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SCO Paralegal Finds '96 Amendment That Appears to Give SCO Some Copyrights
Friday, June 06 2003 @ 02:57 AM EDT

A SCO paralegal found on Thursday a 1996 Amendment that appears to give SCO some copyrights. This may be why the stock was shooting up all day. Novell has acknowledged that at least some rights appear to have be transferred under the terms of the arrangement. No patents transferred.

If true, then SCO has more power to do harm, without a doubt. It's a great deal easier to prove copyright infringement. If they want to be mean, and of course we know they'd never do that, they could just allege copyright infringement against every web site offering Linux for download and claim a DMCA violation, and poof. With friends like IBM, who needs enemies?

A Yankee Group analyst who signed the notorious NDA says that SCO's claim appears to be credible, at least from what she saw:

Apparently the most telling evidence is that parts of the SCO code and Linux code include identical annotations made by developers when they wrote the programs, says DiDio, who compares such notes to the signature or fingerprint of a developer's work. "The fact that these appear to be transposed from Unix System V into Linux I find to be very damaging." DiDio says she was shown several instances where the source code and developer's comments in one operating system were the same as in the other operating system.

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Psst! Want to Buy OpenLinux? It's Still Being Sold Online.
Thursday, June 05 2003 @ 07:13 PM EDT

Here are some places I found I could still buy OpenLinux, despite SCO's claim that they are no longer selling it:

You can get it from Tucows.

You can buy it from a reseller, InActSys.

Here is another one at

You can even buy it from the Shop Caldera site. Here is the page from when I went there and clicked on buy. I did a screen capture, just in case it disappears.

According to this 2000 press release from Caldera, they had 15,000 partners that would make their Linux products available, so perhaps you can buy it from a lot of other places as well.

If you want to read the SCO nondisclosure agreement, it's online now. It's hard to see why anyone would want to sign this amazing document. Without proof of date and origin of the claimed SCO code, it really means nothing anyway.

Meanwhile, SCO stock is shooting up today. Unless some folks are shorting or something is known by somebody and it just isn't public yet, it's difficult to comprehend.

So, Did Someone Steal SCO's Strawberries?
Thursday, June 05 2003 @ 02:21 AM EDT

Judge for yourself. Here is the exact wording of two sections of the 1995 "asset purchase agreement" between Novell and Santa Cruz, now SCO Group:

Schedule 1.1(a) says these are the assets that Santa Cruz bought:
All rights and ownership of UNIX and UnixWare, including but not limited to all versions of UNIX and UnixWare and all copies of UNIX and UnixWare (including revisions and updates in process), and all technical, design development, installation, operation and maintenance information concerning UNIX and UnixWare, including source code, source documentation, source listings and annotations, appropriate engineering notebooks, test data and test results, as well as all reference manuals and support materials normally distributed by Seller to end-users and potential end-users in connection with the distribution of UNIX and UnixWare...
But Schedule 1.1(b) says the following were excluded:
Intellectual property:

A. All copyrights and trademarks, except for the trademarks UNIX and UnixWare.
B. All Patents

So, the question is, does SCO now have the rights to enforce IP violations or not? Clearly Novell was truthful about them not buying copyrights and patents.

Nuff said. So, it appears to be contractual violations or nothing, though the argument may be a long one as to who has enforcement rights.

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Hey, quick! Anybody Got a Lid For This Coffin?
Monday, June 02 2003 @ 02:29 AM EDT

Forrester says businesses should continue with all Linux plans, for three reasons based on "a risk/benefit analysis: the cost benefit of migrating to low-cost Linux from high-priced UNIX, the unlikelihood that tiny SCO will have the funds to go after even one or two of the 1500 companies it sent warning letters to, and the fact that in their view IBM will build a consortium to pay off SCO of just buy it and shut it down.

"Open source is too powerful and pervasive to be stopped. Open-source software, like music downloading, is a social phenomenon that uses the Internet to circumvent obstructions to distribution. This doesn't mean that licensing laws or intellectual property rights disappear. But it does mean that companies must accept the Internet-enabled distribution phenomenon and build new business models that support it--such as Apple Computer recently has done with music downloads."

An attorney with Foley & Lardner in LA, Michael Overly says a review of the code by anyone other than the judge "means absolutely, positively nothing" in determining the merit of SCO's claims.

He didn't say this, but the obvious reason is: how would you know for sure that what they showed you was really their code and not something they whipped up specially for the occasion? That is precisely the difficulty with proprietary software. You can't look and see. In contrast, everything put in GNU/Linux is chronicled by date and what and who.

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The Party of the First Part...
Saturday, May 31 2003 @ 04:18 AM EDT

SCO now says that all their actions, including the warning letters, are based on contract rights, not copyright. You can listen yourself to a replay of Friday's conference call by calling 888-203-1112 or 719-457-0820, conference code #164628. The machine will ask for your name but that appears to be a leftover from the original and it goes forward without any input there. That, of course, isn't what they said before, but listening to the call clarifies what they are planning currently.

They say that the SCO-Novell agreement back in 1995 is in a prior SEC filing and that it says they own all the UNIX source code and all rights to enforce licenses. They have around 30,000 licenses with virtually all hardware manufacturers and sublicenses with most of the Fortune 5000 software firms. The licenses impose a "standard of care" which applies not only to the companies but to all employees. They say that their rights extend to derivative code as well. They say there is "derivative works code" in the kernel. So, in their eyes, any System V licensee or sublicensee is vulnerable. They are, Darl said, "holding aces" (meaning their broad rights flowing from the contracts) and they are playing them.

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How MS Used "FUD Drip-Feed" to Make Sure Its Competition Ended Up "Dead"
Friday, May 30 2003 @ 11:57 AM EDT

You can learn from history. I found an old Caldera Statement of Facts in its lawsuit against MS. Yes, this is the same unfair competition case, settled in January of 2000, where the documents are now being turned into toilet paper by Caldera/SCO. It's no wonder MS would want *that* to happen.

If you were wondering why the SCO story keeps going on and on, with no real substance being put out for all to see but apparently a life of its own, consider what happened behind the scenes in the world of PR, otherwise known by some as FUD, in the Caldera/MS battle.

According to the Statement, and the many exhibits, MS used FUD to deliberately cause the public to think that DR DOS, Caldera's competing product to MS DOS, had "compatibility problems" running on Windows when it really didn't and in fact was a superior product. The FUD worked -- DR DOS failed as a product, hence the lawsuit. The entire Statement is here and more here. Perhaps Caldera learned from history too?

And Your Little Dog Too!
Thursday, May 29 2003 @ 06:32 AM EDT

Now SCO says if no more companies sign up for licenses, they may sue Linus Torvalds for patent infringement. Of course you have to actually *have* a patent to do that successfully. Heh Heh. Threatening Linus is like threatening Toto: the whole world hates you now for kicking a puppy.

Meanwhile, it turns out that their attorney David Boies has a contingency arrangement with them, so he collects depending on what he wins for them. To say I am amazed is putting it mildly. He must really believe in what he is doing. Forbes interviewed him and he says he is committed to diversity in the software market and that this lawsuit is in pursuit of that noble goal:

"You don't want proprietary software to kill Linux or vice versa. I want to make sure the playing field doesn't get tipped."
um...*tipped*?! What can he be thinking?

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Novell Scores a Touchdown - SCO Statement
Wednesday, May 28 2003 @ 12:57 PM EDT

It might even be a checkmate. It looks like SCO's game is over, at least as far as users of Linux being threatened. Novell today is saying that it, not SCO, owns the copyright and patent rights to UNIX System V. The statement isn't equivocal, but it does appear that the rug has just been pulled out from under SCO.

In response, SCO put out this statement:

SCO owns the contract rights to the UNIX® operating system. SCO has the contractual right to prevent improper donations of UNIX code, methods or concepts into Linux by any UNIX vendor.

Copyrights and patents are protection against strangers. Contracts are what you use against parties you have relationships with. From a legal standpoint, contracts end up being far stronger than anything you could do with copyrights.

SCO's lawsuit against IBM does not involve patents or copyrights. SCO's complaint specifically alleges breach of contract, and SCO intends to protect and enforce all of the contracts that the company has with more than 6,000 licensees.

We formed SCOsource in January 2003 to enforce our UNIX rights and we intend to aggressively continue in this successful path of operation.

If all this is is a contract dispute between IBM and SCO, why did SCO send warning letters to users of Linux and say that no business should use Linux? They seemed to imply they intended some copyright-based claims against every end user of Linux. Now they are backpeddling.

Novell's letter to SCO is here and here is one pertinent snip:

SCO claims it has specific evidence supporting its allegation against the Linux community. It is time to substantiate that claim, or recant the sweeping and unsupported allegation made in your letter. Absent such action, it will be apparent to all that SCO's true intent is to sow fear, uncertainty, and doubt about Linux in order to extort payments from Linux distributors and users.

SCO continues to say that it owns the UNIX System V patents, yet it must know that it does not. A simple review of U.S. Patent Office records reveals that Novell owns those patents.

Importantly, and contrary to SCO's assertions, SCO is not the owner of the UNIX copyrights. Not only would a quick check of U.S. Copyright Office records reveal this fact, but a review of the asset transfer agreement between Novell and SCO confirms it. To Novell's knowledge, the 1995 agreement governing SCO's purchase of UNIX from Novell does not convey to SCO the associated copyrights. We believe it unlikely that SCO can demonstrate that it has any ownership interest whatsoever in those copyrights. Apparently, you share this view, since over the last few months you have repeatedly asked Novell to transfer the copyrights to SCO, requests that Novell has rejected. Finally, we find it telling that SCO failed to assert a claim for copyright or patent infringement against IBM.

Well...can't say it hasn't been fun. But it looks like the real fun is ahead.

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LinuxTag Tells SCO to Put Up or Shut Up
Tuesday, May 27 2003 @ 04:19 AM EDT

LinuxTag has decided to counterattack SCO. The German Linux nonprofit organization served SCO Germany with the more-or-less equivalent to a cease-and-desist letter, except it's more powerful, because under German law, SCO must answer and either substantiate its claims against Linux or take back what it has said or face substantial fines for "anticompetitive behavior" which evidently Germany has a law forbidding, according to the article "LinuxTag challenges SCO -- Put up or shut up in Germany" in the UK's The Inquirer.

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"By Jove, I Think I've Got It"
Monday, May 26 2003 @ 04:10 PM EDT

I've been trying to figure out why SCO won't show the allegedly infringing code publicly. I think I've got it.

Reading this explanation of how copyright infringement is determined and what the penalties can be, it came to me: if they plan on using copyright infringement now that the case is in federal court, could their ultimate dream be that IBM will be found to have infringed (and if you can prove access, the bar for proving substantial similarity is lower, and IBM programmers likely started with prior access to code, or they hope they did, although IBM erected barriers once they committed to Linux work) and then for a penalty, they ask the court to impound and order destroyed all copies of the infringing materials, meaning that everybody using Linux in business or otherwise would have to remove the software and turn in any disks and destroy RPMs and wait for the community to write around the infringing code, which could take weeks or months, depending on the extent of it, and then install the new?

How much will a business want to use Linux after that experience? Only the most committed will do it, and onlookers thinking of switching won't.

By not showing the code now, they make it harder to be ready for such a scenario. Here is how the article describes the penalties:

Finally, a plaintiff in an infringement action may, in addition to obtaining monetary damages for an infringement, obtain temporary and final injunctive relief to prevent or restrain infringement of a copyright. Additionally, at any time during an infringement action the plaintiff may seek to have the court order the impounding of all infringing articles claimed to have been made or used in violation of the owners exclusive rights. Included in the articles affected are all copies, or all other articles which can reproduce the copies. As part of the final judgement the court may order the infringing articles destroyed or otherwise disposed of.
Of course, this could all be only in *my* head, not theirs.

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