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SCO Terminates IBM's Unix License
AKAImBatman writes "SCO has terminated IBM's license to use Unix code. SCO is filing for an injunction that will require IBM to cease all sale of AIX as well as accrue damages for each day IBM continues to sell AIX."
I can't believe they are this stupid! How can they possibly claim that
IBM customers are operating without a valid license? SCO does not
dispute that IBM possessed a valid license up through the end of Fri 13.
So any copies that IBM sold before that date are perfectly legal licenses.
Any court that even takes any other legal theory seriously will destroy
the entire US economy by creating uncertainty in ALL sub-licensed IP.
And I have just enough faith remaining in the US legal system to believe
that the judge will be bright enough to see the can of legal Whoop-Ass SCO is asking them to open.
Democrat delenda est
If SCO is seeking an injunction, does that mean they would have to prove to a judge that there is sufficient evidence for such an injunction? And if they do happen to convince a judge...
Well, better that IBM be the one to take on SCO rather than a group of Linux volunteers or users.
I just hope IBM doesn't cave. They've shown incredible lack of backbone in the past when push came to shove (OS/2 backing out of desktop market anyone?), let's just hope this isn't one of those times.
-- If it ain't broke - overclock it more.
In order for IBM to be able to comply with certain actions, as I understand it, IBM would have to either:
A) Stop selling AIX.
B) Remove the offending code from Linux.
In order to do A), well, IBM would have to give up. In order to do B), IBM would have to have a copy of what SCO thinks is the offending code, review it, engineer suitable replacements, and submit patches to Linus. I don't think Linus would necessarily have to accept it for IBM to prove that it has done all it could. But, I believe we've read before, SCO didn't want to share its violated code until last week or so. If IBM didn't have access to that until last week, SCO was asking IBM to take their word for it. Doesn't sound very legal to me.
I've seen IBM work. Sometimes it's slow, but sometimes they can move a staff of 300k people so quickly the earth spins the other way. I've got to think that IBM has enough talent to replace many 60 line blocks and have them tested before 100 days had expired, if given a fair chance.
Last night, I had convinced myself that I thought it was reasonable for IBM to be dual licensing code they had written. I'm still not sure SCO has proven IBM has liberated code, but if it had, and it was originally IBM's, why not allow it?
By stating "IBM has clearly demonstrated its misuse of UNIX source code..." by "using UNIX methods to accelerate and improve Linux as a free operating system", is SCO saying that even if a completely disparate group of Unix virgin IBMers couldn't work on Linux without undermining the contract? That sounds awefully strict.
The real issue that's going to be litigated here is to what extent SCO can claim damages from another company if the infringement is tiny. The very best thing that SCO can muster, in this case, is that they've identified a subroutine or two that seem to be close or identifical to something they claim is their own code. Let's suppose that this is true. What effect does this small infringment have on the entirety of Linux? Can they claim that Linux is an infringing product when only a tiny part of it contains (arguably) any SCO code?
The court is going to have to struggle with this part/whole issue. If I had to guess, I'd say that if it hit a jury, the jury would tend to be fairly absolute -- as in, you copied this tiny bit, so now you're liable for the whole thing. A judge is probably going to weight the infraction versus the whole.
And I really don't know what the law is on this. Maybe a legal type can help us out here.
IBM's stock is up over 2% today while SCO's stock (SCOX) is down over 2%.
Nice to see Wall Street react appropriately to this news.
I heard a common environmentalist tactic was to have a large number of individuals buy exactly one share of a corporation they disliked, then show up en mass at the shareholders meeting, (they cannot be refused entry as a shareholder) and liven up the party.
My rights don't need management.
From http://www.infoworld.com/article/03/06/16/24OPcrin gely_1.html:
I wonder what rights AT&T retained.
... And in this news.com.com.com... story, there is a quote from SCO claiming "This termination not only applies to new business by IBM, but also existing copies of AIX that are installed at all customer sites. All of it has to be destroyed."
That is something I have not heard SCO claim before. I was under the impression that they wanted to cut off future sales, but all past sales too? The insanity never ends at SCO.
They're using an extremely broad definition of "derived". From that interview it's finally clear what they're trying to claim.
They're saying that they have rights to any technology that any Unix company ever added to Unix. So the JFS, for example, which was added by IBM to their Unix derivative, can't be added by IBM to any other software (including OS/2 I suppose, which is where the Linux version actually came from).
I really doubt that IBM was stupid enough to sign something that broad. In fact, it would be far more viral than the GPL. If I incorporate my proprietary code into GPLd software, I can still retain copyright to the code and continue to use it in my own projects. Apparently not so with SysV code.
It is tempting, if the only tool you have is a hammer, to treat everything as if it were a nail. - Abraham Maslow
In the various interviews and statements that have come out of SCO over the past few months, there has definitely been some conflicting information. In this most recent interview, I find a number of things peculiar, but this is what jumps out at me first:
Note how he says "entire programs"; the basis of the complaint is that code was copied into the Linux kernel. Apparently they are also claiming that some GNU tools and other programs are also "copied." From what I understand of the initial press releases, SCO was suing over certain multi-processor related functions of the kernel which apparently came out of Project Monterey, which IBM and SCO were a part of.
He does state in the interview that this is a lawsuit for breach of contract with IBM, and not copyright or patent infringement.
So, it is interesting that he is proposing taking Linux distributors (Red Hat, SuSE, etc.) and possibly other Linux users to court as well. If they are not on solid ground suing IBM over copyright infringement, how are they going to manage to sue all of the linux distributors and users on the planet for copyright infringement - since these distributors and users never had any contract with SCO.
For a final major thought, all of this "copied code" is appearing in both Sys V and Linux.. where does BSD come into play? Could the code from both places have been taken from BSD? Of course with the terms of the NDA that SCO makes you sign, I am sure that you couldn't compare the Sys V code to BSD, only Linux.
PS: Why hasn't someone run the Sys V and Linux code through a copied code detector program (like some college professors use to stop code copying on assignments). Obviously this would be a much larger scale project, but if SCO's UnixWare has such great multi-processor capabilities, they should be able to figure something out. And if there is so much copied code, it should be no problem to find it using this program. Show us the stats, at least.
A computer is a valuable tool, so use it and stop whining.
To sum up:
1: SCO bought the copyright to UNIX from AT&T
2: IBM licensed UNIX code from SCO
3: IBM put UNIX code into AIX (that's what they licensed it for)
4: IBM made lots of money selling AIX systems to big companies
5: IBM had another team forking on Linux
6: SCO claims that IBM put UNIX code into Linux (violating the terms of their license)
7: SCO canceled IBM's UNIX license because of the alleged violation of their contract
8: SCO released scary-sounding press releases implying that everyone running AIX would be liable for infringment (hoping to make IBM's customers nervous, so they would put pressure on IBM to settle quickly and out-of-court)
Further speculation:
9: ???
10: IBM will buy SCO at an inflated price just to shut them up
11: PROFIT!!!! for SCO lawyers and executives
To further condense:
It's a publicity stunt, SCO wants a buyout. They're targeting IBM because they IBM has lots of money, whereas no Linux-based companies are making a profit.
0 1 - just my two bits
Time for everybody to sue SCO for previous GPL violations! That'll keep their lawyers tied up for awhile.
-j
I do find it interesting that Windows "Server" 2003 release and advertising coincides with this whole battle though...
Worried about the uncertainty of AIX and Linux? Good thing we here at M$ have a great solution for you...
--- If I had a funny sig too, you might be laughing now.
And typically the company asking for the injunction has to put up a bond in the event that they lose the case. It'll be interesting to see SCO, a company with little cash reserves that's been operating in the red come up with that kind of cash.
Aparently he is not that good at math either....
"--if you look at the marketplace over the last two years, there've been 2 million servers shipped into the market. Our UnixWare price tag of $1,500 would have generated $3.5 billion in revenue for us."
By my count that would be 3 billion if they had a 100% market share. But considering their share is about 2%, from all the numbers I have read, that would leave them with a rather generous $6 million.
SCO can do this if, and only if
- They own the original rights
- They have allowed for revocation in the license
- They have allowed for revocation of any and all sub-licenses in the agreement as well
So, you see the mold is already cast here. It's all in the license, and who owns the rights. The question is, what are the exact terms of the license, and can IBM get out of those terms on the basis of the capricious damage to their business or other grounds?I'm not a lawyer, this is a lawyer friend't assesment based on very little info and then translated through me, so take it with a grain of salt. But I think the general idea that SCO could not revoke the sub-licenses due to the damage to the market (as someone suggested) would be kind of moot, since SCO only has to demonstrate that THIS agreement allows such. Of course, IBM would be foolish to have allowed such a thing....
If you make additions to a contract (and EULAs are such additions according to german law) both parties have to be able to see those additions before the contract is placed. Since this is rather seldom the case for EULAs these licenses are not even worth the paper they are printed on.
Regards Christian
We need to find the actual injunction (I haven't found it yet) and actually read the thing, and as such this is purely speculative, but it opens up a nice posibility.
In the long run, the judge *must* find for or against the complaint, dismiss the complaint, or remand it to a higher court. It appears (although nobody seems to have the actual complaint) that the complaint is two parts. The first is that they used the code in Linux, and the second is that they are now distributing AIX without a licence to SCO's code. That second point is the one they would file the injunction on.
This boils down to a simple complaint: "We terminated their license, so they must stop using our property." If that were the entire complaint in the injunction, the judge would have to agree since the Supreme Court has upheld that rights of property owners is one of the key elements of freedom. Not being able to use your property is the loss of freedom.
That complaint is so fundamental that he could not simply dismiss the complaint. He therefore must rule on it, or the law, or remand it up the chain of command.
The judge could rule that SCO is correct, meaning that:
By ruling FOR SCO, the judge would not only put a penalty on IBM, but on everyone who uses it. While the simple case (no pay, no play) is reasonable, IBM's lawyers could easily argue that the damage to society and possible lives lost would outweigh SCO's property rights.
Ruling FOR SCO would set a precedent that Microsoft and others could quickly follow -- Revoke the licenses to each version of Office even faster, or include in new online music services a quickly expiring license. When the song goes popular, the license expires, and you must pay the new, higher rate. It would be extortion, except the SCO case would make it legal.
Conversely, he could be ruling that you *CAN* continue to use IP after terminating your license. This would have profound effects (I like some of them), including...
That can't happen either. The sectors of our economy dealing with IP would be blown away, and that would also have so profound negative effects that the judge could not rule that way.
So either way the judge rules in the end, he cannot justify the expense to society of ruling for or against them. A judge at the state level sould not put the entire nation's economy into such a state. That would mean he should remand the case to a higher level. The district cour
//TODO: Think of witty sig statement