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Novell Claims Ownership of UNIX System V
Bruce Perens writes:
"We knew that SCO's attack on Linux was a lie. But we never dreamed of the big lie behind it.
"This morning, Novell announced some of the terms of the company's 1995 agreement to sell its Unix business to SCO. The shocking news is that Novell did not sell the Unix intellectual property to SCO. Instead, they sold SCO a license to develop, sell, and sub-license Unix. The title to Unix copyrights and patents remains with Novell. To back up this assertion, Novell refers to public records at the Library of Congress Copyright Office and the U.S. Patent Office.
"In their announcement, Novell refers to recent letters from SCO asking Novell to assign the Unix copyrights to SCO. So, apparently SCO's management team knew that they did not own Unix while pursuing their sham campaign against Linux.
"Along with this revelation, Novell is reiterating its support of the Linux and Open Source developer community, and its status as a partner in that community. Novell rejects SCO's accusations of plagiarism. Novell management says they do not intend to stand in the way of the development of the Linux kernel, its companion GNU system, and other Free Software.
"It would be an understatement to say that this leaves SCO in a bad position. The company has loudly and repeatedly asserted that they were the owner of the Unix intellectual property, all of the way back to AT&T's original development of the system 30 years ago. They've lied to their stockholders, their customers and partners, the 1500 companies that they threatened, the press, and the public. Their untruthful campaign caused the loss of sales and jobs, and damaged Linux companies and developers in a myriad of ways. And now, SCO will be the lawsuit target. SCO's quarterly earnings conference call is this morning, at 9 AM MST (11 AM EST, 8 AM PST). Call 800-406-5356, toll-free, to participate. You might even get to ask a question. It should be fun to watch them try to weasel out of this one.
"Microsoft executives also have egg on their faces. The company self-servingly rushed to buy an SCO license one business day after the threat letter, bringing a senior attorney to the office on a Sunday to tell the press how much Microsoft values intellectual property. Microsoft's management could have taken the time to analyze SCO's claims, if the company had wanted this license for practical and technical reasons. Their decision to buy when they did must have been motivated by a desire to add to SCO's fear campaign. Of course they'll grab any opportunity to spread fear about Linux, but this time Microsoft bought a pig in a poke.
"SCO management, if they insist on standing in the way of a train, could still claim that software they developed in the years since 1995 is being infringed by the Open Source developers. That claim, always a dubious one, will be difficult to take seriously now that their prevarication throughout this campaign has come to light. SCO would be well advised to drop their suit against IBM in exchange for IBM's agreement not to counter-sue. But IBM might not feel that charitable toward SCO.
"In contrast to SCO, Novell's made a friend among the Free Software developers. We're always happy to see people using our software. But a real partnership between an IT vendor and our community is an equal partnership, with the company donating services and new software in exchange for the value it receives. Novell has already placed important software under Open Source licenses. Today, the company has done us a tremendous service, by stomping upon an obnoxious parasite."
For now, we demand that SCO either promptly state its Linux infringement allegations with specificity or recant the accusation made in your letter. Further, we demand that SCO retract its false and unsupported assertions of ownership in UNIX patents and copyrights or provide us with conclusive information regarding SCO's ownership claims.
Finally, SCO being put in its place. I just wonder why this took so long for Novell to bring up.
"Engineers do the work of man, Physicists do the work of God"
That's hilarious! Especially the part saying "you repeatedly asked us to transfer ownership over the past three months" (words are my own). If this is true, then it shows what SCO has been doing is extremely, extremely immoral. They knew they had no basis for suing IBM and for demanding that companies license SCO, but they did it anway to try to make some money. All I want to know is, who's idea was it - Microsoft's? ;)
So what did MS buy from SCO ?
And most importantly, how much did they buy it for ?
Based on SCO's response, claiming that no patent or copyright issues are involved, then Linux and Linux users are safe from any action by SCO EVEN IF SCO WINS AGAINST IBM. I certainly hope SCO doesn't win, but even if they do, since the entirety of their claims are contract based, and NOT copyright or patent based, the Linux code base can't be touched.
Thanks
Bruce
Bruce Perens.
This whole thing has really started to remind me of the eniac patent suit. As soon as some technology starts to take off (long after it has actually been created), some larger adversary comes out and tries to threaten the validity of the original claims.
The exact same thing happened when Sperry (the company that bough Eckert and Mauchly's company, which made UNIVAC) was sued for rights to the ENIAC patent (that Mauchly and Eckert at the time held). No one had contested that Eckert and Mauchly had designed the first electronic computer, but instead had hooked onto details in the patent file. Ironically, IBM was in a very similar position as it is with the SCO/Linux problem. IBM has cooperated with open source to a great degree, just as it had licensed Eckert and Mauchly's products and was seen as a supported of the "dark side" by SCO, just as they were seen by those trying to strip E & M of their patents.
History really has a funny way of repeating itself
BSD is for people who love UNIX. Linux is for those who hate Microsoft.
SCO can sue IBM for breach of contract. IBM can lose. It'll not make a blind bit of difference to anyone except IBM and SCO and anyone else who signed a contract with SCO.
Anything generically aimed at Linux now is FUD.
You are not alone. This is not normal. None of this is normal.
In other words, Novell (assuming they do in fact retain copyright) can make this go away for Linux simply by, at whatever point SCO reveals what source was theoretically copied into Linux, slapping a copyright notice on the appropriate files and granting GPL on the code involved.
Unless, of course, what SCO means by having the "contract rights" to Unix involves having the exclusive right to license the source (but if so, why didn't they say so?). And, how exactly would posessing the exclusive right to license be different from copyright itself?
It looks like SCO might have stolen code from Linux, according to this post on the linux kernel mailing list
RFC1925
Their stock price is down today, so maybe The Street finally sees that the reality of the situation is that their operating systems division is failing. It is ironic that SCO made a profit selling licences to something that Novell now claims it 'owns' but I really cannot make sense of this mess any more. So maybe I just misundersand how SCO can sell licenses to something that Novell opwns the copyrights to.
Did anyone notice this?! I wasn't paying attention.
SCO 's Stock Performance
I think it's high time that the SEC got involved here.
Acts 17:28, "For in Him we live, and move, and have our being."
That's just pure unadulterated @#$!!. SCO sent out threatening letters to 1500 companies many of whom don't have contracts with SCO. If this case is about breach of contract then what in the heck is SCO doing intimidating these customers.
The fact of the matter is that SCO is simply trying to run up their share price so that SCO management can make a buck on the implosion of their company.
If what Novell claims is true then SCO has more than a few problems to handle. It will have to start with a global apology.
... Novel, unlike SCO, may not be thriving, but they aren't facing immenent bankrupcy either), then the fact that SCO lied to their shareholders is an SEC violation. It is fraud (among other things) and the perpetrators could be looking at a prison term (hopefully in a cockroach ridden, butt-slamming Pen, rather than Club Fed).
If this is true (and it almost certainly is
And, as others have pointed out, the civil damages and liability resulting from this fraudulant deception against SCO and those personally involved in the deception could well be quite staggaring. These people could well end up broke and in prison.
This, of course, assumes the government actually chooses to enforce the law this time. As we saw with the Microsoft Anti-Trust case, that is certainly not a given.
Regardless, however, it does vindicate GNU/Linux and free software in the extreme, and it does demonstrate the depths of depravity that Microsoft (who was quite transparently pushing this and financing it via a license they clearly weren't required to get) and its shills, such as SCO, will sink to.
The best revenge is living well, indeed, living better than those who have wronged you. Even if SCO were to get off scott free (unlikely), clearly, anyone running FreeBSD (which could theoretically have been targeted with a similiar FUD campaign) and GNU/Linux are living quite well (in the technical arena at least), certainly much better than the poor sops running Unixware and SCO, and arguably quite a bit better than those running the product of SCO's master in Redmond. We should take joy in that fact (but not let it slow down the counter suits and prosecutions from those who were more directly wronged by SCO's illegal and unconscionable behavior).
The Future of Human Evolution: Autonomy
From SCO's response, it appears they think that although they didn't buy the copyright, they did contract the exclusive distribution rights to the code. This appears to be like how Pixar contracted the exclusive distribution rights to its movies to Disney. Nobody can distribute all or parts of Toy Story except for Disney under the contract.
This wouldn't make it a copyright violation, but a contract violation that could have a serious ripple effect. We can't know until Novell or SCO releases the relevant terms of the contract.
SCO: "Oh, no, we were NEVER suing for patent infringment - it was ALWAYS a contract dispute over the LICENSING of the code." So, Novell, how'd you like to make about a kajillion new fans? License the code to IBM for a buck. SCO is irrelevant, problem solved. P.S. Didn't I hear somewhere that NW7 is going to be a services based connectivity, authentication and management layer running on Linux? Samba? LDAP? NIS? ACLs? THAT would be cool.
"Lawyers are for sucks."
- Doug McKenzie
Bruce
Bruce Perens.
Of course this address the "source code theft" issue. If Novell has the copyright, Novell must prosecute for copyright infringement.
After turning this over in my head a bit, I think you're right. SCO can go after IBM for breach of contract, but it would be Novell that would need to begin procedings to remove the code from Linux.
This assumes that the code in question is part of the SysV UNIX code that SCO bought from Novell. If it is something that SCO developed after the fact, it could be a different story. But since SCO has been begging Novell for the copyright to the SysV code, I can only assume that isn't the case.
the no
While IANAL, I hold 12 patents and have been involved in a variety of legal wrangles involving patents.
It would be very interesting to see the letters that SCO sent out. If they weren't worded very carefully, and they include assertions of IP rights that SCO in fact doesn't own they could definitely trigger a rash of lawsuits.
When I was working in this field we were VERY careful when we went trolling for license fees. Something like:
Dear Sirs:
It has come to our attention that you may want to consider licensing the following patents (list numbers here).
Signed
XYX Patent Attorney.
No claims of infringement etc. Just a word to the wise. The recipient would then decide what sort of position they were in and respond with something like:
Dear XYX:
We are interested in #47, and would like to offer a license to our #53 in exchange.
(In other words, yeah, we might be doing #47, but we think you are doing #53)
-or-
We are not interested. (Prove it).
-or-
We invented that long before you patented it and here is a copy of our documentation of the fact.
And so on.
Now, SCO is about to get their asses sued off by some very angry competitors, and what if they decide to squeal that the whole thing was Microsoft's idea in the first place?
Oh brother, this could get NASTY.
Even if Microsoft was just suckered in by the potential to do damage to Linux, SCO can make it very embarassing to Microsoft. This could be a lot more fun to watch than previous lawsuits.
They don't actually say they own the code (in this excerpt), but rather, that they have licensed it to IBM. As I'm sure you know, there are often agreements made that allow corporations to sublicense works; although Novell owns the code itself, if they granted SCO the right to license it (as they apparently have), and SCO licensed it to IBM (as they apparently have), IBM is still responsible for using it legally.
Good point. But this would also make it a pure license/contract issue between SCO and IBM - SCO does evidently not hold copyright or patent rights to the code, so they can't go after SuSE or any other GNU/Linux distributor, vendor or user.
If IBM broke the license, SCO can get damages. But unless I'm missing something it seems like they can not go after any other party for using or distributing said code. That makes the threat letter a bit puzzling, to say the least.
If J.K.R wrote Windows: Puteulanus fenestra mortalis!
It seemed at first that he was being pretty careful with his wording, with stuff like: "SCO owns the contract rights to the UNIX platform." But then...: "As the owners of the UNIX operating system..." They just said in their press release this morning that they never said they owned it, just the "contract rights" to it. It seems to me that this guy doesn't really understand the situation, that he was told by his lawyers "You can make money here" and he just believed them. He doesn't understand the difference between "derived from UNIX" and "works like UNIX". He even implicated that Sun might be a licensee of their source code, which, IIUC is false, Sun bought out their UNIX license before SCO got hold of even the limited rights to it they have.
Just another proletarian malcontent.
First Falcon-1 to orbit, then Falcon-9. Then I can die a happy man.
Novell is talking Patent and Copyright rights, SCO is talking "contract" rights.
SCO's reply states: "Copyrights and patents are protection against strangers. Contracts are what you use against parties you have relationships with."
This gives them no possible cause of action against anyone in the Linux community other than organizations that willingly entered into a contract with SCO. Moreover, it means that their entire case here can only be against IBM, for trade secret infringement of code that SCO itself published, which is not going to work. Yet SCO, by trying to claim trade secret protection on elements of the version of linux that they were shipping still violates the GPL clause 6 "You may not impose any further restrictions on the recipients' exercise of the rights granted herein."
Would some kernel contributor wake up and sue SCO for copyright infringement, please.