The following research is the result of efforts to compile a truthful
record of the SCO controversy and in the hope that it will be helpful to
anyone interested in understanding and proving the truthfulness of
statements made in Groklaw's open
letter to SCO's Darl McBride on September 18,
We note that a number of web pages appear to have disappeared from SCO's
web site recently, as well as from the Wayback Archive and from Google,
particularly in the past few weeks. All the links on this page worked
the time of preparing this document, but we cannot guarantee their
continued availability. And if nothing else, this record shows what
once was available, even if it all should suddenly disappear from the
internet. Many of us, in any case, have saved copies of the materials
Links to Mr. McBride's Open Letter to the Open Source Community are in
an Appendix located at the very end of this document, should you wish to
refresh your memory. We have arranged the material topically, in the
order in which topics are addressed in our letter, with additional
resource material added thereafter. We hope you will find this document
1. VIOLATIONS OF THE GENERAL PUBLIC LICENSE (GPL)
Text of the GNU General Public License (GPL).
Columbia Law School Professor Eben Moglen, pro bono publico general
counsel for the Free Software Foundation, which maintains the GNU
General Public License, under which Linux is distributed, on the GPL in
affidavit in the MySQL case ( Progress Software Corp. v. MySQL AB,
1st Cir., No. 02-1402 ).
"SCO Scuttles Sense, Claiming GPL Invalidity" by
"The GNU GPL and the American Way" by Richard
FSF's Bradley Kuhn: "'Most of the core GNU components
are all copyrighted by the Free Software Foundation and distributed
under our auspices under GPL. SCO's right to redistribute them, and
Linux too, is the GNU GPL and only the GNU GPL.... FSF holds documents
from SCO regarding some of this code. SCO has disclaimed copyright on
changes that were submitted and assigned by their employees to key GNU
operating system components. Why would SCO itself allow their employees
to assign copyright to FSF, and perhaps release SCO's supposed 'valuable
proprietary trade secrets' in this way?"
Eben Moglen: "'From the moment that SCO
distributed that code under the GNU General Public License, they would
have given everybody in the world the right to copy, modify and
distribute that code freely,' he said. 'From the moment SCO distributed
the Linux kernel under GPL, they licensed the use. Always. That's what
our license says.'Moglen noted that SCO cannot readily make the claim
that it inadvertently released
the code, because the GPL requires that when code is released under its
auspices, the developers must release the binary, the source code and
the license, and the source code must be able to build the binary.
Presumably, then, the binary functions the way the creators want it to
function and has the capabilities they want it to have. 'This isn't an
inadvertent distribution case,' he said."
Microsoft tries to explain the GPL (but
"The GPL permits unlimited free use, modification, and redistribution
of software and its source code, but imposes three key restrictions on
" -- 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
" -- 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."
Linux programmer David Mohring responds to Microsoft's explanation in a comment on
"' -- If the licensee includes any GPL code in another program, the
entire program becomes subject to the terms of the GPL.'
"Actually, the above statement is Microsoft FUD, since it is actually
the reverse which is more correct. If the licensee includes any
NON-GPL'ed code in a GPL'ed program or library (*and* then distributes
the resulting combined product outside of the licensee's organization)
the NON-GPL code in question is deemed to be also licensed by the
distributer under the GPL license.
"Note that is the not the commingling of the GPL'ed source with the
NON-GPL'ed product, but the act of distribution, outside of the
licensee's organization ,which actually effectively results in the
licensee granting all downstream recipients the rights to use the result
under the GPL license.
"Just including GPL'ed source inside a NON-GPL'ed program or library
does not 'automatically' license the NON-GPL'ed program/library under
the GPL -- it just means that anyone distributing the resulting product,
outside of the licensee's organization, is in violation of the GPL
license. The licensee has then three options. 1) Recall and Cease
distributing the combined product *OR* 2) Remove the GPL'ed code from
the product and distribute the result under whatever license the
licensee sees fit *OR* 3) License the combined product under the
"With the latter option #3, the licensee has the right to retain
copyright over their original source code and Dual/Multi-license under
the GPL and any other licenses they choose. Sun does this with
OpenOffice, as does the MySQL project and TrollTech with the QT
libraries. If the licensee/vendor is careful, maintaing at least one
branch of the source seperate from the pure single licensed GPL'ed
sources, geting all outside developers to assign copyright over to the
licensee/vendor for major contibutions and
patches, the licensee/vendor is free to exercise option #2 at any time
with the un-commingled source branch. Sun does this with the proprietary
StarOffice6, which is based on the Sun OpenOffice.org sources. TrollTech
also offers a proprietary licensed option for the QT libraries.
"Microsoft's claim also totally ignores the existence and use of the
LGPL license. The LGPL license is the same as the GPL license but grants
the recipient the right to link into NON-GPL'ed programs/libraries. The
LGPL is widely used and is very NON-GPL friendly. All of the vendor who
supply proprietary applications for Linux link with the GNU LGPL
licensed C and C++ libraries."
Some general explanations available currently online.
Eben Moglen: "...section 7 of the Gnu General
Public License (GPL)... specifies that if legal 'conditions are
imposed... that contradict the conditions of this License' you cannot
distribute GPL protected free software."
Eben Moglen on why you don't need a copyright
license: "You don't need a copyright license from anybody to use any
program. That's like saying you need a copyright license to read a
newspaper... if there's plagiarised material in the New York Times, that
doesn't mean that
people who buy the New York Times are liable."
2. SCO INVOICES WILL PROVOKE LEGAL ACTION
New York General Business Law (GBL) Sections 349 and 350.
GBL Sections 349 and 350 (New York's Consumer Protection Law)
prohibits "...any deceptive or unconscionable trade practice in the
sale, lease, rental or loan of any consumer goods or
"Unfair acts and deceptive practices carried out
in the course of business or trade are prohibited in New York State.
Section 349 of the General Business Law specifically prohibits this
activity and has become the most frequently prosecuted consumer-related
offense in New York State."
New York's Consumer Protection From Deceptive Acts and
New York's key consumer protection statutes are Sections 349 and 350,
Chapter 20 of the General Business Law. Section 349 provides:
acts or practices in the conduct of any business, trade or commerce or
the furnishing of any service in this state are hereby declared
N.Y. Gen. Bus. L. ï¿½ 349(a). Section 349(h) provides that in addition to
right of the Attorney General to seek injunctive relief and restitution
under Section 349(a), any "person" injured as a result of the prohibited
deceptive acts or practices "may bring an action in his own name to
enjoin such unlawful act or practice," and may also seek to "recover his
actual damages or fifty dollars whichever is greater." N.Y. Gen. Bus. L
ï¿½ 349(h). Moreover, the court may, "in its discretion increase the award
of damages to an amount not to exceed three times the actual damages up
to one thousand dollars, if the court finds the defendant willfully or
knowingly violated this section. The court may award reasonable
attorney's fees to a prevailing plaintiff." Id.
"Section 350 provides: 'False advertising in the conduct of any
trade or commerce, or in the furnishing of any service in this state is
hereby declared unlawful.' N.Y. Gen Bus. L. ï¿½ 350. The term 'false
advertising' means 'advertising, including labeling, of a commodity,' if
such advertising is 'misleading in a material respect.' N.Y. Gen. Bus.
350-a(1). Section 350-e(3) provides that any 'person' injured as a
result of misleading advertising 'may bring an action in his own name to
enjoin such unlawful act or practice,' and may also seek to 'recover his
actual damages or $50, whichever is greater.' N.Y. Gen. Bus. L. ï¿½
350-e(3). This section also provides for discretionary trebling of
damages and an award of
attorneys fees to the prevailing plaintiff. Id.
"The elements of a Section 349 or 350 claim are (1) that the defendant
engaged in an act or practice, or advertising, that was deceptive or
misleading in a material respect, and (2) that the plaintiff was injured
a result. See, Berrios v. Sprint Corporation, 1998 WL. 199842 at *3
(E.D.N.Y. March 16, 1998); BNI New York LTD v. DeGanto, 675 N.Y.S.2d
755 (1998); McDonald v. North Shore Yacht Sales, Inc., 513 N.Y.S.2d 590,
914 (1987). 'There is no requirement that the plaintiff show specific
dollar injury, or to obtain injunctive relief that there even be
pecuniary injury at all. Nor is there any requirement that the deceptive
practice or false advertising be intentional or even reckless or amount
to fraud.' N.Y. Gen. Bus. L. ï¿½ 349, Practice Commentaries. 'Nor does
plaintiff have to prove reliance upon defendant's deceptive practices.'
BNI New York, 675 N.Y.S.2d at 755. See also, Small v. Lorillard Tobacco
Company, 677 N.Y.S.2d 518, 519 (1st Dept. 1998) (Section 349 'does not
require proof of justifiable reliance').
"The standard for whether an act or practice or advertisement is
misleading is objective, requiring a showing that a reasonable consumer
would have been misled by the defendant's conduct. Berrios, 1998 WL
at * 3, quoting S.Q.K.F.C., Inc. v. Bell Atl. Tricon Leasing Corp., 84
629, 636 (2d Cir. 1996); Oswetto Laborers Local 214 Pension Fund v.
Midland Bank, 623 N.Y.S.2d 529, 533 (1995). Though not contained in the
statute nor required by the New York Court of Appeals, several federal
courts have determined that a private right of action under Sections 349
and 350 requires some sort of offense to the public interest. See, e.g.,
Franklin Electronic Publishers, Inc. v. Unisonic Products Corporation,
F. Supp. 1, 5 (S.D.N.Y. 1991); Jenesco Entertainment v. Kotch, 593 F.
743, 751-52 (S.D.N.Y. 1984)."
Fraud: "In actions for fraud, corporate officers and directors
be held individually liable if they participated in or had knowledge of
fraud, even if they did not stand to gain personally (see, e.g., Marine
Midland Bank v Russo, , 50 NY2d 31, 44 )... deceptive trade
practices which, by definition, include any false or misleading
NY General Business Law, Article 21-A, Fraudulent
Transactions in Securities,Section 339.
USC Section 45, Section 5(a), the federal equivalent.
Section 13(b) of the Federal Trade Commission Act, 15 U.S.C. Section
53(b) -- authorizes FTC to seek injunctive relief.
Jules Polonetsky, et al.,v. Better Homes Depot,
Inc., et al 2001 NY Int. 125: "The Attorney General of the
State of New York has authority under: (a) NY Executive Law ï¿½63(12),
which authorizes the Attorney General of the State of New York to seek
injunctive relief, restitution,damages, and costs against any person or
business entity which has engaged in repeated fraudulent or illegal acts
otherwise engaged in persistent fraud or illegality in the conduct of
business; and (b) NY GBL Article 22-A which authorizes the Attorney
of the State of New York to seek injunctive relief, restitution, and
penalties when any person or business has engaged in deceptive business
Utah's securities fraud statute.
Steven J. Vaughan-Nichols: "Billing
companies for software they've already paid other vendors for on
unproven allegations that SCO Unix code is hidden inside Linux? This
plan is just crazy and (to my untrained, non-lawyer eye), it comes
dangerously close to fraud."
Example of eConnect CEO
guilty of issuing false press releases and facing prison.
National Fraud Information Center.
3. SCO HAS SHOWN US NO INFRINGING CODE
Linus Torvalds: "Yeah, I don't personally think
they have any IP rights on Linux, and I agree, it looks more like a suit
over the contract rather than over Linux itself."
Linus: "Off their Rocker".
Linus: Negotiate what? - September 10th, 2003.
denies it: "'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.' -- Trink Guarino, IBM spokesperson.
RedHat denies it: "Given that we have extensive legal
resources put forth into making sure we respect the valid intellectual
property rights of companies, we are not concerned with the statements
that have been made. We do take intellectual property very
seriously." -- Leigh Day, Red Hat spokesperson.
In a letter to its customers, Red Hat wrote: "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."
SGI denies it: "'The bottom line is that SCO has no
basis for a claim against us,' the statement said."
Free Software Foundation's Bradley Kuhn says Caldera assigned copyrights on employee
contributions to the FSF: "Indeed, FSF holds documents from SCO
regarding some of this code. SCO has disclaimed copyright on changes
that were submitted and assigned by their employees to key GNU operating
Greg Lehey, who worked in IBM's Linux Technology Center, writing "a
clone of the AIX Journalled File System, the predecessor of the JFS
ported by the JFS for Linux project," says IBM carefully kept AIX and Linux coders
separate: "Having worked on Linux for IBM, I can state categorically
that the separation between AIX and Linux is complete. Nearly all of the
people working on the Linux kernel have no access to AIX source code.
It's theoretically possible that some people do have such access, though
I know of nobody, but IBM has guidelines for that case, just to be on
the safe side: don't read AIX code and write Linux code in the same
place. Read the code, go elsewhere and write. Even this, though, would
hardly be useful: AIX is UNIX, Linux is Linux. The kernels have such
completely different structures that any code import would be a waste of
time: it's easier to write it from scratch."
Robert X. Cringeley: "What SCO owns... is the
copyright on this particular work as applied to UNIX. But Linux is not
UNIX, so applying the same ideas -- even the same code if it comes
originally from an upstream source -- is not necessarily copyright
"Say I write a new high-level programming language, then do nearly
identical implementations of that language for UNIX and Linux and the
UNIX version is made part of some official UNIX distribution. Does that
Linux version violates the UNIX copyright? No. But I wrote both
versions and the code is identical. Surely that is a copyright
violation? No. This isn't a matter of clean rooms and virgins and
reverse engineering, it is a matter of precedence and authorship.
Sequent (now IBM) did not give up all its rights to the code when it was
made part of UNIX. They were very careful to plan it that way."
Anupam Chander, Professor of Law at the University
of California, Davis, School of Law, a graduate of Yale Law School and
Harvard College, who specializes in cyberlaw and international law:
"IBM should win"
Thomas Carey, partner with intellectual property firm Bromberg &
Sunstein, explains the side letter to the AT&T-IBM license
agreement, now Exhibit C to SCO's complaint, gives IBM rights to
"SCO Admits to Not Knowing Own Code History in Recent Q &
"SCO may not know origin of code, says Australian UNIX historian".
Linus Torvalds on his attitude toward IP: "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."
Larry Rosen: SCO's remedy lies with IBM, not
SCO's Changing Story About the Code They Showed
August 26 -- "But Sontag said
the BPF routines were not intended to be an example of stolen code, but
rather a demonstration of how SCO was able to detect 'obfuscated' code,
or code that had been altered slightly to disguise its origins. The
slide displaying the code should have been written differently to
reflect that intention, he said.
"'It was an example of our ability to find moderately changed or
obfuscated code, it was not an example we are using in court,' Sontag
said. 'If they want to go off and make a big defense on that, they are
welcome to it.'"
Sept. 11 -- "SCO acknowledges it has not, because
of pending litigation, completely revealed its evidence of purloined
code showing up in Linux. However, Stowell argues his company has
revealed -- through a mix of private screenings where viewers signed
nondisclosure pacts and in a public slide show three weeks ago at SCO's
trade show in Las Vegas -- sufficiently damning examples backing its
"They keep saying we are not showing the code, that we are being
deceptive," Stowell said. "But we have shown it, literally, to hundreds
of people now.... We have been very forthcoming. The programs we have
identified make up about 20 percent of Linux."
Offers to Remove Any Infringing Code
Linus Torvald's offer to remove any infringing
Richard Stallman's offer to remove any infringing code:
any AT&T-copyrighted code was copied into GNU, this occurred despite our
continued efforts to prevent such copying. Our intention was to write
code from scratch, and we have surely done so 99% of the time or more.
If SCO can find code that was copied and is not fair use, they merely
have to show it to us. We will take out the AT&T code and replace
Eben Moglen offers to remove any infringing code: "This
isn't an inadvertent distribution case,' he said. However, he noted that
the Free Software Foundation works with companies to ensure that they do
not release anything under the GPL that they do not intend to release.
In fact, he said, when SCO first filed its suit against IBM, he
approached SCO's lawyers because it is the Free Software Foundation and
not IBM which
holds the copyright to the Linux distribution IBM created, Linux for
S/360. IBM created the Linux distribution but released it under the GPL
and signed the copyright over to the Free Software Foundation.
"Moglen said that when he approached SCO's lawyers he asked them to show
him any problems with the particular Linux distribution and if there
were any he would stop its distribution. 'They have never responded to
that invitation,' he said. He added, 'We help people to solve problems
with free software. If they would show us something, we would be happy
to help them with it.'"
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.'...
"'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.
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.'"
Jon "maddog" Hall: "Take your code, please! We don't want
Perens: "They should show us what code they have problems with.
We'll take a look at it or we'll just replace it."
McBride: "The Linux community would have me publish it now, (so
they can have it) laundered by the time we can get to a court
Others in the community agree that any Linux source code that is proven
to be infringing will be removed immediately:
May 16th, 2003 Jeff Kintz, posting to a mailing list related to
kernel development: "As soon as SCO reveals exactly which code
'belong' to them the Linux development community will be engaged in a
furious competition for the status to be attained by being the person
who replaces that code with non-infringing code."
May 19th, 2003 Gary Barnett, Research Director of Ovum in "SCO:
Stuff and nonsense": "If there is an 'offending' code within the
Linux kernel, it will be fixed very quickly.... Indeed, the Linux
community is already calling on SCO to identify the code that it claims
to own so that it can get to work on replacing it."
May 21st, 2003 Mitch Anderson, posting to a different Linux mailing
list: "...once (if) the offending pieces have been disclosed.
They will be removed so fast that their heads will spin."
May 27th, 2003 Robert Frances Group "SCO's New Business Plan": "It seems likely that as soon as the infringements are made publicly known, they will be immediately rewritten to eliminate the infringements. If SCO were truly concerned only about its IP, a path exists for the elimination of any infringements in a very short period of time...."
May 28th, 2003 Mike Angelo, in an editorial at MozillaQuest:
"Moreover, all McBride and SCO-Caldera need to do in order to get any
SCO-owned code removed from the kernel.org Linux kernel, the GNU/Linux
OS, or Linux distributions is simply to tell these people what SCO-owned
code is in the Linux kernel, the GNU/Linux OS, or the Linux
distributions. It would be removed immediately, if not sooner. However,
McBride refuses to disclose what SCO-owned Unix code is in
June 10th, 2003, Paula Rooney, in an article for ChannelWeb My
Summary: "Linus Torvalds asked SCO about viewing the code; they told
him he could not see it without signing their highly restrictive
and Bruce Perens: "If you wish to make a respectable case for
contamination, show us the code."
Another in LinuxWorld.
4. CODE CAN BE BOTH IDENTICAL AND LEGAL -- THE BSD
"Open Sources: Voices from the Open Source
including this chapter, "Twenty Years of Berkeley Unix --From AT&T-Owned
to Freely Redistributable" by Marshall Kirk McKusick, who was involved
in the BSDI lawsuit, which briefly covers the early history of UNIX,
including the lawsuit:
"With the increasing cost of the AT&T source licenses, vendors that
wanted to build standalone TCP/IP-based networking products for the PC
market using the BSD code found the per-binary costs prohibitive. So,
they requested that Berkeley break out the networking code and utilities
and provide them under licensing terms that did not require an AT&T
source license. The TCP/IP networking code clearly did not exist in 32/V
and thus had been developed entirely by Berkeley and its contributors.
The BSD originated networking code and supporting utilities were
released in June 1989 as Networking Release 1, the first
freely-redistributable code from Berkeley.
"The licensing terms were liberal. A licensee could release the code
modified or unmodified in source or binary form with no accounting or
royalties to Berkeley. The only requirements were that the copyright
notices in the source file be left intact and that products that
incorporated the code indicate in their documentation that the product
contained code from the University of California and its contributors.
Although Berkeley charged a $1,000 fee to get a tape, anyone was free to
get a copy from anyone who already had received it. Indeed, several
large sites put it up for anonymous ftp shortly after it was released.
Given that it was so easily available, the CSRG was pleased that several
hundred organizations purchased copies, since their fees helped fund
further development. ...At the preliminary hearing [in the lawsuit] for
the injunction, BSDI contended that they were simply using the sources
being freely distributed by the University of California plus six
additional files. They were willing to discuss the content of any of the
six added files, but did not believe that they should be held
responsible for the files being distributed by the University of
California. The judge agreed with BSDI's argument and told USL that they
would have to restate their complaint based solely on the six files or
he would dismiss it. Recognizing that they would have a hard time making
a case from just the six files, USL decided to refile the suit against
both BSDI and the University of California. As before, USL requested an
injunction on the shipping of Networking Release 2 from the University
and on the BSDI products.
"With the impending injunction hearing just a few short weeks away,
preparation began in earnest. All the members of the CSRG were deposed
as were nearly everyone employed at BSDI. Briefs, counter-briefs, and
counter-counter-briefs flew back and forth between the lawyers. Keith
Bostic and I personally had to write several hundred pages of material
that found its way into various briefs.
"In December 1992, Dickinson R. Debevoise, a United States District
Judge in New Jersey, heard the arguments for the injunction. Although
judges usually rule on injunction requests immediately, he decided to
take it under advisement. On a Friday about six weeks later, he issued a
forty-page opinion in which he denied the injunction and threw out all
but two of the complaints. The remaining two complaints were narrowed to
recent copyrights and the possibility of the loss of trade secrets. He
also suggested that the matter should be heard in a state court system
before being heard in the federal court system. ...a settlement was
finally reached in January 1994. The result was that three files were
removed from the 18,000 that made up Networking Release 2, and a number
of minor changes were made to other files. In addition, the University
agreed to add USL copyrights to about 70 files, although those files
continued to be freely redistributed."
Ancient UNIX released by Caldera under BSD-like license
"Oldies but Goodies".
Dennis Ritchie's Unix page.
Press release announcing release.
"Why Caldera Released Unix: A Brief History".
BSDi-USL lawsuit documents.
1974 UNIX License.
"Ancient UNIX Released Under What Terms?".
5. WE POLICE OUR CODE EFFECTIVELY -- DO YOU?
Linus Torvalds: "So we actually have a very
good notion of where the code came from and what the [intellectual
property] rights are...when it comes to the stuff that IBM has given
Linux, we have been very, very careful about how we accept them. The one
thing SCO has mentioned has been the Read Copy Update code that IBM gave
us, and that wasn't accepted for the longest time into the kernel
because we knew the patents were owned by IBM. [But] we said we couldn't
take it until you [IBM] said very explicitly that you also license the
Linus Torvalds on contribution cleanness: "'For copyright infringement, the best protection is the fact that the code is open. Think of it like stealing a car: as a potential car thief, would you do it in full daylight with a lot of people looking on, or would you prefer to do it when nobody is watching?'
"The article says this is what SCO is claiming happened, that IBM boldly
stole the code, but Linus finds that hard to believe, asking in effect
what would the motive be? 'Sure, it could be done, but what would be the
point? It's not like I pay these people on a "per line written"
Yahoo! Messageboard for
"SCO is mouthing off about how Linux can't police IP issues. They are
also claiming they own trade secret rights to Read, Copy, Update (RCU)
technology, and that IBM misappropriated these rights by passing RCU to
"The following kernel mailing list archives ought to refute all of those
"The first email finds kernel maintainer Andrea Arcangeli from SuSE
REJECTING IBM's submission of RCU to linux because the technology is
covered by US Patent #05442758, as pointed out by Alan Cox or Red Hat.
"The second is IBM employee Dipankar Sarma stating that IBM owns this
patent, having purchased the inventor Sequent, and that IBM legal has
reviewed it and approved its release under GPL.
"The third is confirmation from Andrea Arcangeli that an IBM patent
grant letter has been sent to both Linus and him.
"OK, SCO dweebs. How do you have a trade secret on something that is
patented by someone else? First of all, patenting requires disclosure.
Second, a patent grants exclusive rights that means your use of the
technology must be authorized by them. Third, it's very clear that the
kernel maintainers are exercising proper controls to assure IP is
US Patent #05442758.
License Compliance, from Donald B Marti Jr.'s Linuxmanship
"As a Linux user and administrator, you already comply with the terms
the GNU General Public License. (Easy, isn't it?) If you are in a
position to do so, make sure other people comply with proprietary
software licenses too. Persuade management of the necessity to do this
by digging up cases of license violations that have resulted in large
Darl McBride's Perens misquote
What McBride wrote.
(subscription req'd): "In his statement McBride appears to have
attributed a ComputerWire paraphrase as a quote from Perens. Anyone
looking to verify this reference should try the August 26 edition of
Computergram, not August 25 as stated by McBride."
Other analysis of the code by Greg Lehey and Eric Raymond.
Dennis Ritchie Acknowledges the Code.
6. INDEMNIFICATION IS A RED HERRING
Attorney Thomas Carey:
"Meanwhile, Carey noted that SCO President and CEO Darl McBride
to have misspoken when he said last week that Linux is unique in that it
is an operating system which is offered without any warranty of
copyright non-infringement (which implied that users were taking a big
risk by signing onto Linux).
"Carey said he took a look at the Unix license between AT&T and IBM --
the very agreement that forms the basis of SCO's complaint. 'It contains
a nearly identical disclaimer of any warranty of non-infringement,' he
Intellectual Property License": "ALL WARRANTIES, TERMS, CONDITIONS,
REPRESENTATIONS, INDEMNITIES AND GUARANTEES WITH RESPECT TO THE
WHETHER EXPRESS OR IMPLIED, ARISING BY LAW, CUSTOM, PRIOR ORAL OR
STATEMENTS BY ANY PARTY OR OTHERWISE (INCLUDING, BUT NOT LIMITED TO ANY
WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE OR ANY
IMPLIED WARRANTY OF NON-INFRINGEMENT OF THIRD PARTY INTELLECTUAL
RIGHTS) ARE HEREBY OVERRIDDEN, EXCLUDED AND DISCLAIMED."
Is there Linux code in SCO's Unixware?
Who Did What with the Code?:
"But there may be more reasons that SCO will be looking at legal
troubles. Even before Caldera bought out SCO's Unix, SCO was adding
Linux functionality to UnixWare.
"Specifically, SCO added Linux compatibility to its Unix
properties with operating system packages like UnixWare's Linux Kernel
Personality (LKP). The LKP enables UnixWare to run Linux binaries.
"So SCO was adding Linux functionality to its own Unix products,
and was also considering bringing Linux functionality to its older
OpenServer Unix. Given SCO's own reasoning, could all this Linux
functionality be added to Unix without introducing Linux code into Unix?
"Look at the history. When Caldera first bought SCO in August 2000, it
suggested that it was going to open source a good deal of Unix. That
"But what Caldera did do, as described in a Caldera white paper dated
March 8, 2001, with the then new tag-phrase of 'Linux and UNIX are
coming Together' by Dean R. Zimmerman, a SCO writer, was to try to merge
the best features of both operating systems. Early on there's a line
that fits perfectly with open source gospel. 'For a programmer, access
code is the greatest gift that can be bestowed.' And then, getting
to the point, Caldera declares: 'Caldera has begun the task of uniting
strengths of UNIX technology, which include stability, scalability,
security, and performance with the strengths of Linux, which include
Internet-readiness, networking, new application support, and new
support. Caldera's solution is to unite in the UNIX kernel a Linux
Personality (LKP), and then provide the additional APIs needed for
scalability. The result is an application "deploy on" platform with the
performance, scalability, and confidence of UNIX and the industry
Former SCO employee Christoph Hellwig on whether SCO Group might have
UnixWare source in the Linux kernel:
"It might be more interesting to look for stolen Linux code in
I'd suggest with the support for a very well known Linux fileystem in
the Linux compat addon product for UnixWare...."
Comparing SuSE Linux Enterprise Server 8 with UnixWare
7.1.3 by Roberto J. Dohnert.
ZDNet: "Love added that any kind of move on SCO's
part to 'unify Unix and Linux' would be 'very positive.'"
"Did SCO Violate the GPL?" with particular emphasis
LKP: "The source, who has seen both the Unix System V source code and
the Linux source code and who assisted with a SCO project to bring the
kernels closer together, said that SCO "basically re-implemented the
kernel with functions available in the Unix kernel to build what is now
known as the Linux Kernel Personality (LKP) in SCO Unix.
a feature that allows users to run standard Linux applications along
standard Unix applications on a single system using the UnixWare
"'During that project we often came across sections of
that looked very similar, in fact we wondered why even variable names
identical. It looked very much like both codes had the same origin, but
that was good as the implementation of 95 percent of all Linux system
calls on the Unix kernel turned out to be literally "one-liners",' the
Running Linux Applications on UNIX with LKP.
Doug Michaels, former CEO of Santa Cruz
"I also believe in the principle that great programmers should
great code whenever possible, so long as they do not violate any laws or
license agreements. In hindsight, it's clear that "steal" was a poor and
confusing choice of words on my part. I was perhaps being too flippant
by trying to point out that one can't really steal that which is freely
Linux Journal: "'Linux is being pulled across the
spectrum of IT solutions, and a single kernel won't scale,' Ransom says.
The considerations that are important to embedded Linux, to the small
server market Linux rules now, and to the midrange and high-end server
markets are different. As Linux 'forks' -- hopefully through a
proliferation of compile-time options, not a real fork, Ransom hastens
to add -- the high-end parts will end up participating in some sort of
technology-sharing arrangement with UnixWare.
"So, Linux, UnixWare, Openserver, Monterey (or whatever they're calling
it now) what is the secret master plan? I draw a chart of OSes down the
left, years across the top, fill in 'Linux 2.4' in 2001 with a question
mark, and ask Ransom to fill in the rest. Arrows sprout from Linux and
spread like fungus tendrils into the 'UnixWare' and 'Monterey' areas --
that's the compatibility thing -- and a big arrow moves forward into the
future along the UnixWare/Linux dividing line. This represents the spawn
of Linux and UnixWare, an uber-OS with a yet-to-be-determined licensing
policy. Ransom says you'll be able to see the source code, but parts
will be open source, and parts will be 'viewable source' -- you'll be
able to read it, but not modify and redistribute it."
In January of this year IBM became a Technology Partner of SCO (United Linux).
On March 17 of this year Opinder Bawa, formerly of IBM and Toshiba, but
then Vice President of Technolgy and Development at SCO, wrote an article for Computerworld. It was
titled "How To Integrate Linux With Unix. His last suggestion was:
"4. Contact the necessary vendors and gather the binaries and source
code needed to allow Unix applications to run on Linux and Linux
applications to run on Unix."
with the Linux kernel and donated code, but didn't notice any infringement in
Caldera Employees Contributed to Linux kernel
"Caldera Employee Was Key Linux Kernel
"Could the Identical Code be From Contributions from SCO Employees
Themselves? A Reader Names a Name".
SMP: "The initial port was made possible thanks to Caldera
Multiprocessor Linux Kernel Development."
Caldera worked on unifying Linux and UNIX
Ransom Love's Linuxworld 2000 Keynote Speech:
Caldera To "Add Components" to Linux Kernel To Make It Scale.
Video of Ransom Love's speech.
IWeThey Twiki on Trillian Project.
"Caldera Backs Away From 64-Bit Open Unix": "'The
feedback from Intel and our customers is that 64-bit addressing today
just isn't a priority, and the 32-bit processors are just getting better
and better,' said Caldera's VP EMEA, Chris Flynn. '32-bit is good enough
for most people's processing requirements.' That appears to suggest that
Open Unix and OpenServer's lifespan will last only as long as 32-bit
processors continue to sell, but Flynn maintained that the operating
systems will remain available as long as customers want them.
"'There's plenty of mileage in 32-bit Unix,' he said. 'Until our
customers tell us that they don't want Unix and they don't want 32-bit
Intel any more, which I don't see happening, then nothing's going to
change. 32-bit is just great for customers over the next few years, but
we do have choices, and we could move forward with our 64-bit
"One of those choices will be 64-bit Linux, which is being developed
through the IA-64 Linux Project, and will be available from Caldera.
Flynn believes that by the time users are looking to purchase 64-bit
servers and operating systems in volume, Linux will have gained the
robustness and scalability it requires to compete with Unix in the
"Another option Caldera has on the shelf is IBM's AIX 5L, which was
developed from the Monterey project between IBM and SCO. In 2001,
Caldera offered a preview of the AIX 5L operating system for Itanium to
developers, and it remains a possibility that Caldera will offer IBM's
Unix for 64-bit users should there be the demand."
Old SCO, Santa Cruz Organization,
also donated to the Linux kernel.
1999 SCO press release: "As a
founding sponsor of Linux International, SCO is a strong proponent of
the Open Source movement, citing it as a driving force for innovation.
Over the years, SCO has contributed source code to the movement, and
currently offers a free Open License Software Supplement CD that
includes many Open Source technologies. SCO UnixWare 7 operating system,
the fastest growing UNIX server operating system for the past two years,
supports Linux applications as part of its development platform."
2000 SCO press release.
SCO Answers Questions About Linux.
Programmer Peter Roozemaal on Groklaw finds Caldera copyright notice in Linux, indicating
company officially donated the code and naming the employee who wrote
Linux services being implemented in Project Monterey:
OpenUnix not on i64 in 2002:
"Q: So OpenUnix will continue in parallel to OpenLinux?
"Yes. OpenUnix could well keep going in parallel to OpenLinux. We are
moving OpenUnix onto Intel's 64-bit platform, but (Intel's current
32-bit architecture) will be around for a long time yet." -- May 31,
2002, Ransom Love.
Ars Technica articles explain 64-bit here
Recent Microsoft intellectual property cases
MS SQL Server.
Burst.com"Did Microsoft 'steal' Media Player 9
Newsforge opinion saying users of GNU/Linux are currently in less legal
danger than users of Microsoft's SQL Server 7, thanks to the Timeline
win over Microsoft in their contract dispute over Timeline's patents.
"This memorandum is intended to help third parties analyze potential
patent infringement(s) as it relates to their own product offerings. It
is Timeline's position that any party on notice of the existence of the
511 patents has a legal duty to investigate and form a reasoned opinion
on infringement. That is not Timeline's duty. And, if a party forms an
opinion that there is infringement, then its duty is to procure a patent
license, or modify its products to "design around" an infringement, or
cease any further use, license, maintenance, etc. of the product.
Otherwise, the users, manufacturers, and distributors are subject to
statutory claims for treble damages for willful infringement similar to
those embodied in RICO, Anti-trust and Consumer Fraud statutes.
"The 511 patents can apply to stand alone software products or
combinations of software products. Of particular focus at this time are
products used in conjunction with Microsoft SQL Server 7.0 or after. All
Microsoft products stand-alone are licensed. But whether a combination
of products infringes all the elements of a valid claim of a Timeline
patent must be examined. If so, then whether the non-Microsoft code or
product provides at least one of the material steps in such infringement
must be determined. In that case, the step(s) provided by the third
party product or code is not covered by Microsoft's license. The
user, licensee, licensor, or manufacturer must secure its own license or
stop any further use."
The Register quotes the president of Timeline as saying that damages
facing SQL Server developers could be in the millions. A Timeline press
release back in February announcing the judgment, appears to be
threatening legal action against SQL Server developers and users,
"...particularly those Microsoft customers who relied on Microsoft's
assurances, failed to investigate them thoroughly, and knowingly
continued to provide material steps in an Infringing Combination. These
infringers, if any, may face treble damages for the entire three and
one-half years the case was tied up in the courts. Microsoft is not a
law firm. Relying on its advice should not constitute acting in good
faith; which is the required defense to treble damages for failure to
investigate and honor patents once on notice of their
The press release quoted in full in the Register, headlined "Microsoft
Vs. Timeline Final Judgment Affirms Timeline Patent Rights; SQL Server
Users Could Face 'Staggering' Damages", says this in relevant part,
though we recommend reading it in full:.
"'Why Microsoft would mislead its own customers, arguably inducing
to act in a manner potentially to their great detriment, was initially
very difficult for us to understand,' Osenbaugh continued. 'We assumed
Microsoft simply felt that someone would successfully challenge the
Timeline patents or that Timeline would capitulate before Microsoft's
statement came back to haunt it. And Microsoft openly supported a number
of third parties who unsuccessfully challenged the validity of the
"'But, in hindsight and even though Timeline won the litigation, we must
admit Microsoft's approach apparently worked for it. The monies spent on
legal fees were inconsequential to them. Between the litigation and the
false press release, Microsoft effectively froze Timeline out of
leveraging its patent-protected niche in the SQL Server market for over
3 1/2 years. This time period was long enough for Microsoft to launch
its now openly stated strategy to become dominant in the ERP and
Analytics software market historically serviced by its own
7. WE RESPECT THE LAW
SCO spokesman: "The Web site of embattled
software maker The SCO Group Inc. was inaccessible again on Tuesday,
fueling reports of another denial of service attack.... The outage
prompted Netcraft to declare that SCO was again the target of a DoS
attack. However, the outage was actually due to preventative measures
taken by SCO and its hosting service to mitigate the effects of future
attacks, according to company spokesman Marc Modersitzki."
Netcraft: "The SCO site was up for a few hours during business hours in Utah, but has since failed again. Many news sites carried the story that Eric Raymond had spoken to a group responsible for a Distributed Denial of Service attack on the www.sco.com site and that they agreed to stop. However it appears that this may have been a hoax, or they subsequently changed their minds, or another person decided to continue the attack."
Dornan: "I have just called the 800-SCO-UNIX phone line, pressed
option #5, and spoke with a 'Customer Care' person about The SCO Group's
web site outage. The lady on the phone was cheerful and nice, all the
best things you could expect from a person handling problems. She
claimed that 'We upgraded the site this weekend, and are having problems
getting it up
come back up.'"
8. WHO MAKES UP THE OPEN SOURCE COMMUNITY?
Linux Documentation Project's "Powered by Linux!".
Linux Success Stories.
Governments like Linux.
Quantitative data on Linux.
Why open source beats closed for debugging: Damien Challet and Yann Le
Du of the University of Oxford have written a paper
titled "Closed source versus open source in a model of software bug
SCO's UNIX business declining
Most recent 10Q filed with the SEC for the quarter ending July 31, 2003.
Last annual report filed with the SEC.
Linux Journal: "According to McBride, 'obviously
Linux owes its heritage to UNIX, but not its code. We would not, nor
not, make such a claim.'"
"While acknowledging the validity of SCO's search for licensing fees
from those genuinely using Sys V Unix,
Claybrook sees a hint of desperation in SCO's litigious behavior.
'Before any of this happened, SCO's business was going nowhere,'
Claybrook concludes. 'I think things were getting desperate because they
weren't generating any revenue from their Linux business and their
products were losing market share steadily.'"
9. DUAL LICENSING IS AN OPTION
the Lesser General Public License (LGPL).
How the LGPL Works.
MySQL offers their
software under a dual licensing program: "All of our products
available under open source licenses, but we also sell commercial
for all of the products so they can be adopted in situations where an
source solution is not appropriate."
Historian Peter Salus, author of "A Quarter Century of UNIX", on the
history of UNIX and the UNIX licenses, on video and as an MP3 stream and download.
SCO hired Boies Schiller Flexner weeks before IBM'S Steve
Mills spoke at Linux World. Steve Mills made his speech on Thursday, January 23,
SCO's OpenLinux Install Documentation, the introduction, is titled
"Where did Linux come from?" and it helpfully explains the GPL thus:
They have whole pages devoted to the GPL, in which they accurately
explain how it works. For example, here it says:
On this page of the Installation Guide, which explains Linux and gives
some of its history, it says that Linux is a "UNIX operating system
clone", with no AT&T code in it: