SCO Shows 80 Lines of Evidence?

cheesybagel writes "In this EETimes article SCO claims to have shown their evidence to our independent analyst friends from the Aberdeen Group. The evidence, all 80 lines of it, allegedly even has identical comments."

Comments

Re:Has anybody considered

[WeiszNet]

True, but one cannot deny the fact that SCO does act very weird. Usually when some company "steals" GPL code, the copyright holder gives the company a chance to correct his mistake (and shows proove immediatly).

SCO does not do all this, which does not make it look honest.

Re:Has anybody considered

[dfeist]

Not only that, but they contradict themselves every few days. Sometimes it's copyright, sometimes patents, sometimes trade secrets.

And umm, how can the Linux users be guilty if IBM put their code into the kernel source? They can't. If it was about proprietary software, noone would say all the licensees are guilty. But it isn't really another case then this - IBM gave it to the community under GPL. Some proprietary company gave it to the users under a proprietary license. Where's the difference? It's not the source, but I don't think that is important since the binary is generated from the copyrighted code, so it is copyrighted, too.

How do you put the worms back in the can?

[rdewald]

Ok, for the sake of discussion, let's assume that the 80 lines were lifted and it is deemed improper. I think we have a long way to go before that is established as fact, but if it is.....

How in the world do you get us, /.'ers, to buy a license for code we ourselves modify? Just last week I had to fix some code in my kernel because the new gcc wouldn't compile it. Apparently there was a patch for it, but I had just turned off my broadband (not worth the $$$) and I needed to compile ppp into the code to get my modem to work. So, it was fix the code or wait for a CD to show up in the mail. I'm going to pay for this?

Sheesh.

[vadim_t]

Even if those 80 lines were really copied from Linux, it's not a big deal. Any decent programmer can write 80 lines in less than an hour. Even if those 80 lines do something unusually cool and hard to come up with, I'm still sure that there's no way that just 80 lines of code can give Linux any significant advantage. Fix a bug, or get a driver to work? Maybe. Give Linux the quality SCO claims it wouldn't have if IBM hadn't copied the code from them? No way.

Lawyer

[FTL]

Many observers believe SCO's case is bolstered by the fact that it is represented by high-powered attorney David Boies, who prosecuted the Microsoft antitrust case and represented Al Gore in the 2000 presidential election vote-counting scandal.

Wait a minute. Didn't the Microsoft case collapse? And didn't Al Gore loose his case? So why is SCO's case being "bolstered" by using David Boies. Isn't Mr. Boies just a loser?

(Nothing personal against David, just looking at the quoted record.)

Re:Lawyer

[the eric conspiracy]

Didn't the Microsoft case collapse? And didn't Al Gore loose his case?

If you look at the part of the Microsoft case that Boies was involved in, Boies clearly won. Microsoft was found to be a monopoly, and have acted illegally. The judge in the case went so far as to recommend that Microsoft be broken up. Even more telling he clearly embarrassed Microsoft's attorneys a number of times during the trial. Of course, the settlement turned out to be far less than a breakup, but that was more due to the DofJ caving during negotiations with MS than anything Boies did. And that finding of MS being a monopoly is going to affect MS for a long time in a variety of ways in other litigation.

In the case of Al Gore's electiion challenge, Boies did lose. While I am not at all a fan of Dubya I think that in retrospect it was a reasonable outcome to a very difficult situation. Certainly post-mortem investigations showed that Bush probably did actually win the plurality of votes in Florida. Of course the fact that justice seems to have been served is purely accidental, and should be a warning that election processes are not robust enough in these close races.

To me the disappointing result was the Napster result. I would have thought that things like the Betamax case would have provided a good base to win this one. I do not at all agree with the idea that a particular technology should be blamed for the way it is used.

The other area of criticism of Boies that bears some scrutiny is that he was unethical during the Gore matter. This to me is the most severe issue of all. Of ourse I am sure SCO doesn't care about this.

The choice of lawyer for SCO may well have come down to the fact that they need someone to handle a very high profile technology/IP case on a contingency basis. It may have boiled down to Boies being the best available.

Does Linus et al keep track of code submitters

[swb]

Do they?

Is it possible to submit a patch to some backwater part of the kernel that improves upon something rather mundane, the kind of thing that doesn't get your picture on the "Top 10 Kernel Gurus" list and then have the identity of the submitter slowly slip away into the ether?

Or are the kernel submitters kept in some kind of list someplace along with the stuff they submitted?

Re:FUD!

[DaBj]

Don't forget to consider the fact that "UNIX" is full of BSD code (remember the BSD lawsuit), and linux has a lot (well some) BSD code in it as well, more or less modified. How do we know it wasn't this code they showed?

And now.. read again SCO claims

[MrNop]

âoePrior to IBM's involvement, Linux was the software equivalent of a bicycle. UNIX was the software equivalent of a luxury car. To make Linux of necessary quality for use by enterprise customers, it must be re-designed so that Linux also becomes the software equivalent of a luxury car. This re-design is not technologically feasible or even possible at the enterprise level without (1) a high degree of design coordination, (2) access to expensive and sophisticated design and testing equipment; (3) access to UNIX code, methods and concepts; (4) UNIX architectural experience; and (5) a very significant financial investment.â (Paragraph 84)
80 LINES of code !

âoeOver time, IBM made a very substantial financing commitment to improperly put SCO's confidential and proprietary information into Linux, the free operating system.â (Paragraph 94)
80 LINES of code !

âoeThe only way that the pathway is an âeight-lane highwayâ(TM) for Linux to achieve the scalability, SMP support, fail-over capabilities and reliability of UNIX is by the improper extraction, use, and dissemination of the proprietary and confidential UNIX Software Code and libraries. Indeed, UNIX was able to achieve its status as the premiere operating system only after decades of hard work, beginning with the finest computer scientists at AT&T Bell Laboratories, plaintiff's predecessor in interest. â (Paragraph 99)
80 LINES of code !

Re:Mac OSX based on Linux?

[Anonymous Coward]

Well, that tells it all - we're talking here
about code that came from BSD.

Otherwise, why should both Mac OS X as well
as Linux have it ?

Re:Has anybody considered

[Your Anus]

It shouldn't be all that hard to prove where the code came from. Anything that gets into the linux kernel is posted on the linux-kernel mailing list. I would think one could simply grep the archives, given the lines of code/comments in question.

NDA & Comment Question

[attobyte]

Could someone that seen the code tell you the comments so we could get it out of the Linux Kernel. I somewhat read the NDA and all I saw was stuff about code. It would be cool if that was a loophole SCO didn't think about.

Mike

Re:Has anybody considered

[dnoyeb]

Its irrelevent. I am sure if SCO opened their code to full inspection, they would have numerous GPL violations. Thats just how business goes these days. Thats why you see big companies settling out of court. And thats one of the major reasons for the patent frenzy. So, so what if their is 80 lines of stolen code. Lets see how much GPL/LGPL/other license code is hidden in the SCO code....

Kernel pedigree

[Anonymous Coward]

I think that a project should be started to locate the source for every line of code in the linux kernel (not as hard as it might seem, since all lines can be quickly pinpointed to the patch that introduced it by looking at the patches at kernel.org, and then searching the mailing list archives to find the submission. Few patches are not discussed in the mailing list or appear in some alternate tree first).

This way, we can:
1. Locate all code that came from IBM, and thus all code that might be what the SCO people are talking about. Then, it would be a simple matter of looking at UnixWare to see if it has the same funcionality somewhere.
2. When (if) the case goes to court, since the origin of everything is already annotated, it would be much quicker to check every claim.
3. Help the guys who get the NDAs (they could use it to check the source of every claimed infrigiment, and see if it really came from IBM).

Re:But where is the code?

[Narcissus]

I think that even the biggest Linux-basher would agree that the Linux OS was in a bootable state before IBM starting submitting code for it.

I would assume, then, that this 80 lines of code is not required for a system boot (unless it pertains to some bizarre IBM setup, in which case the code would have no doubt originated from IBM, and possibly submitted to both the Linux kernel and the SCO Unix kernel independently).

What did you say they wanted?

[Lumpish Scholar]

"SCO is not trying to destroy Linux," said [Laura] DiDio of the Yankee Group. "That's silly. This is about paying royalties."

We don't want to destroy privacy; we just want to be able to track terrorists.

We don't want to destroy fair use; we just want to make sure the artists get paid for their work.

We don't want to destroy free software; we just want to be paid every time someone uses it.

<sarcasm>Yeah, right.</sarcasm>

Re:What did you say they wanted?

[the gnat]

Very funny, but all of the Slashbots who talk about "sharing" music or software with their anonymous "friends" on the Internet are just as guilty of doublespeak.

Regardless, SCO has to actually prove some violation before they can get royalties from any company with a legal department. The quote is actually sort of funny if you think about it: it's not about wrath, it's about greed. Wrong deadly sin, guys. I think she would have sounded a little better if she'd said it was about "protecting intellectual property rights".

Re:Has anybody considered

[cookd]

I sincerely hope that all of this blows over. I'm very suspect of SCO's claims, especially since they won't let the evidence out, which means that they're going to charge royalties for everyone using their code without telling us exactly what we need to remove their code from Linux. Withholding the evidence is making everyone mad, and preventing us from "coming clean" by removing "their" code or even by licensing "their" Linux if we feel so inclined.

However, let's assume that there are right -- they own Unix, and there are segments of code, up to 80 lines in length, that match between Linux and Unix. What does that show? Still nothing in itself. The code could also be in BSD, in which case it would be free and clear from any SCO claims (although if it lacks the appropriate copyright label, the Berkeley regents might have to send their agents over to rough Linus up a bit (grin)). Or something like that. The code might well be public domain stuff (from an academic paper, from some code library, etc.), so nothing to see.

But assume SCO does own the code. We just rewrite those sections and call it good, right? Wrong. The sections are evidence of contamination, and it will be difficult to determine exactly how far the contamination goes. If someone could copy and paste SCO code, he/she was also probably doing other things -- opening the Unix code in one window, and writing a similar Linux routine in another window, referring back to the Unix code for a "how-to". This is also illegal, as such things need to be done via clean room reverse engineering procedures.

SCO will then argue that the contamination is very deep. IBM and the Open Source people in general will argue that the contamination is insignificant. It might be hard to tell in some cases. SCO will argue that the design patterns in use in Linux were stolen from Unix, and that those design patterns are crucial IP. Everything built around that design will have to be rewritten, probably with a different design to prove that we aren't continuing to steal their precious design. And then everything that depends on that design will also have to be rewritten. Etc. Depending on how deep the problem goes (according to what the courts decide), it may or may not be feasible to rewrite the affected portions and send out patches. The problem is that lawyers may have to get involved, certifying that the portions rewritten comply with all necessary laws and no longer intrude on SCO's IP. It may be necessary to abandon portions of Linux entirely, perhaps importing replacement code from BSD or the like.

In the meantime, all of the big fish who have been using Linux will be sued for royalties. I'm sure that many suits will be dismissed, but some will be upheld.

Whether or not SCO wins, this will be a wakeup call. Before accepting GNU tools for use in the business, managers are now going to be asking, "how can we be certain that this code is legit?" It is a very valid question. All source has pedigree -- are there any portions of this code that might be discovered to belong to someone else? If so, what protects us from having that code yanked out from under us? Somebody could sue us for damages, refuse to license the code to us, and shut down our entire operation.

If SCO wins, beyond the damage to Linux itself, a lot of people are going to get very nervous about using open source products in general in the business world. Even if they lose, things are still going to get a bit more tense, as you may have to prove the code's purebred pedigree before you can use it to run your IT department.

I've seen this kind of thing before...

[DaHat]

Two blocks of code looking identical is nothing new to me, a couple of years ago I had a couple of friends be accused of cheating in one of their programming classes. The source of this accusation was the teacher who thought one was copying from the other as almost each assignment theyâ(TM)d turn in were identical other then the names at the top.

It wasnâ(TM)t until they put them in two different rooms and asked them to write the same thing that they found that these two had virtually identical ways of coding, not just the code itâ(TM)s self, but the variables uses, the code formatting and even the comments. Everyone was surprised, and eventually the accusation of cheating was dropped.

The moral of this story is that two blocks of code can be identical, itâ(TM)s very rare, just remember the infinite monkey principal.

That's exactly why SCO won't talk.

[L. J. Beauregard]

As soon as they know what code is "dirty", if it even is, it is going to be removed.

Thereby depriving SCO of their revenue stream. They are trying to cast a cloud of FUD over the entire Linux and GNU codebase, to establish de facto ownership of the whole enchilada.

Yes, it's like slapping a lien on your house over a couple of stolen teacups. What remains to be seen is whether the court will allow it. Can any lawyers comment? (Lawyers, please, not the zillions of IANALs that inhabit these parts.)

like music sampling?

[goombah99]

if its fair use for musicians to a "sample" snippets of each other's code maybe its okay in software too. 80 lines out of tens of thousands is about the same the interval that a sample occupies in a 2 minute song.

on a more serious note, could some lawyer answer the question of what pre-trial obligations SCO has to give the LINUX community a chance to rectify the errors. I've read that no actually dmamages can be claimed until the copyright infringement is made known to the offending party. As it is SCO seems to be deliberately letting LINUX twist in the wind a bit as a sort of black mail scheme.

We all know the resolution of this is that before the next release of the kernel all the offending code will be erased and LINUX developers and users will not be liable for any future damages. Thus SCO's actions seem gratuitous and the trial largely moot.

What evidence of origin,ownership,copyright + GPL

[NZheretic]

SCO's evidence of origin and Function dictates form

What proof did SCO present for the origin of both fragments of source code?

What proof did SCO present to show the SCO code did not originally from old BSD,Linux or public domain publications?

Who put the SCO source into Linux? - Was put there by Old Novell/SCO/Caldera in the first place?

What proof did SCO provide to show that the person had access to SCO's Unix sources?

The latter question raises another issue. The similarity is just as likely to be due to both operating systems performing the same role. Form is often directed by the function it performs. Function and variable names are often dictated by the API and common terminology.

Both the current Linux and Unix kernel developers have attended the similar university courses and read the same publicly available documentation. The works of W. Richard Stevens are very influential as a reference toward modern Unix and Linux and have dictated the implentation of APIs and TCP/IP stacks in both.

Copyright WHAT Copyright

From Groklaw.

Now that copyright is back on the table in the SCO case, you might like to

read the law on copyright.

SCO held another telephone conference today, but you had to be on time. I tried to call in later, when I was free, to hear the recording, but although the operator told me it had been recorded, it wasn't being made available. She suggested I contact SCO and ask to hear it. Meanwhile, someone who did listen posted on Slashdot as "mec" and he or she heard this question and answer:

[question #3] Stephen Shankland, CNET --

"Q: Copyright office does not have an assignment on file [for the Unix copyrights from Novell]. 'Is it your understanding that the copyrights have not been registered yet?' A: 'Stephen is correct ... [if we need] we will change the assignment of copyright ...' [we can do that at any time]."

If this is true, that they failed to register, it puts another interesting twist on this story. (Novell put a twist of its own, by posting a press release on its site saying that while the Amendment that SCO sent them seemed to support their claim "that ownership of certain copyrights for UNIX did transfer to SCO in 1996", Novell doesn't seem to have the amendment in its own files, and patents for sure didn't transfer.)

It's true you can register a copyright any time, but you can't sue for infringement until you have registered and you can't get certain damages for infringement that occured prior to registration: "Before an infringement suit may be filed in court, registration is necessary for works of U. S. origin." Section 411 says it precisely like this:

" 411. Registration and infringement actions10 (a) Except for an action brought for a violation of the rights of the author under section 106A(a), and subject to the provisions of subsection (b), no action for infringement of the copyright in any United States work shall be instituted until registration of the copyright claim has been made in accordance with this title...."

You are limited as to remedies without registration, as Section 412 sets forth:

" 412. Registration as prerequisite to certain remedies for infringement11 In any action under this title, other than an action brought for a violation of the rights of the author under section 106A(a) or an action instituted under section 411(b), no award of statutory damages or of attorney'

Re:Has anybody considered

[SnowZero]

And I still don't buy it either. It's not like any other IP enforcement we've ever seen. Not even the RIAA/MPAA act like this:

Imagine the RIAA comes and tells you that one of the CDs in your collection is a pirated copy, but they won't tell you which, and you must start immediately paying them royalties, along with fees for past damages.

Doesn't sound very ethical now does it? "Fair" would be indicated the infringing code so that it could be removed, and charging for damages of the use up to the point in time which it was removed. Making someone pay while not giving the opportunity to fix the problem is simply extortion.

Theft is fheft.. but..

[nurb432]

But does 80 lines of code warrant holding the entire OS community for ransom? ( you know they would not stop with UNIX, and head to Microsoft next.. )

80 lines will be easy to 'fix' for the future, they cant be magic code..

But that wont stop them from asking for damages due to previous versions of violating software.

I've always believed SCO had a case, or wouldn't claim it.. BUT it was totally irresponsible to act on the infraction in this manner. A polite letter of 'you have violated, here is what you need to fix' would have been proper. Its not like they have lost a dime over this.. really.

Drive by shootings?

[h00pla]

SCO's actions angered Linux supporters, who allegedly deluged the company with angry e-mails, threatened drive-by shootings, and posted SCO's executives' home phone numbers and addresses on Web sites.

I have been following the SCO case very closely and I have not heard about threats of 'drive-by shootings'. Can anybody substantiate this? -- point to some links where SCO alleges this or news about this? I think that if EE Times invented this or if SCO invented this, it's pretty outrageous. It's equally outrageous if it really happened, but I would not say that these people are your 'garden variety' Linux enthusiasts.

wrong

[dh003i]

SCO has no leg to stand on here. Even if all of their absurd claims are true, no-one is liable beyond the point at which SCO could have provided them with information to correct the matter. Assuming SCO's right, they could tell IBM and the community exactly what lines of code are identical, and provide real evidence to prove that the code was copies from SCO => Linux. The offending code would then be immediately removed and replaced, ending further continuation of the problem. SCO has not done that, so they cannot collect on any damages past the point at which they could have done such.

Re:wrong

[janda]

To quote:

Assuming SCO's right, they could tell IBM and the community exactly what lines of code are identical, [...]

They don't even need to tell the community. They could tell IBM, IBM could re-write the portions, submit it to Linus (he'd probably have to know also), and give it a changelog entry of something like "re-write portions to improve compiler optimizations under gcc 3.0.1 patchlevel 4" or something.

SCO would only need to do the "having worked with IBM to remove the offending sections" routine, and they could still sue for trade-secret infringement and contract violations.

Heritage of that code?

[Catiline]

Personally, I question the origins and heritage of those 80 lines. There are three ways that Linux and SCO UnixWare[1] software might contain identical code:

1. Linux steals code from SCO. (This is what SCO is claiming -- theft of IP via IBM's developers.)
2. Linux gives code to SCO. (In my mind a likely possibility, given that SCO-- once Caldera Linux-- sold a Linux distrobution.)
3. Linux and SCO both borrow the same code from a third, public doman or BSD-style licensed source.

Personally, I place the first option as the least possible for two reasons: first, that I doubt any decently-skilled programmer would believe that (improperly donated) proprientary code would remain undetected in a open source program. (The "many eyes" principle doesn't make just bugs shallow!) Secondly, SCO "damning evidence" chart of UNIX history shows two arrows going FROM Linux to UnixWare around August 2000 (on either side of UnixWare 7.1.1+LKP), one coming from the Linux 2.2 branch and the other from the Linux 2.4 branch. This chart also shows one (and only one) arrow leading into Linux ... from BSD 4.4 around the end of 1994 (Linux 1.1.52).

I'm laughing my head of at this whole brouhaha. SCO can't keep their story straight (one day it's trade secrets, then copyright, then patents, then ...) nor can they even lie convincingly on their webpage. Somebody please start a class action lawsuit positing fraud against these folks.

[1: Even without seeing an exact statement from SCO about what part of their proprietary code is in question, I know it must be in UnixWare and not OpenServer because they complain IBM violated their IP with Monterrey ... and the arrow on the history chart to Monterrey leads from UnixWare.]

Are things really that bad?

[sbaker]

If there are indeed 80 contiguous lines of near identical code with identical comments - then I think we have to accept that the UNIX and Linux code came from the same place. That's too much to have come about by chance or parallel evolution. However, that doesn't make it an open-and-shut case for SCO:

1) Did the code indeed come from UNIX to Linux and not from some other common source such as BSD - or from Linux to UNIX. Given the lack of version control in early versions of UNIX, it's going to be hard to show *where* it came from.

2) Where is this code? If it's in the heart of the kernel then that's one thing - but if it's in some obscure utility or in a device driver, then it's quite possible that hardly anyone is using this code anyway.

3) You can bet that within an hour of SCO revealing the location of this code, there will be a replacement for it out there. So they'd only be able to claim royalties for past use...not off into the future.

4) Novell claim to own the copyrights and patents to UNIX. If that's true - then who cares about SCO's claims? Now, if Novell were to sue - that would be a completely different matter.

5) It's hard to see how SCO could claim to have been materially damaged by this. It's pretty darned obvious that if the Linux community had not had access to those 80 lines, we'd have written them ourselves...it's not like "Oh no, we don't know how to write that function - so we'll have to steal it from UNIX."
Linux's and SCO's sales would not have been different in the slightest whether that code was copied or written from scratch.

We *NEED* more facts. What file and what range of line numbers are we talking about here? Why are SCO keeping that so secret?

Re:Has anybody considered

[ReconRich]

The thing you miss ( and I HATE defending SCO here) is that if the code is there --- It constitutes IP theft, which is the actionable part of the whole thing.

Not true. A very likely source for that code is that it came from Unix code which was covered by the BSDi/UC Berkeley lawsuit and has been entered into the public domain. Loads of code in Linux has come from BSD, which in turn came from UNIX, just like SCO's code. But a judge has already taken care of that code - it's known to be good. But so long as noone can check (because of the NDA), noone will know. Or it could have been copied the other way, and now SCO's code is GPL'ed ;-)

-- Rich

80 lines lets see?

[linuxislandsucks]

80 lines is less than what one thousandth of percent of any unix like kernel..

sounds more liek SCO GFroup during the partnering with IBM on a project accidently copied their own code to Linux..:)

What ever happen to McBride's claim of thousands of lines of code?

Re:FUD!

[the gnat]

one would expect that the 'Independent analysts would have checked that

The first independent analyst we heard from was not even a programmer, and she specialized in Microsoft products. I wouldn't expect her to have ever used Linux before, let alone be able to detect the lineage of the code. So far, there's no indication that these people are remotely qualified to determine who, if anyone, is ripping off whom. I'm willing to take their word for it that the code is substantially the same, but given that Linux and BSD source has always been freely available and most of Unix hasn't, the burden of proof remains on SCO.

These analysts are just a useful source of sound bites, and they're positioning themselves to be the first in line for giving advice to all the pointy-haired bosses who will freak out if this mess goes any further. Do not take anything they say at face value.

Re:FUD!

[Amazing Quantum Man]

What if the kernel changelog shows it was submitted by Sven Hacker in Norway, who never had any contact with IBM?

SCO might have a case against Sven, but why would they win against IBM?

I agree with an earlier poster, though. By claiming only 80 lines, it kind of shoots their "Bicycle/Sports Car" analogy in the foot, doesn't it?

Re:Has anybody considered

[treat]

That maybe SCO are telling the truth - that maybe there is ripped off code?

Maybe because of quotes like this from their CEO:

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?"

From Bicycle to Cadillac . . .

[Beatnick]

. . . in 80 lines???

Must be some killer lines.

Re:Has anybody considered

[Nucleon500]

Obviously that doesn't apply to the contested code, but the GPL on the other 99.9% of the kernel is valid.

Suppose SCO decided anyone using their snippets owes them $.01 per year. The instant they do that, it is no longer legal to distribute the tainted kernel, because you can't legally do it without placing further restrictions on the recipients.

At this point, the code would be known. (If not, every commercial entity with an interest in Linux would sue SCO to discover which 80 lines they aren't allowed to redistribute.), and it would be rewritten. SCO might be able to sue users of the old code, but they could just upgrade. I think the only danger to Linux (not that I'm downplaying it) is the FUD.

Re:Has anybody considered

[timmyf2371]

It's also been said here before, many times in fact, that SCO's Linux product was released and wasn't even pulled when they first announced that their IP was in the Linux code.

It's no excuse that their code verification process didn't pick up this fact - IANAL, but doesn't this mean SCO have released their IP under GPL?

Re:Has anybody considered - a different slant

[pVoid]

But so long as noone can check (because of the NDA)

Have you considered the following: regardless of what was done, the judge's words are final. It doesn't matter if there were to be 10 million linux protesters each with a print out of the code in their hand chanting in front of the court, the judge's words are final. And generally speaking, judges are unimpressed by chanting.

On another note, have you considered that the fact that nobody knows where this code is is actually a way of keeping it somewhat hidden? As meager an argument that is, it's still an argument.

Re:hmmm

[canned polar bear]

ah seems somebody else posted this theory earlier. i really should read everything first. however one thing i would like to know is if SCO wins in the US how does this affect the rest of the world, specifically europe?

Re:Has anybody considered

[kubrick]

However, SCO aren't (currently) suing for breach of copyright. They are suing IBM for breaking their SCO Unix license by revealing trade secrets.

They've muddied the waters by sending out their C&D to Linux customers, but they would have to prove the copyright breach pretty convincingly in the IBM case to get settlements from other companies -- and judges are normally very reluctant to decide issues outside the merits of the case at hand (although, of course, IANAL).

There's always the chance that, if they manage to win this case, they'd be feeling pretty pumped, and take on IBM or another company in a wider-ranging suit which could cause the sorts of contamination problems you describe.

Before accepting GNU tools for use in the business, managers are now going to be asking, "how can we be certain that this code is legit?"

This is a question that all business users of code (open and closed) should be asking -- as MSSQL users found out when their use of the product was considered contributory infringement in the patent case Microsoft lost a little while ago. If the company selling you the product/service can't indemnify you from things like this, you need to be prepared for that contingency yourself.

Re:Has anybody considered

[Anonymous Coward]

That contamination could have easily come directly from SCO's own developers! They have their own distro and their guys working on integration, so what the hay? Who can you point fingers to? They say they didn't do it and point fingers at IBM and at miscellanious "incapable" (from SCO's opinion) kernel hackers that somehow had SCO's source code. IBM...well, they haven't said anything at all. However others are pointing fingers back at SCO. Novell is saying SCO doesn't have a foot to stand on anyway and is making the FUD claim. Others are saying that common code from BSD could be populating both SCO's product AND Linux. It's very likely SCO knows just how nebulous and unproveable all this is and is banking on playing on the uncertainty to win some gains. Man, I certainly would NOT want to be the judge that's gonna have to listen to all this tripe. I certainly hope he's halfway cluefull of all these issues...

Re: Consider this

[Anonymous Coward]

Couple of wild points. I'm posting anonymously so it doesn't look like I'm bragging.

1. Anything above 140 or 150 or so is basically arbitrary. The people writing the test aren't as bright as those who score that high, so the margin of error increases dramatically.

2. My IQ is somewhere in the 160s, supposedly. I've met a few other people whom I was sure were smarter than I am. It never occurred to me to ask what their IQ was; but I was willing to listen to anything else they had to say. There are probably others with higher IQs who aren't "smarter" than I am. Our perception of intelligence encompasses too many different factors for a number to be meaningful.

3. The Mensa member with the highest IQ is Marilyn Vos Savant, right? She's famous for having a 212 IQ, having been married (maybe still is married) to Jarvik of artificial heart fame, writing an advice column, and having a ridiculously appropriate last name. Last I checked, she did not find the cure to cancer, did not invent hyperluminal velocity travel, and did not decipher the Indus script. As a friend of mine says about Mensans, "never before have so many been so proud to do so little with so much."

The moral of the story: IQ is meaningless. What matters is the combination between discipline, energy, educational opportunity, ethical motivation, and intellectual potential. If they all align, you get Einstein. They never all align.

IQ is as meaningless a number as UID. It measures something, but it doesn't measure what it pretends to.

Re:Has anybody considered

[Minna Kirai]

Redhat might migrate to the new clean version of the tree and be forced to discontinue support for the older versions.

They already don't support older versions (unless prehaps a customer has negotiated a special contract).

For example, RedHat 6.2 came out in 2000, and is unsupported. You cannot install it on a system with a Pentium4 chip, even though it would take a minor patch to the installer to allow this.

Redhat abandons old versions faster than Microsoft does. (Of course, since they allow users to upgrade for $0, they could argue that it's not as bad in their case)

Anyhow, if a "new, legal Linux" is created, Redhat could just back-port those changes into their old products. Then they could continue supporting their old releases by saying "Before we can help you with your problem, sir, you should take these patches and upgrade to version 6.2.1 or 7.3.1"

David Boies and SCO

[bstadil]

David Boies was a guest on the Charlie Rose show here a few days ago. He didn't talk about the SCO case but he outlines the basic strategy of the Lawfirm stemming from some of the adjustment he personally had to make since he suffered from severe dyslexia and still has some problems reading.

Strategy is to get the facts first. All the facts. Good, bad or indifferent. Then understand the implication of those facts. Only then formulate a strategy that presents those facts in the best possible light for the client.

He stated that the single most valuable asset that any trial attorney have in court is his credibility. If that is lost the case is most likely lost.

This means NEVER try to present somethng that is factual dubious as it has a high probability of being countered. Better to present some of the counter arguments yourselves and put them in a less favorable light up front.

Now this to me means that initially SCO preented a compelling case to David Boies, and whatever due diligence they did before they took the case (pretty much on contingency I might add) corroborated the claim.

Now for the clincher

Why wasn't the NDA drafted by David Boies'firm?

Me thinks there is trouble in Paradise.

Re:Has anybody considered

[Minna Kirai]

but doesn't this mean SCO have released their IP under GPL?

That has been argued. But courts won't hold someone responsible for a contract made in response to fraudulent information from the other party.

Besides, the GPL says that "you must apply GPL when you make changes". SCO alleges that they didn't make changes to put their code in Linux- they say it was already there.

Extreme example: Suppose a company (Sun) hosts a free software archive on the web. A hacker breaks into their network, and copies proprietary code into a GPL package on their public server. When someone downloads that, Sun has distributed a GPL program containing their own changes. Have their really put their entire codebase under GPL? Of course not, they didn't know it was in there, and weren't making a willful decision. Same as with SCO: "We didn't know it was there"

Re:Has anybody considered

[Antaeus Feldspar]

That maybe SCO are telling the truth - that maybe there is ripped off code? Undoubtedly if the claim was that MS had included GNU code in their apps, people would automatically presume guilt; why the immediate defensiveness now?

I don't know how "still not believing their claims" translates to "immediate defensiveness".

To be frank, one major mistake that SCO made -- or maybe it wasn't a mistake -- is what keeps me from putting stock in their claims now. Namely, when asked why they weren't showing proof right away, they claimed that if they let anyone know where the duplicated code was, the Linux community would "launder" it away. Even giving them the benefit of the doubt and presuming they didn't mean that the actual code would get laundered off of millions of Linux CDs, the distributed nature of Linux development still means that any evidence of wrongdoing is out there in too many places to be hidden. Of course, any refutation of SCO's claims is also out there in too many places to be hidden, but the Linux community can't start presenting its defense until SCO actually gives details on which code is supposedly copied. As Miles Vorkosigan says in one of the most recent books in the Vorkosigan Saga, "Correction: I am not charged, I am slandered. There is an unsubtle legal difference." If this goes to court, then SCO will have to detail its accusations and IBM and Linux will get a chance to argue the charges. As it is, however, SCO gets to parade these accusations throughout worldwide news -- we've already seen the damages being done, with Linux deployments being re-thought -- and IBM and Linux are put in the impossible position of having to prove a negative, with the information of what they supposed to have actually done -- which code is supposed to have come from SCO -- withheld from them. Don't you think that calls for defensiveness, when we've been under this attack for a month and the opportunity to answer the charges and clear ourselves withheld on such a flimsy pretext?

Even though the ludicrous claim of "laundering" has hurt SCO's credibility, I wonder if it wasn't actually a successful strategic move. Because it has drawn people's attention to the truth or falsity of whether there's common code between SCO and Linux, and that's not the key point at issue here. The key point at issue is not whether 80 lines of code including comments are identical. The key point -- the one I think SCO doesn't want people to be looking at -- is whether that code is SCO's.

There are plenty of plausible explanations for how large sections of common code could be in both products; SCO's theory that a major industry leader, IBM, ripped off a major industry loser, SCO, and wasn't even smart enough to cover its tracks, is only one of them, and not the most likely. The most likely is that the code in question is in the BSD codebase that has already been ruled freely redistributable, and SCO's draconian NDA really cleared the field of anyone with the qualifications to recognize that code. Another is that SCO ripped off Linux, not the other way around. Comparing the dates that the disputed code was added to the kernel codebase in each case would answer that question in a hurry -- but note that Linux can not defend itself against such charges until SCO actually answers what code is supposedly theirs. Once SCO reveals that, of course, then IBM and Linux can start searching to provide proof of prior development or prior art -- months after SCO has started this whole smearing campaign.

As far as I can see, the only scenario that doesn't require somebody, somewhere being really grotesquely stupid is that SCO was hoping for a buyout all along, and counted on that buyout happening before they were ever forced to make their slanderous accusations into actual charges. Once they made actual charges, the game would be up; once it was known what the code in question was, the truth about who actually owns that code might come out. And trying to keep people from realizing that that was the real question -- that's the only reason I can think of for a ridiculous delaying tactic such as "we can't provide any details on what IBM supposedly did because then the evidence might get 'laundered'."

What was not said

[diakka]

I think many people here are implying things that may not be true. First, the article states:

"The two blocks of software, they said, contained as many as 80 lines of identical code, along with identical developers' comments."

Notice that it NEVER STATED that the 80 lines were a sequential unbroken segment. I believe that if it was, they would have said that to strengthen their claim. For all we know, they may have simply taken files and tried to see how many lines were identical. If they found a particularly large file, they could have just found random lines completely out of order that just happen to match up.

You may also be assuming that the 'identical comments' are on the same lines as code. They could be simply on a seprate line. They may also be very short and virtually meaningless comments.

We also don't know their definition of identical. Most of you are probably assuming that they mean the lines match up exactly, character by character. Perhaps SCO's definition is that they simply serve the same function, or that the comments have the same meaning. Even if the lines matched up byte by byte, this may not be as big of a coincidence as it seems since it is very common for people to use code beautifiers such as 'indent' that could easily produce the same spacing results even if the 2 original lines came from completely different sources.

What constitutes a 'line'? perhaps they are also counting single character lines such as an open and close curly bracket. What one coder writes as a single line in C may be broken up in to several lines by another coder.

All in all, 80 lines out of millions is an extremely insignificant amount. And what's more, I find it highly unlikely that those 80 lines contain any information worthy of trade secret protection. I feel fairly confident that your average linux kernel hacker could whip out 80 lines of code in less than a day.

I'm confused. What's RedHat doing

[WhiteWolf666]

Redhat, Mandrake, Debian et al. have legal teams, I believe.

GNU, and FSF, should care what is going on with this case.

OSI has something to say too.

In reaction to posts like this one linux distributors should sue SCO, asking for the following:
A. Injunction against scaring potential and existing customers away from linux, using threatening letters.
B. Disclosure of offending lines of code.
C. Bar SCO from legally threatening ANY Linux user under the grounds of copyright infringment, since SCO has already released all the code under the GPL (and continues to do so, by disseminating linux-kernel-source from their website).

It seems to me that this should be a simple process. Indeed, if I wasn't dead broke, I might decide to file a case like this myself.

In addition, why not fork SCO's Caldera kernel-> Isn't their custom kernel usuable as 'linux'? Just take their kernel, strip out the SCO bits, add our own, and call in the SCO-lawsuit-protected kernel--after all, you got it from SCO, and they have agreed not to prosecute people using their code.

Infact, this last option seems to be an ace in the hole for us. Unless I'm wrong, in which case someone should explain why to me.

*Only* 80 lines?

[JohnFred]

I'm amazed: think of the number of system interfaces - things like ioctl() and friends - that must be identicall across any Unixish/Posixsh system and I'd be surprised if that didn't add up to more than 80 lines.

Of course, that may be SCO's IP grab: they want to own anything vaguely *like* UNIX. I kind of admire their sheer brass balls...but don't quote me on that.

I think I found it.

[Anonymous Coward]

Let's see, headers count, right? (A non-programmer wouldn't understand headers are not code)

Which header would be exactly the same between two Unix versions, down to the comments?

linux-2.5.70 # wc -l include/asm-generic/errno.h
100 include/asm-generic/errno.h

It's more than 80 lines.

Re:I think I found it.

[janda]

Headers are code just as much as anything else.

You (and the others that have brought this up) have a very valid point, though. There are certain to be several header files (um, stdlib.h, stdio.h, math.h, time.h) which have, over time, become identical.

There's probably structures and other data-related items that have also through the years converged, thanks to BSD and other things.

Which is probably another reason why SCO is trying to spread so much FUD about this whole situation, and won't let anybody competent see the "offending code".

A comment on the NDA: I've seen some nasty NDA's over the years, but this one wins the "only a complete fool would sign this" award hands down.

Re:Has anybody considered

[Error27]

SCO hinted that the "problem" might be JFS code. That would make sense too. Unfortunately for SCO the Linux implementation is really a port from OS/2.

Does OSS clash with capitalism?

[raw-sewage]

A co-worker and I regularly have some semi-heated discussions, given that I'm pro-OSS and he's very much anti-OSS (and pro-Microsoft to boot).

He subscribes to the GNU software = communism FUD. Although I disagree, I do get a bit worried when he makes the following point: the issue isn't about whether or not Linux has code stolen from SCO, it's about their intellectual property. My co-worker loves to make the point that when you talk about open source software, it's about communal ownership of intellectual property (and I agree, that's the whole point). But he claims that principle clashes with capitalism, because, eventually, some open source software will look a lot like some commercial offering. Even if there's no actual stolen code, the commerical compnay will see it as an intellectual property violation---they're going to come looking for their due profits.

John Dvorak kind of hints to this in the following article:

http://www.pcmag.com/article2/0,4149,1115156,00.as p"

Code or no code, it's possible that SCO sees their concepts or ideas being used in Linux, probably something they could (at one time) consider a competetive advantage.

How hard would it have been for some IBM staff working with SCO during their deal to go home and put the same ideas or technology (in the general sense, i.e. no actual code) into Linux?

I'm afraid the Dvorak article makes the following valid point: this whole mess is bad for Linux unless it's completely thrown out. The worst case is a settlement or ruling in favor of SCO: it sets a precedent for other companies to sue open source businesses for intellectual property theft.

Re:Does OSS clash with capitalism?

[Anonymous Coward]

Actually, capitalism conflicts with Intellectual Property.

In a truly capitalistic system, anybody who can improve on someone's idea and market it properly will always do well.

So, if I were to improve windows XP by removing activation and selling it, I should become a millionaire.

But if I did that, I'd actually go to jail. Bummer, huh?

Aberdeen and M$ in bed. coincidence?

[Mark19960]

Correct me if im wrong here...
M$ and Aberdeen are in bed....
SCO shows Aberdeen evidence...
its in the best interests of all 3 parties that linux be gone. SCO can extort money from everyone, and that will make M$ software look good.
M$ gets wish, to scare companies away from linux and OSS
Coincidence? maybee.
we REALLY need to find that code. if it exists, it can be very damaging

80 lines of code could be significant...

[qtp]

to the courts.

Remembering that most lawyers and judges are not all that knowledgable about programming, SCO could use 80 lines of plagerism to claim that there is a much deeper pattern of copying and paraphrasing going on (disregarding the fact that the vast majority of kernel contributers have had no access to propietary kernel code of any type). And the courts are influenced by the political environment of the time.

I've begun to view the underlying issue here as not one of SCO's ownership of particular code, but more an issue of ownership in general. There is a school of thought that believes that ownership is a neccessary aspect of all things and that things (objects, ideas, actions) only have value if they are paid for. This philosophy has been touted by such notables as Thomas Hobbes, John Locke, Ronald Reagan, George W Bush and his father. For the user base of GNU/Linux to not see this lawsuit as the beginning of yet another battle in the struggle to curtail the free distribution of ideas (source code are ideas) among men and women would be a mistake. If SCO were to convince the court that the 80 lines of code somehow bestowed upon the Linux kernen a taint (trade secrets) that cannot be removed, then the court may be conned into believing that the kernel is in part owned by SCO and that the distribution of the code and/or binaries should be accompanied by the paying of royalty. In addition, there has been an increasing attitude towards Free Software and Open Sourse that these ideas somehow endanger the economy of the United States (ask around, you'll see what I mean).

The difficulties that Free Software and Open Source Software pose to implementation of manditory DRM (censorship )is interpeted as a threat to not only to the distributers of movies and music but also to the political and law enforcement industries that see media as a way to shape the opinions, ideas and beliefs of the American citizenry. For an example we need only to look at the media coverage of the 2000 presidential election results and the lack of criticism over the courts refusal to mandate a meaningful recount and the subsequent appointment of a George W. Bush by 5 Supreme Court Justices.

An other example would be the casting of the DeCSS code as a "piracy tool" by virtually every news source covering the dispute, when in fact, DVDs can and are pirated without the use of the DeCSS code by software that incorporates licensed code provided by the DVD makers (Expert Guides' DVD Copy. There has been little noise from the MPAA over this tool or software like it, and no mention of such software in media coverage of the DeCSS case.

If the courts are affected by a political stance that views Free Software as somehow being "bad" (for the economy, for national security, etc), then this case is not about 80 lines of code, but about Free Software in general. If the case is decided in favor of SCO, the court may decide on a remedy that is not as simple as removing the offending code.

--ptw

Re:Has anybody considered

[Sphere1952]

If they don't come up with a whole lot more than 80 lines the judge will throw it out immediately anyway. Copyright infringement requires substantial copying of the material.

The actual case law is rather complicated, but given that the code in question is buried in the system and represents an insubstantial portion of the copyrighted work there is no copyright infringement.

Re:Nope

[dh003i]

Not necessarily. No one is allowed to evade the laws of his nation, of course.

Whether something is wrong or not is irrelevant. The only laws regulating what you can and cannot say about something are consumer protection laws. If you say, for example, that something contains 100% of the required daily nutritional value, and it in fact contains only 20%, you're guilty of fraud. Since those who make FOSS aren't necessarily selling anything, this doesn't apply to them. It also doesn't apply to them if they lie about something that does not harm the user, as would be the case with this.

It will effect distributors, because if they leave old versions available, they could be liable for infringement.

In other words, it won't. If they feel the need to leave older versions available, they can do so, and simply replace the relevant code for those versions.

Ignorance of a copyright is not a defense for infringing.

Neither is fair use. It does, however, eliminate the possibility of any damages. You cannot punish someone -- either by jail-time or fines -- for infringing on something which they had no practical way of finding out they were infringing on. SCO has made it impossible for anyone to find out if they're infringing by secrifying their evidence, so they only solidify the argument that it was impossible to know.

In any event, SCO does not have the resources to sue individual users, nor even the many distributors of GNU/Linux.

Several areas of US Intellectual Property law obligate the public to make unfeasible efforts to determine they are uninfringing- most severly in the area of patents.

Actually, it is adviseable to make *no* efforts in such regards, from a legal standpoint. Making no efforts to determine such legitimately gives you ignorance. Also, you independently re-invented or re-implemented whatever patented process is being spoken of, so there's a good argument that you have just as much right to use it as does the person who originally patented it. If you develop something independently on your own, you shouldn't have to pay someone else who came up with it first.

In any event, this entire case is trumped up. SCO has provided no evidence to the public; what they have provided is covered under an NDA, which allows them to pick and choose what they'll allow people to see (iow, manipulate the results). This is certainly because either there is no shared code, or it is them that copied the code from Linux to their OS. As I've pointed out again and again, they nullified their entire case years ago when they distributed a GNU/Linux distribution under the GPL, therefore GPL'ing any code they could possibly be talking about now (if they ever had the rights to any of it anyways). It is also questionable whether they have any rights to the code their talking about, as is made clear by Novell.

IBM will be punished, but Linux will still prosper

[reporter]

We need to clearly separate (1) our support for Linux and open-source programs and (2) our distaste for stealing intellectual property. SCO has clearly found damning evidence that some code in Linux has been stolen. We must support SCO's efforts in obtaining proper royalties (not monopolistic royalties) for the intellectual property that SCO owns.

After the pro-Linux folks read the article, "Huawei admits to a little copying", most of them support Cisco and condemn the Chinese who deliberately stole intellectual property (IP) from Cisco. The Chinese culprit literally copied the computer code verbatim from the Cisco diskette. So, if we condemn the Chinese in the aforementioned article, we must condemn whoever stole SCO's Unix IP.

Does supporting SCO mean that we put a stake into the heart of Linux? Of course, not. The courts have repeatedly ruled that companies are permitted to build clean-room clones. AMD's Athlon is a good example.

We merely delete the stolen code from Linux and write compatible code to replace. We can get some Ph.D. student from Carnegie Mellon University to write the code. It really is not difficult.

Then, we trace the stolen code back to the person who stole it, and we send her to prison. We then strengthen the open-source development process by establishing a certification process by which we certify every piece of open-source code, guaranteeing that it is original IP. The open-source development process right now is broken because it is just too easy for someone to use stolen code and to submit it as original IP. No one is really checking the code's authenticity. Poor Linus is just too overloaded as the sole proprietor of Linux.

What is all the fuss? IBM will be fined. A rogue programmer goes to prison. Linux? Well, it will survive and prosper.

Re:Has anybody considered

[Crispy Critters]

"This would not be optimum for SCO, because they could not then demand licensing from all Linux users."

They cannot do this without throwing away their veil of secrecy.

I have source to at least 7 different kernel versions sitting around, mostly old RH cds. They would need to tell me which ones they want licensing fees for. And if their code is not compiled into the base kernel for all possible kernel configurations, then they would need to tell me what combinations of options cause their code to be included in the kernel. After all, if it is only in say jfs and smp code, I won't have it in my kernel, I won't be using it, and I won't owe them any licensing fee.

This is one difference open source makes. If the code were in a commercial product, they could announce which versions infringe. They would need to be much more specific here.

If they do indeed give out the specific information of what kernel versions and what modules infringe, it would be trivial to ferret out the offending code and be done with them.

Re:Nope

[Minna Kirai]

Whether something is wrong or not is irrelevant.

Actually, it matters a lot. Moral decline and all that.

The only laws regulating what you can and cannot say about something are consumer protection laws.

That's 100% wrong. More like 400%. There are dozens and dozens of laws specifying what you can say. Libel and slander for starters. Conspiracy. Negligence through inaction.

And, fraud can occur without money changing hands. (Most obviously, when trying for admission to a school on the strength of other's work)

FOSS

Been reading Mitre?

If they feel the need to leave older versions available, they can do so, and simply replace the relevant code for those versions.

Then they're not really the older versions, if they've been changed. Besides, this whole discussion springs from the idea that Linus would be concealing the fact that a certain old version was infringing. Those vendors won't know what to change, if he falsified the Changelogs.

Neither is fair use.

Wrong. Not 400% wrong, but 900% wrong or more. Fair use is absolutely a defense against infringing.

You cannot punish someone -- either by jail-time or fines -- for infringing on something which they had no practical way of finding out they were infringing on.

You can punish them by informing them of the infringement at the time of your choosing, and Cease & Desisting them from operating the computer systems running their day-to-day money-earning business operations. If that were to happen, and some high profile Linux adopter lost 3 days of revenue, the Free Software reputation would be badly tarnished.

In any event, SCO does not have the resources to sue individual users, nor even the many distributors of GNU/Linux.

If their case had some merit, lawyers would volunteer for the chance of a payoff ("contingency"). (Boies, their current lawyer, is very well regarded. But he's being paid, so his service doesn't imply the case is strong)

Also, you independently re-invented or re-implemented whatever patented process is being spoken of, so there's a good argument that you have just as much right to use it as does the person who originally patented it.

That's a sensible argument, but patent law is completely opposed. Even if you invent the process before the patenter, if you don't publish, he can get the patent and then bar you from using your own idea. (This has happened; "prior art" only counts if it's public)

In any event, this entire case is trumped up. SCO has provided no evidence to the public;

Yes. If they'd simply provide the filenames of some part of Linux they alledge to be infringing, they'd gain back a smidgen of credibility.

(They won't do that, because narrowing it down to a filename would enable the legions of interested parties to scour Changelogs and guess the name of the sinister inserter. Then the work to purge the bulk of Linux could begin. And SCO wants to keep Linux using-companies confused, so the threat of a sudden C&D shutdown hangs over them)

Re: Consider this

[RedBear]

Mensa membership apparently doesn't require you to be smart enough to know that you shouldn't brag about your IQ in a forum with ~ half a million readers.

IQ, a quotient based on a battery of tests on such things as math, reading, logic, and spatial skills, is not the same thing as Social Intelligence. Social Intelligence might also be referred to as "street smarts" or knowing how to deal with people. It's quite possible to have one without even a shred of the other. As most of us geeks know. So yes, Mensa doesn't necessarily require you to have the "smarts" to know not to brag about your IQ, but that doesn't prove the original poster isn't "intelligent" in those other ways. In fact, he could even be a genius.

And now something for our moderators: Who's this SCO character I keep hearing about? Was he the bad guy in "Hackers"?