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Analysis of SCO vs. IBM
icantblvitsnotbutter writes "An excellent -- and clear! -- article over at LinuxWorld.com has a multipoint analysis of SCO's 40-page complaint (this is a brief?!). For all those IANAL's out there, here's something to sink your teeth into. On the balance, the outlook seems positive for IBM. Still, the parallel invocation of a contractural clause potentially nixing AIX lends some credence to claims that this is a just way for SCO to coerce IBM into buying them out..." Some old documents from a similar lawsuit have surfaced, and naturally ESR has his own take on the case.
IBM has released a notification that they finally understood the argument in the SCO paper.
IBM: Here's one.
Judge: Ninepence.
SCO: I'm not dead!
Judge: What?
IBM: Nothing. Here's your ninepence.
SCO: I'm not dead!
Judge: 'Ere. He says he's not dead!
IBM:Yes, he is.
SCO: I'm not!
Judge: He isn't?
IBM: Well, he will be soon. He just filed a 9000 word legal brief.
What I would have really liked is something on the lines of "Here is patent number 1" and here is how linux is different/same.....It is not as if SCO patent reads like "WE patent UNIX and everything that looks like it. And that is that
Quoting from the SCO complaint;
18. SCO is the present owner of all software code and licensing rights to System V Technology.
Pretty much summarises what they are saying.
"I'm tired of all this 'Aren't humanity great' bullshit. We're a virus with shoes" - Bill Hicks
Looks like it was written by a high school student, but none the less, what a nice brief. Dont those SCO People work hard?
Plus, their case doesn't hold water because, the SCO that we're talking about is not the same SCO as the SCO that provided Unix, after AT&T.
This SCO is caldera. The old SCO is SCO. Do the math, Caldera != SCO. Therefore, I do not see their grounds at all.
If SCO is just about to sell out, and is attempting to inflate it's 'intellectual property equity' in the hope that someone with money may buy them? Or maybe there are already talks underway?
If not, this appears to be a horrid act of desperation.
Amicus Curiae - what the hell does that mean? Is it latin for Anonymous Coward?
I think they'd have a pretty good chance of ending up owning all of SCO.
Not that it's worth much.
Averment 41
Shared libraries are by their nature unique creations based on various decisions to write code in certain ways, which are in great part random decisions of the software developers who create the shared library code base.
It's interesting to note that SCO considers the decisions of programmers to be basically random.
I would think that after all of the legal (and pseduo-legal) stuff that gets posted and referenced here at ./, nearly everyone would realize that in legal circles, "Brief" is a technical term neither describing the length of the document, nor the time it takes to read one.
Or should I just make an analogy to a brief COBOL program?
I don't remember it this was posted already in previous discussions, but in this interview with IBM Kernel Hackers from last year, some points are raised, some good and some bad for IBM, specially in the 2nd question. In short, the people at IBM that was into the linux kernel development can't take parts of i.e. AIX code and put into Linux and viceversa, but some interchange of ideas could have been happened if a developer of one team talks with one of another.
Black's Legal Dictionary defines amicus curiae: "A person with a strong interest in or views on the subject matter of an action may petition the court for permission to file a brief ostensibly on behalf of a party, but actually to suggest a rationale consistent with its own views. Such amicus curiae briefs are commonly filed in appeals concerning matters of broad public interest; e.g. civil rights cases".
I found this item here.
I want to drag this out as long as possible. Bring me my protractor.
Reading the Linux world article SCO claims that Linux advanced features such as failover SMP etc could only come about after many years of development. However I do find it a bit narrow sighted in that they think that IBM is the only one who could procduce this software and port it. There are other blue chips out there who have written failsafe software and ported it to Linux. Personally I think SCO is talking rubbish (well at least on this point at least). I really need to read all 40 pages of their document but don't really have the time. (heh who does :)
Rus
Cheap UK and US VPS
The real reason is that SCO is dying, and wants to be bought out by IBM, thereby knocking up the final share price for their investors.
Got it?
[FUCK BETA]
Averment 77: Related to the development of the open source software development movement in the computing world, an organization was founded by former MIT professor Richard Stallman entitled "GNU."
RMS may be surprised to learn he is a former MIT professor.
He is not; he is a former GNU/MIT professor.
Wenn ist das Nunstueck git und Slotermeyer? Ja! Beiherhund das Oder die Flipperwaldt gersput.
I'm reminded of a few(!) years ago when I was reading about development on the Atari 8-bit computers. A columnist for Analog magazine wrote about how he could not divulge certain information about memory mapping of the 400/800 computers because of his Non-Discolsure Agreement - BUT - that if he found out the same information from a third party he could then treat said information as public domain, and then was not bound by the NDA.
I would be interested in knowing if the knowledge shared here had slipped into the public domain, because if so then NDAs do not apply.
IANAL
While I have no idea if SCO has a case or not, I see that many here assume IBM had nothing to do with making Linux enterprise stable, and scoff at SCO's claim.
Yet, if you take the time to google the web you'll find that IBM dedicated an entire internal group to Linux and hired several external companies during 1999-2001 with the sole purpose of making Linux entreprise strength (even Linus has said so).
Now, to be clear, this does not yet prove that any illegal transfer of technology took place (and I doubt SCO will be able to prove it, IMHO they are fishing hoping to find the smoking gun during discovery), but it does verify one of the main three claims from SCO.
These folks have pretty much turned on us. I spent a great deal of effort learning UNIX, getting my SCO CUSA, ACE, and Master ACE. SCO ruined that by no longer being competitive, not keeping up with technology, not marketing their products well, and mistreating their reseller channel. They got their asses kicked by a college student in Finland because they got lazy and stupid. It serves them right. I am now questioning whether or not I should have tried to become a dealer of their wares when I struck out on my own.
.001 per share:
e m
I'm finished when 'em. I'll support their products while my clients still have them, but as soon as the first opportunity to upgrade comes along, we're migrating!
Here is an excerpt about who the money grabbers are, and when they acquired for
http://biz.yahoo.com/t/s/scox.html
Here is my new policy:
http://www.dentar.com/index.php?scoprobl
-- I am. Therefore, I think!
Hoe could they release a document with so many factual and grammatical errors? I would have thought the lawyers would at least do a little proofreading and fact checking.
Regardless, since UNIX was licensed to universities to study couldn't the concepts SCO claims were "stolen" by IBM simply have been studied by the Linux developers when they were in school?
These people look deep into my soul and assign me a number based on the order I joined.
I know it is the "hip" and "cool" thing to rag on ESR for his views on pretty much anything, however this brief is a very well written document and worth your time to read it. Whatever his precieved faults, he is able to put this issue in clearer prospective for me than the the original posting did.
Looks like that ownership may be a bit tainted. (emphasis added)
The suit was settled after the University threatened to countersue over license violations by AT&T and USL. It seems that from as far back as before 1985, the historical Bell Labs codebase had been incorporating large amounts of software from the BSD sources. The University's cause of action lay in the fact that AT&T, USL and Novell had routinely violated the terms of the BSD license by removing license attributions and copyrights.
The exact terms of final settlement, and much of the judicial record, were sealed at Novell's insistence.
As some of you said, there were many stories published about the SCO vs IBM lawsuit. But I don't think I saw any comments about this Forbes story. Here is a short quote: "Not only has SCO Group filed a $1 billion lawsuit against IBM for misappropriation of trade secrets, but the tiny company says it will yank IBM's Unix license in 100 days if it does not cease what SCO deems are anti-competitive practices."
Remember the movie Dogma by Kevin Smith? Here's the rundown of it.
"A female decendant of Christ and two unlikely prophets are called upon by Rufus, an unknown 13th apostle, to stop two angels, that were cast out of heaven, from unknowingly erasing all of God's work by restoring their souls by entering a new church. Restoring ones soul by entering a new church is a part of the Catholic Dogma, and by restoring their souls the angels could reenter heaven thus revealing there is a loophole to return to heaven. This would prove God was not perfect and upon proving this all of God's work would immediately be erased."
If IBM buys SCO outright or from the smothering runins, IBM will gian the rights to UNIX and may also chose to release it under GPL. If someone decides to use the UNIX kernel using GNU O/S, it will become GNU/UNIX.
GNU's Not UNIX/UNIX???
This contridiction will bring calmady to the IT world and bring end the free software movement (including GPL).
1f u c4n r34d th1s u r34lly n33d t0 g37 l41d
I just finished reading the brief. I must say that for the first half or so, I was very impressed with it. It was simple, logical and factual. However, by the end, it seemed to devolve into a statement of beliefs and feelings that, to me, did not feel right in a court brief. For example:
SCO's complaint, in all its brazen mendacity, is the last gasp of proprietary Unix. The open-source community and its allies are more than competent to carry forward the Unix tradition. We pray that all assertions of exclusive corporate ownership over this tradition be given a swift and merciful end.
Am I the only one who thought that this was not the forum for such OpenSource flag-waving?
Linux IT Consulting and Domino Development in Michigan
This is not about UNIX!!! This is about PROJECT MONTEREY!!!
Monterey was a real, live, flesh and blood endeavor in which SCO and IBM partnered to write a new, 64-bit, proprietary Über-Unix on Intel hardware. SCO committed real, live, flesh and blood engineers to the project, and real, honest to goodness, cold, hard cash. IBM walked away from the table. The question is: How much SCO intellectual property did IBM walk away with, and how much of it found its way to IBM's Linux projects? If, through discovery, SCO can prove that a substantial number of IBM's Project Monterey engineers were re-assigned to IBM Linux projects, then SCO will have a reasonably solid foundation on which to proceed with the case.
This is no different than Intergraph's highly successful court cases against Intel, in which Intergraph proved that Intel had stolen substantial amounts of Intergraph intellectual property.
Google on Project Monterey SCO IBM
Google on Intergraph Intel
This alone, from SCO's complaint:
Averment 86: It is not possible for Linux to rapidly reach UNIX performance standards for complete enterprise functionality without the misappropriation of UNIX code, methods or concepts to achieve such performance, and coordination by a larger developer, such as IBM.
I hope the rest of their case shows the same degree of arrogance and technical ineptitude. IBM would have little to worry about.
Want to Know How to Cheat the GPL? Read On!
I'd really be interested to see what kind of damages SCO can prove. They may end up racking up millions in dollar of legal fees for a very small reward, if any.
Even the IBM/AT&T agreement is valid, I'd be surprised if IBM wasn't smart enough to isolate engineers with knowledge of SCO Unix source code from engineers assisting in the Linux development. I mean, c'mon, IBM has been in the computer industry since ENIAC and has been in business almost twice that long! Does anybody really believe IBM can't write a non-disclosure agreement and isolate its employees? SCO makes it sound like the 7,000 IBM engineers working on Linux are the only engineers IBM has, thus, IBM must have violated trade secrets! PLEASE! IBM employs hundreds of thousand of people and probably 10 times the number of engineers they have working on Linux.
Just because IBM has thrown some effort into Linux, doesn't mean they are tossing AIX out the window. It is probably a wait and see... if Linux really catches on, we can move AIX enterprises over and add Linux enterprises with the benefits of the GPL. IBM is now a service provider, and the reality is, the only way you make money with Linux is providing service.
It'll be interesting to see how much the lawyers end up making out of all this.
-Anthony
One of the major gripes of SCO is that Linux would not have been able to have SMP support if it weren't for IBM lifting SCO Unix code and handing it out for the kernel developers.
Perhaps they should read this article at IBM DeveloperWorks. This page pretty much explains why IBM decided to go the way of the fat penguin.
It should be worth pointing out this quote from the article:
Linux has had support for SMP waaaaaay long before IBM adopted it and apparently this was one of their reasons for adopting Linux. I also read in a magazine once (I think it was Time or Newsweek c.a. 1998 IIRC but someone please correct the datePlus there is also the fact that a year before IBM adopted Linux, they (among others)made large hardware available to Linux developers for testing and benchmarks.
0xB00F disappears in a puff of smoke...
As for Sun's Intel work, they created the "Corporate I386" WAY back in the 80's, but due to the fact that it blew away (out performed and less expensive) machines built on Scott's pet chip (sparc) he killed the project. Full circle, Scott. Full circle.
Note: my wife was on that project team. They later went on to create the Sparc 5. Scott did a lot of killing of good projects and is Seriously holding back the creativity of the engineers at Sun. There are some Really good people there.
The author of the LinuxWorld piece is doing advocacy, not analysis. SCO's case is far more subtle than most in the Linux community seem to think.
As an example, the author takes issue with the SCO's claim that IBM must have stolen SCO trade secrets in order to improve Linux by saying "OK, then, diff the code." It's true that such a diff would provide prima facie proof of violation, but there are plenty of violations which would not require any code to leak at all.
Suppose part of the validation test set for Monterey consisted of a stress test written by SCO and owned by SCO. That code wouldn't ever be in the final product, and it would certainly be SCO's intellectual property, shared with IBM in order to make Monterey work better. Let us further suppose that code was used in the Linux development work, and found a key set of bugs. (Don't tell me it isn't possible that it would have been -- developers tend to think of tools as just tools, and forget that they may be encumbered.) At that point, there would been a misappropriation of IP.
(Disclaimer: I have not ever seen any of the code covered by any of these agreements, nor have I ever seen any tests in the Monterey test suite, nor had any contact with any of the principals in this lawsuit. I'm merely criticizing the LinuxWorld piece; any resemblance between the situation outlined here and reality would be purely coincidental.)
Ironic that they are trying to stop AIX sales, IBM makes more money on AIX sales each year than SCO has grossed since their beginning. AIX sales simply won't be stopped. And then to accuse IBM, of all companies, of misappropriating SCO source and technology? There are some very talented lawyers in IBM's employ, SCO might be trying to get bought it's a real possibility but that stuff doesn't happen like that to IBM. They can play really dirty when you try to bully them and they don't lose very often. The question could become "is it cheaper to pay to convert SCOs customers to Linux and let them die or buy them"
One trivia point: SCO's SMP implementation was not written by SCO but was licensed from Corollary.
Two more i386 ports that ESR has forgotten about: Altos (later purchased by Acer). I was one of the engineers that ported SCO 3.2.0 (or was it 3.2.2?) to the Altos 1000 (see Google groups for info). The second is the "Sun 386i" 80386 computer which everybody seems to have forgotten about. Again, see Google groups.
IMHO the only thing of value SCO was to contribute to Monterey was the X server.
I believe that from a legal standpoint AIX is licensed SVR3 code (although having seen AIX kernel code, SCO OpenServer and UnixWare source, and "pure" virgin SVR3 code I can attest that AIX is a complete overhaul and bears no resemblence to pure SVR3 (or SVR4) except in the bowels of STREAMS).
full disclosure: ex-SCO employee who worked on all kernels including Monterey prior to Caldera.
Avertment 84: "Prior to IBM's involvement, Linux was the software equivalent of a bicycle. UNIX was the software equivalent of a luxury car. To make Linux of necessary quality for use by enterprise customers, it must be re-designed so that Linux also becomes the software equivalent of a luxury car. This re-design is not technologically feasible or even possible at the enterprise level without (1) a high degree of design coordination, (2) access to expensive and sophisticated design and testing equipment; (3) access to UNIX code, methods and concepts; (4) UNIX architectural experience; and (5) a very significant financial investment."
Help fight continental drift.
It's well and good to say that ext3 or Reiser beats out JFS, which is probably true, because all installations of linux are going to use those things, including the hacker's box sitting at home. However, not everyone has the time, money, nor interest to develop those areas of Linux that need to be developed in order for it to compete on the level of enterprise class servers. IBM sells those products, and thus they contribute to Linux in ways that a desktop user might not quite see.
Maybe when I'm running a wackload of processors at home on a huge rackspace (when I own my own island too), I can try and contribute to scalability or some such other thing, but until then, IBM fits the bill perfectly.
One thing they missed is the whole BSD "fork" of UNIX. Back in the old days, AT&T gave pretty much every University a site license. One of these of course was UC Berkeley, where they did some some pretty core work, such as this unimportant thing we call TCP/IP. For a long time folks referred to TCP/IP as "Berkely sockets". Hmm, they also gave us C-shell, so maybe they shouldn't get off unpunished. BSD got folded into the "one True UNIX" in SVR4.
As far as "getting up to enterprise grade" speed comparisons goes, they're at some level irrelevant, at least in the way SCO framed it. UNIX vendors had to blaze trails, find their way, mess up, and find the true path again. Linux followed these trails in the form of POSIX. It's much quicker to code to a spec than have to code and lay out the spec, distribute the spec as it changes to your development team, and see how well it integrates after all at the same time. Having the spec also makes all that super coordination "magic" that SCO was talking about seem a little less fairy tale-ish. Lay out a spec, give parts to different people, have them code, and then at the end it all comes together. Who else has been burned by Linux' version of select()? It's coded to the BSD select() man page, unfortunately BSD select() isn't and neither is any other commercial vendor, and Linux select() is not bug compatible with other select()s. There's your miracle for you, the magic of troff. (at least it's not info pages, god no...)
BSDi also had a commercial UNIX, BSD based of course, on x86. I did some work on it. At the time wasn't enterprise ready, at least the version I worked on (the SMP implementation was pretty basic, the kernel was forced to run on a single processor) but in later years it got better and in fact I thimk FreeBSD SMPng is based off ideas from BSDi. My non-lawyer mind wonders how many statements of "fact" in the complaint have to be shown to be false before the case can be dismissed.
On other IANAL notes, I wonder if IBMs law firm is reading these posts and all the other arguments on the other web sites and saying "yeah, thats a good point.. yeah, write that one down."
UnixWare to Linux Porting Guide (development tools and the API)
http://people.redhat.com/drepper/
http://people.redhat.com/drepper/sco-porting.pdf
I would agree with you if SCO had even mentioned their recent work with IBM, but they didn't (probably because the IBM lawyers wrote a contract that is unassailable). The entire case stems around the original UNIX source code that SCO acquired from Novell. As such it is a ridiculously specious case. Don't believe me, go read SCO's filing.
From THE COMPLAINT ITSELF:
You go, ESR...
t_t_b
I'm on PJ's "enemies" list! Are you?