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My Visit to SCO
Ian Lance Taylor writes "I signed the SCO NDA and visited them to discuss their claims against Linux. My essay about it is on the Linux Journal web site. The short version is that SCO's claims are unproven, as indeed I expected would be the case before I went. The amount of information they were willing to show me was extremely limited, and
did not by itself prove that their claims were true, nor that their claims were false." Other SCO-bits: Sun is doing their usual foot-in-mouth routine, thinking that two FUDs makes a Solaris purchase, or something like that. IBM is now joining the contact the customers bandwagon. Eric Raymond has been keeping himself busy - here's a story about him. SCO hates BSD, too, but they're not taking it lying down. And of course Cringley has his two cents.
But this is just the part of SCO's argument that doesn't make any sense. IBM's original license from AT&T contains an amendment to the effect that any derivative works developed by IBM belong to IBM. This is a direct quote from the letter of amendment (Exhibit C in SCO's complaint filed with the court):
Regarding Section 2.01, we [AT&T] agree that modifications and derivative works prepared by or for you [IBM] are owned by you.
The later agreement between IBM, SCO, and Novell specifies that, after a one-time payment from IBM to SCO, IBM has a fully paid-up, permanent, and irrevocable license.
Here's my take on what's going on here. I had a look at SCO's 10-Q filing with the SEC. It seems they are being sued over alleged securities fraud in connection with their IPO. I also noted from the Form 4 filings (insider transactions) that several of the senior people have been selling the stock in the last couple of months. I think this "litigation by press release" is all about trying to pump up the stock so the rats can get off the sinking ship.
(BTW, if you want to look at the agreements, they're on SCO's Web site.)
As previously posted on Slashdot - the NDA is at LinuxJournal.
-j
Source: frontwheeldrive.com interview, 14 April 2000
The original poster wasn't spreading FUD, they were laughing at the catch 22 they've gotten themselves into.
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This can be very damaging for IBM depending on how their contracts with SCO are worded.
... independently from a third party" who has "no obligation of confidentiality to SCO" (which makes ESR's 60 affidavits highly relevent).
Well, the SCO-IBM contract is posted on SCO's site as Exhibit D. The confidentiality clauses are section 3 on pages 11 and 12.
Specifically, 3.04(v) discounts confidentiality requirements for code which is "independently created" by IBM. Also 3.04(iii) discounts confidentiality when the information is "received
Moreover, 3.06 is a "no tainted worker" clause that allows people who have seen the code to use the ideas when they are "residual information mentally retained" provided they don't try to write it down or memorize it verbatim and don't otherwise infringe copyrights or patents.
They seem to think that, since IBM put their code into the GPL, that this prevents their code from actually BEING GPL'd...even if THEY release linux too!
Look. There is an untainted kernel release, let's call it K. It's various parts are copyrighted by various contributors, and the whole thing is licensed under the GPL.
There are a few patches that went into the next version. Let's call those A, B and C. Their copyrights are held by private individuals and licensed to Linus under the GPL (when they sent the patches in).
There is also a contribution by IBM. Let's assume SCO are telling the truth, and IBM based part of this work on SCO's IP. Let's call this S.
Now, it's perfectly feasible that the contract between SCO and IBM allows IBM to incorporate S into their closed-source products.
By default, this would not allow IBM to incorporate S into a GPLed product, since the GPL covering the rest of the software would have to apply to the derivative work as a whole, and IBM can't just relicense S at will.
So, when IBM sends those patches off to Linus, they cannot offer the code freely.
When Linus releases the next version of the kernel, he has incorporated K, A, B, C and S into a derivative work. Let's call this K++.
K++ is distributed in the normal fashion. The GPL is slapped all over it, and all sorts of different vendors incorporate this into their products. SCO is one of these vendors.
Despite this, the GPL does not apply to K++. Linus has no right to release K++ under the GPL, nor even freely offer copies. He's not the sole copyright holder of K, and he doesn't hold the copyrights to A, B or C either. He has to abide by the GPL - which means that the derivative work as a whole is either under the GPL, or cannot be freely distributed (unless he works out licensing with every single kernel contributor, a logistical improbability).
Since IBM cannot offer S under the GPL, Linus cannot offer K++ under the GPL, and any license SCO had to offer K++ under the GPL is void. They are infringing on the copyrights of everybody who contributed to K++ when they distribute it.
Now, just because the original IP was theirs, it doesn't mean they can arbitrarily reinstate that license for K++. They have to go back to their original contract with IBM to set the whole chain up again. Otherwise, they would have to obtain all the changes (A B and C) between K and K++ to "branch" the kernel. Remember, they can't obtain them directly from K++, as that is not licensed under the GPL. They have to go around and pick up the pieces, many of which will have just gone straight to Linus' inbox and will not be available to them. Remember, they need valid licenses to these bits under the GPL. Just to make matters worse, they would have to do the same for each new version of the kernel (as, according to them, the subsequent derivative works, (K++)++ and ((K++)++)++, cannot be licensed under the GPL. We can basically assume that they cannot do this.
So, we have to ask which is the best option, in SCO's eyes? Cease production of their unprofitable Linux distribution, admit to copyright infringement against a bunch of kernel hackers who are unlikely to bring suit against them, and be able to sue IBM for billions of dollars? Or grant IBM the contract so they can keep the Linux distribution, sit back and watch their business fade away?
None of this is contrary to the GPL. However appalling it seems to us, remember that their board of directors have an obligation to their shareholders to maximise profits (or risk due diligence lawsuits). This is a massive get-out option for their Linux division that they are taking advantage of (and attempting to bail out the rest of the company with).
Of course, this all depends on the crucial axiom that IBM screwed up, which I think is unlikely, especially from SCO's actions regarding this lawsuit. But that has nothing to do with the fact that the GPL is not at all a problem for SCO here.