SCO vs. Linux

[Doobie]

I don't know how many people here are following the SCO vs. Linux event. But, here's some background I haven't seen anyone mention.

SCO bought the rights, for pennies, to DR DOS (created by Digital Research) from Novell and then pried, in a lawsuit ending in settlement (in 2001), about $200 million from Microsoft over Microsoft's anti-competitive practices in pushing DR DOS out of the market.

SCO has bought the rights to Unix from Novell and is now trying to pry big bucks away from others (especially the deep pockets at IBM) over alleged (undemonstrated) public release of secret code. SCO is suing IBM for a $billion for using Unix secret code in Linux and they certainly hope to walk away with a couple hundred million. SCO has done this before.

SCO's business practice, which is a practice of some other companies as well, is to buy rights to intellectual property (IP) and then sue others for violating those rights (other companies create massive amounts of worthless IP to make profits with the intent of suing anyone who comes with anything remotely close). These companies exist as pure parasites.

SCO won't reveal this allegedly publicized secret code to prove its claim. So, whatever the merits of the case, this is having a chilling effect of Linux adoption by various companies which have been threatened by legal liability for using Linux. Microsoft, a company with a history of trying to win market share through anti-competitive practices, likes what it sees and so has invested in SCO. Microsoft hopes its money will help SCO freeze Linux.

The bigger story which seems to be missed by many is that the state of IP laws (patents, copyrights, and trade secrets) in this country is pathetic. Billions of dollars are wasted in legal fighting over IP. Billions worth of invention and innovation are squashed because of the chilling nature of the danger of alleged infringement.

BTW, I think the reason SCO won't reveal the offending code is because they know it will easily be re-written and the worthlessness of their lawsuit will be revealed. So, they're banking on winning big bucks not on the worth of their case but on the amount of damage the lawsuit is doing to Linux. If SCO had any honor and were really upset by infringement itself, they would have revealed the infringing code as soon as discovered so that others could take steps to cease the infringment before more damage is done (SCO would still have a legal right to recover for damages), but no damage is being done to SCO by the code.

[avih]

i think that any hype over this matter only helps SCO, therefore, i say, let's wait, and let IBM do the job, they should be good at it. just let them meet in court, and see the result.

[chemmajik]

Well I wish I had permission to post a really good log I aquired from slashdot, by the user NZheretic. He made the best case about the whole situation in the last day 2days. This is just so good that I couldnt just let it not be reposted as follows.

SCO's evidence of origin and Function dictates form.

What proof did SCO present for the origin of both fragments of source code?

What proof did SCO present to show the SCO code did not originally from old BSD,Linux or public domain publications?

Who put the SCO source into Linux? - Was put there by Old Novell/SCO/Caldera in the first place?

What proof did SCO provide to show that the person had access to SCO's Unix sources?

The latter question raises another issue. The similarity is just as likely to be due to both operating systems performing the same role. Form is often directed by the function it performs. Function and variable names are often dictated by the API and common terminology.


Both the current Linux and Unix kernel developers have attended the similar university courses and read the same publicly available documentation. The works of W. Richard Stevens are very influential as a reference toward modern Unix and Linux and have dictated the implentation of APIs and TCP/IP stacks in both.

Copyright WHAT Copyright

From Groklaw [weblogs.com].

Now that copyright is back on the table in the SCO case, you might like to read the law on copyright. [copyright.gov]

SCO held another telephone conference today, but you had to be on time. I tried to call in later, when I was free, to hear the recording, but although the operator told me it had been recorded, it wasn't being made available. She suggested I contact SCO and ask to hear it. Meanwhile, someone who did listen posted on Slashdot as "mec" and he or she heard this question and answer [slashdot.org]:

[question #3] Stephen Shankland, CNET --

"Q: Copyright office does not have an assignment on file [for the Unix copyrights from Novell]. 'Is it your understanding that the copyrights have not been registered yet?' A: 'Stephen is correct ... [if we need] we will change the assignment of copyright ...' [we can do that at any time]."

If this is true, that they failed to register, it puts another interesting twist on this story. (Novell put a twist of its own, by posting a press release [http] on its site saying that while the Amendment that SCO sent them seemed to support their claim "that ownership of certain copyrights for UNIX did transfer to SCO in 1996", Novell doesn't seem to have the amendment in its own files, and patents for sure didn't transfer.)

It's true you can register a copyright any time, but you can't sue [copyright.gov] for infringement until you have registered and you can't get certain damages for infringement that occured prior to registration: "Before an infringement suit may be filed in court, registration is necessary for works of U. S. origin." Section 411 [http] says it precisely like this:

" 411. Registration and infringement actions10 (a) Except for an action brought for a violation of the rights of the author under section 106A(a), and subject to the provisions of subsection (b), no action for infringement of the copyright in any United States work shall be instituted until registration of the copyright claim has been made in accordance with this title...."

You are limited as to remedies without registration, as Section 412 sets forth:

" 412. Registration as prerequisite to certain remedies for infringement11 In any action under this title, other than an action brought for a violation of the rights of the author under section 106A(a) or an action instituted under section 411(b), no award of statutory damages or of attorney's fees, as provided by sections 504 and 505, shall be made for- (1) any infringement of copyright in an unpublished work commenced before the effective date of its registration; or (2) any infringement of copyright commenced after first publication of the work and before the effective date of its registration, unless such registration is made within three months after the first publication of the work."

It's a criminal offense [copyright.gov] to claim, with fraudulent intent, that you have a copyright if you don't, by the way. The bottom line is that they are limited as to what they can now do with this copyright, if they indeed have it. They can't sue for statutory damages for pre-registration infringement, for starters, or lawyers' fees. Mr. Boies might be interested in that, because of his contingency arrangement. They can only sue for actual damages and court fees, and actual damages are hard to prove, which is why normally you want to go after statutory.

One other advantage to registering is that registering within five years provides prima facie evidence in court of the validity of the copyright and the facts stated in the certificate. That deadline is long past for that benefit.

Levels towards DEF-CON 5

I don't believe that SCO could hope to even start a court case against IBM until the copyright in question has actually been transfered to the SCO Group. Any chance that Novell will hang tough?

Effectively this still means is that, before the SCO Group can even begin to sue Linux developers,vendors and users, SCO has to :-

1)Sue Novell - to tranfer SCO ownership of the copyrights ( forgetting the patents ) AND
2) Prove in a court of law that the source code in question did in fact originate from AT&T,Novell or SCO itself and was not copied from old BSD or Linux, AND
3) Sue IBM - to prove that IBM planted Unixware IP in Linux in breach of their contract with IBM, AND
4) Break the same GPL license in court of law that Caldera has been collectively developing Linux under since the groups forming in 1994 ( which predates even Caldera's purchase of SCO and old SCO's Monteray deal with IBM ) and that SCO made the choice to sell and distribute the code under.

SCO has to achive all this before even beginning to go after other Linux distributions, developers and users.

For (2), IBM under the terms of reasonable disclosure would have the right to demand copies of the source code going back to Version 7. IBM could then disclose the amount of Old BSD and Linux source code that has slipped into SCO's non-Linux products.

For (3), Unless the SCO Group get (1) and (2) it cannot precede with (3). Jim Stallings, the general manager of IBM Corp.'s Linux business recently stated: [techtarget.com] "I believe I am correct in saying there are no violations on any intellectual property issues [with Unix and SCO Group] and we will continue to support our Linux customers. It will be business as usual." Frankly IMO, given the quality of IBM's legal team, SCO don't stand a chance.


For (4), the GPL has never been succesfully challanged [gnu.org] and has been recognised in a federal court [oreillynet.com] . Even if SCO break the GPL, it means that EVERY developer who contibuted GPL'ed content to the Caldera/SCO distributions and is used with the CalderaLinux or SCO Group's Unixs, can persue a case against the SCO Group using the same loopholes the SCO Group has opened. Either way the SCO Group is F****D.

GPL clauses 5,6 and 7

GNU GENERAL PUBLIC LICENSE [gnu.org] [ with emphasis added ]

...
5. You are not required to accept this License, since you have not signed it. However, nothing else grants you permission to modify or distribute the Program or its derivative works. These actions are prohibited by law if you do not accept this License. Therefore, by modifying or distributing the Program (or any work based on the Program), you indicate your acceptance of this License to do so, and all its terms and conditions for copying, distributing or modifying the Program or works based on it.

6. Each time you redistribute the Program (or any work based on the Program), the recipient automatically receives a license from the original licensor to copy, distribute or modify the Program subject to these terms and conditions. You may not impose any further restrictions on the recipients' exercise of the rights granted herein. You are not responsible for enforcing compliance by third parties to this License.
....

Distributing the binaries source grants all recipants an implict license to use all the distributers IP within the terms of the GPL [com.com] .

Also reread clause #7

7. If, as a consequence of a court judgment or allegation of patent infringement or for any other reason (not limited to patent issues), conditions are imposed on you (whether by court order, agreement or otherwise) that contradict the conditions of this License, they do not excuse you from the conditions of this License. If you cannot distribute so as to satisfy simultaneously your obligations under this License and any other pertinent obligations, then as a consequence you may not distribute the Program at all. For example, if a patent license would not permit royalty-free redistribution of the Program by all those who receive copies directly or indirectly through you, then the only way you could satisfy both it and this License would be to refrain entirely from distribution of the Program.

Note the phrase "imposed on you". You cannot use paragraph seven as a right to deny an effective automatic patent( or trade secret etc ) unless imposed to do so by a third party.Since SCO claims ownership of the infringed IP in question, and Novell or IBM is highly unlikely to force SCO to stop distributing it in Linux, SCO cannot deny recipients full effective license to the IP,patents,trade secrets,copyrights in question.

My comment continued.
Even thou a amendment was found today mysteriously from SCO, of which Novell has no file copy.