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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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Now They Are Starting to Look at the GPL?
Wednesday, June 11 2003 @ 12:34 PM EDT

According to this article in Electronic Commerce Times, "Will SCO's Suit Chill the Penguin?" SCO is just now starting to look at the GPL.

From comments in the article, I'd say they still don't get it:

Did SCO Know?

However, Stowell said, when the company discovered that its source code had been incorporated into Red Hat Linux, it stopped distributing its own version of Linux and ended any further Linux development. This move, he noted, showed that SCO was acting according to a GPL clause that could shore up its case.

"After the preamble, it says the code has to be contributed knowingly in order to be considered part of the GPL license," he explained.

Like the difference between "dead" and "almost dead," everything hangs on one word. Stowell maintains that because SCO never knowingly contributed proprietary Unix code to Linux, and ceased distributing GPL'ed code when it discovered the error, the company is off the hook.

These guys are so funny. They didn't know that they were releasing a GPL product until last month? Puh-lease.

I earlier presented some evidence that they certainly knew years ago in a post on May 19.


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Here Comes the Judge
Tuesday, June 10 2003 @ 10:25 PM EDT

I promised to share what I have found out about the judge assigned to try this case in federal court in Utah. His name is the Hon. Dale A. Kimball, and it's one of those happy times when the Honorable title does seem to fit.

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Most Recent Post: 12/07 11:12PM by RealProgrammer

Laugh. It's Funny.
Tuesday, June 10 2003 @ 08:22 PM EDT

Well, well, what have we here?: "A source close to SCO, who spoke on condition of anonymity, told eWEEK that parts of the Linux kernel code were copied into the Unix System V source tree by former or current SCO employees."

This, the article says, would be a violation of the GPL, if SCO incorporated GPL Linux kernel source code into SCO's (then Caldera) "Linux Kernel Personality", without giving the changes back or without displaying a copyright notice giving credit for the Linux code. It also might explain mysterious identical code. But the real issue with the GPL isn't credit; it's access to the source. You can use Linux code all you want, but if you do, and then you release you product that has that GPL code in it in a public release, it is now all GPL. This is the heh heh notorious "viral" effect Microsoft likes to warn about. I'd say that if this story is true, it's a big problem for SCO's lawsuit.

The anonymous source assisted with the project to bring the two kernels closer and says SCO "basically reimplemented the Linux kernel with functions available in the Unix kernel to build what is now know as the Linux Kernel Personality (LKP) in SCO Unix."

Of course, Slashdot is all over this. One cute post from Bagels, in response to SCO reportedly saying they "never used any of the Linux kernel code" : "I suppose that means they never tested any of their code? What kind of contribution to Linux could they possibly make coding like that? :)"

UserFriendly's SCO cartoon is also funny.

Linus Torvalds has asked to see SCO's code, starting back in December according to SCO, but he can't sign the NDA, obviously, and still do his work because of the particular terms of SCO's NDA, so he asked to be allowed to see it without signing it. SCO refused. I don't see how that can help them once they get to court. While it's conceivable that there is infringing code, and if there is Linus would be the first to admit it and fix it, he can't fix it unless he can see it. So that means the ball is now firmly in SCO's court. However, Linus is quoted in the article as saying, "The code will have to come out eventually. I can wait. I don't have to like it, of course." He means he doesn't have to like being made to wait.

SCO Gets Warning from Linux Companies in Poland
Tuesday, June 10 2003 @ 11:59 AM EDT

Two Linux companies in Poland have issued notices to SCO, saying SCO should stop claiming there is illegal code in the Linux kernel unless it shows some proof and should stop tellling companies not to use Linux. Cyber Service and IT Zone CEOs gave SCO three days to comply or the companies will bring suit against SCO under Polish law.

If you'd like to be able to guage Laura Didio's neutrality in all this, take a look at her interview on NewsFactor on how haaaaard it is to switch to Linux from Windows, like the "101 labors of Hercules" she says. There's more. Take a look.

Fujitsu Siemens says about SCO's lawsuit: "We don't think it's going anywhere."

And the New York Times says that lawyers who have seen the SCO-Novell purchase agreement and the additional amendment say "they present a somewhat murky picture of the breadth of SCO's rights". The actual wording of the amendment is rather unclear, despite SCO's crowing. See what you make of it:

"With respect to Schedule 1.1(b) of the Agreement, titled "Excluded Assets", Section V, Subsection A shall be revised to read:

"All copyrights and trademarks, except for the copyrights and trademarks owned by Novell as of the date of the Agreement required for SCO to exercise it rights with respect to the acquisition of UNIX and UnixWare technologies. However, in no event shall Novell be liable to SCO for any claim brought by any third party pertaining to said copyrights and trademarks." Clearly they got some copyrights, but exactly which didn't they get? (as in "except for"? ... and what does it mean "required to exercise its rights"?)

If you wish to turn in a software pirate, you can do it on SCO's web site now and to quote them: "You don't have to leave your name."

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Most Recent Post: 10/21 07:40PM by Anonymous

...Um...You Leaving?
Tuesday, June 10 2003 @ 07:07 AM EDT

An astute observer noticed a message on Yahoo!'s SCOX Message Board, checked it out and then posted on Sourceforge that one of the officers of SCO, Senior VP, Technology, just cashed out:

"Monday June 09, 2003 - [ 01:32 PM GMT ]
   Topic - Business
Read article at - messages.yahoo.com

"An Anonymous Reader writes "Opinder Bawa, Senior Vice President, Engineering and Global Services at The SCO Group, sold all his stock last week. On Tuesday, 2003-06-03, Bawa sold 15000 shares at $6 per share . That's all the stock that he directly owned. On Wednesday, 2003-06-04, Bawa exercised options for 7916 shares at $1.20 per share and sold all 7916 shares at $6.60 per share . That's the remainder of 22,916 shares and options shown for Mr. Bawa in the 2003 proxy statement ."

I'm sure we can all think of any number of perfectly valid reasons why a man who is the highest tech guy in SCO, which presumably would include looking at code, might sell every last bit of stock he owns in the company he works for.

In other news, SCO's home page, both here and in Germany, now displays the "Relax. Worry Free Software" motto. That makes it official to me, anyway, that this is their PR campaign. First, create legal worries about using your competitor's software, then offer yours as a "worry-free" option. Eww. Would execs actually fall for that? Personally, I don't see how software from a company that some, many, say is about to go out of business can possibly be described as worry-free. Unfortunately there are no laws against PR. That's a joke. There probably are. If not, this should qualify for there-oughtta-be-a-law.

I did some research on the judge this case has been assigned to. After I get some paid work done, I'll post it. I have to say, though, that on balance it'd be hard to find a judge I'd feel better about hearing this or any other case. He appears to be a courageous guy, a brainiac with a heart. Even a sense of humour. But mostly he's a judge who thinks it's important for judges not to have an agenda of their own and to judge according to the law. He isn't thrown by elaborate detail, and he's sat on patent and trademark cases before, even a software patent case.


One GNU-Darwin Guy Thinks He Knows Which Code It Is
Monday, June 09 2003 @ 10:32 PM EDT



Robert J. Dohnert has written an article for OSNews. In it he says he figures the disputed code must be related to LVM and SMP:
Shocked that I figured out what code SCO was complaining about without looking at code. You are thinking, "This guy is crazy" or "He is fishing" But if you think about it the height of SCO's complaint is that Linux surpassed UnixWare in the Enterprise Sector. For an OS to survive in the Enterprise sector what does the OS need:

Strong SMP support -- How well it handles multiple processors
Strong LVM support -- How well it handles Logical Volumes
Support for devices users are realistically expected to use -- USB, Firewire, Audio, Video, Application Support
Cost

SMP and LVM was present in UnixWare before Linux had it. Although UnixWare did not handle SMP very well at all, LVM was okay but it is nothing like what Linux had before. That is all UnixWare had. Device support, as stated before, was superior in Linux long before it was even present in UnixWare and device support in Linux is better than what UnixWare ever had. Cost is an issue and Linux will always be cheaper than Unix, and retraining IT personnel from a Unix based system to Linux based systems is nil and takes very little time. Application support is a non-issue as well, it is much easier to port a custom Application from Unix to Linux than it would be to port a custom Application from Microsoft Windows to Linux. So in the end, LVM and SMP are the only two things that Unix had over Linux.

If he's right, I find this page of interest, because it says about SMP that the initial port was made possible thanks to Caldera. [Note that Alan Cox was editing the page, and he references his gift from Caldera of an Asus motherboard to work on SMP.]

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I've Got Mail
Monday, June 09 2003 @ 07:36 PM EDT



I got an extremely thoughtful and info-filled comment from a reader who sent me a post he made to Slashdot, which I didn't see, asking me some followup questions. So here you go, answers, one by one.

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Here's the Plan, Stan
Monday, June 09 2003 @ 12:40 AM EDT



I found this email to SCO partners, which details what the real deal is, dated last January. Now I understand why they feel impelled to follow RIAA tactics. They are in the same "our business plan is no longer viable, so we must hang on with some rather unpleasant muscle to force technology progress to stop this exact minute" group. All they want is your money and an injunction, if necessary, so you can't use anything better than what they have to offer. Instead of Linux replacing UNIX, which it is rapidly doing, they would like to set up a UNIX toll booth to slow this traffic down, and have a Linux-UNIX hybrid, where you can use Linux, but you must pay a license for high-end UNIX functionality to.... why, to them, silly.

I like their plan better than my own worst-case scenario worries of yesterday, because at least in this scenario, Linux isn't killed off outright. I also like their plan because it won't work. You just can't make people want something less good than what they know they could have if you weren't standing in their way. You can make that work for a while, using the legal system, which always protects the status quo, until the consciousness starts to rise and people start to get it. Then somebody like Apple sets up iTunes Music Store and one judge rules Grokster isn't illegal, and then the game is pretty much over. It is the same for SCO and UNIX. Something better than UNIX arrived. The law can't change that. It just can't. That's not what laws are for.


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SCO ÜBER ALLES
Sunday, June 08 2003 @ 08:17 PM EDT

I went to the SCO Germany site today to see what's up there. They have changed their site again. The picture of the beach with the logo "Relax. Worry Free Software" is gone. Due to a quirk in German/English, on the tab that says "About SCO" it says, in German, "Über SCO". This all started me thinking: is it at all possible they read my blog mocking their choice of words about worry-free software? Nah...couldn't be. And just what could SCO's dreams of world conquest be? SCO uber... what?

But then I read Slashdot, and someone posted a part of my last blog entry. I thought no one at all was reading this blog. He or she was rated "5 Interesting" but my clarification post was marked zero. Heh Heh. Slashdot. I had to post as AC, because I don't have a /. account. And he or she seemed to have misunderstood part of what I wrote in my last blog to mean that SCO has no copyright. I was writing about the limits to their ability to collect in a copyright infringement suit, not whether they had a copyright.

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So That's Where He's Been
Saturday, June 07 2003 @ 01:46 AM EDT

If, like me, you've been wondering where David Boies has been throughout the SCO storm, the answer appeared today in a Law.com story. He went to court today in Manhattan, representing Court TV, trying to have the state law banning TV cameras in court, § 52 of New York Civil Rights Law, declared unconstitutional.

Obviously, he wasn't retained by Court TV on a contingency basis. (Clue: lawyers do more for you when they are paid. It's how they make a living.)


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