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What if SCO is Right?
b17bmbr writes "
What if SCO is right. Bruce Perens was quoted with this scenario. "it's entirely possible that SCO was inadvertently distributing its own proprietary Unix code in its version of Linux. In that case, SCO would've already released its Unix source code into open source". But here's the catch: Does this validate Microsoft's view of a
"viral GPL"?"
If SCO were right, they would've given some evidence to the public by now. It's not like doing that would hurt their case.
How small a thought it takes to fill a whole life
--
Need to calculate something?
See also the same story on OSNews yesterday.
Either way, the spectre of "intellectual property" has been brought up to Corporate America. Boards and CEO's who get gunshy when the litigation is aimed at them are going to be skeptical about liability and open source software.
The point has been brought to the board rooms, and I don't know see what it can do other than hurt the cause.
But here's the catch: Does this validate Microsoft's view of a "viral GPL"?"
Then they've still done it purposely, given away their code in a GPL product. They had the choice, and didn't have to. It's about as viral as phoning up your closest friend and saying "hey! I saw your mom giving head to my dad in the car" and complaining that the phone you spouted that into is a device for invading your privacy and letting your thoughts out to the world.
If they did release their code as GPL, it was their choice. Read that. CHOICE.
No it doesn't. If you're a software developer with proprietary code that you want to protect, then yes, you have to be careful about what you release under the GPL. But that isn't what Microsoft were saying, they were trying to worry the majority into avoiding GPL software. But the majority, even if they change the code, are not likely to have a reason to redistribute their changed version, so the terms of the GPL are irrelevant.
Does this validate Microsoft's view of a "viral GPL"?"
Not at all. Releasing software, whether under the GPL or the MS EULA is an intentional action. Any sloppiness resulting in disclosing and/or giving away IP is the responsibility of those doing the software release.
The GPL is a tool. Consequences resulting from the use of any given tool are the burden of the weilder, not the tool.
Why doesn't SCO tell us what part of the source are in violation? Simply because these parts don't exist.
SCO is either paid for spraying FUD (by MS) or will be payed for stopping spraying FUD (by IBM, simply because the damage this FUD is inflicting is higher than the sum SCO will want to shut up) - or both.
So please don't consider SCO seriously, they don't have a case.
No one _forced_ SCO to release code without checking it, and the fact that they did reflects badly on their professionalism as a software company and even worse on their due diligence that they are meant to exercise in protecting their shareholders. If their code was eaten by the GPL then that was their fault.
What other companies thinking of dabbling with GPL software will think will most probably depend on who wins the FUD war and how it gets written up in 'PHB Weekly' rather than the actual facts. Unfortunatly Microsoft employs lots of people like Stef (yes, the UF one) where as OSS software is championed by people more interested in Quake than golf.
Beep beep.
Go to their website
and see for yourself. Doesn't look like SCO even talked to them about
this yet...at least that's what SUSE is claiming:
SuSE responds to
latest SCO actions
The UnitedLinux code base -- jointly
designed and developed by SuSE Linux, Turbolinux, Conectiva and SCO --
will continue to be supported unconditionally by SuSE Linux. We will
honor all UnitedLinux commitments to customers and partners, regardless
of any actions that SCO may take or even allegations they may make.
SCO's actions are again indeed
curious. We have asked SCO for clarification of their public
statements, SCO has declined. We are not aware, nor has SCO made any
attempt to make us aware, of any specific unauthorized code in any SuSE
Linux product. As a matter of policy, we have diligent processes for
ensuring that appropriate licensing arrangements (open source or
otherwise) are in place for all code used in our products.
"Music is everybody's possession. It's only publishers who think that people own it." - John Lennon.
Doesn't he have a job to get fired from or something?
Only if the GPL whacks you over the head with a nightstick and then releases itself with your other code while you're out cold.
Remember: when you use GPL'd code in your business, you don't pay for it with cash. There's no direct monetary cost. The only cost is that if you create a derivitave work with it, you're essentially engaging in an IP cross-licensing agreement: you get to use the GPL code, but must make your own contributions available. There are costs and downsides to that, but businesses make that kind of trade all the time, and they'll do it with the GPL. Calling it "viral" is one spin... viewing it as cross-licensing agreement is another, and probably closer to reality IMHO.
Tweet, tweet.
The blurb makes a good point about the gpl maybe being a viral influence on proprietary code distributors, but I think the more important point is corporate incompetence. If SCO mindlessly opensourced their Unix code, then it's their fault, not the fault of the GPL. If you plan to make money on something, particularly if you are planning on vending both closed source Unix and open source Linux, you should damn well make sure you're not using any dependent packages that would out code that you don't want outed. The idea that the gpl is viral extends to the idea that it is overly restrictive, preventing innovation because users of gpl'd code will be afraid to publish for fear that their Intellectual Property will not be protected. However, if you look at closed source licenses, you'll find that they could be viewed as just as limiting, by preventing access to resources that would allow for the creation of new ideas. The GPL is not viral; SCO was (probably) just foolish.
GNU is a viral license. If you incorporate GNU code into your projects the price you pay is the loss of control the projects.
The question is who's OX does this gore ?
1. End users ? Not at all they arent distributing anything and they aren't selling software. If your General Steel or Home Depot you really don't care that your word processor is GNU or not.
2. Developers
A. Those that are selling to quote mass markets
Yes it affects these people alot. Oddly enough though SCO is likely to be the first of a very small number to be affected. It doesn't affect open source companies that went into their business eyes open, just really foolish companies. Its not going to affect a company like windriver, SUSE, redhat. It could affect A CA, or an ADP. These are companies that seem to operate on a captive customer model, buying smaller software companies then milking their customers for all their worth.
B. Those that are working on internal use projects
The project isnt being distributed at all. The code doesnt get distributed. Bang simple no harm no foul. In the special case of governments the code might be required to made public as it is public property, no matter how its generated.
Yes GNU and Open source is viral, but as far as costs go, the cost of being viral is very small, compared spending more on software then you do on hardware.
If they did release Unix code as part of SCO Linux, that would be intentional in the sense that they purposefully put it into Linux, not realizing the consequences. It would be equally stupid if they had released it under BSD, or any other "non-viral" OSS licence. Yhe code they released would either way be free for the public to use and reuse.
The viral argument usually works the other way around - introduce a small amount of GPL code to a non-GPL program, and it will force the rest of the program to be be GPL'd. SCO has not been forced to GPL-licence any additional code as a consequence of GPL contamination. If they chose to insert non-GPL code in a GPL project, would simply be gross negligence and incompetence from their side.
Kjella
Live today, because you never know what tomorrow brings
sometimes they do claim it's theirs....
I never said I was smart, I just said I was smarter than you
They will most likely be sued by other Linux companies when IBM is through with them for hurting Linux sales.
I hope! :-)
Non-disclosure means that any company which is curious to know what they are legally responsible for has to agree not to let anyone else know. That means, basically, that if they tell you what code they want you to pay for, you can't throw it out and develope replacement code: By agreeing to their terms of telling you what they want you to pay for, you agree to pay for it.
-- 'The' Lord and Master Bitman On High, Master Of All
Statements made by SCO CEO Darl McBride and senior vice president Chris
Sontag indicate that SCO has been illegally selling and distributing software
that is in violation of the GPL. SCO first became aware of the problem late
in 2002, but has done nothing to protect customers or inform them about which
parts SCO distributed illegally. The company claims this information would
damaged their lawsuit against IBM.
SCO did not stop selling the infringing software until May 14 2003, and is
still distributing it from ftp.caldera.com.
Customers who purchased or downloaded SCO software demand the following
things:
1) A complete refund of the purchase price for any software SCO distributed
illegally.
2) Any infringing source code or intellectual property must be revealed so it
can be replaced. Any source code or intellectual property that infringes and
is owned by SCO must be released under the GPL or relevant license.
3) If SCO wins or settles its lawsuit with IBM, a portion of the money must
be returned to SCO customers who were put in legal jeopardy because SCO did
nothing protect them.
Many claim that the lawsuit against SCO is simply a bid to be purchased. If
the company is purchased, the buyer may be liable instead.
How does this effect the argument for bazzar versus catherdral style development?
This is what has always worried me about bazzar projects, since there is no controling body, it depends on the honesty of those developing the code not to violate anyones IP rights, or anything else for that matter.
Of course the GPL is viral. There should be no question of this, but the question one should ask is "Is that a bad thing?". This was Stallman's goal. He wanted to screw up the software business model, which he succeeded in doing, but with the vary positive side effect of cuilding a cooperative culture of open software development with a fully functional service based business model behind it.
.NET Studio EULA. It speaks for itself.
Clearly the GPL has benefitted many people and businesses. The fact that Microsoft isn't collectively smart enough to figure out a business model that will allow them to benefit from it isn't anyone's problem than theirs, and certainly doesn't make the GPL a bad thing.
The GPL established a structure where developers can leverage the vast amounts of work released by others for the relitively cheap buy-in of licensing the nw derivative code using the same license. This is not an unreasonable obligation by any streach of the imagination. As for it being viral, if you don't agree to the terms of the license, you are free to avoid building your work on top of code licensed in this way. In the case of SCO, of they were so neglegent as to fail to observer the license constraints they were adopting, through contributing to GPL-licensed software, this is their own fault. This does not in any way reflect poorly on the license. It is written in plain language, and the text of the license represents possibly the most widely distributed and available legal contract in history.
The nature of the GPL supports a specific development and business model which is inconsistant with certain other models. If Microsoft, SCO and others wish to benefit from software developed under this model, they must accept the simple and streight-forward license terms.
For an entertaining afternoon, print out and compare the GPL to the Microsoft
--CTH
--Got Lists? | Top 95 Star Wars Line
In order to support his family, the electrician needs to wire light switches all day, every day. Electricians don't wire one switch and live off it forever for the virtue that the switch has provided a solution to a problem. However, management at companies like SCO don't realize that software is the same way. At SCO, they made some breakthrough 20 years ago and think that they need to continue getting paid for it forever. I'm sorry to say this, SCO, but like the electrician, you need to continuously make breakthroughs, you need to continuously make new solutions... you have to stay ahead of everyone else through continuously improving good management, continuously improving good project planning, continuously improving good software... continuously improving EVERYTHING. You can't write some "hello world" 20 years ago and charge every Linux user 200 bucks "royalty" for it now. It's yesteryear's news. It's stale. Nobody cares. And quite frankly, your code probably sucks anyway and will be replaced faster than shit going through a tin horn. Try firing your stupid management and putting people in place who will encourage new ideas and new development, and harbor success through good products and good marketing, instead of trying to weasel a profit through litigation, whining like a bunch of babies and making your company look pretty damn stupid. Hell, you people should quit your jobs at SCO and go work for Microsoft. At least over there your actions will fit in better with the mission statement.
What do I have to say about the "viral" GPL? Like any other action that you can make in life, you have to think before you act and you have to be responsible for your actions. At SCO, "Gentlemen, you fucked up." And now you and your all-Godly shareholders will suffer the consequences of those actions... NOT THE LINUX COMMUNITY.
It's a set back, and a minor one at that. The code they have (what they didn't give away when they released their distro and what hasn't had the patent expire on it) will be pulled from Linux, rewritten to be patent free, and we'll all move on. The point is this doesn't effect the spirit and ideals of free software at all. Neither does SCO have a patent on computing as a whole.
On the other had this might kill Redhat/SuSe/Mandrake. Yes, that would be bad. But unlike the traditional software world where a company dying means their product goes by-by, we've got the source. Heck, the core members of Redhat/SuSe/Mandrake could probably just start up another company doing the same thing. Again a set back, but not the end.
Hi! I make Firefox Plug-ins. Check 'em out @ https://addons.mozilla.org/en-US/firefox/addon/youtube-mp3-podcaster/
If SCO is right, and if SCO manages to prevail in court, then expect to see 'Red Hat FreeBSD' fairly quickly.
-- Ed Avis ed@membled.com
But then the focus switches to Linux, how it could have inside "stolen" code, and how everyone could be violating their IP... and there the things are more darker for SCO. Either the offending code could be replaced, or they validated the code addition releasing that code with the GPL license, or they are plain wrong. In any case, I hope the bribe they got to do all of this is enough to live the rest of their lives because no one will buy something from them ever again
I posted this same idea 2 weeks ago!
So, now can I sue him for stealing my IP? ;-)
I don't support SCO, and I hope this matter is resolved in such a way as brings about their ruin, and IANAL, but... SCO's argument is that in good faith they redistributed code that they were told was an entirely original creation or otherwise GPLd under agreement with a copyright holder.
If SCO's IP was in there, then those whom originally released the code acted in bad faith. You can't go around tricking companies into releasing their IP by executing bad faith deals and then claiming that it is too bad because they weren't forced to release the code in the first place. I doubt the court will support this mode of argument.
I think what SCO will have to show is that their IP is in the kernel (the hard part) and then show that prior to them releasing the code themselves, somebody else released the code in bad faith claiming it was legitimately licensed under the GPL, that they had no reason to believe the claim false, and acting on the good faith assumption that it did not violate any IP then distributed it themselves.
Education is a better safeguard of liberty than a standing army.
Edward Everett (1794 - 1865)
Ah, but during the discovery phase of a case, you are REQUIRED to tell the opposing side what evidence you have, what witnesses you will be calling, what you consider to be relevant case law and your take on it.
You don't "surprise" either side with evidence in a real court of law. Judges won't let you present evidence in court you haven't already shared with the opposition during discovery, unless it really is "brand new" evidence discovered after the trial has started. And if that actually happens, you'll often have a recess declared so the opposition has a chance to analyze the evidence.
So they lose nothing by presenting the relevant IP.
Sure you do. If you don't tell the other party then it will not be admitted as evidence. Second as pointed out multiple times, You have a DUTY to mitigate damages. By not publishing the alledgedly offending portion, coupled with the fact the code is out in the open, prevents them from collecting damages from anybody but possible IBM.
Help fight continental drift.
A "non-disclosure agreement" is a contract and the terms of the contract determine what can and cannot be disclosed by one (or both) of the parties. I haven't seen the terms of the SCO non-disclosure agreement but whether or not it requires you to pay them regardless of your ability to reduce your liability by removing or re-writing the code would depend upon how the agreement is written. It seems to me, and IAMAL, that SCO's claims to be "damaged" is reduced if SCO refuses to let anyone know what the damage is, let alone fix it.
Let's take an injury claim. If you help me paint my house and fall off the ladder and get hurt, then I am probably responsible. However, if you won't let me know what injuries you incurred then I cannot repair the damage. If you then take me to court and demand punitive damages to teach me a lesson for not fixing you, I can claim that you never gave me the chance to help.
If you make me sign a non-disclosure agreement that stipulates that I must pay you regardless of whether I could easily remedy the damage, then that seems pretty unfair too. In the case of our painting injury, you could show me that your arm was broken but then claim (with supporting "expert" testimony, that only a heart replacement would truly fix you up and by signing the non-disclosure I would be obligated to pay for that. Nevermind that an emergency room doc could set the arm and cast it and you'd be fine in six weeks.
Any company that would sign such a non-disclosure agreement (if it were couched in the terms you describe) would deserve what it gets.
It seems to me that just the act of refusing to allow anyone to see the infringing material casts SCO in the light of trying to maximize damage to their intellectual property rights. In other words, rather than allowing it to be fixed, they want to take it to court and assign a monetary amount to the "damage" and add punitive consequences.
No one ever had to evacuate a city because the solar panels broke!
Why is there a court case in the first place?
If SCO were really concerned about losing IP, they could have discreetly contacted the parties in question, demonstrated their case, and maybe worked out some kind of licensing agreement.
Instead the first thing they do (before even contacting the companies in question) is to file a lawsuit. This is like taking my neighbor to court because his dog did his business on my front lawn. If I ask my neighbor politely to fix the problem, he probably will. If he doesn't, THEN I might take more serious action, but not before.
The first step in any dispute is to try to reach some kind of resolution outside of a courtroom setting. That SCO did not take this step indicates to me that they are up to no good.
That if they draw the Linux community proper into a legal battle, that in court the judge will see SCO's lawyers, all sharp and buttoned down, representing tireless innovators who are meekly trying to defend their intellectual property, and on the other side, will see unwashed, smelly, hairy anti-capitalist hackers trying to rape and pillage all of the intellectual property in the world in support of some fanatical anti-business ideal.
The judge doesn't even have to hear an argument, he slams the gavel, case closed. SCO wins.
Boy, do they have another thing coming.
If there's one thing that hackers like to tinker with besides technology, it's law.
I'd watch it on C-SPAN with a bucket of popcorn.
SCO has this problem..
Pretend for a moment that someone completely independently codes a processof one click ordering-although they can be sued for infringing on Amazon's IP this cannot be confused with copying code..and even then it comes down to is the Patent a valid one..
Waht we know for sure that Kernels and OSes are different enough in the unix ful world that one solution while have some code the saem and solving the smae problem can have vastly different code foot prints on various OSes o fboth Unix and Linux..and thus saying 20 lines matches has no meaning in this scheme of things on the basis of patent infringement it has to be base don the full code footprint and its effects for thsoe 20 lines of code..ie ho wimport are thos e20 lines towards meeting the ful infringment conditions..
To complicate matters if SCO Group by accident distrbuted code under GPL via their Linux distribution they have already violated the first conditions of a trade secrecy by not keeping the methods secret..
Apple had the same problem with Microsfot in the late 1980s and early 1990s in that Microsoft did copy or come up with code independently that was tghe saem as Apple's but it caqme down to how important was that code to the IP rights that Apple was claiming infringment on..and notice Apple lost that battle..
and also notice Apple is still in buinsess for basing the decision to sue or not or settle on business economic conditions. SCO Group should follow tha texample...
Don't Tread on OpenSource
Yeah, it's confusing. After selling the SCO business and rights to Caldera,the original SCO company changed its name to Tarantella. Caldera then took over the SCO name to go with the product line. So, the company called SCO today really isn't the same SCO from the Xenix days.
If I'm not mistaken both parties will be required to disclose their evidence *before* court during the discovery process. To me SCO's statements about revealing their evidence only "in a court setting" sound as clueless as they are belligerent. Perhaps SCO's backers dream at night of David Boies confronting Samuel Palmisano with a stack of greenbar paper in some Salt Lake City courtroom, badgering him with: "How do you explain these diff files?!?!?!?" If so they should cut down on the TV.
It is NOT the purpose of a trial to "discover the truth and deal with it." It is the purpose of a trial to determine whether a specific set of charges brought by the plaintiff against the defendent are true (and, if they're true, what relief the plaintiff should get for the damage he has suffered). A civil trial is not a "truth commission." It only deals with a fairly narrow set of facts. When one party to the suit knows that it has the facts on its side, it KNOWS that the other side is going to try to present those facts in a totally different light or lie in order to interpret the facts in a different way. That means that neither party wants to give away its strategy or interpretation of the facts until legally required. It would be like the general of an invading army faxing his battle plan to the army he was attacking. It would be stupid.
What happens if you're a software company that buys some closed source static libraries from another company and link them to your proprietary product and sell the result to customers and later discover the library company included someone else's copyrighted code without telling?
The concept of copyright violation seems like a nasty can of worms.
Really, it doesn't matter if it's GPLed code or code under some other licence.
Reality is defined by the maddest person in the room
What happens if you're a software company that buys some closed source static libraries from another company and link them to your proprietary product and sell the result to customers and later discover the library company included a third company's proprietary code without telling you?
> The GPL seems like a nasty can of worms...
Closed-source is a nasty can of worms. You have only the vendor's word as to what is in it. If they are incompetent or crooked you can get smacked from behind at any moment.
Warning: this article may contain humor, sarcasm, parody, and perhaps even irony. Read at your own risk.
No, you don't surprise the other side in a Perry Mason-like way in open court, but you also don't present your evidence until you are legally required to. You speak of discovery in this case as though it's already happened or is happening now. Do you actually KNOW where the case stands legally? Do you have a clue what depositions might have been taken or what evidence has been exchanged? Just because a case has been filed, that doesn't mean that all information is automatically given to the other side right then. Whether they end up being right or not, the SCO lawyers would be idiots to let their clients give their evidence right now (unless it was already given to the other side because of some legally required disclosure).
Rule 26(a) of civil court procedings states parties must disclose their evidense before the case goes in front of the bench IIRC. That is how people get court orders to look at internal and otherwise classified corporate documents.
I'm a loner Dottie, a Rebel.
Yes, you have to disclose evidence to the other side, but, no, you don't have to disclose it on a timetable that suits people on Slashdot. As for mitigating damages, they are fulfilling that requirement by sending notices to people telling them that some of the code in Linux is their property and that they don't have a license to use it. A plaintiff is NOT required to litigate a case in public from the moment he files it.
Discovery occurs in civil cases as well as criminal. A quick trip to google will convince you of this.
See here for a nice description by the ABA of discovery procedures. That website, in fact, has a good description of how trials work in general.
Microsoft inadvertently gave open-source a compliment. If open-source is a virus and a cancer--two rather successful entities in the physical world-- then Microsoft is hemorrhoids and trench mouth. These maladies are irritating but easy to eradicate. Viruses and cancer are not easy to "rub out".
Perhaps this is a portent of things to come? Maybe eventually the open source community will flourish and Microsoft will not.
This is probably too much to ask for.
Harpo Tunnel Syndrome--my wrist feels funny.
Why wouldn't Microsoft be eyeing SCO for a buy-out? If that's what SCO are so desperate for, Microsoft acquiring the rights to UNIX IP through SCO would give it the leverage it's been desperate to have over Linux. I'm not sure what the kinds of timescale to expect on such a move, but you'd think MS' lawyers are looking carefully to see if this case has any merit, to take full advantage if they think it will hurt the Linux business community.
I agree with a previous poster though-- if specific pieces of code are singled out for infringement, which could take years to bring to a legally enforceable position, they'll be replaced with unencumbered code within a fortnight.
Matthew @ Bytemark Hosting
To answer your questions, no - I have no idea where the case stands legally, nor do I know what depositions might have been taken or what evidence has been exchanged.
And yes - you're correct, SCO's lawyers are going to want to keep things close to the vest as long as they possibly can, so that would be a good reason not to present the offending code.
My primary point was that the original poster was incorrect in saying you don't give out evidence before you get to court. My saying "they lose nothing by presenting the relevant IP" was, I'll grant you, a stretch.
For example, IBM markets linux. Of course they did not write all of the code. Now suppose a devious linux developer were to insert say, all of some propriatey IBM application into the kernel code. If IBM does not check the code line by line they wont know it when they go to release the next edition of their variant of Linux that includes this new kernel. Thus IBM would have been duped in to releasing their own proprietary code. No reasonable person would think they were bound by the GPL.
Some drink at the fountain of knowledge. Others just gargle.
LINDON, Utah-March 7, 2003-The SCO® Group (SCO) (Nasdaq: SCOX), the owner of the UNIX operating system, announced today that it has filed legal action against IBM (NYSE:IBM) in the State Court of Utah, for misappropriation of trade secrets, tortious interference, unfair competition and breach of contract. The complaint alleges that IBM made concentrated efforts to improperly destroy the economic value of UNIX, particularly UNIX on Intel, to benefit IBM's new Linux services business.
0 32 73
http://ir.sco.com/ReleaseDetail.cfm?ReleaseID=1
What seems to be fogotten here is what the lawsuit really is about. It is not simply about UNIX code being used in the Linux kernel, as seems to be the opinion of the vocal majority here. The suit alleges that IBM committed breech of contract and misappropriation of trade secrets. The alleged inclusion of UNIX source code by IBM into the Linux kernel is the EFFECT of IBM's alleged actions--it is simply EVIDENCE.
Removing the evidence does not change the fact that a crime was committed. Sure, the Linux kernel could be rewritten as needed if there is UNIX code inside, but then you need to update each and every single machine using the violating kernel and destroy all copies of the kernel that have the code incorporated in them.
Like a sign on my profesor's door says: "Binaries may die, but source code lives forever." If the code is out there, it will be out there forever.
Government's idea of a balanced budget: take money from the right pocket to balance...oh who am I kidding?
If SCO were really concerned about losing IP, they could have discreetly contacted the parties in question, demonstrated their case, and maybe worked out some kind of licensing agreement.
My recollection is that their original claim was that they did contact IBM first, and after looking at the claims IBM told them to go fuck themselves.
However, it's hard to tell what the SCO management is thinking, because they've changed their story so many times that it's really looking more and more like a shakedown - but at the same time, it'd be even worse for Linux if their bullshit turns out to be true. They started out by going after IBM, and making those stupid bicycle/car comparisons; next they threatened other Linux vendors, claiming that parts of SCO's IP were in other pieces of the OS besides the kernel; then they claimed that the Linux kernel itself has SCO's source code, and now they even claim that this was the case before IBM started doing Linux development. I don't think this has helped their case much.
SCO's original complaint was actually sort of vague; now that they've moved on to claiming that specific bits of code have been lifted by non-IBM developers, they just sound incompetent for letting this go on for so long while they continued to distribute Linux. In the worst case, if the claims hold up, they're a bunch of incompetent morons. Either way, they've now backed themselves up against a wall - this leaves them wide open to a countersuit if they can't back up their words.
A blanket statement like that has no legal value, as it does not allow for the alledged offender to take any specific actions.
If they want anyone to stop using Linux they need an injunction, and in asking for that they need to be specific.
The judge will not grant this as they clearly have shown that the potential damage in granting this is much higher than not doing. There is no irreparable damages since they were years late in doing this.
Second if the judge grants it, they will most likely be asked to post a bond, much higher than they can afford.
Thirdly: If they are not already dead-meat, They surely will be when the suits for damages starts rolling in.
Help fight continental drift.
Unfortunately, that's not the purpose of a trial. The job of a lawyer is to bend the law to his clients wishes and needs. It's not to find justice.. That's just a vener placed around the legal system to make it palpable to the public. A few prominent lawyers (generally after retiring) have commented in some form or other:
That's why we have things like alternate treatment paths, arbitrators, sentencing circles, etc. They provide an alternative to the legal system that quite often leaves the participants with much more of a a sense of justice than the legal system.Between design and implementation, the western legal system gives maximal advantage to the well-heeled psychopath.
OS Software is like love: The best way to make it grow is to give it away.
If they did release their code as GPL, it was their choice.
Ummm.... lets see now....
1. Caldera releases a distribution of Linux.
2. Caldera buys SCO.
3. Caldera now has access to the source for both OSs.
4. After a few months comparing the code, they find some that matches.
5. As soon as they find them, they drop their Linux product, and launch a lawsuit.
Given that set of circumstances, I can't see how they made a choice to release the code.
Of course, there is still an argument to be had as to whether that really was the sequence of events, or whether there really is any of their code in Linux, but I don't think there's any scenario where they actually chose to release their code: if the above sequence is right, they did everything possible to limit the damage once they found out, and if it isn't correct, then they probably haven't got a case.
(Spudley Strikes Again!)
I don't understand... if someone did this then why doesn't (or shouldn't?) SCO sue IBM or the coder that did this? Sending letters to users of Linux is like Honda stealing trade secrets from Ford on how to build a certain engine, me buying a Honda, and then getting a letter from Ford letting me know that I may be in violation of something.
It just seems bogus to me. The users of Linux didn't commit a crime. They used what they had every reason to believe was free, GPL software. If that isn't the case then the guilty party is the person that put the offending code in Linux, not all the users (commercial or not) that later used Linux.
At least that's the way it would be in a sane justice system...
It gets a bit more interesting, though. By claiming to go after non-IBM users, they're also effectively limiting distribution of GPL code that they've been distributing. This leaves them in violation of the GPL -- so they've now lost all right to distribute the impugned GPL code. This means (for the moment, anyways -- until and unless they describe which Linux code they're accusing of containing their IP) that if they try to distribute any Linux code, they'll be open to Copyright lawsuits themselves.
Time for the FSF lawyers to get their suits ironed.
(this all, of course, presumes that there really is Unix code in Linux -- which is still a question.)
OS Software is like love: The best way to make it grow is to give it away.
The thing that makes SCO so evil in this is that the people who make Linux distirbutions don't want any proprietary code, and they take pains to avoid it. If there is some proprietary code in there by mistake, the just and correct response is simply to remove it, and if it is critical, replace it with "clean" code written from scratch, like 99% of the system already is.
It's not like some proprietary code vendor stole some of SCO's code. The GPL crowd makes a lot of effort to keep their code free. It's like the difference between hitting someone with a car on purpose or by accident. If you accidently do harm, and you have taken extremely careful precautions to avoid harming others, you should not be charged with the same kind of crime and be subject to the same penalties as someone who harms another on purpose.
SCO needs to be punished somehow in this whole affair. I imagine no one is buying their aging properietary flavor of unix anymore, so perhaps the best punishment is to drive them all the way out of business. That means any company which uses SCO legacy code should switch to something else (Linux, BSD) *today*!
Correct me if I'm wrong but I was under the understanding they had entered a motion to have the case sealed..
While its true they will have to release evidence in court to the other party as part of due process, ( though I originally thought that only applied to criminal cases, not civil, but ill take everyone's word for it that I'm wrong ) they don't have to release to US.. and if its sealed, they CANT...
and I still say that would hurt their case.. ( even if they are nuts )
---- Booth was a patriot ----
Yeah, Caldera did buy the rights from SCO to the remaining encumbered UNIX code (there is a limited 3-year revenue sharing deal with Tarantella that might make the transfer's appearance murky), but even before that SCO had already released early versions under a rather open license. What Caldera actually owns is relatively slim. The UNIX trademark belongs to The Open Group (formerly X/Open), which Novell spun off as a separate entity before the sale to old SCO. So, UNIX branding no longer means anything with regard to the underlying source code.
But what they did not do is stop shipping their Linux distribution as soon as they claimed IBM had leaked their code into Linux. If you assume that their lawsuit was filed legitimately, in that they knew there was proprietary code of theirs included in Linux, it then follows that they, under the terms of the GPL, were giving an implicit license to that code by continuing to distribute it. They didn't cease shipping their distribution of the code for nearly two months after they first alleged infringment.
So no, they did not do everything they could to limit their damages. In fact, by not stipulating what the infringing code is (which, as many others have noted, would not prevent them from seeking damages for the past infringment), they are in fact trying to increase their alleged damages by not allowing the infringing developers to fix the problem. SCO is acting in bad faith on every front to try and get a court to give them what they have never been able to achieve on their own merits (either as Caldera or as SCO in its previous incarnations) - dominance in the UNIX for x86 space.
It's funny - I always thought Caldera was a bit of a joke with Ransom Love at its helm. I recall the cheering that went on when he was no longer in charge there. Now, though, I think we'd rather have the clownish Love, who just didn't get it, instead of Darl McBride and crew, who don't get it and are determined to mess it up for everyone else.
Right...
As it did Corel
.NET work (and investment), corel dumps GNU/Linux, MS dumps stock, MS dumps corel.
I dont think your watching what went down w/ corel. Corel starts distro, ms offers to contract corel to do some
Whoever at Corel decided to move AWAY from GNU/Linux to win favour from MS should be shot.
Corel moving from GNU/Linux will be what kills Corel... as there is no room in x86 computing for anyone other than MS...and adobe, macromedia and borland hardly count...
They distributed(still do??)the kernel AFTER they "discovered" the code in breach!
That is different.
SCO has some steep hurdles to overcome still. There must first be a legal finding of fact showing that Linux does contain proprietary UNIX code.
Next, there must be a finding of fact showing that said code was introduced into Linux without authorization from the then copyright holders; or that withstanding; said code was introduced after SCO became the legal copyright owner and without SCO's authorization.
Finally, if SCO's case can survive those two steps, SCO would need to quash any claim that it released its proprietary code to the GPL when it knowingly produced and distributed its own Linux product. On the surface, it will immediately appear that this is what SCO did. To defeat such a claim, SCO will need to show that it did not know and had no reason to know that Linux contained proprietary code owned by SCO or anyone else.
This will be an unconvincing argument however, since by having access to the full Linux sourcecode, SCO had legal notice.
An interesting final twist. If all these findings of fact are met, the case can proceed; and if SCO wins, SCO will immediately make itself liable for copyright violations if Linux contains any proprietary code owned by another party. Poetic justice...
Corel's situation worsened to the point where it was forced to suffer the humiliation of accepting bailout money from Microsoft (a direct competitor). Why? Because it sunk so many resources into Linux... and then could not get a positive return on its investment due to the GPL. Corel competes with Microsoft in many, many markets -- to accept money from Gates was the ultimate capitulation. It only took Microsoft's blood money because it would have failed completely if it did not.
Corel's embrace of Linux was a key factor in the company's decline. It couldn't differentiate Linux itself from competitors' offerings due to the GPL, which required it to give its work away. So, it floundered. Had it based a product on NetBSD, OpenBSD (which would have been a great choice since it's also Canadian), or FreeBSD, it would have done much better.
The reason they won't publically disclose the code in question is because they claim the code is a *Trade Secret* . The law requires they perform due diligence to protect their own trade secrets from public disclosure and also do everything posible to mitigate their own damages. If they publically release the code (even for comparision), they will legally destory their own trade secret. That's why they will only disclose it under Non-Disclosure Agreements.
This brings us back to the question, did they already distroy the trade secret by publishing the open source of Linux? Although similar, this is a completely seperate legal issue from whether they already GPLed it.
What might save them on this issue (and its a stretch but possible, and I would argue it if I was their lawyer) is that Linux was distributed by Caldera *before* it bought SCO or had any knowledge of what was in the SCO-Unix code . So Caldera had no more reason to believe that Linux contained Unix code than anybody else did. When Caldera bought SCO, they now had access to Unix code and whammo! -- they suddenly saw the infringement.
The reason they are no longer distributing Linux is because they are trying to demonstrate to the court that they are taking the "due diligence" mentioned above to protect their trade secrets and mitigate their damage. The question is now whether they acted fast enough to stop the discloure and mitigate the damage. The fact that the spent a few months distributing "SCO Linux" after they had knowlege of the infringment might work against them. But to save themselves there, they might argue that they were under dueling obligations between their own interest and fulfilling contracts as Caldera/United Linux and therefore ended it as soon as practicable without breaching the previous contracts.
Just because (and if) there is common code between Linux and SCO UNIX doesn't mean that the Linux camp 'borrowed' the code. It could have just as easily been the other way around. In fact, given the public nature of Linux code and the hidden nature of SCO's, that is more likely to be what happened.
unfortunatly the collage would have to be around nine miles long and five miles high, constantly having every last bit of it altered by thousands of people, to compare in any way. The allegation that SCO specifically kept its mouth shut for a while in order to make sure they had a large pool of sue-ables is more serious than the more likely claim that they are merely full of shit.
The real problem with your example is that it's too close to the actual situation. If you can see fault in someone stealing your copywrited photograph and adding it to the bottom left corner of a huge collage you're working on the top center of, you probably already understand what is wrong about stealing code and redistributing it as free code.
In both cases, the Linux Kernel itself isnt the problem. SCO couldnt care much less that their code is being used in a product they sell, the problem is its use in products they dont sell. That is the viral nature of the GPL in this situation: the code is free, and now the code can spread like a virus.
Is this whole concept bullshit? Yes.
Is SCO full of shit? Yes.
Should SCO lose all legal rights for refusing to publically state what it is they believe to have been violated? Yes.
But none of that is at issue here. The issue is: Can I take the code which you have licensed to me, sneak it in to code which we both contribute to and both distribute as OSS, and be free from any charges of IP Theft or contract violation only because you dont have people checking every line of code contributed to the main bit of it against code from closed projects you happen to have.
Sure, SCO has people who look at code, SCO may have people who happened to look at the exact infringing lines of code. Does this relinquish their rights? Of bloody fucking course not. Not everyone browsing contributed Linux code for errors is going to be a fucking expert on the SCO Unix source AND have a photographic memory AND be anal-retentive enough to actually bother to check.
If somebody who worked at O'Reilly as a proof-reader came across a line from a non-open book which they didnt proofread [but was published by O'Reilly], there's no reason to expect them to instantly recognize it and decide that this chapter shouldnt go in a free online book. Let's say the chapter is about Death-Rays and was only distributed to IBM and the Coca-Cola corperation under a strict NDA. This open book has nothing to do with IBM and Coca-Cola, but Coca-Cola happens to be one of the contributers (due to their expertise in object-oriented programming, of course). The book is published completely free-of-charge and open on the internet, and it's 27,000 pages long. (broken up into roughly 10 million chapters and a thorough appendix).
Now, does O'Reilly lose their IP rights to their insightful chapter on Death-Rays found in their expensive and closely-gaurded book about Death-Rays? More importantly, can Coca-Cola be held responcible?
Gee, how much code can we use this trick to steal before anybody catches on?
PS: Fuck you.
-- 'The' Lord and Master Bitman On High, Master Of All
But here's the catch: Does this validate Microsoft's view of a "viral GPL"?"
We've been through this before, it's a vaccine, not a virus.
It keeps companies from mixing in their proprietary bits then claiming a proprietary interest in the whole work just because they contributed a piece.
This was no accident; SCO deliberately distributed their code under the GPL. They didn't contract the GPL like a virus, they deliberately and knowingly ingested it like a pill. Now they're whining because they weren't good enough to compete so they're delaying their imminent demise through the court system.
If the GPL does indeed stop SCO from pursuing this course of action, it won't prove Microsoft's point. Rather, it will prove that the GPL is doing exactly what it was intended to: embrace? sure. extend? great! extinguish? GO FUCK YOURSELF.
If
microsoftword.mp3 - it doesn't care that they're not words...
Leave it to slashdot to bash SCO and then accept their advertizing money.
Vote for Pedro
First off, SCO has footbulleted their IP seventeen different ways from sunday. This is just a rehash of the BSD legal baggage and it won't avail SCO anything against the likes of IBM. Two, they're claiming damages without revealing where in the gigs of code that make up a Linux distro where the problem is. Three, they picked on IBM which as someone else pointed out is like starting a fistfight with a train. Fourth, they've distributed this code themselves for YEARS; they just found out about this now. Fifth, what calls itself SCO was a Linux company that bought the old SCO IP from what now calls itself Tarantella....this does not look good. Sixth, Micorsoft is barred by past legal actions from touching that very codebase. There was a very loud legal debacle from their Xenix days. SCO's IP basically started out as Xenix.
SCO's baggage can easily hurt MS as much as it can help it. Such a move would be blatantly anticompetitive and they can still get in hot water for such things in Europe. SCO is like a plague ship at this point. I don't see MS getting anywhere near it. Some have surmised that MS is behind SCO's current frothing at the mouth. I don't think they're that dumb. The fallout if/when they're caught would be spectacular.
BY READING THIS LICENSE TEXT YOU THEREFORE AGREE
TO THIS VPL LICENSE AND OBLIGATED TO RELEASE ALL YOUR SOFTWARE, CURRENT AND FUTURE ONLY BY Viral Programming License (VPL). (license clauses follows, that explain what you can and cannot do with source code, bla bla bla).
In order to recover damages in a civil case, the plaintiff must demonstrate that he took reasonable steps to mitigate his damages. I don't see much mitigation going on here -- seems to me that SCO could have very easily contacted the kernel developers and have had them remove the offending code. The judge in this case will be very interested to know why this was never done.
Courts will not allow parties to written contracts (e.g., GPL) to avoid their clear and express obligations thereunder obo any lame excuse such as you propose. The contractual mistake doctrine would require that the recipients of SCO's GPL'd linux should have reasonably known of SCO's mistake before allowing SCO to escpae the consequences of the GPL. Now, given that SCO's putative kernel 'contributions' were secret, how the hell are they going to show that? What more, even if they could make the requisite showing, it is highly doubtful that any court in equity would hold any linux user liable for using SCO-contaminated code (as per your own 'mindless automaton' argument). Finally, as I keep posting, RTFGPL, do a little thinking, and realize that the minute SCO takes the position that the GPL does not apply to their own Caldera Linux release (including their 'own' kernel code) then it forfeits all of its rights under the GPL which means that its distribution of Caldera Linux constitutes copyright infringement (against the various kernel developers). A court in equity will not let SCO at once deny and embrace the GPL. PLEASE: 1) Read the GPL; 2) Consider your own arguments; 3) Mix; 4) Apply reason; 5) Properly Conclude
But if the evidence is considered a trade secret, don't they have the right to request that the evidence be kept sealed so that it's not available to the public? I think this happened with the Microsoft anti-trust trial.
You are correct to a point. IANAL, but I believe that once a trade secret is "in the wild", it is no longer protected. The only violator that can be punished is the person who originally violated the secret (in this case IBM, according to SCO). Anyone who got the code from IBM (or a third party), and who does not have a reason to suspect that the code in question is a trade secret, would not be liable. Therefore, there is no reason to seal the code since it is now in the public domain.
In a case where the trade secret may have been divulged, but not widely, then, yes, the court records may be sealed.
For an excellent summary of Trade Secret Law, see the Nolo Press Page.
Speaking of which, everyone running any version of Microsoft Windows can send me US$99 and I won't sue you if I ever decide to sue everyone because they uh, might have some infringing code, yeah, that's the ticket.
BTW, in a worst case scenario I wonder how practical it would be for an end user to quit using the Linux kernel and insert the FreeBSD kernel with the Linux environment add-ins until the alleged "infringing code" would be removed.
Or perhaps trial by wombat. I'm not sure how that would work, but it could be entertaining for the children.
This next song is very sad. Please clap along. -- Robin Zander
Right, but why not the (supposed) idiot programmer who stole code from SCO and stuck it in Linux? If it happened, THAT'S where the law was broken and where justice should be done. If that idiot goes bankrupt, sorry, SCO is out of luck. But to hold Linux End Users financially responsible through license fees for someone elses copyright violation just because the responsible party doesn't have deep enough pockets to make SCO happy is bogus.
Just for clarification - to my knowledge, SCO has not sent any C&D letters to any Linux vendors. The letters we're talking about are hypothetical follow-ups to the open letter thats posted on thier website, which does include any details, simply claiming that Linux contains SCO IP, with no details, no authentication, and no collaborating evidence. There's not even enough information for the vendor to do a check themself. Based on SCOs behavior up to this point, however, it wouldn't suprise me a great deal to learn that they would in fact send C&Ds that nebulous.
Another clarification - I have no especial love for Linux - I'm actually a Windows user, myself - but I have a great hatred of manipulation of the legal system, which this clearly is. It's a grevious example of corporate misbehavior, and, like many people, I find SCOs behavior puzzling enough that I can't rationally explain it without resorting to conspiracy theories. Chief among these behaviors is that EVERY informed analysis of the case that I've come across, except SCOs, is extremely dismissive - for a great many reasons. And all the analysises(?) I've read are equally puzzled - SCO is doing a great deal of posturing and attempting to make a great deal of press, and not providing even the most reasonable amounts of information. It's childish, it's disrespectful, and it stinks of ulterior motives.
The first reference to the viral nature of the GPL that I could find in Usenet was dated Nov 11, 1989, well before Microsoft even had GNU in the radar scope.
google news
Even a minimal showing of actual copying would be 14 carat FUD. I don't think that SCO could pass up that opportunity if they had it and, therefore, I doubt that there's any substantial copying involved. This circumstance, together with the 'IP violations all over the kernel' remark may well point up the truth of the matter. You see, the phrase "IP violation" is extremely vague. Generally it could mean, among other things, a copyright violation of a trade secret misappropriation. But here it sounds more like trade secret stuff. Check it out: SCO could argue that its "technology" (i.e., ideas) are manifest throught the linux kernel w/o having to show any actual copying. That is, the linux kernel source code could be argued to embrace SCO's "methods" albiet with different code. But whether or not this is true, such would not constitute any copyright violation. Copyright generally protects authors' particular expressions of ideas only, not the underlying ideas themselves. Hence, SCO's complaint contains no copyright infringement claims. On the other hand, if all SCO is alluding to by this remark is trade secret matter, then it is of no concern to the linux community at large. The reason is that it is not wrongful to use other people's trade secrets; it is only wrongful to misappropriate them. Here, the only entity that could plausibly have committed a misappropriation is IBM, by virture of its contract w/ SCO. Everyone else has done nothing but use information that is widely publically available w/o knowledge of the allegedly once wrongful publication of the trade secrets by IBM. Current publications of SCO's kernel 'contributions' do not constitute misappropriation of trade secret because the matter is no longer secret, and hasn't been for a long time. Accordingly, further and future use and publication of the SCO kernel 'contributions' cannot be enjoined. Linux Wins!
It's exactly like that, but with these additions: not only did you get your Honda, you also got the plans for it and you have the ability to produce them yourself and make a profit from delivering them. In that case, I think Ford would be justified in sending you a letter.
Actually, it's not so clear, IMO. When you install RedHat Linux (for example) you are agreeing to hundreds, if not thousands of licenses. Every single individual project may have the identical GPL, but they are separate licenses AFAIK. If a compilation of hundreds, or thousands of separate programs are available on a few cds, a cease and desist order really shouldn't be against the compilation, but against the individually licensed subsections. In it's simplest manifestation it's the old RMS distinction between "Linux" and "GNU/Linux". In fact, if SCO insists in not distinguishing between the legally innocent GPL IP holders and those who are not, the non-infringing project leaders may have grounds for suit themselves, for defamation of character at least...
Maybe, but what kind of lame-ass company counsel would advise his client to pay off on a copyright infringement claim where: 1) the claimed infringed matter is unknown; 2) no known certificate of copyright registration has been issued with respect to the claimed infinrged matter; 3) no copyright is claimed in the claimed infringed matter in any pending litigation, and; 4) the claimed infringed matter was, at least on its face, distributed under the GPL? Any company who pays on such a claim deserves to go belly up and any lawyer who advises same should be shot twice (obligatory bullet plus one).
1: if IBM had the SCO code made known to them that is supposedly in linux, they would be in the process of removing it, like, now. That is, if it is actually a violation, unlike the laughable farce i believe this to be.
2: Many users are not using the code SCO claims was taken. I take for example the SMP scalability issue. Most users don't even know what SMP stands for, much less have more than one processor in their computer. There goes that one...
Now, here's where it gets silly.
3: SCO would have shared this information with someone who could fix the problem if they were serious about getting it removed from Linux. Last time I checked, the courts were not the first place a grieved entity was supposed to go, but rather to the defendant, to try to get things taken care of without wasting our tax dollars in court.
Clearly, SCO is on a petty rampage about nothing. I wouldn't be surprised to see them taking cash from Microsoft to do it, either. It's win-win for SCO...either they get lots of money on the extremely off-chance that they have a case, or they get put out of their misery.
In SOVIET RUSSIA... erm...NSA AMERICA, the Internet logs onto YOU!
According to CNET tonight:
Microsoft is acquiring the rights to Unix technology from SCO Group, a move that could dramatically impact the battle between Windows and Linux in the market for computer operating systems.
According to a statement from Microsoft, the company will license SCO's Unix patents and the source code. That code is at the heart of a high-stakes, billion-dollar lawsuit between SCO and IBM that could alter the computing landscape.
If SCO is just trying to hurt linux to try get people going back to their unix, its a waste of time. Worst case, everyone will be using OpenBSD, i'm not sure about the other BSDs, but OpenBSD is EXTREMLY anal with their licencing.
The irony of all that would be in the fact that openbsd is a fork from bsdlite, which i believe came about from when SCO sued 386BSD.
It refers to an article in the Wall Street Journal that I can't find.
Is this for real? Wouldn't it be that MS just got one licence?
Weren't they the ones that offered UNIX licenses for US$99 to Linux users after first making the claim? I think they did try to 'work out some kind of licensing', but they didn't offer any proof of why end users should do it.
the inquirer article You have to take the inquirere with a grain of salt but it says:
"The libraries, which perform basic operations such as opening files, are currently licensed for use with with SCO's OpenServer and UnixWare Unix variants, but not with the UnitedLinux distribution that the company sells.
If the libraries are used in conjunction with a program called Linux-ABI, they make migration easier for companies moving from Unix to Linux and so it is believed that SCO is keen to make such customers pay for the privilege.
The SCO Group refused to confirm or deny the move"
The GPL did not harm SCO. SCO management took a gamble that it could compete. It turns out that it couldn't. That's just business; it happens every day. The GPL doesn't enter into it.
.... well, you figure it out!
As you allude, the GPL is not designed to make lots of money for the licensors. This is not a bad thing, and I'm not sure why you are so offended by this fact. If you want to make money and can make a product that can allow you or your employer to do so, go for it. If not, stop. There's no use crying because all the bad people that freely volunteer their time and energy to making software for it's own sake and for that of their peers do a good enough job to make your product irrelevant. You do not have the right to make a profit, only the right to try.
In terms of history being littered with failed companies that "attempted to deal in GPLed software", well, duh!
1. Any business niche is littered with corporate corpses. You think Linux is bad? Try opening a restaraunt!
2. If you want to succeed in business, try selling something at a price that people will pay. Let's see, do I:
A) Pay big money to tie myself to a company whose core value is to take as much of my money as it can
B) Download some software for free and hire people (who I can replace if they suck) to help me when I can't figure it out for myself?
If you there aren't enough people willing to do A