SCO's Real Motive... A Buyout?

psykocrime writes "Acccording to this article in ComputerWorld, CEO Darl McBride of SCO has finally discussed the possibility of a buyout by IBM in public. Among other things, McBride says: "I'm not trying to screw up the Linux business," he said. "I'm trying to take care of the shareholders, employees and people who have been having their rights trampled on." and "If there's a way of resolving this that is positive, then we can get back out to business and everybody is good to go, then I'm fine with that," McBride said today in an interview with Computerworld. "If that's one of the outcomes of this, then so be it." Also, yet another computerworld article indicates that most of the press and analysts who have been invited to take part in SCO's "public review of the infringing code" have declined... apparently due primarily to concerns over the terms of the non-disclosure agreement SCO is asking them to agree to. Linus in particular has said "no way" to signing their NDA to look at the code."

Comments

Hang one a second...

[Realistic_Dragon]

If SCO has to give 95% of UNIX royalties to Novel, and SCO wins a suit (right after a bunch of pigs fly overhead) based on that IP, doesn't that mean that SCO would have to give 95% of the winnings to Novel?

Re:Hang one a second...

[d^2b]

The clarification I read from Novell is that the 95% figure is only for an existing set of contracts at the time of the deal with SCO. So the gist of the article was that this was not as much of a smoking gun as Slashdot (or Bruce Perens) thought.

Note that this is not making any claim about who owns the copyrights to the Unix code, just what the SCO 10k statement means.

Re:Hang one a second...

[d^2b]

Here is the link to the article I mentioned, for the google-challenged.

Re:Hang one a second...

[Your Anus]

According to Novell, SC0/Caldera only got the right to license Unix to other people. They don't own the patents (now expired) or the copyright to the code. They don't even own the trademark "UNIX," which transferred to the Open Group after UNIX Systems Laboratory settled their suit with the University of California.

The only thing SC0 owns is the XENIX/OpenServer/Unixware code that they did not get from Novell. I think the Open Source Initiative wrote about this not too long ago. Check it out at opensource.org.

teh ir0ny

[lvdrproject]

Haha, wait. Linus has to sign a non-disclosure agreement to look at the code for the operating system he created? You are richer than rich, SCO.

Re:teh ir0ny

[SkArcher]

Linus is right;

Torvalds in an e-mail interview compared the fight between SCO, IBM and Novell Inc. to bad TV. "Quite frankly, I found it mostly interesting in a Jerry Springer kind of way. White trash battling it out in public, throwing chairs at each other. SCO crying about IBM's other women. ... Fairly entertaining," said Torvalds.

Pass me the popcorn.

On a more serious note is the statement that;

[Micheal] Overly said a review of the code by anyone other than a judge "means absolutely, positively nothing" in determining the merit of SCO's claims.

So basically, the word from a legal expert is 'lets get this to court, shall we?'

Bring it on Darl!

Re:teh ir0ny

[Baumi]

It's the source for SCO's brand of UNIX, not for Linux.

While SCO alleges that part of the Linux sources are copied from their OS, it's not like SCO's UNIX is Linux.

(It'll still be interesting to see SCO trying to prove that somehow someone copied the source of closed-source software to use it an a GPLd piece of SW. After all, they'd also have to disprove the far more likely alternative that one of their developers illegally copied Linux freely available GPLd code to use in their closed-source kernel.)

Re:teh ir0ny

[Garion911]

Almost like John Fogerty (from CCR) being sued for plagerizing himself

Re:teh ir0ny

[NewbieProgrammerMan]

[Micheal] Overly said a review of the code by anyone other than a judge "means absolutely, positively nothing" in determining the merit of SCO's claims.
So basically, the word from a legal expert is 'lets get this to court, shall we?'

I just hope it's a judge that has a clue about code. <sarcasm> And I'm sure there's a lot of those available. </sarcasm>

Seriously, though, has anyone ever sat in on a case where something technical was involved? I sat on a jury where some scientific evidence was presented, and I know the entire presentation went right over the heads of almost everyone on the jury. Fortunately someone on the jury knew enough to get the judge to ask a question about some aspect of the evidence; the answer of the expert witness pretty much demonstrated that he was misrepresenting some of the results of his tests. I always worry about there not being a clueful person involved in technical cases, because people can make really irrational decisions when they're swamped with stuff they don't understand.

Hopefully the fair use of and/or similarity between two works of literature provides a good model for the judge to use to make a decision. I would hate to see something like this get screwed up because it was presided over by a judge that can't set the timer on his/her VCR, let alone make sense of kernel code.

Re:teh ir0ny

[Anonymous Coward]

The sort of tactic SCO is employing here isn't new. I've been reading about the DR-DOS case at:
http://www.drdos.com/fullstory/factstat.html#intro
As everyone knows, Caldera bought DR-DOS and sued Microsoft for anti competitive behaviour. An interesting part of the above story is this:

Warning Messages and Other Scare Tactics

41. DR DOS did not infringe MS-DOS, and Microsoft never made such a legal claim. Nonetheless, in Korea -- a country where OEMs early on considered DR DOS favorably -- Microsoft told OEMs in "open forum seminars" that "DR DOS was a copy of MS-DOS, and anybody that used that product would be sued by Microsoft." Dixon Depo. at 349-350. Microsoft confirmed this explicit verbal threat with veiled threats from its attorneys. Id.; see also Exhibit 40.

So either Caldera (SCO) have learned about (and probably admire) Microsofts past business tactics and know how effective they can be at destroying competition. Or Microsoft is the puppet master behind this. Using another company as a front for their FUD campaign doesn't further degrade Microsofts public image.

Reading the DR-DOS case really does open your eyes. It really is like a soap-opera, I can't believe just how bad Microsoft were/are.

Re:teh ir0ny

[SkArcher]

Query: Does anyone have a link to the text of the non-disclosure agreement the SCO are wanting the experts to sign?

I'd quite like to have a look at exactly what is being asked of the experts.

Re:teh ir0ny

[Thing 1]

I had the same thought, but worded differently:

Linus, would you please scan in the NDA and post it for us to review?

Thanks,
Slashdotters

Re:teh ir0ny

[Lectrik]

Query: Does anyone have a link to the text of the non-disclosure agreement the SCO are wanting the experts to sign?

I'd quite like to have a look at exactly what is being asked of the experts.

Unfortunately the experts had to sign an NDA to read the NDA they were being asked to sign.

Take away their publicity

[caluml]

It's almost that we're giving them a platform to stand on and spew forth their venomous vitriol by persistantly putting stories about them on Slashdot.

Without publicity, they'll wither and die more quickly, so why don't we choke off their oxygen feed by ignoring them?

Re:Take away their publicity

[Martin Kallisti]

Because whichever way you put it, it's still important news that might affect the whole community.

Not publishing newsworthy items just because it is related to someone which one for one reason or another does not like, is a form of active censorship (as opposed to the passive censorship that all selection of news is, naturally) which - IMHO - does not belong on Slashdot.

Re:Take away their publicity

[ctid]

I don't think that [taking away their publicity by ignoring them on Slashdot] works here. The problem is that the effect they are aiming for is to stop businesses from adopting Linux. In this way they hope to encourage IBM and other organizations to buy them out to avoid more damage to the Linux market. We could ignore them here, but their version of this story would stil be all over the mainstream (Internet-based) tech press.

I think publicity here helps, because I'm sure that many readers here will be in a position to influence opinion regarding SCO and their so-called claims on Linux IP.

Re:Take away their publicity

[Anonymous Coward]

You're giving way too much weight to slashdot as a forum. Yes, Slashdot is a forum that allows a platform for discussion, but it's not the only one.

If a story is reported in Computerworld, or MSNBC, or Info Week, or Washington Post, it's already news. Cutting off the discussion on Slashdot doesn't stop that fact.

Re:Take away their publicity

[Cpt_Kirks]

Without publicity, they'll wither and die more quickly, so why don't we choke off their oxygen feed by ignoring them?

You are forgetting that this mess is being driven by lawyers. Since lawyers are a form of anaerobic bacteria, cutting off their oxygen won't help...

Re:Take away their publicity

[sphealey]

The best possible option IMO is for IBM to buy SCO out, in as hostile a takeover bid as possible, thereby tying up the funding that SCO would otherwise put to use pursuing this IP idiocy.

Organizations like IBM never give in to threats, or to actions that could be construed as extortion. And if you think about it, they cannot: if one small company holding a few patents were able to force Bigco to pay 1 billion dollars, then Bigco would shortly have no money left. This aggressive defensive behaviour sometimes leads big orgs to make bad decisions (particularly in situations involving people rather than things), but that is another story.

The weird thing to me is that if SCO had approached IBM quietly and said: "hey, it looks like we have some IP problems here - why don't you buy us out and resolve those problems" then there is a good chance IBM might have considered it. Shareholders happy, golden parachutes for everyone, IBM looks like a hero to the Linux world: the proverbial win-win compromise. But instead SCO took a confrontational approach knowing that IBM would counterattack. Wonder why.

sPh

Re:Take away their publicity

[Hangtime]

You can't negotiate with criminals because if you do, what will stop the next company from doing the same thing that SCO's doing today. You have to just put the foot down and beat them here or you'll have every small company that is desperately seeking a buyer do the same thing and this will become an ongoing IP problem. I you have five companies each year claim some sort of IP infringement even its TOTALLY baseless, if their is a remote chance they might win they will take that chance. At that point, IT managers won't want to here about Linux and all its wonderful value because all they see is a risk of being sued.

Take my advice for all it's worth and make SCO an example to the rest of the world. Kick the ever-living crap out of SCO so hard and so bad now so nobody tries this ever again.

Re:Take away their publicity

[Bunji X]

At first I read your last sentence as: "Without publicity, they'll wither and die more quickly, so why don't we choke off their oxygen feed by igniting them?" :)

Guess that would work as well.

Re:Take away their publicity

[slam smith]

You can't negotiate with criminals because if you do, what will stop the next company from doing the same thing that SCO's doing today.

Normally I would agree with you, but in the insanity of the US court system and its lottery mentality, you almost have to deal with them. The risk of losing is so enormous, the pressure to simply do a deal is overwhelming. I'm not saying it is right, just that it is reality.

SCO literally has nothing to lose here. And that is the problem. If the CEO and the other executive officers of SCO faced some personally liability for filing bad claims (i.e. they could end up paying a $100,000 or more fine) they would more carefully wiegh the risks of going to court. And other companies would be more willing to fight these extortion lawsuits if the court system afforded them more protection.

Re:Take away their publicity

[aussersterne]

Unfortunately, it's not that simple. SCO are pushing this case hard with press releases in the public eye, and that's where the real danger lies, not from any Slashdot posting.

In typical fashion, mainstream media are confused as hell about technology and the players in it, and are reporting utter crap essentially on the strength of SCO's press releases alone. My local media outlet ran a story recently on how longtime Linux competitor SCO, one of the biggest players in the IT market, may finally have found the evidence it needs to prove that Linux developers have stolen intellectual property from Unix.

There are any number of things wrong with this statement of course, but crack local reporter Jill Schmoe doesn't know this, she has a press release, a deadline and an editor to work with. That's what she came up with.

Contacting the parties themselves doesn't help... So far, SCO is apparently easy to contact and willing to blather on at length about how it's been wronged by Linux (they seem to have forgotten IBM for the most part) but IBM of course is staying rather tight-lipped and when Jill Schmoe needs to 'call Linux' she doesn't even know where to start, so she just gives up on that one.

Stopping the Slashdot coverage is likely to end the only Linux-positive forum in this conflict.

Re:Take away their publicity

[Mike1024]

Hey,

what will stop the next company from doing the same thing

Normally I would agree with you, but in the insanity of the US court system and its lottery mentality, you almost have to deal with them.

I have an idea... why not have the entire of the SCO management killed?

No-one has to go to court, and no-one tries the same thing again. There's no risk* - Everybody** wins!

Just my $0.02,

Michael

*assuming hired killers escape capture
**except SCO

Re:Take away their publicity

[Anonymous Coward]

What I find amusing is that if we are to believe that MS made the agreement to license SCO IP before all this mess occured, then MS agreed to pay 10 million to a company that at the time was barely worth 12 million.

I'm sure the only thing preventing MS from a purchase [of SCO] is the legal problems it would cause.

Re:Take away their publicity

[mkldev]

SCO has a -lot- to lose. If it is determined that they knowingly filed charges under false pretense, they can be charged with perjury and various other ethics violations, and their legal team can and almost certainly will be disbarred. It is very much in their best interest for this -not- to go to court, particularly if they ever want to work in any job other than burger-flipper.

Further, they can, as individuals, be held personally liable for their actions in the form of civil suits by IBM and the various Linux distributors (and maybe even Linux users and developers) for libel, slander, harassment, and so many other charges that I don't know where to begin. With enough public pressure, there's a good chance they might even be brought up on criminal charges.

Make no mistake, SCO as a company may have little to lose, but a company is made up of individuals who are ultimately responsible for their own actions, and while they cannot be held liable for SCO's debts if SCO gets sued into oblivion, they are still very much accountable in the eyes of the law for any illegal actions that led to that demise, and knowingly filing false charges is very much illegal.

Forgive the rant: -after- SCO loses in the ugliest court battle the tech industry has ever seen, I want to see every single one of their executives and lawyers fined and, where possible, sentenced to jail time in a federal pound-me-in-the-ass prison. It isn't enough just to make an example out of the company. You must also make an example of anyone who knowingly contributed to this mockery of our judicial system. -Then- you will have slowed the tide of outrageous IP claims.

Fun!

[hatless]

Any chance IBM's legal team could string together SCO's actions of the last couple of weeks and make a case that SCO was trying to blackmail IBM? Maybe there's a RICO case here. Ha.

Re:Fun!

[sql*kitten]

Any chance IBM's legal team could string together SCO's actions of the last couple of weeks and make a case that SCO was trying to blackmail IBM? Maybe there's a RICO case here.

Any chance? IBM's lawyers are among the most dangerous people on the planet. They have a huge stockpile of Patents of Mass Infringement, and a budget that would make the Special Forces weep. Companies like IBM and Xerox (and others) quietly do huge amounts of research, and patent it all. Most infringements they don't care about, because they simply cross-license IP from their allies. Most of the them exist for one reason: so that if anyone sues IBM for anything, they can respond with total disaster, a big smoking crater where your NASDAQ listing used to be. "Yeah, we infringed one of your patents, sorry about that, oh but you infringed about a hundred of ours, you have 20 seconds to come out with your hands up and your pants down."

The one threat that IBM faces here is setting a precedent by buying SCO outright. They won't want to do that unless backed into a corner because it might encourage others. It's more likely that they'd buy Novell.

Re:Fun!

[the gnat]

Maybe there's a RICO case here.

You misunderstand the point of RICO. It was designed to take down corrupt organizations that were structured to insulate those in charge from the individual crimes committed by their henchmen. Prior to RICO, it couldn't be proved under existing rules that (for instance) some Mafia boss knew who pumped sixty bullets into Salvatore "The Cleaver" Luchese, or that he'd ordered the hit himself. Under RICO, it became possible to bust him by demonstrating a "preponderance of evidence", showing that there was no way he couldn't have known. Thus Giuliani and others used RICO to nearly demolish the Mafia by accumulating many smaller cases.

RICO has also been applied to fringe religious groups in recent years; I was just reading an article about suing the entire Hare Krishna organization for child abuse. Violent anti-abortion groups have been targeted in a similar way. And though it's too politically explosive to pull off, mention has been made of the Catholic Church. (I'm not sure I like this idea, but the church leadership hasn't helped its case much.)

RICO really isn't applicable to SCO at all. On the other hand, they would be a ripe target for a stockholder suit, if it turns out they lied (and/or gambled the existence of the company on a lawsuit against one of the most aggressive in the business). Someone else mentioned the term "barratry" in an earlier thread, which I believe means the frivolous filing of lawsuits. The 1500 letters could also be actionable if SCO was lying. Finally, it's possible that the SEC could get involved.

Re:Fun!

[Ozan]

Look it up in the U.S. code, TITLE 18--CRIMES AND CRIMINAL PROCEDURE, CHAPTER 41--EXTORTION AND THREATS, Sec. 873

Short: No.

Re:Fun!

[Chester K]

Maybe there's a RICO case here.

Maybe not a RICO case, but certainly clear-cut extortion. SCO has effectively said "You're infringing on something we think we own, and the only way we're going to give you the information you need to stop that infringment is to sign this restrictive contract with us, or else we'll sue you."

I wonder if someone threatened with a lawsuit could sign the NDA, disclose everything, then have the NDA thrown out in court as it was signed under duress.

Rewite

[Mattygfunk1]

When the offending code is removed from linux, what do SCO expect will happen? It will simply be rewritten by the community and improved as a result.

cheap web hosting dragon action figures

Re:Rewite

[hackstraw]

Unfortunately, its not that simple. IBM is the one in "trouble" here, not Linux. SCO is suing IBM for some kind of breach of contract, which will not go away if the offending code is rewritten.

Re:Rewite

[lspd]

When the offending code is removed from linux, what do SCO expect will happen? It will simply be rewritten by the community and improved as a result.

That's why you can't see the code without a draconian NDA and why they will not show you all of the code. They want the code to STAY IN LINUX so they can license their Unix IP to Linux users.

If your software sucks...

[DeadFish]

... try getting money other ways, I guess. SCO Unix sucks the butt. If it didnt, and if it were actually a market contender, I can't imagine they'd be grasping at these straws. The buy-out seems like a sensible motive, and sure as heck doesn't consume me with dread the way that a "sco unix is the only unix" world does.

S.C.O=

[Captain Galactic]

Screwed Corporation's plan to get Out rich.

Of course they want a buyout. IBM is one of the biggest companies in the world. The execs line their pockets with money, and everone else gets laid offor quits. And if they take down linux, more money flows from the backdoor that, if you folow it, leads to Microsoft.

Re:S.C.O=

[Ed Avis]

They already got $1G from Microsoft. Why not return that money to shareholders, wind up the company and go home?

Last time I looked SCO's market capitalization was only $40M or so, which reflects the market's judgement that SCO's management is not going to make good use of the cash windfall, so its value when tied up in SCO is a lot less than the cash value.

Unless Novell is getting 95% of the payment Microsoft made? Which would explain why the share price is so low, and deflate conspiracy theories about Microsoft funding a lawsuit. (Although $50M is still a handy sum to throw at the legal system.)

Re:S.C.O=

[Timesprout]

What are you babbling about. IBM hava been pushing Linux more than anyone in the corporate arena. The main reason I think they would acquire SCO is to get control of the licensing SCO is curently claiming. This would be actually be bad news for MS as IBM would then be in a very strong position regarding their integrated software/hardware stack and way ahead of MS with their consulting division. IBM are already starting to offer basic office functionality on demand thru their Websphere server so they obviously have their eye on some of MS's current market share. A buyout of SCO would not be the worst thing IBM could do.

Re:S.C.O=

[Anonymous Coward]

Simply Cash Out

Better outcome - IBM buys Novell

[Picass0]

IBM should flip SCO off buy buying Novell and releasing Unix under the GPL. SCOs legal case (or bluff) would instantly disolve.

Re:Better outcome - IBM buys Novell

[frdmfghtr]

No it wouldn't. The UNIX code allegedly used in Linux would be EVIDENCE that contract term were violated. IIRC, it is this alleged contract terms violation amongst other illegal acts that is at the heart of the suit, not whether there is UNIX code in Linux--a point that seems to have fallen by the wayside. The code is merely evidence; and it is this ghost-like "evidence" that SCO claims to have that is causing SCO to look like a bunch of buffoons. "We have evidence, but we really don't want to show it. But it proves IBM violated our IP."

As I have said before, changing or destroying evidence doesn't change the fact that a crime was committed.

The only code in question is recent SCO-IBM code

[Ja-Ja-Jamin]

Given that Caldera (SCO) previously gave away the source code for System V, and that early code was given away in a book that Caldera eventually approved, and the SCO licensed Unix to Lindows.com, which distributes it under GPL, the only code that could be in question is very new code - basically the Monterrey project. Given that McBride has stated that they are main interested in Linux Kernel 2.4 it should be easy to track down all IBM additions/suggestions for additions and remove them/modify them.

However, since Lindows has a license and they are distributing Linux Kernal 2.4 under GPL,it seems that SCO has already lost the battle due to their own actions. So it may not even be necessary to remove the code, since even SCO distributed it under GPL!

thumbs down

[Anonymous Coward]

I hope IBM takes SCO to court and I hope that SCO gets wiped out. The more financial damage IBM can incur on SCO the better. Pissing in the well should never be rewarded.

Investors should have known better than to back an obvious loser so if you've got SCO shares at this point you've got to be pretty daft.

Ideally, this time next year, SCO is just a bad memory.

Back to Friday's Press Conference...

[Anonymous Coward]

SCO unilaterally rejected Novell's claim to hold the UNIX IP that Linux allegedly infringes against at their press conference on Friday. But I remember that Perens and others pointed out the ownership information associated with the copyrights and patents was clearly attributed to Novell.

Can someone please point out which patents and trademarks were in question, and how to verify that these artifacts actually *do* show Novell's ownership?

(IP Lawyer question:) Is that information normally changed when IP changes hands through an agreement such as the one between Santa Cruz Op. and Novell? (i.e. whould the data in the patent office or LOC be an up-to-date represenation of current ownership?)

Re:Back to Friday's Press Conference...

[poptones]

IANAL but... let's put it into another frame that may help understanding:

I make a movie with my buds. We spend $100K of money hyped from friends and family and shoot a cool low budget western. Miramax sees it and likes it, they want to sign it. So, they contract a deal with me and my buds giving them exclusive license to our low budget western for the next twenty years.

Now, I still own the copyright. It's my movie: all Miramax bought were the US distribution rights. Does that mean I can't sell those rights to someone in Mexico? Maybe - maybe not; depends on the contract. But if they bought exclusive US rights then one thing is sure: I can't sell those exclusive rights to any other US distributor. And if Sony decides to stick it on DVDs and they haven't cleared it with Miramax, those will be the entities going to court; so long as I didn't break my end of the deal (by trying to sell the same rights twice) then it ain't my battle - it's up to Miramax and Sony.

SCO claimed at first they owned... Then, when put in their place by Novell they changed it to we own the rights... It's entirely possible they own (via licensing) exclusive rights to something that is actually owned by another entity.

That's the entire point of copyright and patent protection: to allow you to hold an exclusive property that can be traded and sold through contract. SCO may or may not have a case, but it's not a stretch to believe they (at least) honestly believe they own exclusive rights to a property owned by Novell.

"no way" ???

[Black Parrot]

I think they dropped a word out of the middle of the Linus quote.

Anyone who buys SCO

[eap]

will have to deal with the fact that no one in the *nix community will ever want to do business with what is the current company.

If IBM buys SCO, and I hope they don't, they should gut SCO for their customers base, engineers, and products, and can everyone else working there.

Even if this results in a massive win for SCO, I see them getting no new business in the future due to the trouble they have caused. Linux code will be rewritten in a week or so, and SCO will be left with perpetually declining sales.

I always said that Red Hat should have bought SCO with inflated stock shortly after Red Hat's IPO several years ago. We could have had all of SCO's customers on Open Source by now and there would be no IP disputes.

Re:Anyone who buys SCO

[SpaceLifeForm]

I agree. Time to eliminate taxes.

no

[Rumagent]

"If there's a way of resolving this that is positive, then we can get back out to business and everybody is good to go, then I'm fine with that," McBride said today in an interview with Computerworld. "If that's one of the outcomes of this, then so be it."

A positive outcome of this would be the complete and utter bankrupt of SCO. It would be shame if that kind of shitty behavior is rewarded.

If I belived in hell I would wish them there... On the other hand, they would probably be thrown a "welcome back" party.

Re:no

[TopShelf]

There's the proverbial snowball's chance of getting back to business as usual here. When your CEO sends a threatening letter to the majority of the Fortune 2000, you've pretty much destroyed your reputation for customer orientation!

Re:No

[kscguru]

I have the distinct suspicion that when this does come out in court, we're going to discover that the supposedly copied code is a kernel header file.

"Hey, you copied 100 lines out of our code!"

"Uh... those 100 lines define POSIX standard XYZ, and there really is no other way to write them"

"But you still copied our code!"

(end cynicism)

SCO UnixWare

[UltraWide]

Is not an operating system I would recommend to any of my customers to buy and run on their servers.

I have worked with this piece of **** OS and I can say one thing. Datacorruption.

Real case:

SCO UnixWare with veritas filesystem runs Oracle.

Box crashes --> Oracle data corruption.
These boxes crashed a lot (several times a week)

We called SCO support who blamed Oracle ..
Oracle desperatly tried to find the problem. It was a known bug, in guess what? SCO UnixWare.
SCO did not allow Oracle Server to open the files with directIO, that is circumvent the filecache in the OS. By design it should but in this case it did not, it was a bug in the Operating System.

SCO did not even bother to check their bug database and blamed Oracle who, thank god, found the problem.

I guess that SCO is desperate to make money. Wait who has the money? IBM is rich let's sue em ..

Mole hill into a mountain?

[Psarchasm]

Sure IBM has a past history of being very supportive of the Linux community. But who do you want attempting to legally guide the future of Linux? SCO or IBM?

Its not supposed to matter how big you are in court - unfortunately it does matter.

IBM may well buy SCO

[ites]

As a way of trumping the Microsoft-sponsored nonsense SCO is putting out. SCO is attacking the Linux brand, which IBM has invested so much in, and Microsoft hates and fears to totally. IBM will not go to court: this would be playing the game Microsoft is hoping for - a 20-year battle over the rights to use Linux (and maybe by association, all OSS?) in the business context.

Expect IBM to make an offer for SCO, to publically announce that it has now "bought the rights to Linux", and it will start to assert control over it.

Sleep with an elephant at your own risk.

Screwing Linux

[krumms]

Among other things, McBride says: "I'm not trying to screw up the Linux business,"

Oh really? Then could Mr. McBride please explain why I hear things like, "SCO to Linux Users: Cease and Desist" and "SCO delivers a warning"?

Sounds to me like Mr. McBride is trying to make up for the self-hurt caused by his company's own arrogance. What better way to ruin your competitor than by scaring the shit out of their users?

Re:Linux is the ultimate of UNIX bastardization

[JJahn]

Sounds good. To prove that, why don't you go steal some MS source code, submit it as blabla.c, and see if it gets into the kernel. You might find that Linus absolutely does not just "let anybody's code in" the kernel.

Re: Only if ...

[guybarr]

They (IBM, of course) are complete and utter morons. Which I see no evidence of.

Expect IBM to make an offer for SCO, to publically announce that it has now "bought the rights to Linux", and it will start to assert control over it.

Yeah, right, FUD themselves in the foot, they will.

Big Blue as OSS Mega-Hero?

[Cpt_Kirks]

IBM could come out of this smelling like a rose. If they either stomp sco like a roach in court or buy the assholes off, then put the whole damn sco ip package under the GPL, hackers will love them forever.

If they make this gift to the community, then be careful in the future to not piss us off, IBM could make billions more than they already make.

"IBM, Savior of Linux", wow. That may be enough to get RMS to take a bath.

Re:Big Blue as OSS Mega-Hero?

[daeley]

"IBM, Savior of Linux", wow. That may be enough to get RMS to take a bath.

He'll never open the spigots unless it's "IBM, Savior of GNU/Linux." ;)

a desperate act

[vistic]

I for one (like probably everyone here) hope they don't get bought out.

I hope they get ridiculed and made an example of... let this be a lesson to other companies that it's unacceptable to behave this way.

This is just all so laughable.

Re:scosucks.com

[SkArcher]

Have you noticed that it was registered only 12 days ago?

So, anyone out there bought the domain? We'll all help with content :)

suppose they gave a war and nobody came?

[Fishstick]

most of the press and analysts who have been invited to take part in SCO's "public review of the infringing code" have declined

reminded me of the title of that movie with Tony Curtis and Brian Keith suppose they gave a war and nobody came?

I just think that is funny. They invited everyone to come look at the "evidence", but they made the conditions such that nobody will play.

"Well, we provided an opportunity for the community to come and see -- they chose to stand us up."

Wasn't there some "11 o'clock" meeting that they held up where they invited Novell to come and talk this over and nobody showed up? Seems pretty transparent to me.

Is anybody buying this? Apparently not, given the drop in their stock, eh?

YALBS (Yet Another Lie By SCO)

[fanatic]

Per Darl: "I'm not trying to screw up the Linux business,"

Then why did SOC send threatening letters to 1500 corporations telling them their were IP issues in Linux when:

• SCO doesn't own the IP and
• The lawsuit is a contract issue that can ONLY apply to IBM, especially once the offending code (if any actually exists) is revealed and written out of Linux.

The letter was nothing short of blackmail - give us money or we'll keep throwing turds into the punchbowl.

"Having their rights trampled on?!"

[aussersterne]

I know at least two people who bought Caldera stock around IPO time because it was a Linux company. They believed in Linux as a product, wanted to support Linux development, and thought there might be some future profit in it.

I've heard a lot from them over the last week. With Caldera/SCO's current action, they've ended up as pawns in a game to attack Linux -- not at all the reason they invested their dollars in the beginning. They have decided to sell out as a result of the SCO action, and have lost significant money in the process on Caldera/SCO shares alone. But they also realize that the dollars they had invested this company have supported action which may eventually reduce the value of their larger holdings in other Linux companies. I can understand the frustration that they must feel.

I'd venture to say a lot of Caldera investors may be in the same position. So what's this about "rights" of the shareholders?

Re:"Having their rights trampled on?!"

[mccalli]

I know at least two people who bought Caldera stock around IPO time because it was a Linux company....So what's this about "rights" of the shareholders?

Far back in the mists of time I was playing a game of Rifts. Our set of merceneries' mission was to destroy a company's board by breaking into the building during the AGM and destroying things. To do this, we got a big budget from our hirers to buy weapons with.

I didn't use the budget for weapons. I used it to buy shares. No infiltration necessary - just walk into the AGM as a genuine shareowner. Surprised the Gamemaster quite a bit - he'd simply never thought of that approach.

If there are people with SCO shares who are unhappy with how things are going, then they should vote! They should make contact with the board and express their opinion. Remember - whatever the board members think, the board is working for the shareholders and not the other way round. If they protest directly to the board and they're in the majority, the board would have to stop.

With Caldera/SCO's current action, they've ended up as pawns in a game to attack Linux -- not at all the reason they invested their dollars in the beginning. They have decided to sell out as a result of the SCO action...

...and who have they sold those shares to? People who want to support Linux or people who are taking a punt on the buy-out game? Selling shares in SCO because you want to support Linux is a poor move at this moment in time. If there's a financial motive - fine, up to you. But 'to support Linux'? The only buyers of those shares will be people who think that SCO might win.

Cheers,
Ian

What of the reputation?

[vistic]

Assuming that SCO isn't bought out... and they go to court and lose (as seems likely) and somehow stay in business... how on Earth could they ever repair their reputation now?

They've become notorious lately. So much so, in fact, that I'd bet even if they won a court case and were proven correct, that they still wouldn't be able to recover from pissing the world off. How many people avoid Microsoft because of what they stand for and not just because they believe other software is superior? Uh-huh. See?

american legal system

[dollargonzo]

because of it [the legal system], things are no fun anymore. you can't call anyone's bluff anymore, you can't just pull out a six-shooter after you walk out of a saloon and settle everything like men, and you can't ride away into the sunset on your horse to another town and forget about it. nowadays, everyone is afraid of being sued, so no-one is truly willing to step up and call SCO's bluff. there really should be a way to prevent such a blatent buyout from ocurring.

Re:Good job.

[solidhen]

Uh no, being required to pay a licensing fee violates section 7 of the GPL. It would then be illegal for anyone to distribute the program at all.

SCO-IBM Vs Timeline Inc-Microsoft : GPL Wins

[NZheretic]

( In which we must also ponder the question: What value is the SCO Group when it continued to sell and distribute the source code in question under the GPL? )

If you are concerned over the treat of lawsuits over intellectual property then you are actually in a better legal position using GPL'ed Linux than using Microsoft's products.

While SCO has yet to provide any publicly available substantial evidence in their case against IBM and Linux, Timeline Inc has already won a US Washington Court of Appeal judgment against Microsoft in another contract dispute.

Unlike companies like Oracle Corporation and others, Microsoft chose a cheaper option when licensing Timeline Inc's Data base technology. That license puts developers and users of Microsoft SQL Server,Office and other Microsoft product at risk of being sued by Timeline Inc for violation of Timeline Inc patents.

Microsoft's products do not provide users and developers an absolute safe haven from the threat from lawsuits based on violations of intellectual property. Microsoft's EULA provide the developer and end user with no protection against threat from current or future intellectual property lawsuits.

However, since the SCO Group has knowingly sold and distributed the GPL licensed Linux kernel and other components, it must by the terms of the GPL license, provide all those who receive the code from them an implicit license to use any intellectual property, patents or trade secrets which SCO owns and is used by the GPL'ed source code. That implicit license to that SCO intellectual property is also granted to anybody who subsequently receives the GPL source.

The GPL only grants the right, for reasons of intellectual property infringement or contractual obligations, to stop distributing the GPL'e binaries and source code if the conditions are imposed upon you by a third party. Since SCO claims ownership the intellectual property in question, it must grant all subsequent recipients of the GPL licensed source code SCO has distributed and any GPL'ed derivative, the same implicit licence and right to SCO's intellectual property the code imposes upon.

SCO has acknowledged deals with Suse and Lindows to distribute SCO's intellectual property in GPL'ed Linux, but the GPL license does not grant anyone or any organization the right to append extra terms and conditions upon the recipients of the GPL licensed source code.

It is very easy to effectively fold the current development branches of the Linux kernel and any other GPL'ed code back into SCO's distributed GPL'ed sources. This would grant the same implicit license for the infringed SCO intellectual property to the all the current development.

You are in a better legal position using the GPL'ed Linux platform and other GPL'ed software, than you are using Microsoft's or any other closed source software.

Re:The only code in question is recent SCO-IBM cod

[be-fan]

SCO gave away the source to Release 7, not System V.

Linux steamrolling SCO

[theolein]

Darl baby's comments that, "...allowing Linux to steamroller H^H^H^our property makes zero sense" in a response to the question about why SCO is only doing this now (well after IBM joined in the Linux party) and SCO's revenues have gone from $200 million to $60 million in 3 years, sort of makes it very clear what's going on:

It is simply a bluff, nothing more. Darl baby almost wetting himself with joy at the prospect that SCO get bought out because, "I'm looking after the sharholders".

His NDA making it impossible to actually comment on what is in the code, and analysts refusing to take the bait, must make him worry very very much.

This is what is going to happen: IBM and the rest of the Linux world will simply call his bluff and wait until the court discovery phase roll's around, where Darl and co will not be able to hinder anyone takng a look at the code. He is probably crapping himself at the thought of this scenario, because I don't think it will be at all possible for him to prove ONE SINGLE INFRINGEMENT.

The result will be that the case will get thrown out of court and SCO will have to file for chapter 11 almost immediately, and Darl will have to join the ranks of the unemployed...

That is, unless he takes MS up on that job offer to work in MS marketing.

On behalf of anaerobic bacteria everywhere....

[wowbagger]

On behalf of anaerobic bacteria everywhere, I must ask you to stop your libelous assertion that lawyers are a form a anaerobic bacteria.

They would threaten to sue, but that would be too low for them.

Open mouth, insert foot...

[bourne]

SCO (which is to say, McBride) should learn to shut up before they ingest their entire leg.

Asked why SCO has suddenly started looking at these issues now, after years of declining revenues at his company and the increasing popularity of Linux, McBride said SCO had few options in the late 1990s as Linux began surfacing in the business computing world. "Even if you potentially had a problem [with concerns about Unix code in Linux back then], what are you going to do?" McBride asked. "Sue Linus Torvalds? And get what?"

You would get the infringing code, which SCO has previously claimed is what enabled Linux to succeed in the market, out of Linux. SCO, of course, according to its previous statements, would then succeed because it contained all the *cough* enterprise characteristics that were required to succeed.

So which is it, McBride? If Linux would have been unable to succeed without the alleged SCO IP, then action in 1999 would have allowed SCO to succeed on its *cough* merits. If Linux was able to succeed without the alleged SCO IP, then you have just contradicted the statements in your court filing (not that that was a very accurate document, now was it?)

If I was a shareholder, I'd be mightily concerned about the total inability of SCO management to stick to a single, credible story.

Re:Open mouth, insert foot...

[HBI]

I have to wonder about the relationship SCO has with its legal team at this time.

IANAL (of course) but i've both been a plaintiff and defendant in civil suits of various flavors. I've also worked a few years settling BI (bodily injury) claims in the insurance industry, big ticket stuff like truck and bus accidents. Done some grand jury testimony. I've been there.

Every decent lawyer worth his salt retains _tight_ control of what their client says in a public and private forum. One lawyer put it this way to me "Don't get diarrhea of the mouth". He was referring to both the stand/depositions, and to my private communications with any potentially opposing party such as a medical insurer. (civil suit, BI) I have had an assistant DA in Brooklyn throw me under a subpoena completely muting me and preventing me from discussing the case at hand (lasted about 9 months, renewed every 90 days). That was a fraud case with some doctor falsifying medical bills. The same principle applied there.

Now, Boies and team obviously are reasonably competent, though I don't think Boies is particularly prescient regarding what judges and juries will say, evidence getting ripped to shreds on Napster and in the Al Gore fiasco. Still, he knows well enough that having McBride, as an officer of SCO out there arguing his case in this way is dangerous. This should be handled through press people or the lawyers themselves.

So, I must ask the big question. Why are McBride and Sontag out there? What can they be thinking? Their story changes every day, and the statements they make are of public record and _admissible_! Everything they are saying _cannot_ be true. Therefore, they are setting themselves up to be absolutely destroyed in court. Why?

I can think of only two options:

• They never expect this to get to court. There isn't sufficient evidence for a win. The endgame strategy is to be bought up, and they have an insurance policy already set up, whereby another firm is committed to buying them even in the event that IBM doesn't. (Think Microsoft, even though there are antitrust issues there). Therefore, it benefits SCO to keep the publicity on high, as it is their only chance for a big win. Think of it as trolling on a corporate level.
• The management team are total idiots. They are ignoring their hired gun legal advisers and are having an attack of "diarrhea of the mouth". Perhaps they feel keeping the stock price up is more important than winning this case, in the short term. (Just to afford a little logic to their stance)

The obvious solution, that they have a winning case, is not likely given the fact that they are compromising themselves irrevocably at this time.

Alternatives solicited, but this is how I see it.

the SCO comedy goes on

[dh003i]

McBride said his company will open samples of its contested code to interested parties next week under nondisclosure agreements so SCO can prove its points. The open-source community, however, won't be be given an opportunity to remove any offending code and replace it with new material, he said. Instead, damages will continue to be sought.

So in other words, he's going to let people examine their "evidence", and allow them to come to their "own conclusions", but prevent them from disclosing any proof to the public of the validity of their conclusions. In other words, we're back at square one -- a whole lot of unsubstantiated allegations, no proof. Btw, even if there are "hundreds of lines" of shared code, that does not prove that they were copied into Linux from SCO. It's much more likely to be the other way around.

Btw, can't Linux just sign the NDA and then -- if he finds anything -- remove it from Linux?

It's sort of like somebody stealing your car, and you hunt them down and you find them, and they say you can have your car back, but there's no penalty for that

Except Linux (nor GNU/Linux) has stolen nothing, nor has IBM, from SCO. Even if that allegation were true, the fault would lie with IBM, not the FOSS community.

Giga Information Group Inc. analyst Stacey Quandt said she has discussed SCO's offer with her legal counsel, and if she signs an NDA, it may hinder her ability to write about it.

In other words, SCO has stacked the deck. People can review their code under these terms, but can't write in any convincing manner to the public about their findings.

[Giga Information's Stacey Quandt] has advised clients of Cambridge, Mass.-based Giga to continue with their Linux adoption.

In other words, SCO's absurd allegations aren't driving people away from GNU/Linux.

They don't want to tell; they want to sue. -- Linux

That just about sums it up. Except that IF their claims are valid, they gain nothing by with-holding the evidence. They cannot claim before a court of law that they should get continued damages when they could have allowed the FOSS community to remedy the situation.

[Stamford's George Weiss] said SCO is making its case based on "vague inferences" and is asking analysts to do the same

It appears the experts agree with me.

[Framingham's Dan Kusnetzky said, "I'm not sure that showing us the code would prove anything to me, because I don't know where it came from"

As I said before, it will be difficult if not impossible for SCO to prove where their code came from, the dates on it, etc; whereas proving those things will be easy for FOSS.

Even if there is similar code, that doesn't mean there is infringement, especially under copyright law "fair use" provisions, said Overly. "If I take a piece of code that someone has written, take it verbatim but expand on it and use it for a completely different work, that may or not be copyright infringement"

Another problem for SCO's absurd case.

a review of the code by anyone other than a judge "means absolutely, positively nothing" in determining the merit of SCO's claims.

A review by people other than lawyers will give you the real truth on the matter. Though a judge can give a legal ruling, it will invariably be false, as judges understand about as much about computer code as I understand hieroglyphics.

legal experts said Linux users have to pay attention to the fight. "The fact that you ignored it could potentially cause your damages to increase substantially"

Actually, GNU/Linux users can ignore this all-together. The user faces no liability what-so-ever. Nor, in fact, can anyone be said to be liable other than IBM, for they are the only ones who were in a position to know what was and was not proprietary SCO code. No-one else, not the FOSS community, not GNU/Linux users, nor GNU/Linux companies, were in any position to have any possibility of knowing that (because SCO's code is closed).

Re:the SCO comedy goes on

[spitzak]

Excellent analysis and statements! Thanks!

One thing not being mentioned is that removal of the code by the Linux community would help their case. That removal would pretty much show to a court that the Linux hackers themselves believed it to be infringing. It would work even better if some stuff was protested as not infringing and SCO says "that's ok" while other stuff was removed. To a judge this would look pretty much like proof that SCO's claims were correct. So it is 100% in SCO's interest to reveal the infinging sections!

For this reason I believe SCO is either lying about the infringing, is being paid by outside parties such as Microsoft to continue this suit, or both.

Re:the SCO comedy goes on

[sjvn]

> So in other words, he's going to let people examine their "evidence", and allow them to come to their "own conclusions", but prevent them from disclosing any proof to the public of the validity of their conclusions

Exactly. Is anyone left wondering why we're (in my case technology journalists) not lining up to sign the NDA?

Steven

Re:the SCO comedy goes on

[bubbha]

"As I said before, it will be difficult if not impossible for SCO to prove where their code came from, the dates on it, etc; whereas proving those things will be easy for FOSS.

It seems to me that SCO must be capable of producing the source that was originally transferred to IBM. I would expect that they should also be able to produce other engineering documents - meeting notes, presentations, status reports - whatever - that lead up to the release of the "offending" software.

My understanding is that these documents need to have been maintained in such a manner that IBM can not object to their being offered into evidence. I would imagine that there will be lots of legal activity just in determining what documents will be allowed to be entered into the record because there is no way to ensure that they are real.

The Plot Thickens...

[The Monster]

While SCO alleges that part of the Linux sources are copied from their OS

That's what makes this quote from the article so intriguing:

Asked why SCO has suddenly started looking at these issues now, after years of declining revenues at his company and the increasing popularity of Linux, McBride said SCO had few options in the late 1990s as Linux began surfacing in the business computing world. "Even if you potentially had a problem [with concerns about Unix code in Linux back then], what are you going to do?" McBride asked. "Sue Linus Torvalds? And get what?"

This sounds like he's saying that the alleged IP violations precede IBM's involvement. This guy can't keep his stor{y|ies} straight.

Re:The Plot Thickens...

[The Monster]

W>TM> This sounds like he's saying that the alleged IP violations precede IBM's involvement.

W> Seems like you imply this is fishy.. which it is, but is there anything that doesn't allow this?

Let me connect the dots for you - the claim is not just that there is SCO code in Linux - it's that IBM violated a contract with SCO by putting it there Now he seems to be saying that someone other than IBM was doing it all along. This not only makes it difficult to prove that IBM was doing it, but it puts into question another element of their ever-shifting claims - their 'trade secrets' weren't so damned 'secret' after all.

NCR intellectual property...

[Roug]

I don't know if you have considered this. AT&T bought NCR in 1991 and sold it again in 1997. It's on NCR's history page: http://www.ncr.com/history/history.htm

As far as I can gather, NCR started production of the 3000 series from Sep 1990 using 80386/80486 chips:

Model [#CPUs] Manufactured from
NCR3320 [1] Sep 1990
NCR3450 [1-4] Sep 1990
NCR3550 [2-8 ] Sep 1990
NCR3600 [8-288] May 1991

Later Pentium-based servers were released as this news release shows: http://www.att.com/news/0593/930517.ncd.html

All these systems run System V.4 in what NCR calls Massive Parallel configuration. So evidently AT&T had the knowledge of how to build multiprocessor systems back in 1991. However, some proprietary hardware was used to to keep the processors in sync. The question is how much of this was made available to SCO in 1995. If they had full access to this information, they would not have been able to use it, as they don't produce hardware, but maybe they now think they can tweak it to run on modern Pentium chips and seize the highend of SMP solutions.

It could also explain how SCO can assert they have experience in 8+ CPU multiprocessing even though this capability doesn't show up in SCO's products.

Is the Pope.... Catholic?

[otis wildflower]

Geez, when this nonsense first broke, who _DIDN'T_ think it was a buyout ploy?

Strange courtship ritual though.. I'm sure McBride has a hefty golden parachute setup, since there's NO WAY any of the 'responsible' leadership would survive a buyout..

What if this is all backwards??

[beldraen]

A thought just occurred to me: What if SCO appropriated Linux code? If their aim is to present a position to IBM for buy-out, why not copy a bit of Linux code that has been introduced in the last year into SCO, go back to the back ups, alter a few time stamps and insert the code into SCO Unix? Then, *poof*! Instant infringment! The very fact that they want to keep things under wraps until trial is because they are going to petition the court to keep the code secret--we will *never* get to see the infringing code. I suspect that they very much want to keep what has been "stolen" under wraps so that only lawyers will get to decide whether it was stolen or not and not someone with a technological clue.

The buyout theory was valid from day one

[dcavanaugh]

For once Microsoft was right. For a long time, M$ has claimed that Linux is a bigger threat to proprietary Unix than it is to Windows. While the threat to Windows is far more than M$ originally expected, the proprietry Unix variants are getting clobbered by Linux.

I find it intersting that companies with more to sell than just an OS (Apple,HP,IBM,Sun) are working on peaceful coexistance with Linux, while the pure software players (SCO,M$) are at DEFCON-1.

As soon as tried my first Linux install (remember SLS?) I knew SCO was in trouble. The fact that it took this long for SCO to deploy an exit strategy is a monument to their executive leadership. The fact that they have the stock flying on vapor is interesting, but it would have been a whole lot smarter to do all of this back in 2000 when their stock was >$80/share and the handwriting was on the wall.

No

[mindstrm]

Linus, and anyone else, who wants to compare the SCO code (Copywritten, possibly but unlikely full of SCO's "secrets") to linux (which anyone and his dog can see anytime with no hassle) need to sign an NDA. Why?

The same reason that sco hasn't told us what code is infringing. If we put aside the fact that SCO's unix products are all the worst crap I've ever had to use, and that it's extremely doubtful they had any secrets, and just assume they DID have some secret method in there that had some value...

They can't just say "They stole our scheduler code!, on lines 12345 to 12500 of the 2.4.15 kernel!" Because... then everyone would KNOW The secret, and it would not be a secret anymore.

Impartial computer analysis of code is possible

[Tsu Dho Nimh]

There is anti-plagiarism software, usually used to prevent plagiarism of high school and college papers. It tags the potentially offending sections of the paper being analysed and creates links to the probable source if they are online, or cites what paper they are in if it's something in their database. In essence, it does a very sophisticated "diff" against a huge database of text documents. turnitin.com is the site.

Why don't they load a database for an installation of this software with code that is indisputably "clean" like the BSD code, code that is clean because it was released in the GPL'd Caldrea releases, the Lindows code they used with SCO's blessings, etc. Put in all the legitimate sources Linux developers could have used as inspiration, then load the current distro OS source, run a comparison and see how much came from "legitimate" origins. The remainder is original work OR possibly bastard code stolen from a illegitimate source.

Do the same with SCO's code, rev by rev, and see if there is any overlap. If there is stolen code, there will be identical text. If something is the same in Linux and SCO's UNIX ... check the dates to see who wrote it first.

With this method, NO ONE has to see the source code but the people running the software that does the analysis, and even they just load it into the database. They need not be programmers because they just do a "pedigree" check on the code. In fact they should not be programmers ... anyone can ifentify a string of matching ASCII text. They would not be hindered by an NDA, and would be EXPECTED to testify about the results.

Re:Impartial computer analysis of code is possible

[Alan Cox]

Anti plagarism code doesn't actually work. I know a couple of people who actually ended up as expert witnesses in court and ripped the code to shreds.

Sure it finds *similar* code but there are several interesting problems software has trouble solving

1. Code that comes from a common description. I'd bet Linus and Unixware have very similar spinlock code, maybe intstruction identical - because thats how Intel tell you how to write the thing

2. Code from a common source. Linux and Unixware are going to have similar code in bits of drivers/* submitted legitimately to both SCO and Linux (and BSD and Windoows and everywhere else) by the hardware vendor who wrote it. The same will be true of stuff from Standards documents. Gee our struct stat is like their struct stat - because its a standards defined item

3. The birthday paradox. Given two large chunks of code and doing arbitary comparisons statistics shows that very unintuitively to humans matches are actually rather likely. Code can't identify these, it takes human analysis and statistical modelling.

4. Code legitimately added to Linux by SCO/Caldera employees employed to work on SCO / Linux compatibility that was done with Caldera blessing and who unfortunately for SCO have the contract paperwork to prove it...

SCO btw have another problem. Their NDA can't forbid redistribution of the GPL code. If they distribute Linux code under their NDA they are violating the license so committing an offence themselves 8)

Scenarios

[mindstrm]

Well, it's not that simple either...
There are several ways this can go.

IF this comes down to patents, which is unlikely, then every copy of linux using the patented method would be in violation, and SCO could force everyone to stop using that method (in theory, anyway). This is highly unlikely, and they haven't mentioned patents yet. Furthermore, if it was about patents, there would be no reason to keep it secret before trial.. as their methods would be protected no matter what.

If it comes down to Copyright, IBM would pay damages, but the rest of the world would not be guilty of anything; pretend for a minute it's not Linux, but some version of OS/2. Would everyone who IBM sold OS/2 to have to stop using it or face legal action? Hardly. OF course, linux being free, it's a bit different.. but fundamentally, it's the same. And I'm sure the community would happily re-write the offending section, or find some code that pre-dates it and work from that, to be fair.

What is most likely, and what SCO seems to be saying, is this is trade-secret stuff. The thing about trade secret is, it only applies to secrets. That's what the NDAs and other contracts are for... so if IBM leaked proprietary methods (NOT patents... just thigns where two parties agree to keep it a secret) into the linux kernel, then they violated a contract... and they will pay damages. However, again, the rest of the community faces no threat. Trade secret laws are NOT patent laws, they don't afford you protection of something indefinately.. they only let you keep somethign a secret. If it's in the linux kernel, it's just not a secret anymore. If you leak a trade secret, say the formula for Coca-Cola, to usenet, you are gonna be in deep shit, trade secret laws will down on you, but coke has no way to stop the world from knowing about their formula now, and can't prevent someone from using it.. that's why they KEEP IT A SECRET... made in parts by separate companies, mixed at the factory, with the forumla only known to a couple people, and the files locked in some super secret vault guarded by alligators.

Re:Scenarios

[Tsu Dho Nimh]

IANAL, but I can google for web sites, and trade secrets are just that ... no good unless they are kepr secret:

Bohan Law discusses trade secrets here, and they say: "Although you may be able to sue for damages someone who reveals your trade secret, once the cat is publicly out of the bag, it's impossible to stuff it back in. Your trade secret is gone. Its value is lost." So SCO has to sue IBM for EVERYTHING that divulging the trade secrets cost them. The person who innocently published the recipe for the secret sauce that the restaurant employee sent in for the contest is in the clear, and all further use of the recipe is free and clear.

"The Linux business"?

[Felinoid]

When people start discribing the Linux community as a business you know what they are about.

Linux isn't a business. IBM is a business, RedHat is a business, Slackware and Debian have a business aspect. But Linux is a code.

This dosen't mean anything malicous in itself. I've just noticed often people will say "The company that makes Linux" or "The Linux industry".
There is in fact a Linux industry but that industry dosen't reflect the whole of Linux. There isn't a "company that makes Linux" there are companys involved in the creation of Linux but there has never been a single company responsable for the whole ball of wax.
Not Like Microsoft for Windows, Apple for MacOs or AT&T for Unix.
What it means is that the person is thinking only in terms of business as if everyone has a proffit motive for anything they say or do.

I submit (and I'm going to say this is sand not cement that I have for the foundation of my clame..) that SCO is looking at Linux as a compeditor and simply desided that there is stolen code in Linux.

SCO need not so much "prove it" to us but the least they could do is tell us what code is stolen. We could replace it quickly enough and it'd be over.

And he said it right... SCO is out to protect it's shareholders. Not SCO's intelectual property.
They have NOT proven anything yet they keep seeking payment from Linux users.

I don't think SCO knows it's clames are bogus. I think they actually believe thies clames are valid. But they don't know what code is stolen and if they'd check I think deep down they know they won't find any stolen code.

SCO has presented us with an argument that is simply "Linux now has features found in SCO Unix. The only way this could happen is if Linux got code from us."
That's not true.

SCO expects us to accept that alone as proof. But it's not any more proof than to say:
A Zigu Di rock fan steals donuts from a 7-11
Jack Du is a Zigu Di fan... he must be the crook.

There is more than one way to solve a given problem and more than one person who can find a solution.

SCO won't put it's money where it's mouth is.
They won't point out the offending code.

What's to stop SCO from pointing at some random code and saying "Thats it.. thats ours"?
Easy...

SCO: "See this thats ours..."
Linus: "Ummm no I wrote that myself."
SCO: "Oh right.. well that's ours"
ESR: "Thats BSD code..."
SCO: "Oh sorry... THAT..."
RedHat: "Is covered in RedHat patent xxxxxxxx. We liccesned it for open source use only. Your using it you said so your villating our IP fork it over...."
SCO: "I mean this..."
IBM: "We wrote that in 1933 to solve a defect in 'Mega 1+1=2 delux' it was taking more than an hour to add 1+1..."
SCO: "Umm this?"
Ghost of Lovelace: "Sorry thats MY code.."
SCO: "Well THIS is deffinetly ours."
CmdrTaco: "I wrote that."

SCO clames the code came from IBM. But if they finger code randomly they'll likely find code that IBM never touched.

SCO is seeking to discredit Linux and boost sales for it's failing product.
If I were forced I'd switch to BSD.. not SCO.
Or if a commertal Unix I'd use Solarus.

Re:"The Linux business"?

[DShard]

I would agree that SCO management probably does think they have had code stolen from them. I would further concur that even as a past linux distributor that they don't really get "Linux" as an entity. The following is my thinking...

1) As a distributor of linux I would have to have at some point a conflict of interest in my company since I also have a Proprietary product targeting the same platform (x86).

2) I am a tiny operation who can hardly afford to have a development team, so I can NOT afford to innovate but rather just keep up with the Jones'.

3) My proprietary product see innovation unlike the product has ever seen since I get purchased by this linux company ;)

4) I begin to have some middle management "audit" our code and low and behold it seems there is a tremendous amount of shared code.

Ad-Nauseum) I am Darl McBride, an individual that has shown himself to not understand his customer, his business or seemingly reality... (I have heard that Novell's responce to him leaving was one relief.) A middle manager comes and tells me that my open product has quite a bit of code in common with my proprietary one. I am going to hear this as the open product STOLE from us, where as occum's razor would tell the rest of us that we probably need to watch our development teams a lot closer so we don't steal anything else. Darl decided to act stupid and piss off most of his customer base, and all of his potential customer base and potential partners.

If I were a stock holder I would be pushing for a vote of no confidence on this guy and pushing for a public apology. Not that I would expect it. Come on, This guy is pissing away any chance this company has of surviving... you gotta be an angry shareholder.

Does SCO study Linux kernel internals?

[Agent Deepshit]

If SCO 'knows' there is Unix code in Linux, doesn't that mean they could have had their engineers (or someone else who has access to the Unix code) study the code to benefit their own? I doubt a point like this would ever come up in court because it's pretty loaded and would be hard to prove but it is something to think about... And it may not even be illegal assuming they didn't copy and paste.

Innocent until proven guilty.

[Cytlid]

'nuff said.

The good - someone like IBM buys them out and M$ can (snicker) "license" all they want from IBM. Or they fade away because of the clout of the Linux (GNU/OSS/FSF) community.

The bad - everything stays as is right now and we all ride the FUDtrain (or at least the ones who believe it.)

The ugly - M$ does some silly stupid crap to keep this thing going.

Re:Innocent until proven guilty.

[Cid Highwind]

The Conspiracy Theory - MS buys out SCO, and puts their legion of lawyers to work harassing everyone who has ever invested a dime in Linux-related businesses. Sine MS's legal budget is larger than the present value of Redhat, SuSE, Mandrake, etc. combined, they win by default. Commercial support for Linux disappears overnight, kernel development grinds to a halt, and we all get to go back to using Windows for another 10 years or so, until The Hurd is finished.

Two pronged approach

[bstadil]

Best strategy is for IBM to make a public offer of $10M, state that they value to company around the same price that a prolonged court case would cost.

Let a few rumour slip to the press that the $10M is the price they estimate the court case will cost and thet they think they will be unable to collect the expected Damages against SCO they court will impose.

That would make their stock price crash to around $2 for a Capitalization of around $15M, then have a RedHat led consortium offer $20M or so, that will likely be accepted.

IBM can then buy some of the SCO contracts from RH and a later date.

That way there will be no impression left that IBM gave in to Blackmail.

Re:Two pronged approach

[8tim8]

> Best strategy is for IBM to make a public offer of $10M...

That's a good idea. Hey, while we're on the topic, I was looking through the Linux source code last week and found some stuff that was *exactly* like code I'd posted to Usenet back in the late 80's. I can't say what it was cuz it's my intellectual property, but I'm getting ready to sue anyone I can find who's invested in Linux. If anyone from IBM is reading this, I can be bought out for $10 million dollars.

PS. My brother-in-law Bob says he has some IP in the kernal too. $10 million for him too.

Thnx!

Re:Two pronged approach

[HBI]

I like the concept, but where in this plan does Darl McBride, Sontag, and Boies get the appropriate ass-ramming sans lubrication they so richly deserve?

This is a big hole in your plan!

Re:Two pronged approach

[gmhowell]

I can be bought out for $10 million dollars.

I'm in a similar situation, except I can be bought for a McDonald's Happy Meal, and gas money to get there.

Easy Solution -Novell

[N8F8]

Get a team together of Linux kernel hackers and ask Novell for a small team to healp search the linux source for plagarism. I'm pretty sure there are some decent plagerism detection apps floating around

Mitigate damages

[bstadil]

The open-source community, however, won't be be given an opportunity to remove any offending code and replace it with new material, he said. Instead, damages will continue to be sought.

As pointed out earlier (Here,Hereby a few people you can't do that. PERIOD.

You have a DUTY to mitigate damages. Failing that you will collect ZIP.

What about the LINUX code

[Midnight Thunder]

Sure, we could all sign an NDA and then look at the SCO code, but most of us are not interested in what the SCO code is. We simply want to know what code in LINUX has been, apparently, copied, from SCO, without permission. For this no NDA is needed, since that code is clearly already available to the public. SCO does not appear to be willing to do this, since it knows that a public discussion, on what is available to be seen,would likely kill its case. Until SCO stops throwing FUD around, I like many others are going to have a hard time taking them seriously. The only thing we can do is wait for SCO and IBM to hash it out in the courts, as SCO appears unwilling to provide any evidence to the press and the public in general.

Why??

[Frodo420024]

The weird thing to me is that if SCO had approached IBM quietly and said: "hey, it looks like we have some IP problems here - why don't you buy us out and resolve those problems" then there is a good chance IBM might have considered it. Shareholders happy, golden parachutes for everyone, IBM looks like a hero to the Linux world: the proverbial win-win compromise. But instead SCO took a confrontational approach knowing that IBM would counterattack. Wonder why.

In my view, the only likely answer is the Microsoft connection. From the beginning, many suspected such a thing. The 'unrelated' licensing of Unix code by MS rose an alarm on this issue, and it's worth noting that the amount of money transferred between the parties is 'undisclosed'. Could mean 'lots'.

I'm pretty confident SCO is being puppeteered by smarter (read: Redmond) guys, and that they'll be squashed like flies no matter the outcome of the whole mess.

Luckily, the defense looks strong. Just the Linus quote on the difficulty on getting any SCO code into the kernel speaks volumes...

Here's an idea...

[Znonymous Coward]

Let's see if we can pool a bunch of $ togther and buy them ourselves. Then, we can release the SRV code to the public. It's not such a crazy idea, it's happend in the past wth other products.

Regardless of Outcome, Has SCO Cast Doubt?

[reallocate]

Wouldn't the worst result for the Linux community be one that never convincingly and impartially determines what's in the code?

This isn't a matter of trust and faith in the people who wrote that code. It's a matter of perception in the eyes of those who, in the absence of evidence one way or the other, will always wonder if SCO was right.

Sad to say, the damage SCO has already done may be worse than any fallout from proof they're right.

Re:Regardless of Outcome, Has SCO Cast Doubt?

[Googol]

The trust issue is more complicated than "users perception of Linux".

Free software and the GPL in particular haven't been thoroughly tested in court. This is a position similar to "shrink-wrapped licenses" a few years ago. How can I "agree" to a contract I can't see until I open the package? Courts are sticking with the idea because it is established industry practice. Like free software licenses.

Mostly, free software depends on custom and trust, not law, despite the legal-sounding language of the GPL. We *hope* the courts won't destroy our community, just as we *hope* congress won't. But they can and might. The price of freedom....

In any event, sure, trust is and will be harmed. So how are we going to keep the trust levels up, in the face of concerted, co-ordinated attack?

Dealing with IP Terrorism

[Googol]

IBM won't buy SCO because that is not how billion dollar corporations deal with IP terrorism. You don't appease small terrorists.

Why is SCO's action "IP terrorism"? Because its fundamental purpose is to destroy the remarkable social capital that the GNU license and Linux have created--the trust and co-operation of a global collaboration.

The fact SCO claims economic motives rather than ideological ones or corporate bloodlust or something doesn't matter. They are *trying* to make people suspicisous of sharing source. (AOL is doing the same thing with Nullsoft).

We will see increasing attempts to make people suspicious of "counterfeit GPLs" because terrorism pays right now.

In the long run, the social capital and trust our community has invested in Linux and GNU will have to be divided up in order to survive this sort of attack. Information may want to be free, but having a critical amount of it invested in one place invites attack. Like Napster.

The correct communal resopnse on *our* part (not to this particular attack, which is bogus, but to the swarm of them we will now get) is a more defensive posture in which the "web of trust" established.

Think of Linux and the GPL as the "gold standard" of the free software community (the thing everyone trusts). SCO and AOL are trying to panic us into thinking it is counterfeit, and engineer a corporate "bank panic" so they can mop up. They won't succeed, but they *will* decrease peoples trust in gold and drive its price down a little bit.

One response--the wrong one--would be to create a central repository of "valid GNU software" with a central agency, which would indemnify users of free software. This is the wrong approach because it makes free software quasi-proprietary--takes out the viral component of the model.

Another wrong solution is to try to make code use traceable by requiring the developer to publish deltas, not just source. This is wrong because it creates a high transaction cost (not viral, because it is not free).

The right response is to create numerous, smaller, "webs of trust" so that the whole interlocking structure is harder to attack. This is what modular kernels like the GNU/Hurd or Flux project do. Distributions will have many components, mixed and matched, pulling from the same communal pool. By spreading the IP over many projects and users, we can create the same P2P defence that is being used for the same problem in the music arena. There is no central server or even large server (Linus, IBM) to attack.

One way to solve the problem of counterfeit money is to eliminate the central authority. If everyone prints money (it's all counterfeit), then there is no one to attack. In the long run, the answer to terrorism is diversity (along with a solid defence of the "big" communal targets like Linux and the GPL).

This pushes the question of how you can trust money (software licenses) into the P2P area. You build small webs of trust that leverage the "gold standard" but in the long run do not depend on it at all. Probably, we will go through a "Bretton-Woods" stage of managed trust, before going for the free-for-all.

But. We *must* get to the free-for-all stage, or in the long run we will be hostages.

Hundreds of line of code - not enought!

[towatatalko]

'McBride said: "We're not going to show two lines of code. We're going to show hundreds of lines of code" that allegedly violate SCO's intellectual property...' - hundreds of lines of code, is that enough to prove the SCO's claim? According to some sources, SCO would have to have not hundreds but thousands lines of code to show as violation of their UNIX rights (5-10% of the total would be the minimum). Since Linux's kernel contains several millions of lines of code, say it is 3mil, then 1% would be a whooping 300,000 lines of code. In addition, there would have to be a coherent and not haphazard way stolen code was implemented into Linux. So, SCO is nowhere near of proving their case even if hundreds of their lines of code might have gotten into Linux.

UnitedLinux anyone?

[NoUse]

Even stranger than that, is UnitedLinux, which people seem to be forgetting about. If SCO knew that there were IP violations in Linux while they were working on and promoting UnitedLinux, something isn't lining up right.
Also, this was almost certainly an exit stragegy. If you look at there stock price before and after their filing the complaint, its very obvious they wanted to use this to bump up the cost of the company long enough to get bought by IBM to make them go away. Unfortunatly for them, companies started coming out the woodwork to actually fight them.

Re:UnitedLinux anyone?

[platypus]

Even stranger than that, is UnitedLinux, which people seem to be forgetting about. If SCO knew that there were IP violations in Linux while they were working on and promoting UnitedLinux, something isn't lining up right.

This is absolutely correct, and in turn opens up SCO for lawsuits from the other UnitedLinux partners.

Where's the insider perspective?

[-tji]

SCOX/Caldera has got to still have a few Linux developers/enthusiasts emloyed there. How about an insider's view? It's not hard to post anonymously..

What do employees think of this stuff? Do they feel there is some basis for the claims? Are they fighting against this internally?

It's sort of like somebody stealing your car

[Curtman]

"It's sort of like somebody stealing your car, and you hunt them down and you find them, and they say you can have your car back, but there's no penalty for that," McBride said. "If there's no penalty for stealing property, then where are we?"

Yeah, it's exactly like someone stealing your car. Except that you still have your car, so nobody actually stole anything from you except revolutionary ideas such as including tires, windows, doors, and a bumper. It's actually much more like me building a car in my garage using GM parts, that GM was currently offering for free, then suing me becuase I made a better Sunfire than they could, after they're technicians donated the tools and parts I built mine with.

Re:What If Court Says GPL Isn't Binding?

[Googol]

There is an American legal theory called "legal realism" that says a law isn't a law unless people think it is and calculate their actions based on that assumption. If corporations shy away from the GPL, it doesn't matter who's right and wrong.

Anyway, a while back there was someone arguing that the GPL *won't* hold up as a license, but that it will perhaps be accepted as an industry practice.

The courts that supported shrinkwrap EULAs didn't establish a new legal principle that you could give someone an agreement under other circumstances (in junk mail envelope, say) and establish a contract by the mere act of opening it. But they upheld the software industry's customary practice.

We won't know the law until the court makes it. That's the thing about novel situations--there's no "custom" to fall back on.

A more alarming possibility is that the courts will decline to rule on the GPL because we have this or that international treaty

International treaties rank with constitutional amendments on the legal food chain, except they *aren't* reviewed by the Supreme court. They are "legislation" + "executive action" and outside court competencies--except for the World Court which we don't recognize.

So 67 men in the Senate (and maybe a woman or two) can end the GPL with one vote and no judicial review.

The future of Linux will be decided in Europe and an American treaty with the EU, not in American courts, my friend, and maybe the GPL too.**

=googol=

** The European Charter has "IP rights" written in as a fundamental property right. All it takes is one treaty where we ack the EU charter and promise conformant legislation and the FSF gets on the "xenophobic terrorists who use military grade weapons" list (xenophobia is an extraditable EU crime, IP is an inalienable property right, and encryption is a military weapon. Also, War is Peace and Ignorace is Slavery).

Re:What If Court Says GPL Isn't Binding?

[Zelatrix]

Suppose a court decides that any release by SCO of Unix cpde under the GPL doesn't alter SCO's rights regarding that code; in effect, saying the GPL cannot be enforced. What then for the GPL?

Now where exactly does the GPL claim to alter SCO's rights regarding their own code? Nowhere that I can see.

Still, for the sake of debate, let's assume that the GPL is found to be unenforceable. That will place SCO in the same position as if they had never accepted the license at all:

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.

So the court says that the GPL cannot be enforced. Are they going to say that copyright law cannot be enforced? The GPL and only the GPL is what gives SCO the right to distribute all the code that they didn't write.

Suppose the court rules that only section 7 cannot be enforced, section 7 being:

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.

Then things might be a little stickier. But to get this situation, you would have to argue that SCO can release their code under the GPL, but deny others the rights of modification, distribution, etc. that the GPL allows. This is clearly the opposite of the explicit intent of the GPL. I would argue that it effectively renders the whole license unenforceable --- leaving us back where we were three paragraphs ago.

Incidentally, if SCO were to show that they inadvertly distributed the alleged "tainted" code themselves under the GPL in good faith, not realising at the time that their own stolen code was in the kernel, I would expect a court to be sympathetic. However, they can hardly complain if others also use, in good faith, the code that they themselves distributed. A court might order that further distribution of their code should stop, but ... a billion dollars in damages. Is this some kind of joke? If anything, the damages should go the other way as Red Hat & co. incur the costs of repairing SCO's mistake and removing the code. Furthermore, SCO have refused to tell anyone exactly what code they believe to be stolen, again making it impossible for anyone to stop infringing.

I can only wonder why.

One possible way it could play out...

[Antaeus Feldspar]

I can just see the closed-doors conference now.

IBM Guy: Well, Mr. McBride. You claimed that you had an offer to make, of a way to settle this amicably.

Darl McBride: That's true, and that's what I've wanted from the beginning. I've always hoped that we could find a way to resolve this peacefully and positively.

IBM Guy: Which is why your first attempt to 'resolve' this matter was to make loud, splashy public allegations.

Darl: What? Oh. Well, yeah, I suppose that maybe this meeting might have gone smoother if I hadn't done that. I'm sorry, it was a heat-of-the-moment sort of thing --

IBM: And why you further upped the ante by mailing those same allegations to our corporate customers, telling them that they could be sued if they continued to use a product which, at that time, you were still selling yourself.

Darl: Um... Well, yes. ... the heat of several moments? No. Ah, well, you see, it was just that I was mad that no one was taking me seriously, after all the time and care I put into manufact-- er, documenting the grievous wrongs done to my company.

IBM: Which company? The one that sold goods and services or the one that exists to extort money through allegations that your 'intellectual property' has been violated?

Darl: Ah... that would be the latter.

IBM: Yes. I've read your "documented" complaints. Very intriguing, I must say.

Darl: Why, thank you, I --

IBM: I especially like the part where you lied.

Darl: Excuse me?

IBM: Where you claimed that Linux could only have gotten so good if IBM took secrets that we learned from you and illegally shared them with the Linux developers. For instance, the secret of making the operating system run on 32 processors at a time.

Darl: Oh, well. That.

IBM: When in fact Linux was doing that back before you were working with us on Project Monterey, and before we began supporting Linux.

Darl: Um. Well, yes, but that's not exactly a lie, you see. Cause, um... well, our low opinion of the ability of anyone who isn't employed by SCO is just positive proof that anything good must have been ripped off from us!

IBM: Like 32-way scaling?

Darl: Yes! Like that!

IBM: Even though your own products don't have that?

Darl: ... Um.

IBM: But nevertheless, you're pressing ahead with the court case.

Darl: Well, not unless we have to; you know we've always wanted to settle this amicably --

IBM: Insults on the competence of Linux developers and the ethics of IBM?

Darl: Well, not "amicably", maybe, more like "peacefully" --

IBM: Not to mention that it's also an insult to IBM's practicality. We are still one of the biggest and oldest computer companies in the world. We have a huge intellectual property portfolio ourselves, and millions in yearly revenue. We can afford to hire the best people to create whatever intellectual property we need to stay competitive, but you instead claim we lowered ourselves -- and endangered ourselves -- by stealing from you. It's like accusing a millionaire of stealing a wooden nickel from a beggar.

Darl: Hey! Are you comparing SCO's intellectual property to a wooden nickel?

IBM: Yes.

Darl: Oh. ... well, that's not very nice.

IBM: Is it inaccurate?

Darl: Well, making it a wooden nickel implies ... I dunno, some sort of doubt that our claims are genuine.

IBM: Which is why you refused to clarify them, claiming that if you identified which code it was that was stolen from you, the Linux community could "launder" away the evidence?

Darl: Well, they could!

IBM: The evidence is available to anyone with an Internet connection from a few hundred different commercial vendors and academic institutions and non-profit foundations. Th

My Open Letter to SCO

[yeremein]

In a recent article (http://www.computerworld.com/softwaretopics/os/li nux/story/0,10801,81709,00.html), you indicated that, should Linux be shown to contain SVR5 code, the open source community will not be afforded the opportunity to remove it--instead, you will seek damages, presumably from anybody and everybody that distributes Linux and/or uses it commercially (judging from your letter). You rationalize this threat with the following analogy:

"It's sort of like somebody stealing your car, and you hunt them down and you find them, and they say you can have your car back, but there's no penalty for that. If there's no penalty for stealing property, then where are we?"

The problem with this analogy is that commercial Linux distributors and customers *have not* stolen your intellectual property. They did not know when they adopted Linux that it (allegedly) infringed on your IP. They have made no agreement with you. Your desire to extract payments from these commercial Linux distributors and customers is extortion, pure and simple.

What's more, your obstinate refusal to make the allegedly copied code public makes it impossible for new Linux customers--those who have not already "stolen your car", so to speak--to adopt a platform that excludes those portions of the kernel that you claim as your own. I believe this is by design. Since "hundreds of lines" in the 3-million-line Linux kernel may infringe on your intellectual property, you wish to throw out the other 2.999 million lines so you may unfairly eliminate your competitors.

(A more correct car analogy is this one: Suppose Ford Motor Company stole some trade secrets from SCO Motors, Inc., and used them to build a superior automobile. Then SCO Motors sues Ford AND everybody who drives a Ford. Would this be just?)

You also claim that the open-source software model is inherently flawed because there is no "traffic cop" to ensure that submitted code is unencumbered. This is a ridiculous argument. As the Microsoft-Timeline case shows, traditional closed-source software companies are not immune from misappropriation of code. The only "problem" with open-source software is that anybody can review it, looking for their own code, as SCO has done. Linux users do not have the same luxury--they cannot, for example, examine SCO's source code to see if it contains any GPL code.

Furthermore, how would it be possible for any company, open-source or otherwise, to ensure that newly submitted source code is not plagiarized? Suppose a former Microsoft employee gets a programming job at Cisco, and "writes" new code that he actually stole from his former employer. He removes all of Microsoft's copyright notices, of course. How can Cisco know that the code was stolen from Microsoft? It can't--it does not have access to Microsoft's code to compare.

Similarly, the maintainers of the Linux kernel *could not have known* when your alleged SVR5 code was submitted into the source tree. The best you can hope for is for them to remove it once they discovered it was plagiarized--but you won't accept that. Instead, you'll jump to the conclusion that the entire open source software model is flawed and that everyone should just use proprietary SCO software instead.

You have indicated that you're only "trying to take care of the shareholders, employees and people who have been having their rights trampled on." What about the rights of everybody except SCO? The vast majority of LDPs and Linux users have done you no wrong. You are within your right to pursue damages against IBM for breach of contract, but you have no business trying to use this opportunity to unfairly destroy your biggest competitor.

Re:Interesting...

[SLot]

1. The SCO/Novell contract allows SCO to grant license to other parties to distribute the code. If this is true, it could be argued that since SCO is distributing the code in a GPL'ed product, that they are doing so under the terms of the GPL, and thus the code is now covered by the GPL. If the contract says that the sub-license can't be compatible with the GPL, then Novell needs to sue SCO for breach of contract.

2. The SCO/Novell contract doesn't allow SCO to grant distribution sub-rights to others. In which case everybody else sues SCO for violating the GPL.

Then where are the countersuits if #2 is the case? Why haven't RedHat, Mandrake (ok, I know they are broke), Linus, Stallman, ESR, Perens, SuSE, and the rest fired back?

I'm no fan of SCO, and I recall IBM not acting nicely, once upon a time, but the silence on the legal front response-wise is getting deafining.

Can anyone point me to *any* response by IBM?

No other way / statistical evidence

[leonbrooks]

those 100 lines define POSIX standard XYZ, and there really is no other way to write them

Dollars to doughnuts something like that's the case with every single one of their 10-to-15-line "violations".

It's like in biology everyone got excited when Stanley Miller made some racemised amino acids from crude chemicals plus electricity in a cunningly arranged apparatus. He got amino acids because that's the way chemistry works. You won't get proteins the same way because that's not how chemistry works.

Through a similar process, I would expect to see many dozen-line chunks of near identical code in any two large code bases addressing the same problem. Or even addressing different problems.

There's also a lesson to take home from statistics. One common trick pulled by statistics tutors is to split a class into two, and get half the class to toss a coin 100 times and write down the results, and the other half to "toss coins" in their heads and write out the results. The tutor can pick out the fake coin tosses because they are too even, there are no runs of five or six of the same side.

The complete absence of similarities would be strong evidence that someone had seen both SCO and Linux code and deliberately removed the similarities. The brain-breaker for the judge would be: does this negative evidence of awareness of SCO's code constitute misappropriation of trade secrets or abuse of contract? (-:

Better yet .....

[taniwha]

Robert's rules of order .... back in the early 80s I was involved in an anti-apartheid group in NZ - we bought shares in companies that imported things from South Africa. NZ law allows 100 stockholders to call a 'special general meeting' - the company had to do it within 6 weeks, then we could do it again, over and over again.

Everyone uses Roberts Rules of Order .... which are great - simply move something that requires a vote "I move a motion of no confidence in the chair under the 1906 senility act" or "I move that there be no smoking in the room" - then have a bunch of others disagree - force a vote - demand written ballots - if they insist on a voice vote demand a vote on that .... and demand written ballots .... if they don't agree keep recursing on votes on written ballots - otherwise on to step 2 - challenge the scruiteneers for the written ballot - demand a vote (even put up 2 competing planks) - demand a written ballot on scruiteneers, recurse for ever ...

We did this once in an AGM managed to have a motion of no confidence in the chair illegally squashed which ment that the companies books were not legally adopted and they were in position where a shareholders suit could have stopped them trading dead.

These meetings were so much fun - old guys in suits who were used to having an AGM once a year where 2 other guys would show up and ask why the dividend wasnt as high as last year, then they'd all retire for a sherry. They were faced with 100 really pissed shareholder with a game plan ... faced with this the chairman turned so red in the face and got so angry I swear I thought he was going to explode ....

Now if only the US had the same small shareholder protection laws that NZ does we could all power on down to SCO and have some fun ....