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IBM Denies Charges of Unix Theft
ahooton writes "C|net is
reporting
that SCO has filed a lawsuit accusing IBM of theft of it's Unix intellectual property. SCO
alleges this occurred because IBM released portions
of the Unix system, owned by SCO, in to Linux." While the suit is nothing new, IBM's retort is. IBM asserts it is innocent of any charges of wrongdoing. Additionally, IBM is accusing SCO of trying to stifle Linux development through the use of the courts.
...it's "At Least SCO went after the big guys first."
There is no RIAA-suing-college-kids style lawsuit here. They went right after someone who could afford to defend themselves, instead of trashing say, SuSe and RedHat.
On the other hand, it's IBM, who probably even has a patent on human life for christ sakes. Therefore I doubt we'll be seeing much more of SCO, especially if this suit doesn't hold water.
CAn'T CompreHend SARcaSm?
Been there, done that. Just see the stac suit against Microsoft for misappropriating their drive compression code, among others...
I guess SCO considers those existing pieces to be trade secrets.
-Look lively. LOOK LIVELY!!! --Mr. Shmallow
does having once been a system v developer, with full access to the code, taint you from being a linux kernel developer?
The good thing is that right now you can run linux on IBM's zSeries, AS/400, RISC6000,... all the way down to a PDA. It's no joke to say that there is alot of money about to be made... That's the real reasonb for this suit...
||| I still can't believe Parkay's not butter.
From a different CNet article about the lawsuit:
...:
"HP did a complete buyout of Unix licensing from SCO," HP spokesman Brian Garabedian said. "We have a perpetual license rather than per copy license for HP-UX...We don't believe we have any exposure to the SCO lawsuit."
Sun, too, bought out its Unix license, said John Loiacono, vice president of Sun's operating platforms group.
"We bought our Unix license out....We are unencumbered for all things," including Sun's version of Linux, he said.
And then in the linked article:
IBM did make one argument defending its use of Unix intellectual property, saying it has the "irrevocable, fully paid-up and perpetual right to use the 'proprietary software' that it is alleged to have misappropriated or misused."
It sounds like IBM believes that they have "bought out" its license as well. So
1) Did SCO mislead IBM (and possibly HP, Sun, etc) with these license buyouts?
2) Is SCO trying to make everyone forget about the license buyouts?
3) Does SCO consider the buyouts invalid for some reason?
The whole thing is just weird. SCO is done. Even if they win, no one will ever trust them again. They could produce an OS that whipped any commercial or OSS implementation, but no one would buy it. Had they attacked a smaller, but significant target first (Sun?) they might have had a chance at getting bought out. But with IBM, I don't think they will bother, they'll just crush SCO. They have unfathomable resources. IBM could even afford to lose the case. Sun couldn't.
the no
We're finding...cases where there is line-by-line code in the Linux kernel that is matching up to our UnixWare code
And where's the proof SCO (or some programmer there) didn't use the GPLed code of Linux, and shove it into their own sorry excuse of an OS??? According to the GPL, they can do this all day long as long as they release their changes back. But who's to say, some young, enterprising programmer at SCO didn't get stuck with some piece of SCO kernel code he could not get working right, so he 'borrowed' some Linux code lines, tweaked them into place, and hoped no one would find out. You'd better be DAMN sure this isn't the case, McBride, or you'll lose your 20 years of IP crap by violating the GPL!! Wouldn't that just take the cake!! Think about that while you feel the icy water lap around your ankles as your ship slowly glides to a watery death.
For those who describe their systems as 'boxen', do you order multiple 'boxen' of corn flakes also?
With SCO being closed source, who is to say that SCO didn't steal Linux code and then claim the opposite?
How do you defend against ANY closed source project doing the same?
It would be a very scary tactic that could kill OSS.
If tyranny and oppression come to this land, it will be in the guise of fighting a foreign enemy. - James Madison
Out of curiousity, has anyone ever considered the possibility of a group of people individually filing a claim in small claims court against a company that is doing something they don't like?
In this case, for example, what if we could mobilize a few thousand people who use Linux professionally to sue SCO for slander? Professionals who use Linux are risking their reputation on it; SCO saying that Linux uses stolen code reflects badly on the professional. If what SCO is saying is untrue, that's slander and is in fact causing damages, yes?
Now, here's the trick -- if 5000 professionals who are effected by this in the USA were to file claims in small claims court of say, $1000, then SCO would have to simultaneously defend 5000 cases, or risk losing $5 million in damages.
What kind of effect do you think that would have on a company of SCO's size? Catastrophic, I'd think. And what's nice is that since they're impuning our professional judgment without providing any truth, we should have a cause of action.
If this is doable, this could be a serious way for a large community such as the free software community to show extreme displeasure with companies that do stuff like this, and for it to really count.
Any lawyers or anyone with professional knowledge out there that can comment?
No, because IBM has an SCO license. It's not illegal for another Linux vendor to sell Linux. It *is* a violation of contract for IBM (however unlikely) to use code from their licensed Unix and put it into Linux and attempt to GPL it.
May we never see th
"As somone who walked for SCO (or rather Caldera how it was called at that :)
:)
time) I can tell you this is utter crap. There were very people actually
doing Linux kernel work then (and when the German office was closed down
all those left the company) and we really had better things to do then
trying to retrofit UnixWare code into the linux kenrel. Especially given
that the kernel internals are so different that you'd need a big glue
layer to actually make it work and you can guess how that would be
ripped apart in a usual lkml review
It might be more interesting to look for stolen Linux code in Unixware,
I'd suggest with the support for a very well known Linux fileystem in
the Linux compat addon product for UnixWare.."
Could be intresting
Rus
Cheap UK and US VPS
There's exactly one way IBM can do that: buy SCO. Sco/Caldera's logic is simple: they are a dying company, and they know it. So they want to make it as nasty as possible. If this gets to court, SCO doesn't have a whit of a chance (which is why they didn't go after the little fish first, BTW.) However, it might be the end of SCO, but it will be very costly in terms of PR for IBM as well. SCO's hope is that IBM will find buying SCO to be the easier way out. That's the best case scenario for them.
BUT. That would put an end to SCO FUD, but MS FUD will start right thereafter. (See, we've been saying it all along, linux is incapable of innovation, sco was going to prove that in court, but big baddie IBM was afraid of them and bought them out.) So its a lose-lose situation.
It sounds like they're going to suggest that someone in IBM leaked SCO's source code to a Linux developer and that developer submitted it to the kernel. That would explain why they're not releasing the portions of code in question -- in case that developer wipes all the evidence of having had the leaked code.
The evidence wouldn't be on lkml because it would have been private emails. Neither would it be in the various historical linux versions.
Just curious. It seems that all the comments revolve around how SCO is stupid and wrong and greedy and dumb and soon to be extinct.
What if they're not. What if they do have a genuine grievance. I'm not trying to be a troll or flamebait, just honestly curious. What impact would this have on GNU/Linux? Would people honor SCO's claims if they're proven right?
>BUT. That would put an end to SCO FUD, but MS FUD will start right thereafter.
Sadly, the MS FUD has already started. In the wonderfully written "Code Red for Open Source" article at Cnet which is fair and balanced (in that Fox News kind of way) Balmer is quoted as saying something to the effect, "See, you dont know who's writing your OSS software." I'm sure that little quote doesn't sit too well with IT managers debating adopting OSS. Certainly, MS's list of crimes is volumes long, but the fear of being sued because the product your using was written by 'shady individuals' as Balmer seems to be suggesting can have a real chilling effect.
Yeah, it is a lose-lose situation depending on how people interpret what is going on. I think its fairly obvious there's a strong attempt at getting a buy-out here which makes their moral position regarding the supposed theft of IP a bit suspect. I hope others see it this way.
Its like me going up to the guy who broke into my house and stole my stereo and telling him, "Okay, we'll leave the cops out of this if you take over my payments and buy out my equity. I can't afford this place anymore and I dont want to go bankrupt."
What really gets me, and I'm not even a linux advocate (i use it when I need a free server), is that SCO is trashing Linux's reputation left and right in its attempt to get bought out. I'm surprised there aren't names, addresses, and phone numbers of the SCO people listed here for harassment a la spam king style.
A little civil disobedience goes a long way.
Maybe IBM should move the court to order that SCO file their "evidence" under seal with the court right now.
They would still have to go to court. SCO does not intend to survive the lawsuit. The real issue IMHO is whether SCO execs have actually crossed the line into fraud considering how untrue some of the statement in the original were.
IANAL but it sure sounds like lying under oath to me.
Stac was actually a software patent, you know, the thing slashbots rave against endlessly.
A better example would be QuickTime code that ended up in Windows media which lead to a large public settlement.
Let's further assume that Company E released the product to User X under the GPL, before realizing that it included code they didn't mean to release.
There are really two issues here: is company D's behaviour tortious? And is X still allowed to use the product under the GPL?
Clearly, D is in trouble, and they had better make damn sure they educate and control their programmers better in future. Their problems are not really particular to the GPL. D would have a similar problem if a programmer copied in a proprietary library without arranging appropriate licensing.
However, G has granted a licence to use the program to X. The onus is on G to make sure they are not releasing things they don't want to release. I don't really see any grounds for G to revoke X's licence, and in particular saying "we didn't mean to licence that" is pretty lame. So whatever happens to D, everybody else in the world can happily get a copy of the code and use it.
Obviously the sensible thing for D to do to avoid this is to clearly educate their programmers, and to put up walls between people working on incompatibly licensed code. I don't work for IBM, but I understand that they've done both these things: people are briefed on the consequences fo the GPL, and people working on Linux are not allowed to see the AIX source code (etc.) This is not a complete protection, but it should be pretty close.
Would D be liable if one of their programmers had done a bad thing despite clear and repeated instructions not to do so? I'm not sure, but I would expect it to count in their favour in court.
I understand that this is one of the reasons why HP and IBM are *not* going to release their own Linux distributions: they don't want to take the legal risk of licensing all that code without having time to review it. (Other reasons include not wanting the bad PR of squishing other distributions...)
In any case, SCO publishing all this FUD without identifying the particular sections which are supposed to infringe is ridiculous. Even if they don't want to release their code, publishing the name of the program (or subsystem) that is supposed to infringe would allow a quick determination.
But if they were unaware at the time that the infracting code was in it, it's ludicrous to claim they suddenly have surrendered portions of their code base.
But afaik they still ship it. To be taken seriously they would have to stop distributing the kernel, or make one where all the parts (they think) they have claims on are removed. (Which would make it easy to just do a diff against a real kernel, see what the alleged infringements are, and then laugh in SCO's face.) When they keep distributing code under GPL after they have discovered somone else put their code in it they would have to stop distributing it, by continuing to give away code that they know contains their code they are surrendering it
- We are the slashdot. Resistance is futile. Prepare to be moderated -
"In an e-mail discussion that took place 24 and 25 April, SCO-Caldera Senior Vice President Chris Sontag told MozillaQuest Magazine that there is SCO-owned code in Red Hat and SuSE Linux distributions. He also told MozillaQuest Magazine that the tainted code is not in the Linux kernel that Linus [Torvalds] and others have helped develop. We're talking about what's on the periphery of the Linux kernel.
"Fighting terrorists with millitary might is like killing a mosquitor on your Dad's forehead with a rifle."
It is times like this when I wish that Stallman et. al and linus didn't mess with *NIX. Really it seems that if you touch *NIX at all you are just waiting for a court battle.
:)
Of course then "GNU's not Unix" wouldn't have such a ironic twist
ps. I love linux,bsd and really only use *NIX based systems, but it is really hard to find an organization that hasn't been sued over it's history with unix.
Now there's a defence worth contemplating: it's far easier to prove beyond a reasonable doubt that certain code existed in Linux at some point in time than it is to prove the same for a closed pieces of software. This works both ways: the closed source owners can show it was in an open source repository but will they be able to prove it was in their repository before that?
There's an oportunity for a countersuit based on breaking the GPL in there somewhere...
Karma? What's that again?
I'll sue your ass etc.
Make claims about source code, which as itself is unpatentable (are 'Caldera' suggesting they own the 'do while' loop?, due it's reusability and the fact that there are only so many ways to do things, and that any programmers will probably come up with the same thing from time to time on a totally independant basis.
Caldera's claim that their source has somehow ended up in the Kernel of various companies is debatable particularly the comments about 'obfuscated code' which is a way of saying that the code in question bares no resemablance to their code at all, other than it was written using the same programming language and perfoms a similar function.
It really is all about the money, Caldera had no involvement in the original creation of the Intellectual property and have no moral right to lecture the world on how sad it is when such property is debased, dressing up as Sco and pretending to be Sco won't change anything here.
I've no doubt the original angle was for a buyout but now we've got to the point where it is abundantly clear that IBM have no intention at all of buying them the game is up, and so Caldera/Sco will become a shell of a company file for Chap 11 and fire all it's staff, hire a few lawyers instead and float along with whatever cash they have left until they sink, then somebody will buy the Unix IP at a firesale price, hopefully they will cast it into the public domain lest it corrupt any other mortals.
Economic Left/Right: -0.62
Social Libertarian/Authoritarian: -3.69
The GPL is not some Evil Overlord's World Destroying Superweapon. GPL violation is copyright violation. Even if there is some language in the GPL concerning penalties for violation, it is up to a judge to set the penalty. The judge has more options than "make them GPL the whole thing". He could restrain distribution altogether. The violator could be made to pay for an alternative license to the code he's using. He could even be made to pay damages and to reimplement the code in question. Like any copyright violation, the Court will want to put an end to it. There's more than one way for them to do it.
Incidentally, discretely replacing such code may not necessarily work. A whistleblower could whip out a tainted code tree. Your developers might screw up and leave debugging symbols in old binaries. It would not be hard to prove in court that a sanitized code tree did not create a binary in dispute. The court may well see a code tree as business records to which the rules of evidence apply. "So Mr. Project Co-Ordinator, where is the source code that produced the exhibit in question?"
Yeah, getting the GPL stuff out your code tree would be a good idea. There's no ironclad way to prove it was never there.
I think that the BSA has a much greater chilling effect than OSS. IIRC, no one has ever been sued for using OSS, but Microsoft has already filed lawsuits against schools and other government entities. Open source advocates would do well to remind people of the number of times Microsoft has sued its own customers. Granted, with OSS you might not have a corporation to support your software, but neither will you risk the liability of being sued.
The society for a thought-free internet welcomes you.
There is little chance that they can win this. IANAL, so I can't speak to the question of whether their claims have a chance in court. I could argue the point of whether they make sense, but I don't want to get involved in that.
However, IBM has the resources and the motivation to fight this. SCO's market cap is a whole lot less than IBM's investment in, and presumably revenue from, open source software. From a business perspective, it would make sense for IBM to buy SCO and release the patents to the open source community. If winning this fight would cost them more, they can do that. If winning it costs less, they can fight it and effectively disarm SCO.
I think within a short time what we are going to see is that open source software will effectively become very safe from lawsuits. The day is coming when it will be a safe bet to use open source because you will know that it has already survived these attacks.
The net will not be what we demand, but what we make it. Build it well.
Certainly, MS's list of crimes is volumes long, but the fear of being sued because the product your using was written by 'shady individuals' as Balmer seems to be suggesting can have a real chilling effect.
As chilling as this?:
SQL Server developers, "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 existence."
Microsoft is hardly lily-white when it comes to providing their customers with unencumbered products. IT decision makers need to know this.
the no