactly what he saw. Here is just one snip:
"MozillaQuest Magazine: Is the SCO-owned Unix code that allegedly was copied into 'Linux' copied into the kernel.org Linux kernel, some other hacked or patched kernel, the GNU/Linux operating system, a Linux distribution, or elsewhere?
"Bill Claybrook: The code that I was shown was reputed to be from Unix System V source and from Linux source that had been modified by a large IHV. I did not have the source code for the 2.2, 2.4, and 2.5 (development) Linux kernels with me to compare, nor do I recall more than a few thousand lines by memory (my limit), but SCO said that the Linux code is in those three kernels which may tell you something about how long ago this alleged copying took place."
On Sequent's NUMA, Claybrook did some "additional research into the history of the development of DYNIX/ptx at Sequent where the NUMA code was developed, with this result:
"DYNIX developed at Sequent years ago was derived from BSD 4.1 with patches from 4.2 and new code by Sequent. DYNIX/ptx, also developed at Sequent was really BSD code with System V wrappers. So the code was really still BSD code, the kernel code that is. It appears then that the NUMA kernel code was developed on the BSD code. I was told that the NUMA code was given to Linux by IBM. Now the question is was the old Sequent NUMA code actually ported over to AIX and then given to Linux or was the NUMA code that was given to Linux actually based on the old Sequent BSD stuff? .... Based on the research that I have done over the past few days, companies that bought source licenses to System V and created extensions to it for their own use, gave some of this code back to System V and so apparently some of this code may still be in System V. Sequent apparently gave a lot of code back to System V as well as other companies.
"MozillaQuest Magazine: Is this code that was given back to System V, something that copyright-wise, the licensee would own or that the Unix-code owner would own?
"Bill Claybrook: I don't know."
MozillaQuest Magazine also interviewed DiDio, and they conclude that she isn't qualified to evaluate the code she saw. Nevertheless, what she writes in their email interview is telling in its wishy washiness:
"I saw Unix System V, version 4.1 and it appeared as though chunks of this code were cut and pasted into Linux, complete with developer comments. To reiterate, I realize that this represents only a small portion of the Unix and Linux code and we were shown the snippets that SCO wants us to see. My qualifying statement is this: If there are more examples of code infringement beyond the approximate 200 lines of code that I viewed (as SCO claims) and if things are as they appear -- namely that licensees, including IBM, did put the Unix code into Linux, SCO has a credible case. Ultimately, SCO bears the burden of proof and the courts will decide."
They sent her followup questions, but she didn't answer:
"Was this kernel.org Linux kernel or some hacked or patched Linux kernel.
"Was the "Linux" code that you viewed taken from the official kernel.org Linux kernel, a Linux distribution (If so, which Linux distribution?), some sort of OEM (original equipment manufacturer) or IHV (independent hardware vendor) Linux-based system (If so, which OEM or IHV?), or what? [If you are not up on these distinctions, please see
" http://mozillaquest.com/Linux03/ScoSource-10_Story03.html
#Tainting-Linux-Distribution-Code and
http://mozillaquest.com/Linux03/ScoSource-10_Story03.htm
"l#Linux-Distribution-Anatomy
I found this, posted as a comment that "Remember SCO Group's bank loan comes due in October($3 nillion) with a promised line of credit from the Founder to keep SCO Group afloat unitl end of Nov 2003. Also remember the org bank loan was secured with the Founder's line of credit not SCO Group." It struck me odd, because the restricted stock that the SCO management come off restrictions around the same time, in October.
Finally, LinuxWorld interviewed some AIX customers, who say they aren't worrying. One IP attorney they interviewed says SCO's claims are questionable:
"Another user was similarly unconcerned. 'At the end of the day, I'm not sure if people really consider what SCO says to have any merit,' said Dan Raju, an AIX user with a large Pennsylvania-based retailer. The lawsuit has had no impact on his company's AIX purchasing plans, Raju said. "I don't think anybody is making any technical decision based on that," he said. Raju's and Katz's reactions make sense, according to a technology lawyer following the case.
"'I don't think there's any reason for them to be panicking,' said Jeffrey Neuburger, a partner with Brown Raysman Millstein Felder & Steiner LLP. 'The strength of SCO's claims are questionable in the first place. Even in the unlikely event that the claims were successful, I don't think that the users would ultimately have any liability,' he said."
And that's your Linux show for tonight.
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| SCO's Amended Complaint Online |
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Tuesday, June 17 2003 @ 06:06 PM EDT
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Go to this SCO page, and you can read all the gory details. Update: For those like me who prefer not to visit SCO's website, you can read it here.
Here's the essence of their claim:
"2. Through a series of corporate acquisitions, SCO presently owns all right, title and interest in and to UNIX and UnixWare operating system source code, software and sublicensing agreements, together with copyrights, additional licensing rights in and to UNIX and UnixWare, and claims against all parties breaching such agreements. Through agreements with UNIX vendors, SCO controls the right of all UNIX vendors to use and distribute UNIX. These restrictions on the use and distribution of UNIX are designed to protect the economic value of UNIX.
"3. A variant or clone of UNIX currently exists in the computer marketplace called [base "]Linux.[per thou] Linux is, in material part, based upon UNIX source code and methods, particularly as related to enterprise computing methods found in Linux 2.4.x releases and the current development kernel, Linux 2.5.x. Significantly, Linux is distributed without a licensing fee and without proprietary rights of ownership or confidentiality.
"4. The UNIX software distribution vendors, such as IBM, are contractually and legally prohibited from giving away or disclosing proprietary UNIX source code and methods for external business purposes, such as contributions to the Linux community or otherwise using UNIX for the benefit of others. This prohibition extends to derivative work products that are modifications of, or based on, UNIX System V source code or technology. IBM and certain other UNIX software distributors are violating this prohibition, en masse, as though no prohibition or proprietary restrictions exist at all with respect to the UNIX technology. As a result of IBM[base ']s wholesale disregard of its contractual and legal obligations to SCO, Linux 2.4.x and the development Linux kernel, 2.5.x, are filled with UNIX source code, derivative works and methods. As such, Linux 2.4.x and Linux 2.5.x are unauthorized derivatives of UNIX System V. "
One other interesting bit of news is that the say IBM didn't make them any offers to resolve the situation:
"9. To that end, SCO did everything reasonably in its power to exert a good faith effort to resolve the termination of IBM[base ']s UNIX contract rights. Conversely, during the 100-day period, IBM did not set forth a single proposal or idea for cure."
SCO also answers IBM's affirmative defense about improper venue:
17. Venue is properly situated in this District pursuant to 28 U.S.C. ยง1391 in that IBM maintains a general business office in this District and a substantial part of the events giving rise to the claims alleged herein occurred in this District.
I think they may find it hard to convince an honest judge of that. What they are saying is that IBM should have to travel to Utah for the case, because they have an office there.
The pejorative bicycle language is gone which tells us that they noticed that went over like a lead balloon and maybe that they found out that it wasn't true. I think these attorneys are not geeks. I know, last time I looked, Boies didn't even use email. His secretary did that for him.
I finally got comments functionality turned on, so, as you read all the details in this complaint, you may notice some other things that aren't accurate, from what you know. If so, either post a comment or email me and I'll post the information you provide, as I can.
An observant reader sent me this, showing, once again, evidence that any identical code and any identical comments could have originated from Caldera employees themselves making contributions to the Linux kernel:
"You might want to check over this post to the linux-ia64 mailing list,starting with one interesting comment, which may most damning of all (https://external-lists.vasoftware.com/archives/linux-ia64/2001-February/001115.html): 'I know some other IA-64 OS uses that mechanism. I'm not sure how much perfermance gain we can get by that in Linux, though.'
"Note that the date of the above is after the take over by Caldera, in which he admits knowing the internal details of 'some other IA-64 OS', given Jun's time at SCO, this could only be the Unixware IA-64 port, Old SCO half of the Monterey Project. Then compare this post of Jun's including the comments http://www.geocrawler.com/archives/3/5312/2001/1/0/5052740/ To this actual part of the Linux kernel http://lxr.linux.no/source/kernel/sched.c?v=2.4.18;a=ia64#L229 "
Of course, SCO recently said their big issue isn't identical code; it's derivative code.
"Those remedial measures, however, seem to point toward some sort of royalty payment, as SCO does not believe that its intellectual property can be easily extracted from Linux. Not only are there lines of SCO's code in Linux, but also derivative products based on SCO intellectual property have been created, Sontag said. Getting all of the protected bits out, assuming SCO's claims are valid, would be a huge chore. 'Our biggest issues are with the derivative code,' he said. 'It would be almost impossible to separate it out.'"
Here is SCO's derivative code claim from the Amended Complaint. Keep in mind that they can claim whatever they like (up to the point of frivolous lawsuit -- there are sanctions for that) but they are making broad claims here, and they will have to prove them to a judge's satisfaction:
21. The UNIX operating system was originally built by Dennis Ritchie, Ken Thompson and other software engineers at AT&T Bell Laboratories. After successful in-house use of the UNIX software, AT&T began to license UNIX as a commercial product for use in enterprise applications by other large companies.
"22. Over the years, AT&T Technologies, Inc., a wholly owned subsidiary of AT&T, and its related companies licensed UNIX for widespread enterprise use. IBM, Hewlett-Packard, Inc. ('HP'), Sun Microsystems, Inc. ('Sun'), Silicon Graphics, Inc. ('SGI') and Sequent became some of the principal United States-based UNIX licensees, among many others.
"23. IBM, HP, Sun, SGI and the other major UNIX vendors each modified UNIX to operate on their own processors. Thus, for example, the operating system known as 'HP-UX' is HP[base ']s version of UNIX. HP-UX is a modification of and derivative work based on UNIX System V source code.
"24. Similarly, the operating system known as Solaris is Sun[base ']s version of UNIX. Solaris is a modification of, and derivative work based on, UNIX System V source code.
"25. SGI[base ']s UNIX-based operating system is known as 'IRIX.' IRIX is a modification of, and derivative work based on, UNIX System V source code.
"26. IBM[base ']s UNIX-based operating system is known as 'AIX.' AIX is a modification of, and derivative work based on, UNIX System V source code.
"27. Sequent[base ']s UNIX-based operating system is known as 'DYNIX/ptx.' DYNIX/ptx is a modification of, and derivative work based on, UNIX System V source code.
"28. The various identified versions of UNIX are sometimes referred to as UNIX 'flavors.' All commercial UNIX 'flavors' in use today are modifications of and derivative works based on the UNIX System V Technology ('System V Technology'). Were it not for UNIX System V, there would be no UNIX technology or derivative works available for IBM and others to copy into Linux.
"29. SCO is the sole and exclusive owner of all Software and Sublicensing Agreements that control use, distribution and sublicensing of UNIX System V and all modifications thereof and derivative works based thereon. SCO is also the sole and exclusive owner of copyrights related to UNIX System V source code and documentation and peripheral code and systems related thereto."
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| Oh, That is Why They Are Saying That |
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Tuesday, June 17 2003 @ 03:56 PM EDT
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I figured out finally why SCO is making the wild claim about terrorism. It's just legal strategy: They can't revoke an irrevocable, perpetual license unless they can say that IBM violated the contract. (I don't know if they can say it even then, not having read the contract, but this is what SCO is claiming they can do.) It must have been hard to find a violation, so they came up with the idea of saying IBM violated the law, and so in that way, it broke its contract. Specifically, they are claiming that IBM violated export laws by making multiprocessor operating systems technology available "for free distribution to anyone in the world," including residents of Cuba, Iran, Syria, North Korea and Libya, countries to which the United States controls exports. The open-source technology IBM released "'can be used for encryption, scientific research and weapons research,' the suit said."
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| IBM: Get Me Outa Here |
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Tuesday, June 17 2003 @ 04:55 AM EDT
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This Shankland article points to an interesting connection:
"SCO has made no secret in recent months that it hired high-profile attorney David Boies to spearhead its case against IBM, but the company's legal representation in Utah courts is also noteworthy. The company retained Brent O. Hatch and Mark F. James of the law firm Hatch, James & Dodge. Hatch is the son of Sen. Orrin Hatch, R-Utah, a spokesman for SCO confirmed Monday."
Another Hatch connection turns up in this Salt Lake Tribune story from April of 2002, which mentions that Judge Dale A. Kimball, the judge assigned to this case, was sponsored by Hatch.
Cozy. Well, I noticed that IBM has filed an Amended Response on May 20, 2003. (You can read it on SCO's site, but everything except the list of denials is here.) And in it, in their Affirmative Defenses, they list one that says
"Caldera's claim's are improperly venued in this district." That means: this is the wrong venue, or place, to bring this lawsuit. Here is the explanation of venue, from Steven H. Gifis' Law Dictionary, Second Edition:
"VENUE: a neighborhood, a neighboring place; synonymous with 'place of trial'. It refers to the possible or proper place or places for the trial of a suit, as among several places where jurisdiction could be established. See 132 N.W. 2d 304, 308; and 257 F. Supp. 219, 224. 'Jurisdiction deals with the authority of a court to exercise judicial power. Venue deals with the place where that power should be exercised. Jurisdiction over the subject matter cannot be conferred by the parties, and the lack thereof may not be waived. Venue, on the other hand, is bottomed on convenience, and improper venue may be waived.' Green, Civil Procedure 64 (2d ed. 1979). Venue 'is the right of the party sued to have the action brought and heard in a particular judicial district.' 249 A. 2d 916, 918."
Evidently, IBM would like to have this case heard elsewhere.
Here is the introduction to the Amended Complaint and all 9 affirmative defenses:
"In answer to the allegations of the complaint of Caldera Systems, Inc. d/b/a The SCO Group ("Caldera"), defendant International Business Machines Corporation ("IBM"), by and through its attorneys, states that, contrary to Caldera's allegations, by its lawsuit, Caldera seeks to hold up the open source community (and development of Linux in particular) by improperly seeking to assert proprietary rights over important, widely used technology and impeding the use of that technology by the open source community.
"While IBM has endeavored to support the open source community and to further the development of Linux, IBM has not engaged in any wrongdoing. Contrary to Caldera's unsupported assertions, IBM has not misappropriated any trade secrets; it has not engaged in unfair competition; it has not interfered with Caldera's contracts; and it has not breached contractual obligations to Caldera. In any event, IBM has the irrevocable, fully paid-up, and perpetual right to use the "proprietary software" that it is alleged to have misappropriated or misused."
Here are the nine affirmative defenses:
First Defense
The complaint fails to state a claim upon which relief can be granted.
Second Defense
Caldera's claims are barred because IBM has not engaged in any unlawful or unfair business practices, and IBM's conduct was privileged, performed in the exercise of an absolute right, proper and/or justified.
Third Defense
Caldera lacks standing to pursue its claims against IBM.
Fourth Defense
Caldera's claims are barred, in whole or in part, by the applicable statutes of limitations.
Fifth Defense
Caldera's claims are barred, in whole or in part, by the economic-loss doctrine or the independent-duty doctrine.
Sixth Defense
Caldera's claims are barred by the doctrines of laches and delay.
Seventh Defense
Caldera's claims are barred by the doctrines of waiver, estoppel and unclean hands.
Eighth Defense
Caldera's claims are, in whole or in part, pre-empted by federal law.
Ninth Defense
Caldera's claim's are improperly venued in this district.
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| SCO Fails to Ask for a Preliminary Injunction |
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Monday, June 16 2003 @ 08:16 PM EDT
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SCO Fails to Ask for a Preliminary Injunction
Says Terrorists Use Linux and Yes, They Mean ALL UNIX
Well, they say they are filing for a permanent injunction, not a preliminary injunction. I went to the Utah District Court web site, but it isn't posted yet.
What does this all mean? A preliminary injunction is what you ask the judge to give you right this minute, because you allege that you have a good case and you'd be so harmed by delay that you can't wait til the trial is over. A permanent injunction is what you ask for if you are asking the judge to give you that relief at the end of the trial, along with the billion they want.
There are several possible interpretations on their failure to ask for a prelim: they are worried they might be turned down for a preliminary injunction, with all the consequences to their FUD; they knew they would have to show some code if they asked for a preliminary and that would make it possible to rewrite fast; they don't have the money to post a bond; they know their case is vaporware. Maybe there are some others I can't think of. Stephen Shankland, once again, has good coverage of what this all means legally.
"Despite the harsh rhetoric, the fact that SCO is seeking a permanent rather than preliminary injunction means that the issue won't be resolved soon and customers need not worry, said Daniel Harris, an intellectual-property attorney with Clifford Chance . 'There isn't going to be any practical impact now,' Harris said. 'Unless they seek a preliminary injunction, there's no (court) order impacting IBM or IBM's customers.' . . .
"As a result, SCO's move means that AIX customers might feel a reprieve, Harris said. 'If anything, I think the customers may breathe a sigh of relief that there isn't going to be any hearing on a preliminary injunction that might impact them,' Harris said. Seeking a permanent injunction as part of a trial 'is going to take years.'
Shankland also tells us some of the AIX customers from this last year include Lawrence Livermore National Laboratory and the National Weather Service.
SCO's Sontag Says Terrorists Use Linux So the Government Might File Friend of the Court Brief on Their Side
--Speaking of the goverment, SCO's Chris Sontag is quoted in Byte as saying that terrorists use Linux, so we shouldn't be surprised if the government files a Friend of the Court brief:
"I listened to how IBM has bypassed U.S. export controls with Linux. How 'Syria and Libya and North Korea' are all building supercomputers with Linux and inexpensive Intel hardware, in violation of U.S. export control laws. These laws would normally restrict export of technologies such as JFS, NUMA, RCU, and SMP[~]and, (I was waiting for this) 'encryption technologies.' 'We know that is occurring in Syria,' I heard, even though my mind was fogging over at this point. 'So are you saying that the U.S. government might file a "Friend of the Court Brief" to support your case against IBM?' I blurted out. 'Don't be surprised' was Sontag's answer."
Um... "we know"? Who is the "we" in this sentence? So now we're not just pirates if we use Linux... IBM is aiding terrorism? Is nothing beneath this company? Or is it possible he speaks from knowledge and the government is actually pushing this? I find that hard to believe. But then, I find this whole thing hard to believe. How would he dare to say this, though, if he was not speaking from knowledge of the government view? The word defamation leaps to mind. And Boies did work with the Justice Department on the MS antitrust case... my mind is spinning... I better sit down . . .
Yup. SCO Means All UNIX is a Derivative of "Their" IP --Sontag also confirms in the Byte interview what I wrote yesterday after reading their quarterly report, that SCO views derivative code as the main issue and he means all UNIX, including possibly BSD, hence Apple's OS X.
"Specifically, Sontag believes the 'SCO technologies' which were misappropriated into AIX, IRIX, and the derivative UNIX-alikes (including Linux) are:
JFS ( Journalling File System ).
NUMA (Non Uniform Memory Access), a SGI/Stanford collaboration .
RCU ( Read-Copy-Update ).
SMP ( Symmetrical Multi-Processing ).
"'So you want royalties from FreeBSD as well?' I asked. Sontag responded that 'there may or may not be issues. We believe that UNIX System V provided the basic building blocks for all subsequent computer operating systems, and that they all tend to be derived from UNIX System V (and therefore are claimed as SCO's intellectual property).'"
What about the fact that there already was a try to attack BSD in court and there was a settlement basically ending this issue? Sontag says that there could be issues, because Berkeley may not have lived up to the terms of the settlement.
There is a great deal more in the Byte article, so go and take a look. I have to go throw up.
P.S. 
Whew. Feeling better now. Here is an announcement from the Department of Defense that it is OK to use open source. Unless the Pentagon didn't get the memo, it seems to indicate that Sontag is, well, FUDding. It's dated June 6, 2003, and the article begins:
"The U.S. Department of Defense has issued a policy that officially authorizes the use of open-source software at the department, a move open-source pundits said opens the door to more government use of open-source software."
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| SCO's Quarterly Report -- UNIX Is Mine, All Mine |
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Monday, June 16 2003 @ 01:27 AM EDT
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SCO has filed its quarterly report with the Securities and Exchange Commission, for the quarter ending April 30, 2003, and it's most revealing. The first thing that leaps off the page is the fact that the Microsoft licensing deal does not necessarily extend beyond 2003. They do have an option to extend at their election. And the second licensee, with the mystery unnamed licensee, is a prior licensee, and the license was what the report calls "a clean-up" license. In other words, it appears that MS is the only company to respond favorably to SCOsource so far, although they list the second as a SCOsource win.
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| Kernel Coder Puts SCO on Notice of Copyright Infringement |
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Sunday, June 15 2003 @ 07:26 PM EDT
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Kernel Coder Puts SCO on Notice of Copyright Infringement
Here Comes the GPL!
The Inquirer is reporting that a kernel developer, currently anonymous, has sent a notice of copyright infringement to SCO by email. As the article correctly points out, there are hundreds of others who have also contributed to the kernel and thus would have similar claims.
On Friday, I mused aloud:
" GPL or Copyright Law -- Pick Your Poison SCO has been saying that they didn't know they were releasing under the GPL. What if that were true? Then it would mean that they never had the right to release a Linux product in the first place. If the GPL is found invalid, then you revert to copyright law.
"Now here is the detail that just occured to me: Linus Torvalds isn't the only individual who has contributed to the kernel and his policy is, or at least it was the last time I looked, that each contributor retains his or her own copyright rights, even though the kernel itself is under GPL v2. So... if SCO released a product outside of the GPL, then couldn't any of the copyright holders bring an action for copyright infringement against SCO?"
Now someone, evidently in Germany, has had the same thought and is doing it.
The email points out that Linux is still available from SCO's web site. Then the coder points out that as co-author and copyright owner of several parts of the kernel, he released his code solely under the GPL and that SCO is claiming that in that file is proprietary code belonging to them, so their continuing to offer that file is a violation of the terms of the GPL:
"I've granted everyone the right to sell, distribute and use my work under the condition that they obey the restriction of the GPL. The GPL requires that a work that is based on a works that is licensed under the GPL must be put under the GPL. I've never authorized any other use of my work.
"This means that your distribution of the above given file, and any sale of OpenLinux 3.1.1, is not authorized by me and infringes my copyright."
In addition to money damages, the emailer reserves the right to sue the German branch of SCO and suggests as an alternative:
"As an alternative, I'll abstain from suing you for copyright infringement if you drop your claims that the source in linux-2.4.13-21D.src.rpm infringes your copyright, for example by putting the part that you claim copyright on under the GPL. The exact details would have to be discussed."
On June 5th, I posted some other places I was able to find SCO's OpenLinux for sale, including at Tucows, InActSys.com, even from Shop Caldera.
As is not uncommon, SCO too seems to have underestimated the GPL. However, because they are such strong believers in the sanctity of intellectual property rights, no doubt SCO will immediately comply. I'm sure they have no desire to infringe on anyone's rights under copyright while holding that holy banner so high in their own IP Crusade. If not, I'd say the GPL may be heading to court.
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