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Law Professor Examines SCO Case
An anonymous submitter writes "This law professor from the University of California points out weakness in SCO's legal bluster, and further takes a poke at closed software, for those hungry for more SCO scraps. At the end, he references Slashdot for more info ('itself a demonstration of the power of dispersed individuals working together')."
At the risk of parroting RMS here, Linus started the kernel roughly a decade ago.
GNU started the OS itself about two decades ago.
It is an important distinction. I really wish that there was a distribution of the GNU OS that used a non-Linux kernel (but was otherwise like other GNU/Linux distros), which would be more concrete evidence of the importance (and extent!) of the GNU portions of the overall OS.
Somebody get that guy an ambulance!
I have a small company and was attacked in a similar way by a large German company (I'm in the USA). They simply attacked with a lawyer from a large office in New York and I am in a small town in California. My lawyer did some digging and found that there is a federal law that states you must give the person in violation a full description of the violation and allow a responce. If there is not a civilized responce then you can go to court. We never went to court and we got the problem sorted out. It sounds like SCO would be in violation of that federal law.
NO. IBM did not license any of the technologies in question from SCO. What SCO is claiming is that even though the code was developed by IBM (during AIX and OS/2 development) that SCO has exclusive rights over it because it constitutes a derivative of Unix. This affects Linux because now that this "Unix derivative" code is in Linux, SCO claims Linux is a derivative of Unix.
If you're going to quote SCO's bullshit lies, get it right!
Our intelligent designer has never created an animal that we couldn't improve by strapping a bomb to it.
What SCO is claiming is that even though the code was developed by IBM (during AIX and OS/2 development) that SCO has exclusive rights over it because it constitutes a derivative of Unix.
The specific instance I'm referring to is the RCU code done by Sequent. Sequent (now IBM) licensed the Unix code and made modifications. SCO is claiming that the conditions of the original license agreement makes these modifications their property. This code they claim has now found it's way into Linux, therefore is a violation of the original license. So my statement is absolutely correct, in a nutshell. SCO is NOT claiming that Linux is a derivative of Unix, only that it contains code THAT IS.
Part 1 and Part 2 of 3 part interview with McBride
What I really wonder is how much closed projects have benefited from open projects. I wonder if you were to analyze a closed source program from MS or another big company if any of the programmers took their code from open sources. The only difference is that you can't be sued for patent infringment if you can't see it is there.
From the article:
More generally, companies trying to derive more revenue from their intellectual property portfolio may lash out at licensees. But licensees of open source software distributed under a permissive license do not have to worry about this possibility.
Nuff said. Here's your argument for your PHB.
"The Sage treasures Unity and measures all things by it" - Lao Tzu
Nope. You can see Insider trades. Just go to Yahoo lookup 'SCOX' click the insider link and there it is. Last I checked there were no insider trades since the lawsuit.
They know better, if the executives are dumping stock don't you think people would notice? SCO is either hoping to be bought by IBM, or they actually belive they have a case.
Non gratis rodentus anus
JFS was a direct port of the OS/2 implementation. The OS/2 implemenation was a new implementation of the AIX version of JFS. Hopefully that clears up what happened.
In point of fact, Ritchie created Unix to run a chess program, not for telecommunications. Only later, when AT&T discoverd that Unix was a very creditable OS, was it used for more prosaic, business related work.
Don Dugger
"Censeo Toto nos in Kansa esse decisse." - D. Gale
And while we may think that such an arrangement is silly, because it is, it's up to the lawyers involved to ensure that whatever contracts they sign on behalf of their companies are good for the company. It's caveat emptor-- it's the company's lawyers better know what they're doing. In this case, the agreement between IBM and AT&T was modified by IBM at the time of the agreement so that the stuff that IBM developed, including derivative works, was owned by IBM. The whole issue is that SCO hasn't yet told us what agreement existed between AT&T and Sequent. SCO's claim that IBM has put IBM-developed code into Linux kernel doesn't hold any water because the agreement between IBM and AT&T ensures that IBM has this right. HOWEVER, SCO also claims that IBM took code from DYNIX/ptx, which was a SysV derivative created by Sequent, and allowed it to be placed into the Linux kernel by IBM employees who had access to the DYNIX code (indeed, IBM employees who wrote that code for Sequent). The whole point is that we don't know if the agreement between Sequent and AT&T allowed for this. SCO seems to be claiming that it did not. We won't know until the agreement is made public.
I think Cringely made the best point about this possibility when he pointed out that IBM HAS THE BEST IP/LEGAL DEPARTMENT IN THE BIDNESS. Nobody is in a better position to vet the code than IBM, so if there were anything there to be concerned about, I would have expected to hear from them by now.
As stupid as it sounds, SCO is bluffing -- if you're going to be stupid, be stupid big.
"Lawyers are for sucks."
- Doug McKenzie
SCO does not lay claim to the Sequent code. IBM owns that free and clear. SCO's opinion is that because it was first integrated to AIX, it is a derivative work of UNIX, and can not be released to anyone without a UNIX liscense. But SCO does not lay claim to it, since they did not write it.
Some speculate that Sequent covered these bases quite well. In a white paper released before code was developed, they described the generic algorithms and functionality outside of any actual implementation. The UNIX port can be said to come from that whitepaper, which indicates it is not derivative of anything.
First off, the code in question was implemented on PTx(?) which was a variant based off the licensed IP. Second off, the code they're debating was in fact written for OS/2 and ported from there.
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SCO is trying ot claim that since the writers worked on both the Unix variant and the OS/2 one that the knowledge used from the one extends the license to the other.
They're trying to lay claim to a derivative of a derivative of a derivative. To make matters more entertaining the actual derivative was a paper about a generic RCU implementation with nothing tied to a particular OS. (See Cringely's article: http://www.pbs.org/cringely/pulpit/pulpit20030619
--- I wish I could hear the soundtrack to my life. That way I'd know when to duck.
I think that what you are failing to see is how this argument is legally relevant. This suit is about a contract, not copyright or patents. SCO uses the term "intellectual property," but this term is not a legal term, US law has no concept of it. US law only understands contracts (like NDA's), copyrights, and patents.
SCO's court filings, which must conform to US law, only say that IBM violated their contract. Now, if court decides that a contract was violated for many years and out in the open, they may rule that it is now too late to enforce that contract.
The other legal argument (not the argument that may make sense to you and me on first reading, but the argument that actually cites law and legal precedent) is that if SCO's copyrighted, contractually protected source code was in the Linux kernel, and that source code was available for examination by anyone in the world with a computer, SCO should not have been distributing that source code themselves. "It's really hard to know" usually does not cut it in a US court.
US courts are not likely to find "I didn't know (the gun was loaded | the car had drugs in it | I was distributing my own source code without knowing it)" persuasive.
We will know nothing more until the evidence comes out. Finally, any argument I have made above presumes evidence which does not as yet exist, as far as the court is concerned. I would not be surprised if SCO files a motion to keep the discovery process and evidence hidden from the public.
If I take a piece of GPL code and extend it with my own code to make a new program, it is true that I cannot release the result without also releasing my code. However (and this is a big one that everybody that calls the GPL "viral" ignores) I can remove the GPL code and sell the rest, the part I wrote, as closed source!. Now it is true that I will have to replicate the functions I need from the GPL code, but everybody knows that is not impossible or even difficult. This could even be a reasonable business plan as temporarily using the GPL code may allow development and testing to be done sooner.
SCO is basically claiming you cannot do that with their code. They are trying to say the Unix code is truly "viral" and it really "infects" everything it touches. The GPL does not "infect" at all and is completely harmless once you seperate it from the code it came in contact with.
In the late 1990s, IBM, Sequent, and the Santa Cruz Operation were working together on a project called Monterey. Monterey/64 was designed to be a common UNIX platform running on 64-bit Intel (Merced/Itanium) and Power4. It had wide industry support from hardware and software vendors, such as Intel and Oracle. Around 2000, IBM scrapped the project based on issues with the Itanium1 platform and concerns about SCO's ability to deliver. UnixWare retained its name for some time after the SCO purchase from Novell. In the next year or two IBM acquired Sequent and Caldera acquired SCO. However, in this way did Sequent non-uniform memory access made it into UnixWare and AIX.
This is how IBM and SCO have NUMA cache concurrency code. NUMA made it into Linux because IBM wanted to improve Linux reliability on their SMP Xeon-based servers, and instructed some of their programmers including some people who worked on Dynix/Sequent that wrote NUMA in the first place. This is how NUMA came to be in Linux. What I believe is the management at SCO has little knowledge of the code history of their SVR4 UNIX product. Caldera upper level management is populated with experts in hostile takeovers and making a business out of patent and copyright enforcement. I have no doubt that they took the effort to see if the Linux kernel had any resemblance to their UNIX code tree, and lo and behold some of the SMP memory management code is identical.
SCO quickly informs IBM to stop putting UNIX code in Linux, but they don't seem to know that NUMA belongs to IBM, it is a derivitave work of AIX, which is a derivitive work of Dynix, both of which IBM owns, and on top of that IBM's source license with UNIX Systems Lab gives them intellectual property of code they create based on AT&T code.
Claims that IBM is "diluting" UNIX by putting UNIX-based code in it and having UNIX-knowledgeable software engineers working on it is rather a stretch of the imagination. If IBM has sole intellectual property on Dynix/Sequent, just because they shared it with Santa Cruz does not mean they cannot use the code elsewhere. SCO wants to compare their SVR4 UNIX with Linux code, but what we really need to see is Dynix and AIX right beside them. This will prove that IBM owns NUMA.
Claims that using NUMA in Linux will place SCO UNIX under the GPL are also false. SCO will retain rights to use and improve NUMA code they received from Monterey, because it pre-dates the NUMA code used in Linux. So in the end there are essentially who Sequent NUMA forks, the one in AIX and UnixWare cum SCO UNIX is proprietary and the other written for Linux is open source.
Last I checked there were no insider trades since the lawsuit.
That is, apart from their VP of engineering selling ALL his stock and others
The real "Libtards" are the Libertarians!