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SCO Claims Linux Sales After Suit Irrelevant

Posted by ryuzaki0 on from the this-is-only-gonna-get-more-messy dept.

molarmass192 writes "Here's the first reaction I've seen from SCO regarding the public's stance that the code they distributed under the GPL negates their claims on code in the Linux kernel. They claim that the lack of copyright notices "placed by the copyright holder" means that the GPL does not protect the unmentioned code in question. "

52 of 563 comments (clear)

  1. SCO PR department working overtime. by dtolton · · Score: 5, Interesting

    Sheesh, it's amazing how much the SCO PR department has in
    common with M$ PR department. They both must read slashdot and
    then formulate their responses accordingly.

    When this law suit first came out, I dismissed it as rubbish.
    Then I started to think about it, and I got a little worried
    there was some truth to it. Then I read the OSI
    Position Paper. I don't worry about this too much any more. The
    OSI position paper makes some very compelling points, which SCO
    hasn't addressed yet. In many cases they simply won't be able
    to address them.

    I'm not suprised that SCO has an opinion that this doesn't hurt
    their case. Of course they'd have that opinion publicly, no
    matter how pissed they are about it privately. Ultimately the
    only opinion(s) that will matter are the judges.

    Did you notice that hughes deflected and had no opinion on a
    more questions than he answered? I suspect he is right about
    the fact that the GPL can't make code free if the original
    author didn't make it free, however the fact that they as the
    original authors *were* distributing it under the GPL
    complicates that claim greatly.

    Of course that is all supposing there is any merit to their
    claim that Linux contains enterprise code from SCO in the first
    place. That is a claim that I and many others are dubious of in
    the first place.

    --

    Doug Tolton

    "The destruction of a value which is, will not bring value to that which isn't." -John Galt
    1. Re:SCO PR department working overtime. by MonopolyNews · · Score: 5, Interesting

      One, there is still reason to be scared, they have Boies.

      However, consider this... they still ARE shipping their IP under GPL because they have aggreed to indemnify their own users. That code is under GPL, period, or else they can't distribute without THEM violating the codes license. They need to actually recall their shipments of linux.

      Otherwise, if they persist in their claim that it has their proprietary IP then they have violated the GPL by telling their customers they may keep it. Further, their CUSTOMERS can be sued for violating the GPL now that they have been informed that there is proprietary code mixed with GPL code, a mix the GPL doesn't allow in the case of "code fragments".

      --

      Slashdot Journal on Monopoly News
    2. Re:SCO PR department working overtime. by PCM2 · · Score: 4, Interesting
      I suspect he is right about the fact that the GPL can't make code free if the original author didn't make it free, however the fact that they as the original authors *were* distributing it under the GPL complicates that claim greatly.
      From the article, it sounds like what he's suggesting is that whomever originally distributed the code under the GPL was not a legal, designated agent of Caldera Inc. Basically, he seems to be saying that the engineering team included code in a GPL'ed release that they weren't supposed to, and that until any code released has been vetted by Caldera's legal department, the license doesn't apply.

      Personally, I think they'll have a real hard time making that argument stick. I mean, what's next? "The guy who uploaded that tarball to our public server was just an intern we hired over the summer. Unless the Executive VP of Intellectual Property personally fired up an FTP client, the license doesn't apply..."

      --
      Breakfast served all day!
    3. Re:SCO PR department working overtime. by PCM2 · · Score: 4, Interesting
      I was always curious about this. By this rule some engineer at MS with access to windows code could add it to some open source project and all of windows would be GPL?
      The difference here is that it was actually Caldera that released the code. They distributed it, they wrote the press release. Once that's done, the fact that they failed to verify what it was that they released seems like their own problem.

      The better example would be if an MS engineer with access to Windows code dropped a Trojan horse in there that would wipe out people's hard drives on his birthday. Does MS turn around and tell its customers, "Sorry! We can't help you get rid of the Trojan ... that part of Windows isn't covered under our support agreement, because we didn't know it was in there when we released it"?

      ...

      ...OK, never mind. :-)

      --
      Breakfast served all day!
    4. Re:SCO PR department working overtime. by jmauro · · Score: 3, Interesting

      No, in that case just the code added to the opensource project would be GPL, and only that version. The original version from windows would maintain it's original Microsoft EULA. Code can have multiple licenses.

    5. Re:SCO PR department working overtime. by Jason+Earl · · Score: 2, Interesting

      The point that you are missing is that SCO voluntarily distributed a version of Linux with the supposedly offensive code. Sure, IBM might have put it in the kernel (yeah right), but SCO still distributed the kernel all the same.

      Once I have a copy of that code, then I have a legal license to it. I didn't purchase my CD from IBM, I purchased it from SCO (no, I didn't actually pay money for SCO Linux, it's just an example). SCO should have been looking at the source code before they distributed it. It is not my fault that they didn't. The time for SCO to complain was before they distributed the software.

      Not that it matters, IBM didn't steal SCO's code and paste it into Linux.

    6. Re:SCO PR department working overtime. by orcrist · · Score: 2, Interesting

      He was on the Microsoft antitrust case and the Napster case. . . and he lost them both.

      FYI, He *won* the Microsoft case. It just doesn't seem like it since the Bush DOJ let them off the hook with the settlement. :-(

      -chris

      --
      San Francisco values: compassion, tolerance, respect, intelligence
    7. Re:SCO PR department working overtime. by rifter · · Score: 2, Interesting

      Someone posting things to the official company website, assuming they have authority to do so (in general - IE, they aren't cracking the webserver) is acting in thier capacity as a representative of the company. It doesn't matter that the engineer doesn't personally own the code.

      [sarcasm]That's good to know. I will tell you what. I will go ahead and submit a long screed about how my company sucks into our web content, then grab a few computers on my way out. Since I am a representative of the company, it is all right. Then I will hire you to be my lawyer. Does this sound like a good plan?[/sarcasm]

      Employees who do not act in the interest of a company, especially when they are not acting with orders from management are *NOT* representing the company in their actions. Employees are empowered to be representatives of the company through orders from higher up. When they cease to do what they are told, or act on their own without authorization they do not represent the company.

      This is a pretty simple concept. I can tell you if I ever become a hiring manager I will be sure to screen out people like you, since you seem to think your employee badge is a license to steal.

    8. Re:SCO PR department working overtime. by arkanes · · Score: 3, Interesting
      It's a good thing you aren't a hiring manager, because you'd get someone sued. You think that the entire fucking sales force of SCO, which was aggressively marketing and selling Linux was operating "without authorization"?

      If you're acting within the authority of your position, on behalf of your company, then yes, your company is liable for your actions. If you're a web admin, with write access to production webservers, and you replace your companies home page with, say, kiddie porn, you're damn right your company is going to get sued - especially if they didn't take IMMEDIATE action to remove you from your position and take the offending website offline.

      You don't magically not represent your company anymore if you do something wrong - like not ensure that the code you know to be your trade secret (because you're filing a BILLION dollar lawsuit against one of the largest companies in the world) is removed from your anonymous FTP server, and that you continue distributing it under a license you know to be fundamentally opposed to the sort of controls you're trying to exert of this IP (because you're not a total fucking moron and had your lawyers read and explain the GPL). Yes, you're acting in your capacity as a company officer and within your authority as a representative of the company, and therefore you're actiing as a copyright holder.

    9. Re:SCO PR department working overtime. by DavidTC · · Score: 2, Interesting
      There's always the fun point that, logically, whoever SCO got their original copy of Linux from wasn't allowed, under the GPL, to distribute it (because it contained stuff copyright by SCO).

      And hence SCO itself must immediately stop using Linux. Not just distributing, but using. ;)

      --
      If corporations are people, aren't stockholders guilty of slavery?
  2. One wonders... by irokitt · · Score: 2, Interesting

    If SCO is actually making money through their business. What percentage of their projected income this year is from the MicroShaft deal and their court escapades? While many of my misguided buddies like to point out some of the supposed bitterness in the open-source/free software community(ala Richard Stallman-Linus Torvalds), it seems to me the real problems exist with the companies holding patents, who like to play sore loser. Bummer.

    --
    If my answers frighten you, stop asking scary questions.
  3. Same as something else? by TrancePhreak · · Score: 2, Interesting

    Is this not the same clame about click through EULA's? I could be mistaken...

    --

    -]Phreak Out[-
  4. Re:SCO.... by override11 · · Score: 4, Interesting

    Or you could write a script that randomized names / histories / addresses and return email addresses, then set it to send out like 500 an hour. :) Ohh, that would be wicked, they would have no way of telling real apps from fake ones flooding in... and they would have to keep them all.. and thats a "Very Bad thing" (tm)

    --
    No I didnt spell check this post...
  5. Deplete the warchest by PhipleTroenix · · Score: 5, Interesting

    Everyone who has ever bought a copy of Caldera/Linux should return it. Since it was marketed as GPL code and it's not.

    If everyone does this right now they won't have $$$ to pay the lawyers and the whole thing might go away.

    --
    When VPNs are outlawed, only outlaws have VPNs.
  6. Lack of attribution doesnt remove rights. by Anonymous Coward · · Score: 1, Interesting

    As soon as you set something down and you are the creator of it, the copyright in that work belongs to you. It is yours to licence as you see fit, and there is no rule about where that licence has to be stored for your copyright to be in effect.

    If SCO were negligent in discovering and obeying the licences of source they used then they are still guilty of infringment, wether the notices were attached or not. They are obliged to make sure that their code is clean.

    "If in doubt, leave it out" is the rule that should be applied, in all cases. They should have (and probably did) audit the source as a matter of course when they took it over.

  7. Their sales dropped to zero, by HermanZA · · Score: 2, Interesting

    so they would not have had any sales after the suit was filed...

    Obvious.

  8. reminds me of the cold war. by MagicMerlin · · Score: 5, Interesting
    I am feeling more and more that SCO is a pawn in a much larger and more important struggle that is playing out between IBM and microsoft. Consider:

    1. US and USSR never entered into active confict but used deparate or greedy 3rd world countries (SCO) to engage in conflict.

    2. Like Communism, MS was based around lofty principles but actually survives by strangling all percieved threats.

    3. IBM was earlier in a partnership with MS that turned sour (think US-Soviet relations in WW2).

    4. Both empires keep its people distracted from the real facts by spreading FUD about the other side, even if that means undertaking petty wars.

    5. The soviet empire eventually came down, killed by its own weight. Will MS suffer the same fate?

  9. Caldera != SCO and SCO != Caldera by Znonymous+Coward · · Score: 2, Interesting

    I like that, keep using the Caldera logo to reference SCO. They (SCO) really hate that.

    --

    Karma: The shiznight, mostly because I am the Drizzle.

  10. argument by pigscanfly.ca · · Score: 3, Interesting

    There arugment is that since they didnt authorize the putting in of the IP into the code that they still own it wheather on not it has been distributed on the GPL basis . This is true . It does not matter that they distributed the code because they did so without knowning *supposedly* that it was in there . However once they found out they should have stopped sales of there own linux product immeditly otherwise they are knownlingly distributing there code under the GPL and have implied concent by doing so(IMHO IANAL ,etc.) . However they seem to (given the quality of there PR department) shifted all the PR budget to the legal budget so they can probably weasly there way out of it . The one thing that I think is missing "show me the code" . Show me the code that violates your IP , untill then I dont care about anything you have to say (to sco)

  11. Liability by accident? by jcdr · · Score: 3, Interesting

    SCO say: "In other words, the GPL itself covers situations where code is improperly or accidentally contributed to the GPL without proper authorization (sic) of the true copyright holder."

    So IBM are liable because SCO accidentally put some code into Linux? How there can present to the court a causal fault from IBM? IBM are not here to verify that SCO don't put there preciouse code into Linux.

  12. Call it out.... by BubbaTheBarbarian · · Score: 5, Interesting

    This should be called out for what it is...the first shot in Microsoft's war against OSS. Everything up to this point has been trivial. Now we have a company that is going to openly challenge the GPL, and one that is a MSBitch to boot.

    I bet if you look at the money, all trails will lead to The Beast. OSS has been expecting this to come from any other place (look at openGL for reference of another possible MS suit) then from one of "there own." Makes me ashmed to say I even assosiated with Calders before they became a bunch of a-holes.

    WAR TUX!!!

  13. 3000 lawsuits can't be wrong.... by Anonymous Coward · · Score: 5, Interesting

    Slashdot them to oblivion!

  14. Re:Playground bully by kalidasa · · Score: 2, Interesting

    If code was released into the GPL public domain

    Stop right there. The GPL is incompatible with the public domain. Please go back to the GNU site and reread the GPL before you post anything else on this subject. If code is public domain, it cannot be GPLed, because the GPL relies upon copyright law, and stuff that is in the public domain by definition is no longer subject to that law.

    IANAL, but I know that.

  15. Re:Sounds like "poisoned roots" by dackroyd · · Score: 5, Interesting

    You've almost got it but you need one extra step:

    1) Source code is 'stolen' from SCO and put into Linux without SCOs knowledge.

    2) SCO download the latest kernel, modify it and release it as SCO Linux, without realising that they're distributing some of their proprierty code.

    3) They're now claiming that they never intentionally released the code under the GPL, and that it was put their illegally by someone else.

    Of course they probably have buggered things up by not stopping their distribution of their Linux as soon as they discovered and announced that they were going to sue everyone over it.

    Also any court is going to seriously look down on the fact that they're prolonging the time that their code is being used, by refusing to say exactly what it is.

    --
    "Free software as in beer, copy protection as in racket" - Telsa Gwynne
  16. If it doesn't matter... by dinog · · Score: 2, Interesting
    Then why did they ever stop distributung Linux ? In my view, their actions speak louder than their words. Of course they have the opinion that they did nothing wrong, and were greatly wronged. Tell me about a plaintiff that didn't publicly say this, and then I'll be surprised.

    However, they are trying to say that the fact that they knowingly and willingly continued to distribute their proprietary code under a GPL liscence is ok, just because they didn't add the copyright notice. Hmm, then maybe I'll add some code to Linux that I have copyrighted, but not put any copyright notice on in (indeed, I'll leave it blank.) Then after everyone is using it, I'll try to extort, umm, I mean protect my intellectual property rights. Maybe I'll even give the code to someone else, so I can't be shown to have willingly contributed it. Sounds a bit fishy to me, but aside from my hypotetical intention (which is very hard to prove in court), there is little to no difference with SCO's actions. They knew the code was there, and they knowingly and willingly continued to distribute it as part of a package widely known (and possibly advertised by them as, but I'm speculating) to be open source.

    Now if it isn't a problem, then why stop now ? If it is a problem, then they should have stopped immediately. Their actions and words do seem to add up. However, maybe their webpage can show some insight :

    The sale of this SCO Linux product to new customers is currently suspended due to intellectual property (IP) issues associated with the Linux operating system. Accordingly, SCO has announced the suspension of its own Linux activities until the issues surrounding Linux IP and the attendant risks are better understood and properly resolved.

    Perhaps this is the answer, they simply don't understand all the ramifications. In that light, their actions are quite understandable. They are saying one thing, to make their case, and doing other things to cover their backsides, because they know that in cases like these, the result is rarely completely in one side's favor. It is quite possible for them to have a phyric victory. Remember the Scopes-Monkey Trial ? The creationist won the case, but still lost the war.

    Of course I'm not a lawyer, so take this with several hundred milligrams of NaCl.

    Dean

    Of all the childhood role-models, I learned the most important lessons from the Cookie Monster.

  17. The GPL also states by cyber_rigger · · Score: 2, Interesting
    http://www.gnu.org/licenses/gpl.html

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

    As of 05/16/03 these files were available at ftp://ftp.caldera.com/pub/openlinux/contrib/RPMS/l ibc6

    It looks like these files have been removed.

    linux-kernel-binary-2.2.10-1.i386.rpm 4525 KB 07/27/1999 12:00:00 AM
    linux-kernel-binary-2.2.10-1.i586.rpm 4450 KB 07/27/1999 12:00:00 AM
    linux-kernel-binary-2.2.10-1.i686.rpm 4450 KB 07/28/1999 12:00:00 AM
    linux-kernel-binary-2.2.7ac1-1.i386.rpm 4477 KB 07/22/1999 12:00:00 AM
    linux-kernel-binary-2.2.7ac1-1.i686.rpm 4463 KB 07/23/1999 12:00:00 AM
    linux-kernel-binary-smp-2.2.10-1.i386.rpm 4606 KB 07/27/1999 12:00:00 AM
    linux-kernel-binary-smp-2.2.10-1.i586.rpm 4589 KB 07/27/1999 12:00:00 AM
    linux-kernel-binary-smp-2.2.10-1.i686.rpm 4589 KB 07/28/1999 12:00:00 AM
    linux-kernel-doc-2.2.10-1.i386.rpm 800 KB 07/27/1999 12:00:00 AM
    linux-kernel-doc-2.2.7ac1-1.i386.rpm 801 KB 07/22/1999 12:00:00 AM
    linux-kernel-include-2.2.10-1.i386.rpm 836 KB 07/27/1999 12:00:00 AM
    linux-kernel-include-2.2.7ac1-1.i386.rpm 864 KB 07/23/1999 12:00:00 AM
    linux-source-alpha-2.2.10-1.i386.rpm 295 KB 07/27/1999 12:00:00 AM
    linux-source-alpha-2.2.7ac1-1.i386.rpm 292 KB 07/23/1999 12:00:00 AM
    linux-source-arm-2.2.10-1.i386.rpm 222 KB 07/27/1999 12:00:00 AM
    linux-source-arm-2.2.7ac1-1.i386.rpm 274 KB 07/23/1999 12:00:00 AM
    linux-source-common-2.2.10-1.i386.rpm 9333 KB 07/27/1999 12:00:00 AM
    linux-source-common-2.2.7ac1-1.i386.rpm 9403 KB 07/23/1999 12:00:00 AM
    linux-source-i386-2.2.10-1.i386.rpm 281 KB 07/27/1999 12:00:00 AM
    linux-source-i386-2.2.7ac1-1.i386.rpm 276 KB 07/23/1999 12:00:00 AM
    linux-source-m68k-2.2.10-1.i386.rpm 602 KB 07/27/1999 12:00:00 AM
    linux-source-m68k-2.2.7ac1-1.i386.rpm 583 KB 07/23/1999 12:00:00 AM
    linux-source-mips-2.2.10-1.i386.rpm 322 KB 07/27/1999 12:00:00 AM
    linux-source-mips-2.2.7ac1-1.i386.rpm 322 KB 07/23/1999 12:00:00 AM
    linux-source-ppc-2.2.10-1.i386.rpm 419 KB 07/27/1999 12:00:00 AM
    linux-source-ppc-2.2.7ac1-1.i386.rpm 403 KB 07/23/1999 12:00:00 AM
    linux-source-sparc-2.2.10-1.i386.rpm 489 KB 07/27/1999 12:00:00 AM
    linux-source-sparc-2.2.7ac1-1.i386.rpm 489 KB 07/23/1999 12:00:00 AM
    linux-source-sparc64-2.2.10-1.i386.rpm 458 KB 07/27/1999 12:00:00 AM
    linux-source-sparc64-2.2.7ac1-1.i386.rpm 456 KB 07/23/1999 12:00:00 AM


  18. Re:Big Myths about copyrights by StormReaver · · Score: 2, Interesting

    "This was true in the past, but today all nations that follow the Berne copyright convention everything created after April 1, 1989 is considered copyrighted (GPL or otherwise) whether it has a notice or not. "

    That's not what the laughable dummies at SCO are arguing. They are now trying to say that the SCO employees who were selling SCO Linux, with the blessings of SCO top leadership, did not own the copyrights on the source code that SCO was distributing and therefore the GPL does not apply.

    It's a totally brain-damaged argument, and I would be astounded to read it from anyone other than SCO. The argument is that employees do not have the right to sell and/or distribute their company's products even when the highest level executives, whose primary job is to authorize the sale and/or distribution of the company's products, demand that it be done as part of the company's core business!

    So SCO's top bosses passed down the mandate to sell copies of SCO Linux, but the employees should not have done it because they don't personally own the copyrights on SCO's code.

    This gets funnier everytime SCO tries to fumble for a defense.

  19. Re:Big Myths about copyrights by Anonymous Coward · · Score: 1, Interesting
    You misunderstand what is being said here. They are saying since they are the copyright holder to the code in question, and since they didn't place the GPL notice, the code does not fall under the GPL.

    Their point is actually quite valid -- if you believe that SCO is the copyright holder. The very first line of the GPL is this: "This License applies to any program or other work which contains a notice placed by the copyright holder saying it may be distributed under the terms of this General Public License."

    I.E., the GPL notice applies if it was placed by the copyright holder.

  20. Isn't this just more media for Linux? by msimm · · Score: 3, Interesting

    Funny thing is, I'm seeing more 'legitimate' media talking about Linux then ever. The more they yell the more respected business journals will end up printing conversion stories with every bodies new favorite underdog.

    I bet this all make for some pretty funny board meetings.

    --
    Quack, quack.
  21. Is this really a big deal? by Groovus · · Score: 5, Interesting

    This is slightly off topic, but it was running through my head on my bike ride home from work yesterday....

    If one was served with a cease and desist from SCO regarding linux code, would it not be an acceptable response to then ask them to identify the offending code so that you could remove it from the code base you are using, and then replace it with code from elsewhere (created by you, obtained from another source, etc.) which would not infringe on their "technology"? Additionally would you not also be within your rights to request proof of SCO "ownership" of the offending code? Simply put, would not the burden of proof still be on SCO if they make such an accusation?

    Note that one would be attempting to comply with their request, not going to court or settling for damages. Would this remedy avoid those two outcomes?

    Basically it seems to me that given the nature of open source it would be trivial to shrug off any and all such threats/claims by SCO. I mention this not to discourage those who wish to punish SCO for their actions by dragging them through court and beating them, but more along the lines of attemting to nip any fear businesses may have in consideration of adopting Linux about the legality of using "tainted" code in the bud by establishing clear and easy methods of circumventing such chicanery.

    You could kill the SCO ploy quickly and easily if it was viable to say that if SCO came calling you just need to have them identify "their" code, prove it is theirs, and then replace it by having coder x create substitute code from scratch or obtaining substitute code from open source project y. Would this work?

  22. Re: When will we find out what the code is? by Black+Parrot · · Score: 2, Interesting


    > If it's already in the kernal, it's hardly secret. Where is it?

    I thought they said it wasn't in the kernel. There were some hints that it had to do with the SysV init scripts, but of course Linux used those long before IBM started their Linux-for-enterprise push.

    \methinks SCO is just making it up as they go...

    BTW, does anyone have a summary of what enterprise-friendly code IBM has actually contributed? That should narrow the search for the Yeti down to a single continent at any rate.

    > The longer they keep this info under their hats, the less I believe they have any leg to stand on.

    That's also why I believe that this is an anti-Linux FUD campaign. If they were really concerned with IP then they have nothing to gain by keeping the code secret. If they announce it now it will get removed now (which is what they want, right?) but they'll still be entitled to any legal remedy they'd be entitled to without announcing it (assuming any at all). There's simply no IP-based reason not to announce it.

    But as for FUD-based reasons, well, it's only FUDworthy so long as everything is up in the air and businesses thinking about making the switch have something to worry about. Point to the code and the argument switches to the facts of the claim, or the code gets ripped out, and the FUD-bubble bursts overnight.

    The IP motivation says "announce it", and the FUD motivations says "mum's the word".

    No, this isn't about IP.

    --
    Sheesh, evil *and* a jerk. -- Jade
  23. How about a Slashdot Interview by lobsterGun · · Score: 5, Interesting


    Has anyone heard what any of the SCO techies are saying about this suit? We've all heard what the lawyers and the suits have to say.

    How about we have a Slashdot Interview with an anonymous SCO techie? Most techies I know would jump at the opportunity to set the record straight if they were in a similar circumstance (espescially if their anonimity could be guarranteed.)

    So what do you say Comandante Taco? Can we get and interview?

    1. Re:How about a Slashdot Interview by mandolin · · Score: 3, Interesting
      The suits must be relying on some techies to examine the code, in order to give their case a semblance of feasibility.

      It's probably a small number, too. Any willing techie who could give sufficient information to make for an interesting interview would be quickly discovered, fired, and probably sued as well.

      Anyone at SCO: look for another job now. Your execs have somehow managed to bring the wrath of IBM, the entire linux industry (hey it's a couple thousand dollars :)) and an entire demographic of the world population upon them. You're wasting time with IBM. You have two OSs that compete with each other, drain your time trying to write compatibility kits (which also add bloat..), and they both suck compared to the competition (and I've used OpenServer, I know that of which I speak). You're probably being asked to make up some creative bullshit for the court case. Aside from all that, countersuits are terribly likely.

      I hope the utah job market pans out for you.

  24. Re:From the GPL... by schon · · Score: 2, Interesting

    In such a situation, they are right about the fact that the GPL doesn't apply.

    Yes, but only until they distribute the code.

    If they had stopped distributing their Linux distro as soon as they found "their" code in the kernel, they might have a leg to stand on.

    They knowingly distributed "their" code as part of a GPL'ed product. Therefore, the GPL *does* apply.

  25. Someone should say it... by Anonymous Coward · · Score: 1, Interesting

    ...so Slashdot, just keep the old Caldera logo for SCO topics for the time remaining. I guess it'll be just for a while...

  26. Use OSS methodology against SCO by bstadil · · Score: 2, Interesting
    We need to start using the "lots of eyeballs" methodology against SCO. We need to find cases inside Unixware where the lifted code from Linux.

    According to latest thread on Kernel List Quoted below this is likely to have happened. Even though the Code is not public available there must be some versions floating around that can be used for "analysis". Once something is found public bug reports can be used as Evidence. Same bugs in SCO binaries as in Linux.

    If someone have a copy of the SCO source code maybe make a Torrent file, so we can start analysing if they indeed stole something. A few nuggets will go a long way to quash the FUD from SCO. Anyone know where old SCO bug reports can be found?

    Quote:

    6. Possible License Violations Within The Kernel Source

    Elsewhere, Christoph Hellwig replied to the original post as well, saying:

    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..

    Jim Nance said, "Wouldnt it be halirous if whatever code SCO is talking about when they say there is Unix code in Linux turns out to be code some SCO employee ripped out of some GPL program and stuck it into Unixware. That is actually far more likely than what they alledge."

    --

    --
    Help fight continental drift.
  27. Re:In other news... by Ricdude · · Score: 2, Interesting
    Strange example...

    Ben and Jerry's was acquired by Unilever, a food and grocery product conglomerate, so the analogy still holds (SCO buying out the homegrown AT&T Unix).

    More importantly, Ben and Jerry published an ice cream recipe book, which includes a variety of recipes for their special ice cream flavours. They even include tips on how to quickly and easily shatter 25 pounds of Heath (tm) bar to add to ice cream.

    Now since SCO is talking about "enterprise" capabilities, you'd have to pick an "enterprise" level flavour. Actually, since Ben and Jerry's is "enterprise" level ice cream, you'd have to change the analogy to, say, Baskin Robbins sueing B&J for publishing the recipe to some marginally wacky flavour BR doesn't even make, like, say Cherry Garcia.

    I give you -1, Bad Analogy, 10 yards and loss of down.

    --
    How's my programming? Call 1-800-DEV-NULL
  28. Perfectly Reasonable by maynard · · Score: 3, Interesting
    "[Huges] had this to offer about the GPL and SCO: "The GPL, by its terms, only applies to software programs or works which contain a notice "placed by the copyright holder saying it may be distributed under the terms of this General Public License. (emphasis by him)"
    This is perfectly reasonable. We're all so pissed of at SCO that we forget to think of the potential consequences of taking this line of thought to its logical conclusion. Rip SCO out and reconsider this statement:
    I own a company which writes a proprietary application sold to the public. It contains lib 'a' which is used for manipulating the general class of 'foo', something very useful. One of my employees releases the lib 'a' source under the GPL without corporate knowledge or acquiescence. This is then incorporated into several other GPL'd applications, one of which we happen to distribute without knowing that a part of this application contains our source. Is lib 'a' now covered under the GPL because of our mistake?
    I certainly hope not. I doubt this would be rms's or the FSF's attorney wish either. Such a conclusion goes against the grain of allowing the copyright holder to designate contractual licenses limiting duplication rights. Note that I don't say right to use, but basic duplication rights. The eventual outcome of that would be a loophole which could dilute basic copyright law; the very foundation of the GPL.

    Whatever of SCO's code that may or may not be in the generic Linux Kernel, it's perfectly clear that only the owner of a copyright may specify the contractual terms of licensing. Simply put, if someone other than the owner contributed code which was accepted into the kernel tree (or distributed said code as a patch), the owner shouldn't be held to account for having also distributed their own code by accident; code which they didn't knowingly or purposefully contribute.

    Screwing SCO on a 'gotcha' because they continued to distribute the Linux kernel after they filed the lawsuit may seem like just deserts, but long term it could have damaging consequences to the Free Software community after the fact. We should instead be looking for prior examples of development and ownership for everything SCO claims copyright over. If everything they claim can be proven factually false, their case dies a just death. The way to win is to show that SCO has no legal basis for claiming copyright infringement: that they, as SCO, never created whatever code they claim as theirs is in the Linux kernel; nor could they have since the historical timeline clearly shows developments by a wide range of authors who have no connection to IBM, HP, or SCO (or Project Monterey, SCO OpenServer, and/or UNIXWare). Kill their idiotic suit with facts and they will shut up and die already.

    Should it turn out that some small portion of the kernel contains illegally expropriated code copyrighted by SCO, then rip it out and recode ASAP. Remove the illegal code from all previous copies in the masters and mirrors. Minimize the damage once it's discovered and plead to the judge that the principal authors didn't and couldn't have known. Point out that the plagiarizing author, the one who submitted whatever infringing code in bad faith, should be the responsible party. Let SCO sue that infringer, the person who willfully broke the law, and then let it drop. SCO winds up with little or no money, the principal authors keep their good name and reputation, and Linux continues on it's merry way.

    JMO,
    --Maynard
    1. Re:Perfectly Reasonable by MonopolyNews · · Score: 2, Interesting

      you're right. The real issue is the two months they still shipped and the fact that they are indemnifying their previous linux customers. If SCO's NON-GPL code is in those copies of linux it's either GPLed now or SCO is illegally shipping linux in violation of the GPL.

      SCO seems to be forgetting, they can indemnify their users against the use of SCO IP, but they cannot do that with all the rest of the linux code, which is legitimately GPLed. As if only their IP is of concern.

      I repeat, either their IP is now GPLed or they are violating the GPL. They must not just stop shipping Linux, they must recall the versions they have distributed.

      --

      Slashdot Journal on Monopoly News
    2. Re:Perfectly Reasonable by jareds · · Score: 3, Interesting

      I own a company which writes a proprietary application sold to the public. It contains lib 'a' which is used for manipulating the general class of 'foo', something very useful. One of my employees releases the lib 'a' source under the GPL without corporate knowledge or acquiescence. This is then incorporated into several other GPL'd applications, one of which we happen to distribute without knowing that a part of this application contains our source. Is lib 'a' now covered under the GPL because of our mistake?

      It need not be. You need not agree to the GPL, because you have never signed it. However, you have no right to distribute the GPL'd application (except for lib 'a' itself) in question without following the terms of the GPL, becuase you do not hold the copyright to it. You should thus immediately stop distributing versions of the application that contain lib 'a' (as should third parties, who have no right to distribute lib 'a' at all). In contrast, SCO has continued to distribute Linux long after filing this suit. If they have not caused their proprietary code to be licensed under the GPL, they are committing willful copyright infringement. I don't see how there can be other options available to them. (Also, in your example, one would expect your company to inform third parties that you hold the copyright to lib 'a' specifically and ask them to stop distributing it. SCO has not done this. No one yet knows what SCO is claiming copyright to sepcifically.)

      The point is that others cannot distribute GPL'd software containing SCO's proprietary code, but neither can SCO itself. That is the whole point of the GPL! If its claim that Linux contains SCO's proprietary code is correct, it must cease distributing Linux, or at least excise its code from the version it distributes. If SCO continues to distribute Linux without excising its code or releasing its code under the GPL, it should be sued for copyright infringement by the kernel team.

  29. Statutory Damages by overshoot · · Score: 5, Interesting
    Talk about foot-in-mouth. According to this, SCO deliberately and after consultation with Counsel chose to distribute copies of a copyrighted work without authorization (the non-SCO portions of the Linux kernel.) [1].

    Therefore, every copy of Linux that they've distributed since then (and maybe some before) meets all of the statutory requirements for "willful infringement," which carries a statutory damage of $50,000 to $150,000 per copy. It's not necessary to show damages in this case, the law itself specifies them. Slam-dunk summary judgment stuff.

    The FSF (assignee of at least some of the GPL contributions) should sue SCO pronto, citing their own testimony. SCO is estopped from denying the charge, the Court awards $50,000 times a whole bunch of copies, plus legal fees, and the FSF ends up owning what's left of SCO.

    Happily ever after.

    [1] Since they knew that portions of the work were encumbered, the GPL ceases to enable distribution of any of it, thus copyright law applies. See damages above.

    --
    Lacking <sarcasm> tags, /. substitutes moderation as "Troll."
  30. Re:Copyright notices by jjo · · Score: 2, Interesting

    While it's true that I can't release SCO's code and suddenly make its copyright disappear, SCO can release that code and make its copyright disappear (mostly).

    Since no one is required to sign the GPL, the analysis of any violation must take a two-pronged approach, either:

    1. SCO did not accept the GPL, or

    2. SCO did accept the GPL.

    1. If SCO did not accept the GPL, then all of its IP rights in the Linux code (if any) are still intact. It is free to sue anyone who distributed that code without a SCO license. Unfortunately for SCO, every holder of copyright in the Linux code (and there are a lot of them) has the right to sue SCO for copyright infringement. SCO cannot very well claim that it didn't know that Linux was copyrighted, since the copyright and GPL notices are quite clear. So, option (1.) doesn't look like a winner for SCO.

    2. If SCO did accept the GPL, then it's immune from lawsuits from the Linux copyright holders. However, this means that it licensed all the Linux code that it distributed. The GPL applies to the "work as a whole". If SCO wishes to avail itself of the GPL, it must abide by its requirements, first and foremost of which is that it must GPL the whole work it distributes.
    So, option (2.) doen't bode well for SCO's lawsuit. [If SCO wants to argue that the GPL doesn't apply in this case, then we're back at option (1.).]

    Even if a theoretical (and probably non-existent) Linux hacker included SCO code without authority to do so, SCO granted that authority the moment it released the code under the GPL. (Or, alternatively, it did not release the code under the GPL, and is now vulnerable to infringement suits from the Linux copyright holders).

    Either way you look at it, SCO's position in its lawsuit looks pretty untenable.

  31. Their argument DOES NOT HELP THEM. by Svartalf · · Score: 2, Interesting

    It's a valid argument. However, if they're claiming that they're not obligated under the GPL, they're mistaken.

    They knew about the distribution of their code for over 5 months if other official statements made by SCO are to be believed. It is the obligation of distributors of ANY code that is GPLed to ensure that the said code is not encumbered with non-licensed code or patented algorithms without a compatible license. In other words, SCO, by distributing Linux is obligated at the time of discovery to NOT distribute the said code- excising it from the distribution as needed. Since they did not, they abrogated their rights under the GPL to distribute the code in question.

    It's a simple matter really.

    Either they tacitly licensed the code and they should cease comments about infringement or they're guilty of 5+ months of infringement on the copyrights of the code that has the alleged infringements in it.

    --
    I am not merely a "consumer" or a "taxpayer". I am a Citizen of the State of Texas
  32. GPL by fedux · · Score: 2, Interesting

    "In other words, the GPL itself covers situations where code is improperly or accidentally contributed to the GPL without proper authorization (sic) of the true copyright holder."

    But *they* released the Linux code under the GPL in their distribution. So, *if* there is any part that is copyrighted by SCO they can't make any claims on that because *they* released it on the terms of the GPL.

  33. Re:Oh good grief. by Gerry+Gleason · · Score: 2, Interesting
    ... so i am not the least bit pleased that this is happening, but if it is true, i blaim ibm, not sco....

    If it is "true", then it just points again to what a muddled mess software patents are. More likely, it is just a steaming pile of FUD, and all the blame goes to SCO and their IP lawyers. The idea that they didn't or don't know exactly which modules, functions, code, etc. are infringing just shows how weak their position is. There is no evidence that they have taken any steps WRT complying with the GPL in terms of their own Linux distribution, so I doubt the courts will be very supportive of their position.

    To be clear, if third parties added SCO IP to the Linux distribution, then they (SCO) have an obligation to immediately stop their own organization from distributing infringing code, as soon as they became aware of it. Obviously, they can't do this until it is discovered, but they waited until long after actually filing legal actions before doing anything to stop their own distribution. The judge and/or jury will consider this when evaluating the merrits.

    Frankly, the lack of any specifics is damning. Even if they can't point to specific code, they should be able to make specific claims about unique technology that they consider to be their property. To the extent that it is patents at issue, they need to make those claims specifying the actual patents. To the extent that it is copyright, the claim is very weak because there is nothing wrong with reading code and writing a new version based on what you learned. Even if they have a claim WRT copyright, it is a comparitively small matter to fix this sort of thing once you know what pieces of code need rewriting.

  34. Re:Or in other words: by theLOUDroom · · Score: 3, Interesting
    No, it doesn't. If SCO didn't explicitely choose to include the code in Linux (it really is stolen, as they claim), then SCO also didn't explicitely choose to license the code under the GPL.

    Nope. Once they discovered the infingement, they continued to distribute the code under the GPL. At this point, they have willfully released their code under the GPL, even if they weren't before. (GPL copyright notices were included with the code distributed by them.)

    Before they knew, they were unknowingly violation the GPL. Afterwards, they knew they were distributing the code, and they knew the terms of the GPL. This leaves two possibilities:
    1. The therefore GPL'ed their code.
    2. The were illegally distributing Linux, since the GPL is the only thing with gives them the right to do so.


    Either way, SCO is fucked.

    #1 leaves them with no damages. (Except possibly IBM, good luck.)

    #2 leaves them willfully infringing on the copyright of the Linux kernel. This has all kinds of neat implications. I bet IBM owns the copyright on some part of the Linux code. They could sue SCO for more severe copyright infringement than SCO can sue them for.
    --
    Life is too short to proofread.
  35. Re:Oh good grief. by flafish · · Score: 2, Interesting

    IANAL.
    As soon as they knew that it was there, they had the obligation to stop selling their form of Linux. They didn't, and kept on selling until recently which meant that they blessed it being in SCO's Linux which is under the GPL. Any Linux version released after the date of them finding it and failing to stop their sale of their version would tend to make all later distros legal. Date of the filing for the IBM lawsuit is the latest they would have known and should have yanked it off the market for protection from the GPL.

    But did anyone buy it after that date? Want to send a copy to RH and the rest to give them the rights to use the SCO code?

    Sorry SCO, but you screwed up.

  36. It's SCO's fault; they have GPLed it, and worse! by leonbrooks · · Score: 4, Interesting

    If The SCO Group become aware that they have their "valuable IP" on FTP servers and heading out the door on CDs and do nothing to stop that (which is exactly what happened for several weeks), then it is either The SCO Group's fault that this happened, or the fault of every SCO employee who was in a position to stop the bleed and did not. I can't think of a court that wouldn't come down on the side of the former.

    Now that they're aware and have taken some measures to stop the bleeding, any further bleeding is entirely The SCO Group's own corporate fault. So "existing customers" that they continue to support by shipping stuff to - including the Linux kernel source with their "valuable IP" - represent a deliberate "dilution" of the "valuable IP" by The SCO Group.

    But it's worse than that: even presuming that there is some merit to their claims of IP theft (ha!), it no longer matters who "placed" the code under the GPL, because SCO have continued to ship (ie, "disclose") the source to that code themselves without removing it from the GPL, which is a clear statement that they accept the terms under which it is distributed.

    But wait! It's worse than even that! (-:

    In continuing to ship the code under someone else's copyright (call him/her/them/it Q) after they became aware of it they are acknowledging Q's ownership of that code... so Q now has some grounds for suing SCO for restricting distribution (of what SCO have acknowledged Q owns) contrary to the terms of the GPL which SCO have also implicitly accepted by "republishing" the code.

    It's a kind of heads-I-win-tails-you-lose situation, so SCO are in the unenviable position of their best option being pressing on blindly and hoping the coin lands on its edge or the toss is cancelled.

    --
    Got time? Spend some of it coding or testing
  37. SCO is in violation of the GPL already by Anonymous Coward · · Score: 3, Interesting

    The GPL clearly states:

    4. You may not copy, modify, sublicense, or distribute the Program except as expressly provided under this License. Any attempt otherwise to copy, modify, sublicense or distribute the Program is void, and will automatically terminate your rights under this License. However, parties who have received copies, or rights, from you under this License will not have their licenses terminated so long as such parties remain in full compliance.

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

    Threatening Redhat, SuSE and Linux users in addition to IBM, clearly ran afoul of "Any attempt otherwise to copy, modify, sublicense or distribute the Program is void, and will automatically terminate your rights under this License." It was an attempt to restrict the rights of users to code that SCO had intentionally released. From that moment on, SCO did not have a valid license to distribute Linux. Yet they continued to do so.

    Every Linux kernel developer now has grounds to sue SCO for violation of the GPL. I would suggest a coordinated effort, filing suits in as many jurisdictions as possible simultaneously. It is dirt cheap to file in small claims court in the US. Let them die the death of a thousand cuts.

  38. Re:Oh good grief. by shaitand · · Score: 2, Interesting

    ok, whether or not ibm had the right to distribute the code under the gpl is irrelevent. Because SCO distributed the code under the GPL and SCO had the right to do so, every line of code that SCO distributed is now GPL code for those they distributed it to, because again I assure you SCO had every legal right to license that code under the GPL.

    Now this doesn't mean that if IBM distributed the code before SCO did that it wouldn't be illegal and that IBM wouldn't be a fair target for lawsuit, it doesn't mean squat on that front (except SCO will have a tough time claiming that they themselves didn't put the code there first making it legal for IBM to distribute it). What it does mean is that any code in question that has been distributed by SCO under the GPL (even if IBM put it in a project, make no mistake if SCO distributed said tainted project they legitimized the code by themselves licensing it under the GPL) is pristine from this point forth and not something which need be taken out of those projects.

    Personally, I think SCO screwed up, put some of their own proprietary code in a project, and now wants to make up some of the damage by suing IBM who has money and access to the same code.

  39. Closest analog for SCO's behavior is rape... by Anonymous Coward · · Score: 1, Interesting

    They don't care who they hurt so long as they get what they want.

    Not trying to flame here at all. It's just every time I read about what SCO is doing the only comparable human behavior I can think of is a family member brutally betraying the trust and closeness of another family member by raping them.

    <TangentialRant>
    In a country where we afford coorporations the privileges of legal personhood it saddens me to see that even such legal fictions are capable of corporate acts no better than rape. I'd argue that because corporate persons are vastly more powerful than corporeal persons they should be held to much higher standards, but they're NOT - their power has purchased them influence and power that you or i can't claim or effectively counter, and i think this is a root cause of many of the problems we face today - as a society, as a community, as a country and as a planet.
    </TangentialRant>

  40. sco just a warm up for microsoft? by Anonymous Coward · · Score: 1, Interesting

    This is so disgusting it is repellant to take it seriously. However, the notion that MS (MacroSophistry) is behind all of this does have to be taken seriously and this has me worried. My fear is that what we are seeing with SCO is just a warm-up for a more concerted legal attack which MS will launch against Linux.

    The scenario would be something like this:

    A kernel developer, in league with people who aren't our friends, makes a contribution of code he or she knows to be copyrighted and proprietary. The code is released "under the gpl" and then the code owner comes forward and sues Linus Torvalds and others in the kernel developer community for failing to exercise due diligence.

    The idea would be to impose legal inhibitions on the development process in order to stifle or slow the linux development process. I hope someone is thinking of a way to protect against such a legal attack.