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SCO Gives Friday Deadline To IBM
bcisys writes "Reuters is reporting that SCO is planning to revoke IBM's license to Unix this Friday unless IBM settles SCO's claim that parts of its Unix code are being used in Linux. 'If we don't have a resolution by midnight on Friday the 13th, the AIX world will be a different place', SCO President and Chief Executive Darl McBride told Reuters News. 'We've basically mapped out what we will do. People will be running AIX without a valid license.'"
I am a lawyer and I don't get it.
/order to show cause to stop SCO's baloney is beyond me.
SCO claims part of its' code is being used illegally. It won't tell anyone which code, but it makes ultimatums about that code and threatens IBM. Why IBM hasn't filed an Article 78 proceeding / TRO
On to licences....
I cannot legally sell something I do not own. SCO's contention is that IBM did not have the right to sell licences because it did not fully own them. Decent threat, if real.
IBM should tell SCO in court to put up or shut up. Then, if SCO pulls the "unsubstantiated code" BS, IBM can get $$$ sanctions from a judge.
Pay no attention to the man behind the curtain with all your metadata.
"IBM believes that our contract with regard to AIX is irrevocable and perpetual and there is nothing further to discuss".
Except that licenses prior to this threatened expiration are still valid. SCO is really telling a bald-faced lie when it claims that it can de-license people who already have licenses.
Get off my launchpad!
CUUG, our local UNIX group, had a lawyer talking about this a couple of weeks ago. One thing that was very interresting was the fact that there is a good reason why Software is not sold to you, but licensed. If it were sold to you, it would become your property, and then a lot of laws would apply to it, giving you way to many rights, like re-selling it, reverse engineer it, etc... because it would be YOURS.
That is why the software industry has decided license software to you, because legally, when you license something to somebody, you can set whatever you want in the license, like "you shalt not reverse engineer this software", etc...
So, one would have to look at the license between SCO and IBM to be able to say if they can revoke it or not.
That's still not quite the full picture.
The Canopy Group is the majority stockholder in Caldera Corp, dba (that's "doing business as") "The SCO Group".
What Caldera bought was not "SCO" (the company formerly known as The Santa Cruz Operation), but that company's "Unix Business". While I haven't seen the documents, there's basically a bundle of rights, contracts, and licenses (the 30,000 contracts, though most are quite historical, we've heard so much about). The original SCO continues as a going concern under the name Tarentella. Rather quietly, I might add.
Though Caldera voted at its stockholder's meeting this past May to officially change its name to "The SCO Group", the name change has not yet taken legal effect.
Oh, and Caldera is the company which co-developed the RPM packaging format with Red Hat, distributed GNU/Linux (under the GNU GPL) for nine years, and which, for the past three years, has distributed the very 2.4 Linux Kernel (downloaded my own copy last week). Um. Under the GPL, last I checked.
I'd recommend The OSI's Position Paper and a compilation site I've had some involvment with, SCOvsIBM.
What part of "gestalt" don't you understand?
Why don't y'all read the contract for yourself?
... I always wanted to use them both in the same post!)
SCO lawsuit against IBM
Read Exhibit A, Exhibit B, and Exhibit C, in particular.
SCO can revoke the license for breach of contract. The procedure for doing this is not at all clear.
My question is: what is SCO going to ask a court to do? Is SCO going to ask for a preliminary injunction, or what?
The test for a preliminary injunction is: (1) the moving party's chances of success on the merits of their case and (2) the "balance of harm": how much harm that SCO suffers if they do not get a preliminary injunction, and how much harm IBM suffers if SCO does get a preliminary injunction.
On part (1), it's anyone's guess.
On part (2), the "balance of harm" strongly favors IBM.
SCO does not claim that IBM's distribution of AIX has harmed SCO in any way whatsoever. Thus, stopping the distribution of AIX will have zero effect on SCO's alleged suffering. In contrast, stopping the distribution of AIX will have an immediate, large, irreparable effect on IBM in the marketplace. It is grossly unfair to subject IBM to such a penalty without a trial on the merits first.
If not a preliminary injunction, what else could SCO do after Friday the 13th?
Disclaimer: IANAL
Disclosure: I am short SCOX
('disclaimer' and 'disclosure' mean subtly different things
IIRC, recently someone at IBM said that they believe their Unix license to be "in perpetuity". He may have said "irrevocable" as well, I'm not sure. If IBM truly does have a perpetual Unix license, then:
1) SCO probably can't revoke it;
2) If SCO claim they can revoke a perpetual licence, they'll be looking at being dragged through court;
3) If SCO actually can revoke the license, expect IBM to sue SCO to get the balance of their license fee back, which would be all of it. perpetual - 20? years = near enough perpetual...
4) Isn't this extortion anyway? Like SCO threatening to sue Linus if other people don't roll over? Like a hijacker saying, "I'll shoot this kid if you don't give me fuel"??
I am a lawyer and I don't get it.
SCO claims part of its' code is being used illegally. It won't tell anyone which code, but it makes ultimatums about that code and threatens IBM. Why IBM hasn't filed an Article 78 proceeding / TRO /order to show cause to stop SCO's baloney is beyond me.
Well ...
SCO isn't obligated to tell anyone other than IBM what code it is basing its suit on;
SCO is not threatening IBM. SCO has already filed suit against IBM;
An Article 78 Proceeding is NY law and brought against a government body or officer - SCO filed in Utah and is not a governmental agency, and;
Both a Temporary Restraining Order (TRO) and Order to Show Cause are completely inappropriate when the parties are already involved in a suit over the subject matter. What is SCO to be restrained from, talking about their litigation in public? What would justify an Order to Show Cause, when there is no evidence before the court other than the complaint and reply?
On to licences....
I cannot legally sell something I do not own. SCO's contention is that IBM did not have the right to sell licences because it did not fully own them. Decent threat, if real.
That is more than a "decent threat, if real;" It's a harpoon to the heart.
IBM should tell SCO in court to put up or shut up. Then, if SCO pulls the "unsubstantiated code" BS, IBM can get $$$ sanctions from a judge.
SCO will have to "put up" in due course. That's what Discovery is all about. A defendant can't just waltz into court on day one, say "put up, or shut up" and have the case immediately dismissed for lack of evidence. And sanctions would only be appropriate if SCO didn't have even a colorable claim on which to base their suit, and was therefore abusing process. That's not likely.
Well, a perpetual and irrevocable license doesn't mean anything if you violate the terms of the license. In this case, if IBM did copy Unix code into Linux, that would almost undoubtedly be a violation of their eternal Unix license. In which case SCO would probably be well within their rights to revoke it, and certainly wouldn't owe IBM a refund.
Have you read the OSI position paper that demolishes SCO's claims? Among other things, it states that not only did Linux acquire SMP, JFS and other things before IBM was involved, but also that SCO's own Unix doesn't have those things now. Well, not reliably, anyway. So, stating that Linux is only enterprise-ready because IBM illegally copied SCO's code is laughable at best...
As of Jan 10th, 2002, IBM had over 37,000 patents after a record year in 2001. They had 3,400 new patents that year alone. My guess is they are well over 40,000 by now.