SCO Claims Linux Sales After Suit Irrelevant

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. "

Comments

SCO....

[levik]

Sounds like it's time to send them my resume.

A couple of thousand times.

Re:SCO....

[override11]

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)

Oh good grief.

[doublem]

They distributed the @($& code!

I hate lawyers, I really do.

Re:Oh good grief.

[Milo77]

it has nothing to do with whether or not they distributed it. they're claiming ibm stole they're ip and put it into linux without them knowing. the illegally obtained code makes it into mainstream kernels which caldera distributed. the point is, ibm never "owned" the rights to distribute the code under *any* license, much less the gpl. what you're suggesting is that i can steal all your ideas, releases them into the public domain, and you have no recourse, which is just plain silly. i am not saying that what they are saying is true (how would i know), but if ibm did in fact "re-license" code to which they didn't own rights to, then sco certainly has a leg to stand on - they were stolen from!! i use linux both professionally and recreationally, so i am not the least bit pleased that this is happening, but if it is true, i blaim ibm, not sco....

Re:Oh good grief.

[Gerry Gleason]

... 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.

Re:Oh good grief.

[mark-t]

If it is "true", then it just points again to what a muddled mess software patents are

This suit is all about misappropriated trade secrets, not patents. SCO is not claiming to have patented the code in question here, so what you are saying doesn't apply. (Of course, I think software patents are abysmal too, but I see no reason to drag that issue into this.) Since it is about trade secrets, SCO will have to come up with some sort of proof that the code in question really was misappropriated from SCO and not just independantly developed (mere similarity of design doesn't by itself count as proof). Since Unix and its internals have been well documented in numerous books and talked about at length in many operating systems courses for over 20 years, I suspect SCO may have a heck of a time proving this.

Re:Oh good grief.

[flafish]

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.

Re:Oh good grief.

[Archfeld]

The rules on trade secrets give them legal recourse to recover money for the LOST SECRETS, but once out in the open they are SECRETS NO MORE and can't be stuffed back in the bottle.

Re:Oh good grief.

[shaitand]

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.

Re:Oh good grief.

[shaitand]

This is true, and if IBM did what SCO accuses then they certainly have a lawsuit.

But the important issue has nothing to do with IBM, the important issue is that the copyright owner, SCO, distributed this code under the terms of gnu public license (GPL), they were aware it was there (how else could they file a lawsuit?) so they weren't doing so without their knowledge. If a copyright holder chooses to distribute source code under the GPL then that copyright holder has every legal right to do so and said code IS GPL'd code now and forever. Thus any projects that SCO distributes that had that code in them are NOT tainted as is because SCO itself GPL'd the code.

Now that doesn't help IBM a bit, but it does protect the other distributions and assures that
SCO has no legal rights to prevent that code from being used, modified, and redistributed from here on... they do however still have the right to offer it under other licenses to other parties under whatever terms they wish, for instance they can continue to license the code to IBM for use in the proprietary AIX distribution without affecting the gpl'd version of the code whatsoever.

Re:Oh good grief.

[mark-t]

The rules on trade secrets give them legal recourse to recover money for the LOST SECRETS,

Only if those secrets had been somehow misappropriated. If they were discovered through the process of independant invention or reverse engineering, they're stuck.

SCO PR department working overtime.

[dtolton]

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.

Re:SCO PR department working overtime.

[happosai_tendo]

>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.

They MS is where they got their "legal advice"

Re:SCO PR department working overtime.

[MonopolyNews]

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".

Re:SCO PR department working overtime.

[PCM2]

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..."

Re:SCO PR department working overtime.

[jgerman]

See there's the rub. It doesn't matter if the engineers weren't supposed to release it, or if it didn't go through legal. No one outside of Caldera is subject to their internal procedures. They fucked up, they face the consequences. I've said it before. If those engineers did something to cost the company money fine punish/fire them. But those engineers are acting on behalf of the company, it's not our job to police what they do.

Re:SCO PR department working overtime.

[GrenDel Fuego]

Only the actual owner of the code has the ability relicense it. Employees of a company generally do not own the code that they write (and especially code that was not written by them) unless it's specifically stated in their contract. I doubt a contract at MS allows that.

Since they don't own the code, they don't have the ability to relicense the code under the GPL.

Re:SCO PR department working overtime.

[PCM2]

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. :-)

Re:SCO PR department working overtime.

[jmauro]

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.

Re:SCO PR department working overtime.

[jgerman]

I think you're missing the point. These employees are getting paid by the company to write code. If they screw it up, it's the company's responsibilty to make sure products they are releasing aren't going to cause problems. The engineers did not release the code. The company did.

Re:SCO PR department working overtime.

[bwt]

You forgot his participation in the most dramatic legal defeat of our time: Bush v Gore.

Re:SCO PR department working overtime.

[magi]

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.

That's not correct. Distributing doesn't matter if it is done either accidentally or because of a fraud. The legal point here is due diligence, and cross-checking Linux codebase against their own codebase is everything but routine operation, and might even be impossible.

However, this argument would only matter if they unknowingly distributed something they didn't intend to. That is not the case with SCO -- they continued distributing their (alleged) code under a conflicting license.

It doesn't matter a bit if the copyright holder did not place the code in GPL licensed codebase, if they knowingly continue distributing it under GPL. And if it does, they are breaking GPL by distributing non-GPL code in a GPL program. If they win, sue 'em, I say. Either way, Linux wins legally.

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.

Due diligence applies also to this, to some extent. It's a court's decision what diligence is due.

Also notice that proprietary licenses must contain a warranty, and the provider can't disclaim just everything (well they can but it doesn't apply). GPL licensed software, on the other hand, can be provided without warranty, "as is", so diligence is not needed at all.

IANAL, IDKA

Re:SCO PR department working overtime.

[Dr Caleb]

Clippy: "It looks like you're trying to write a lawsuit. Would you like to:"

Embrace

Extend

Extinguish

Crapflood

Re:SCO PR department working overtime.

[Jason Earl]

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.

Re:SCO PR department working overtime.

[orcrist]

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

Re:SCO PR department working overtime.

[magi]

That code is under GPL, period, or else they can't distribute without THEM violating the codes license.

I just realized that they might actually intend to go for that.

You see, they might say that the proprietary code that they distributed along with their Linux is not distributed under GPL. In that case, the users have no right to use it without a license from SCO.

Yes, yes, distributing non-GPL stuff in GPL software would be a violation of GPL and copyrights, but so what? That might not nullify their copyrights to their own code. FSF or some other entity would certainly sue them for the violation and demand compensation for...what damages? Yes, there is a concept of statutory damages, but those damages have limits, while the potential profits (hundreds of millions) from a SCO-Linux license do not.

However, it would probably not work that easy. While the statutory damages have a ceiling, a judge can rule that the defendant must pay damages for each violation if he continues to violate the copyright knowingly (after the ruling)! Such possibility makes sense -- a violator should not profit from continuing to break someone's rights.

The problem is that SCO would then have to stop selling their own Linux. That would not stop them from milking Linux users until Linux is dead.

This makes me worry.

IANAL, BIPOOSD, IDKA, IAN.

Re:SCO PR department working overtime.

[rifter]

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.

Re:SCO PR department working overtime.

[arkanes]

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.

Re:SCO PR department working overtime.

[DavidTC]

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. ;)

Linux claims SCO irrelevant after suit

[wowbagger]

Linux claims SCO irrelevant after suit.

Re:Linux claims SCO irrelevant after suit

[axxackall]

I thought Linux claimed SCO irrelevant even before suite: I saw SCO customers migrating from SCO Unix to Linux (I've been seeing it for about 8 years, since I did it myself), but I've never seen Linux users migrating to SCO.

Well DUH

[Lord Bitman]

let's go buy some code from Microsoft, and slip a windows disc in the binder before they hand it to us. THEN IT'LL BE OURS!

One wonders...

[irokitt]

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.

Same as something else?

[TrancePhreak]

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

Copyright notices

[Anonymous Coward]

IANAL, but I thought that (at least under English
Law) something is copyright whether or not there is
a notice on it.

Re:Copyright notices

[Anonymous Coward]

It is. That's not the issue. The issue is that something can only placed under the GPL by its copyright holder. If somebody ELSE places a work under the GPL, then the GPL does not apply.

SCO is saying that work that belonged to them was placed under the GPL by somebody else, and that therefore that work is not protected by the GPL, and that therefore... well, you know the rest.

Re:Copyright notices

[kalidasa]

It is under US law, too (IANAL, but I'm pretty sure about that one).

Correct me if I'm wrong, but I think they're arguing that they didn't put *their* copyright notices on the Linux code that contained "their" "stolen" code, so they didn't invoke the GPL on that code, even though that code was contained within GPLed code, and that they didn't do so because they didn't realize that "their" code was in there, because "they" didn't add it, "someone else" did. Am I paraphrasing their argument accurately? Because if I am, I suspect they are in legal lalaland.

But IANAL

Re:Copyright notices

[jjo]

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.

Also in the news...

[Seth Finklestein]

As a famous cybersecurity researcher, I have access to news articles that are impeccably fresh.

Understanding the Micro$haft-SCO connection
SCO Group drops old Caldera name - .com.com: isn't that a funny domain name?
German Linux association may drop SCO as member
Thousands say 'SCO Sue Me'

As a famous cybersecurity researcher, you should believe what I tell you.

Sounds like "poisoned roots"

[John Penix]

Am I correct in distilling their argument as:

"we are the copyright holder of Linux, only we are the copyright holder of Linux, and therefore only we can place Linux under the GPL. Since we didn't; it isn't".

Interesting claim.

Re:Sounds like "poisoned roots"

[Abcd1234]

Nope, their claim is this: We are the copyright holders of the pirated code. The code was stolen without our knowledge and placed in the Linux kernel. Therefore, the attempt to license said code under the GPL was done without our permission. Thus, since they did not have the authority to place our code under the GPL, the license does not apply (as per a clause in the GPL itself).

Re:Sounds like "poisoned roots"

[dackroyd]

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.

Re:Sounds like "poisoned roots"

[The_Rook]

this is, so far, the clearest description of sco's case i've seen. it's even clearer than sco's own argument.

but it puts sco in the wierd position of having infringed the copyright on their own code.

Deplete the warchest

[PhipleTroenix]

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.

Re:GPL == ?

[shepd]

Uhhh, that's what it stands for, eh?

Well, it is actually "GNU General Public License" in full, but GPL for short (I suppose you get to choose what you want the G to stand for).

Playground bully

[blackp]

If a kid hands a kick ball to another kid on a playground, then later sues the kid to pay rent for using that kickball, that is just silly.

If code was released into the GPL public domain, then SCO has the right to get reparations against those responsible for releasing that code, and maybe those responsible for knowingly distributing that code. In this case, they fire the guy that release the stuff into public domain, and request removal of their propritary information. Getting back licensing fees is nothing more than being a playground bully asking for kids' lunch money to play kickball.

Re:Playground bully

[kalidasa]

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.

Why care?

[Anonymous Coward]

In the 'Free World' (tm) SCO wouldn't have any possibility to win a courtfight. Of course in some 'other countries' law isn't always on the side of the innocent.

Have fun with your government and don't cry foul - after all: you get what you vote for.

Re:Why care?

[Lendrick]

Have fun with your government and don't cry foul - after all: you get what you vote for.

Not in the United States, you don't.

Re:Why care?

[DeltaSigma]

Indeed, here it's "you get what you pay for," and I'm afraid certain monopolies have deeper pockets than I...

Careful!

[wowbagger]

Be careful - what if they accept your resume and hire you?

Then you get to watch them pass the Schwarzschild Radius from the INSIDE!

Won't help

[Cro Magnon]

Even if all 3 of them return their copies.

Their sales dropped to zero,

[HermanZA]

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

Obvious.

Big Myths about copyrights

[rxed]

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. "

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.

SCO is running out of ideas. They are doomed.

Re:Big Myths about copyrights

[Abcd1234]

Actually, I believe the point of this argument is that, because SCO itself didn't choose to license the "unmentioned code" under the GPL (as they are the copyright holder), then the GPL does not apply, as per a couple clauses in the GPL itself.

Re:Big Myths about copyrights

[StormReaver]

"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.

Re:Big Myths about copyrights

[Fnkmaster]

Yes, but the question is did they continue to redistribute the GPLed code in question AFTER they knew their "stolen code" was in there. That implies that they continued to accept the GPL license on that code, since they were "aware" of their own copyrighted code in the other parts of the work. Whether or not they "marked" it with a copyright notice is irrelevant as I understand the law (IANAL), but whether they were aware of and intended to license said code under the GPL is eminently relevant. Their continued distribution under the GPL of a work they knew to be composed of their own copyrighted code and others copyrighted code implies that they intended to place that code under the GPL at that time, and only after the fact, decided that it was more beneficial for them to take the "it was stolen, let's sue everybody" approach. They can only do that if they can show they never intended to release the code under the GPL - and it seems like admitting that they waited many months before stopping their own GPLed distribution of the relevant source code certainly does not strengthen their case. It likely hinges on whether a judge deems that they took reasonable efforts to prevent further dissemination of that code by their own organization under the GPL - how many months of lag time is reasonable in your mind?

Re:Slashdotted??

[Anonymous Coward]

Erik Hughes (SCO flunky):
"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."

Which is true, so far as it goes. However, GPL section 7 states (emphasis added):

1. 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.
2. 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.

They really should get better lawyers.

reminds me of the cold war.

[MagicMerlin]

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?

Caldera != SCO and SCO != Caldera

[Znonymous Coward]

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

argument

[pigscanfly.ca]

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)

Do they think IBM, et al, are idiots?

[ashpool7]

The GPL sections they quote only cover code that is distributed by persons other than the copyright owner. Since SCO "owns" the code, the sections do not apply if they distribute it.

This trial just needs to get started so IBM can thrash SCO into bankruptcy.

Liability by accident?

[jcdr]

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.

In other news...

[mugnyte]

Ben and Jerry's Ice Cream is suing Baskin Robbins for copyright infringement, due to BR's use of the "vanilla" labelled product sold in all of its stores today.

B&J sells their own Vanilla using plainly listed ingredients and readily available flavoring. During a brief joint-venture between the two companies, Ben and Jerry's and Baskin Robbins formulated a suite of flavors. During this time, B&J claims Baskin Robbins stole the Vanilla formula and process from their internal patented process files. No mention on if Baskin Robbins actually simply read the label on the product to mimic this flavor.

Vanilla, or "plain" ice cream has been around for quite some time. The original copyright owner is itself under question, since the ingredients and process to form a similar flavor to the B&J private version are deceptively simple. The knowledge for creating such a product predates B&J and is well known in academic cooking circles.

A spokesman for B&J's Ice Cream commented Thursday: "We own Vanilla. Any use of the process were without our permission to create an exact product. Nobody could create vanilla without knowing our process. We demand compensation for any other vanilla product which has diluted our market share."

And now for something completely different...

Re:In other news...

[Ricdude]

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.

GPL Really stands for...

[douglips]

GPL Public License

Re:GPL Really stands for...

[Eneff]

No, that's

GGGGGGGGGGGGGGGGGGGGGGGGGGGGGGGGGGGGGGGGGGG^C

Sorry, got stuck in an infinite recursive loop.

Call it out....

[BubbaTheBarbarian]

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!!!

After the lawsuit, ...

[burgburgburg]

when they would in theory have full information on what SCO code was stolen, if there were any SCO code in their Linux distribution, they would have been releasing it under the GPL.

If on the other hand, they claim that their distribution did NOT have any SCO code, then simply diff their distribution against all others to find the files/code sections that they are potentially claiming are SCO code.

And if there is no difference, then we have further proof that their lawsuit is an extortionate gamble, a desperate grab for cash and a FUD tool of their new friend Microsoft.

Re:After the lawsuit, ...

[nexex]

well their stock price has jumped dramatically with all this racket...

Re:After the lawsuit, ...

[technoid_]

i just wonder if it is in response to the idea that IBM/whomever will buy them to kill this lawsuit.

Course stock price doesn't mean much about the quality of the company.

3000 lawsuits can't be wrong....

[Anonymous Coward]

Slashdot them to oblivion!

For Some Reason...

[Greyfox]

I just had the mental image of Lazlo Troth sitting in the steam tunnels with a printing press running 24x7.

Lets every single one of us send them a resume a day for the next couple of months.

Re:SCO cannot fight the power of BSD!

[bloxnet]

I can't help it, I have to ask.

Are you trying to somehow use pictures of a couple of possible pederasts hanging out with what appears to me to be a girl with a mild case of Down's as somehow superior to a collection of white Urkels hanging with Linus?

For some reason while reading your post I kept thinking about that line in Wargames when the computer states the only way to win is not to play.

Here's SuSE's public statement

[cheros]

SuSE responds to latest SCO actions

The UnitedLinux product -- 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.

http://www.suse.de/en/company/press/press_releases /archive03/sco_statement.html

From the GPL...

[MrGrendel]

Section 2 b states:

b) You must cause any work that you distribute or publish, that in whole or in part contains or is derived from the Program or any part thereof, to be licensed as a whole at no charge to all third parties under the terms of this License.

This means that even if some sections were in violation of SCO's copyright, then SCO still has to license the entire kernel under the GPL because other valid non-SCO copyrights are in there. They can't just pick and choose pieces, or even files, and claim that they are not covered. If they are part of the kernel, then SCO has to consider them to be covered if they want to redistribute. So, SCO either gave their implicit consent to release those sections under the GPL, or they can claim that they are and never were covered by the GPL, which means that SCO was distributing Linux without a license or any other permission to do so. If they can't or won't abide by the terms of the GPL for any reason, then they cannot distribute any of the code.

Re:From the GPL...

[ctid]

I thought this originally, but I think I was wrong. What SCO is claiming is that the SCO code was placed in the Linux kernel by someone other than the copyright holder. In such a situation, they are right about the fact that the GPL doesn't apply.

None of this proves that there is actually SCO code in the kernel of course. The longer they delay in revealing exactly what it is, the more I think they're bluffing.

Re:From the GPL...

[schon]

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.

Re:From the GPL...

[jareds]

Here's why: If I get a job at Microsoft, and slip a bit of GPL code into the next Windows and Office release, without Microsoft's knowledge, it is just too bad for them and the whole thing is free (as in beer) now?

No, it means that Microsoft has either released it under the GPL or committed copyright infringement. They can cease distributing the version that includes the code they have no right to, and pay damages to the copyright holder. The latter option is no different than the consequences of an employee slipping in code copyrighted by someone else but not covered by the GPL.

Likewise, SCO can either claim that they have released the code in question under the GPL, or that they have committed copyright infringement by distributing code covered by the GPL (the rest of Linux that isn't the alleged proprietary SCO code) without complying with the terms of the GPL. The difference between the SCO case and the hypothetical Microsoft case is that the SCO case would be willful infringement, since they have continued to distribute Linux since they filed the suit.

Re:Or in other words:

[Abcd1234]

Yeah but publishing linux for years even after this lawsuit constitutes as authorization for it doesn't it?

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. And if that's the case, then the GPL doesn't apply to their code, and it reverts to the standard Berne Convention rules.

Reminds me from the old Marx Brothers movie...

[Teddyman]

Quote from Duck Soup:

Chicolini: Now I aska you one. What has a trunk, but no key, weighs 2,000 pounds and lives in a circus?

Prosecutor: That's irrelevant.

Chicolini: Irrelephant? Hey, that'sa that answer! There's a whole lot of irrelephants in the circus.

If it doesn't matter...

[dinog]

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.

Re:If it doesn't matter...

[John Penix]

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.

Exactly, exactly. "Our distribution of Linux does not make it GPL'd, even though we stopped once we realized our mistake".

nice try

[sbwoodside]

They're trying to say that if the person who contributes the code is not the copyright holder, then the GPL doesn't apply, so they're not responsible for GPLing the code, so their distro doesn't count. But it does.

He 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)

But they published the code, and it contained a notice, which they also published, saying that it's under the GPL. Even if the code went through other hands first, they are claiming that they are the copyright holder, AND they published it with the notice. So they STILL fall under the GPL provisions.

Simon

Re:Caldera != SCO

[hughk]

I was a Xenix 386 and later a SCO ODT developer. Frankly, their stuff had all the problems of bad open source stuff but without the source code to allow you to repair/rebuild. The Microsoft/Lattice C compiler sucked big time and it was the devil's own job getting gcc up. It was easier to get it up under VAX/VMS (without all the posix support that it had in later years).

For thoes who havent been keeping track...

[Znonymous Coward]

Here is the SCO businesses model...

Step 1. Caldera buys SCO.
Step 2. Flush SCO down the toilet, Linux and OpenUNIX rules!
Step 3. Caldera Linux and OpenUNIX sales aren't so good.
Step 4. Rebrand as SCO and embrace Linux (if embrace = SuSe's distro ~s/SuSe/SCO/)
Step 5. SCO Linux sales aren't to good, but we still own UNIX IP.
Step 6. Sue IBM, get them to buy us out for our UNIX IP.
Step 7. Read GPL.
Step 8. Woops, we GPL'd our way out of a case.
Step 9. Strip ourselves of Linux so M$ will give us money.
Step 10. Start a FUD war funded by M$.
Step 11. ???
Step 12. Profit?

The GPL also states

[cyber_rigger]

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

Stable door

[HermanZA]

Judges are familiar with 'closing the door after the horse bolted'.

SCO has no case.

Isn't this just more media for Linux?

[msimm]

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.

Is this really a big deal?

[Groovus]

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?

Re: When will we find out what the code is?

[Black Parrot]

> 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.

How about a Slashdot Interview

[lobsterGun]

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?

Re:How about a Slashdot Interview

[mandolin]

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.

Re:How about a Slashdot Interview

[swillden]

How about we have a Slashdot Interview with an anonymous SCO techie?

A SCO employee would have to be a complete fool to do this right now, regardless of what guarantees of anonymity might be provided. In a situation like this, the possible repercussions of being found out far exceed simply being canned.

SCO Invites You to Join Its Conference Call

[Anonymous Coward]

The SCO Group Invites You to Join Its Second-Quarter 2003 Results Conference Call
LINDON, Utah, May 22, 2003 -- The SCO® Group, Inc. (Nasdaq: SCOX) will report financial results for its second quarter ended April 30, 2003 before the market open on Wednesday, May 28, 2003, followed by a teleconference regarding its results and outlook.

WHAT: The SCO Group, Inc. Second-Quarter Results Conference Call

WHEN: Wednesday, May 28, 2003, 9:00 a.m. Mountain Daylight Time (11:00 a.m. EDT)

HOW: If you would like to participate in the live call, you may dial 1.800.946.0719 or 1.719.457.2645; Passcode: 728447.

You may also join the call in listen only mode via web cast at http://ir.sco.com/conference.cfm or www.companyboardroom.com

These sites will host an archive of the call for a minimum of 30-days.

About SCO

Founded in 1979, The SCO Group, Inc. (Nasdaq: SCOX), helps millions of customers in more than 82 countries around the world grow their businesses everyday through the company's UNIX, Linux and Windows business solutions. Headquartered in Lindon, Utah, SCO has a network of more than 16,000 resellers and 8,000 developers. SCO Global Services provides reliable localized support and services to partners and customers. For more information on SCO products and services, visit http://www.sco.com .

SCO and the associated SCO logos are trademarks or registered trademarks of Caldera International, Inc. in the U.S. and other countries. UNIX and UnixWare, used under an exclusive license, are registered trademarks of The Open Group in the United States and other countries. Linux is a registered trademark of Linus Torvalds. All other brand or product names are or may be trademarks of, and are used to identify products or services of, their respective owners.

Re:not kernel

[tomhudson]

If you've followed this from the beginning, the suit itself (not the suits at SCO talking about it, who haven't read their legal brief) doesn't state thate there is any code from SCO/Caldera/whoever in the linux kernel, just that there are 8 or 9 library files that are used to run older software. None of these files are shipped with any of the newer distros, so it's all bs anyway. When's the last time you used/needed iBCS support?

Step 11:

[mikeee]

Executives pay selves huge severance packages as company goes under.

Use OSS methodology against SCO

[bstadil]

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."

--

Total Crap

[bwt]

This is total crap. Under SCO's theory, they are admitting violating many, many authors copyrights. If they are distributing ANY non-SCO GPL code mixed with non-GPL'd code (owned by SCO or not) then they have commited a violation of the GPL'd code's copyright. They are practically stipulating to the fact that they have commited copyright infringement.

The hypocracy of SCO's position is amazing. Let's think about this... Linus and Co. wrote codeset A, the parts of Linux which are their original work. SCO claims it owns codeset B (the UnixWare stuff) and that IBM created codeset C=A+B. If SCO distributed C then they are infringing the licence on A for exactly the same reason that they claim everyone else is violating the licence to B by distributing C. In fact, for them to distribute C is worse from a legal point of view, because they believed that it was infringing, whereas nobody else does. Since SCO has refused to even notify anyone else who distributes C (including the authors of A) of which parts of codeset C they believe are infringing, they are the ONLY ones who could prevent the infringement since they are the only ones with the knowledge to prevent the infringement.

If their view of the facts turns out to be true, then their distribution of Linux was willful for-profit infringement, practically by stipulation, and Linus, Alan Cox, Dave Miller and every other legitimate code author should get statutory damages from SCO as well as any profits that SCO earned as a result of their infringement.

IF YOU WROTE ANY PART OF LINUX, YOU SHOULD SUE SCO FOR COPYRIGHT INFRINGEMENT FOR DISTRIBUTING YOUR CODE IN VIOLATION OF YOUR LICENCE

One reason they're ignoring the GPL issue...

[chiller2]

I can see it now...

"In his new position at Unix vendor SCO, former Iraqi information minister Mohammed Saeed Al-Sahaf wasted no time in denying the claims that SCO had given away intellectual property within its own Linux distribution.." ;)

Step 11.1

[Znonymous Coward]

Stock goes up 300% based on FUD. Sell, sell, sell.

Note to SCO...

[earthforce_1]

You are too far from reality!

Perfectly Reasonable

[maynard]

"[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

Re:Perfectly Reasonable

[MonopolyNews]

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.

Re:Perfectly Reasonable

[jareds]

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.

Re:Perfectly Reasonable

[jmorris42]

> Screwing SCO on a 'gotcha' because they continued to distribute the
> Linux kernel after they filed the lawsuit may seem like just deserts

Perhaps, but how about these ideas?

If we stipulate that there is some SCO IP in the kernel (which I doubt) and that IBM did indeed contribute it to Linus and claim it as their own (which I'd be shocked to find true) and acknowledge that SCO did indeed distribute said tainted code before and after learning it's origins we get the following:

1. SCO can not expect 3rd parties to be any more liable for infringement than SCO themselves are for their own lack of due dilligence. Since SCO is likely to hold themselves and their customers blameless they can't then expect damages from anyone else. After all, only SCO possessed their precious archival UNIX code to compare against so they were in the best position to detect the infringment.

2. Since SCO has yet to formally request a DMCA takedown, no distributer can be held liable up to such time as they file a formal takedown request. Yes, the DMCA is going to work in our favor in this case, especially for kernel.org and mirrors.

3. So we get a best case for SCO, where they prove their case anc get a total legal victory and are unable to collect damages from anyone other than IBM. And IBM can keep the case on appeal until sometime after the final trump blows so they get no money and end up bankrupt.

Statutory Damages

[overshoot]

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.

Re:Statutory Damages

[theLOUDroom]

Wow. That's a really good point!

If they're claiming the weren't distributing their code under the GPL, they had no right to distribute to Linux kernel at all.

The GPL is one damned clever license. I think it's probably the most important thing the FSF has ever done.

Re:Statutory Damages

[Jetifi]

That's [restriction on distribution of encumbered work] not stated in the GPL

I think this should cover it:

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.

Now, IANAL, but if SCO claim that Linux is encumbered, this should meet the criteria of 'conditions'' that ''contradict the conditions of [the GPL]''. So if(the above == true) then ''as a consequence you may not distribute the Program at all.'', which is fairly clear.

Just my two cents.

Lawyers can be idiots, too...

[OmniGeek]

As we can clearly see from SCO's assorted statements (sordid statements?). Then again, their lawyers have to put the best public face on whatever rotten hand their client and the facts have dealt them, so maybe they KNOW that they have no case and are banking on the fact that judges can be idiots as well. It makes me have a moment's sympathy for lawyers with idiot clients. ... Whew, thank goodness that passed quickly!

Their argument DOES NOT HELP THEM.

[Svartalf]

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.

Re:SCO....vs Raelians

[IronClad]

Raelians:
Small cult following space aliens
SCO:
Small company following space cadets

Raelians:
Believe genetics will keep them immortal.
SCO:
Believe SYS5 never died.

Raelians:
Announced a nonexistent clone for some rich suit, hid the evidence.
SCO:
Announced an expensive suit over a nonexistent clone, hid the evidence.

Raelians:
From France, prefer outer space.
SCO:
From outer space, prefer Utah.

Raelians:
Hideous pseudo-human spokesperson
SCO:
Ray Noorda

Raelians:
Pull stunts for public attention, hoping we'll buy their crap.
SCO:
Ditto, but hope IBM will buy their crappy company.

Following the money

[bill_mcgonigle]

Gee, this is real hard:

• SCO releases trivial code under GPL.
• SCO sues IBM (Microsoft's most feared competitor) for releasing said code in Linux distro - plans large court battle to find IBM guilty/GPL invalid. Announces intention to sue linux system integrators.
• Major media all run articles spreading FUD as to whether developing for linux is a recipe for disaster. Microsoft purchases advertising in said media.
• Microsoft pays SCO 'undisclosed sum of money' to license code most people think they likely don't and won't use.
• SCO announces GPL irrelevant.

A conspiracy theorist might imagine this scenario:

Microsoft: "Hey, you're on a cash burn deathmarch - how would you like to make a bundle of money and keep your jobs for a couple more years?"
SCO: "OK, what do we have to do?"

Just because you're paranoid doesn't mean they're not out to get you...

The GPL doesn't give too many choices here

[p3d0]

Well, as I see it, SCO can only have it one of two ways, with regards to kernel code:

1. The code they released in their Linux distro was implicitly covered under the GPL or something compatible. In this case, they don't have a leg to stand on in their suit against IBM.
2. The code was not covered under anything compatible under the GPL; ergo, they violated the GPL by distributing GPL'ed code with their own.

(Disclaimer: Though I am an IBM employee, I am not a party to any "inside information" that makes me any more of an authority on this topic than any typical Slashdot reader. I am merely spouting an unfounded opinion of my own, based on my superficial familiarity with the GPL. See my sig.)

If I were IBM

[CoralCain2002]

I would create a program called "Prepare for the Future" This program would provide migration to SCO customers who wish to migrate from SCO Unix to IBM Linux. Then I would give the service away for free to the first 1000 customers who sign up.

You asked for it.

[MasonMcD]

OK. I guess we have to cover this territory once again. Here is SCO's legal argument:

"Ladies and Gentlemen of this supposed jury, SCO's detractors would certainly want you to believe my client was issuing confusing EULAs, confounding their critics and confusing the multitudes, and they make a good case. Hell, I almost felt pity myself. But Ladies and Gentlemen of this supposed jury, I have one final thing I want you to consider.

Ladies and Gentlemen, this is Chewbacca. Chewbacca is a Wookiee from the planet Kashyyyk who carried a gun and ran from the mob. But Chewbacca lives on the planet Endor. Now think about it. That does not make sense. Why would a Wookiee, an eight-foot-tall Wookiee, want to live on Endor with a bunch of two-foot-tall Ewoks. That does not make sense.

But more important, you have to ask yourself what does this have to do with this case. Nothing. Ladies and Gentlemen, it has nothing to do with this case. It does not make sense. Look at me. I'm a lawyer representing a major software company and I'm talkin' about Chewbacca. Does that make sense? Ladies and Gentlemen I am not making any sense. None of this makes sense.

And so you have to remember when you're in that jury room deliberating and conjugating the Emancipation Proclamation, does it make sense? No. Ladies and Gentlemen of this supposed jury it does not make sense. If Chewbacca lives on Endor you must not acquit.

I know he seems innocent. But ladies and gentlemen this is Chewbacca. Now think about that for one minute. That does not make sense. Why am I talking about Chewbacca when billions of dollars of recurring license revenue are on the line? Why? I'll tell you why. I don't know. It doesn't make sense. If Chewbacca does not make sense you must not acquit. Here look at the monkey , look at the silly monkey.

The plaintiff rests."

Re:code theft.

[loginx]

It's more likely that SCO people cut and paste things from your resume into their own. There are many reasons for this, all true.

I disagree.
If you put a copyright notice in your resume, they would have to sue themselves for violation of copyright because that's illegal.

I'm thinking about offering them to license my resume...

--
this->value = 0;

GPL

[fedux]

"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.

Knowledge of GPLed code

[Gerry Gleason]

Actually, the MS example and the SCO case are almost the opposite. MS releases a non GPL product, and through an error or actions of an employee they ship some GPL stuff along. No problem, they just remove it as soon as they become aware. SCO releases a product that they well know is coverred by the GPL (at least most of the core components), and someone in their organization adds some of their IP to it, they can't claim that their organizational intent wasn't to release a GPLed product. Their claim that a third party introduced the code that wasn't intended for GPL does give them some recourse. We don't expect the SCO release team to know everything that IBM added to the kernel, but as soon as they knew or suspected, they had an obligation to inform the Linux community in a way that makes removing their code easier. If they continue to distribute Linux after being aware of the problems, they are weakening any IP claim they may later bring.

Re:Or in other words:

[theLOUDroom]

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.

In case you were wondering what happened to...

[i_want_you_to_throw_]

The Iraqi Information Minister.
He now works for SCO.

It's SCO's fault; they have GPLed it, and worse!

[leonbrooks]

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.

SCO is in violation of the GPL already

[Anonymous Coward]

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.

MS/SCO hope there is NO "After the lawsuit, ..."

[The Monster]

lawsuit is an extortionate gamble, a desperate grab for cash and a FUD tool of their new friend Microsoft.

SCO and MS do not want the suit to actually go to trial. They want it to drag out as long as possible, because if it goes to trial they will lose bigtime, and strengthen Linux.

Meanwhile, as long as the suit hangs like the Sword of Damocles over the heads of IT managers considering a move to Linux, it fuels the FUD. It's the threat that Linux could cost some undefined amount if SCO wins that gives MS the ability to scare the crap out of the PHBs.

Nice try...

[DarkVein]

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.

• SCO's strongest claim against IBM is based on trade secret law, not copyright.
• 1976 Copyright law does not require copyright notice to be posted, and as both SCO and IBM are US companies, Berne Convention be damned.

SCO's claims have nothing to do with the GPL license. The only impact GPL may have is in a resolution to solve the problem: can the alleged code be extracted from a public work? This question requires that 1) code can be considered trade secret, and 2) the code is still a trade secret, after SCO's complete ineptitude to enforce anything resembling secrecy over seven years.

IANAL

Copyright not protected

[gkuchera]

Seems to me if I remember my copyright law correctly if you don't expressly give up your copyright on something you wire it still belongs to you the author. So wether it's GNU or not it's still covered by whoever wrote it.

-My 2 cents..

Geoff

Well, look at this way

[delmoi]

If I hack into IBM's servers, steal the code for AIX (or whatever), and then shove most of it into my own OS under the GPL, it would not free the OS/2 code, even if IBM put it up on an FTP server somewhere. Because they didn't know.

The GPL is not a law, it's a grant of rights by the owner of the copyright. You can't give up rights unintentionaly.

(not that SCO isn't totaly full of shit)