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IBM Lawyer Hired Away by Microsoft
Sunday, June 15 2003 @ 04:01 AM EDT

IBM Lawyer Hired Away by Microsoft
and a Second Analyst Unconvinced
by SCO "Proof"


I saw this little notice on Law.com:

"After handling IBM's intellectual property matters for nearly 30 years, Marshall Phelps Jr. has jumped to Microsoft Corp., where he will oversee more than 11,000 trademarks and 3,000 U.S. patents as vice president and deputy general counsel for IP."

He was VP for IP and licensing at IBM. Hmm. How convenient. Do you suppose he knows anything that might be of value to anybody rooting for SCO?

Another interesting tidbit: An analyst in Germany who looked at SCO's proof code and is talking, saying that their lawyer forgot to ask him to sign an NDA, says, I think (my high school German is a lot rusty), that he can't be sure if there is any substance to SCO's claim.


read more (1550 words) 1 comments  View Printable Version
Most Recent Post: 04/23 03:36PM by Anonymous

New Aberdeen Report Says Code Could Be BSD Unix
Sunday, June 15 2003 @ 12:29 AM EDT



Bill Claybrook, of Aberdeen Group, has written a new report. It's called "SCO-IBM Lawsuit: Time for Some Changes?" and you can get it here. It's free, but you must register.

According to a news report on NewsFactor, he says he just can't say for sure if the code he saw proves infringement or not. Unlike Ms. Didio, who if I remember correctly studied French in college, Mr. Claybrook used to be a UNIX kernel programmer, also a university professor. While Ms. Didio was endlessly impressed, she says, by the code, Mr. Claybrook said just "eyeballing the code" didn't provide enough evidence to be conclusive, because they didn't show it to him on a computer.

"I wasn't able to look at the files on the computer, so, all I can say is, 'I saw this stuff, and I don't know whether it's true or not.'

"'All of it could have been copied from BSD Unix,' he said, referring to a version of Unix different from SCO's System V version. 'I have no way of knowing all that -- not without seeing it on the computer,' he said. 'And what's weird about it is, it wasn't like they copied the whole function,' Claybrook said, referring to the programmers who allegedly copied code. 'If you pull pieces of code from one program to another, it means you have to integrate them into your code, and then test with everything else,' he said. 'It just doesn't make sense -- why not take the whole function?'"

Bottom line? "In Aberdeen's view, if SCO wins its lawsuit against IBM (or settles out of court), then this is not a knockout punch for Linux," Claybrook wrote.

GNU's Not UNIX and It's Not "Linux" Either
Saturday, June 14 2003 @ 04:33 AM EDT



We're not all experts on the GPL. But Eben Moglen, the Free Software Foundation's attorney, is. For that reason, and because a great deal of SCO's case turns on the GPL, you might enjoy reading Mr. Moglen's explanation of "SCO v. IBM".

Regarding SCO's claim that "Linux" contains UNIX code in violation of SCO's copyrights, he first points out that Linux is appropriately the name of the kernel only:

"SCO has used 'Linux' to mean 'all free software,' or 'all free software constituting a UNIX-like operating system.' This confusion, which the Free Software Foundation warned against in the past, is here shown to have the misleading consequences the Foundation has often predicted. 'Linux' is the name of the kernel most often used in free software systems. But the operating system as a whole contains many other components, many of them products of the Foundation's GNU Project. GNU's components are copyrighted works of the Free Software Foundation."

In short, SCO does not own the copyrights on any of their software.

The FSF policy for contributors most specifically would not allow any UNIX code in:

"Contributors to the GNU Project must follow the Free Software Foundation's rules for the project, which specify - among other things - that contributors must not enter into non-disclosure agreements for technical information relevant to their work on GNU programs, and that they must not consult or make any use of source code from non-free programs, including specifically UNIX."

He says SCO has not sued the Foundation, nor "despite our requests, identified any work whose copyright the Foundation holds -- including one version of the Linux kernel -- that SCO asserts infringes its rights in any way."

The trade secret claim against IBM is likely to fail, says Moglen, because when SCO released its "Linux" products, it did so with source code. It's not a trade secret if it's not a secret. What about their copyright claim?

"Copyright, as I have pointed out here before, protects expressions, not ideas. Copyright on source code protects not how a program works, but only the specific language in which the functionality is expressed. A program written from scratch to express the function of an existing program in a new way does not infringe the original program's copyright. GNU and Linux duplicate some aspects of UNIX functionality, but are independent bodies, not copies of existing expressions.

"But even if SCO could show that some portions of its UNIX source code were copied into the Linux kernel, the claim of copyright infringement would fail, because SCO has itself distributed the kernel under GPL. By doing so, SCO licensed everyone everywhere to copy, modify, and redistribute that code. SCO cannot now turn around and argue that code it sold people under GPL did not license the copying and redistribution of any copyrighted material of their own that code contained."

There's more, so do take a look .

1 comments  View Printable Version
Most Recent Post: 08/07 03:03PM by Anonymous

The Smoking Gun
Friday, June 13 2003 @ 11:42 AM EDT



I am reading a Caldera white paper that used to be available on the Caldera web site, referenced earlier. (Look for the headline "Sue Me? Sue You? It's just above the picture of the pirate.) I got it from another site that still has it available. My jaw is hanging open.

SCO in its complaint charges IBM with stealing its System V code and putting it into Linux. However, the white paper, "Caldera Gives You a Choice -- Linux and UNIX Are Coming Together," dated March of 2001, on page 25, says that merging the System V code, by then renamed UnixWare, with Linux was Caldera's plan:

"Caldera's plan is to unify SCO UnixWare with Caldera's OpenLinux to create an LSB-compliant operating platform that will combine UNIX scalability with the application support of Linux to provide a common build environment for solutions that scale up or down, depending upon the business need. Caldera gives you a choice."

And now they are shocked, shocked to find identical code from System V in Linux? They said they were going to put it there themselves as part of their plan to scale Linux up, if I have comprehended this document, and I believe I have.

Is your mouth hanging open yet? It gets better. On page 14, it says:

"If there were an operating environment that scales from thin Internet clients, for instance, to the large data centers of giant corporations, that operating environment would attract the attention of software developers and users alike. Caldera plans to provide such an operating environment. A major factor in our pending purchase of the SCO the Software Server Division is to acquire the UnixWare technology....

"Caldera has begun the task of uniting the strengths of UNIX technology, which includes stability, scalability, security, and performance with the strengths of Linux, which include Internet readiness, networking, new application support, and new hardware support.

"Caldera's solution is to unite in the UNIX kernel a Linux Kernel Personality (LKP), and then provide the additional APIs needed for high-end scalability. The result is an application 'deploy on' platform with the performance, scalability, and confidence of UNIX and the industry momentum of Linux."

So, now where do you think that identical code might have come from? And why ever would SCO want to take this document off of its site, do you suppose, when it is so very clarifying?

You might like to look at their chart also, Figure 5 on page 12, "UNIX and Linux Market Projections, 2000-20004". The UNIX line is flatlined along the bottom of the chart, while Linux's line goes up and up and up across the page at approximately a 90 degree angle. Some "bicycle".

1 comments  View Printable Version
Most Recent Post: 07/12 04:38PM by Anonymous

Microsoft's Outlook
Friday, June 13 2003 @ 07:01 AM EDT

Well, if this isn't a bit chilling: A MS guy says that the SCO lawsuit is just the beginning.

In discussing how MS plans on competing against Linux, he lists several arguments they plan on putting forward to customers, and then he says this:

"And there's a significant intellectual property and patent issue if you broadly adopt open-source software. The lawsuit of SCO against IBM, and now against the Linux community, is the first visible and public manifestation of intellectual property and patent rights."

read more (345 words)   View Printable Version
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This Article Explains What Could Happen Monday
Friday, June 13 2003 @ 05:34 AM EDT



This excellent article by Stephen Shankland explains very clearly what SCO might, could, should do on Monday if IBM doesn't settle. Several attorneys give their opinions and SCO gives some hints. "If" seems silly to write. "When" they don't settle seem a better choice of words. So far, IBM shows no sign of wishing to settle.

read more (606 words)   View Printable Version
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GPL or Copyright Law -- Pick Your Poison
Friday, June 13 2003 @ 04:49 AM EDT

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? Any attorneys out there?

Another helpful reader noticed that in my article on Wednesday I mentioned that some of SCO's press releases were no longer findable. He stepped up to the plate and has sent some further links, all showing, as did my Wednesday post, that SCO's claims that it didn't know it was releasing under the GPL don't seem to match the historical indications.

read more (379 words)   View Printable Version
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Could the Identical Code be From Contributions from SCO Employees Themselves? A Reader Names a Name
Friday, June 13 2003 @ 01:39 AM EDT

I received email from a reader, a developer named David Mohring, who presents the following evidence that SCO employees contributed code to the Linux kernel:

"Developers such as Jun U Nakajima of SCO's Core OS Development team, SCO/Murray Hill, NJ, as well as other SCO and Caldera employees, contributed advice and patches to the Linux kernel, directly and though the Mailing lists of both the Linux-IA64 and the Linux scalability project. Jun U Nakajima was aware of NDA (Non-Disclosure-Agreement) issues, as this thread to Usenet proves.... Note that in the same thread, Jun admits that he was using stable 4-way SMP systems Linux and has seen a demo 8-way system in the middle of the year 2000:
Today 2.4.0 SMP kernels run on SMP IA-64 platforms (e.g. 4-way) reliably. I'm using such systems for heavy-duty software developement. We had a demo using an 8-way IA-64 machine last Summer.

Many SCO and Caldera employees directly contributed to the development of enterprise scale Linux, before, during and after Caldera made its purchase of SCO's Unix division.

Jun U Nakajima, sometime in 2001, went to work for Intel, and even today he is successfully performing the same job he did when he was employed by Old SCO and then Caldera, improving the scalability of Linux on the new Intel processor platforms. In 2002, Jun U Nakajima and Venkatesh Pallipadi, also from Intel, presented a paper to a USENIX conference. As with all the Linux kernel work, the result of all the above work has been incorporated into the main Linux branch at the discretion of Linus Torvalds.
There is quite a bit more to the email.

read more (523 words) 1 comments  View Printable Version
Most Recent Post: 07/30 02:40PM by Anonymous

Who's the Pirate in This Picture?
Thursday, June 12 2003 @ 10:40 PM EDT

So, in today's episode, we find out what *really* happened.

Now this is worth reading if you wish to find the answer to the question we have all been asking, namely why is SCO doing this?

read more (1148 words)   View Printable Version
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"I Cannot Tell a Lie" -- George Washington
Thursday, June 12 2003 @ 09:46 PM EDT



ComputerWorld is quoting Bill Claybrook, one of the analysts who saw the SCO code under the NDA, as saying he has "no idea" if there's a problem with the code. How could he say that if the code and even the notes seem to be identical? Because he couldn't tell where the code had originated or who put what where first. Another thing bothered him, according to the article:
...he asked SCO officials if they had any "direct evidence" that IBM copied any System V code into Linux and was first told there was no such evidence. Hours later, he said, SCO officials called him back and told him that they had "misspoken" and that they did have such evidence. "That's kind of strange," Claybrook said.

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