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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')."
They're liars.
We've got grounds for a huge lawsuit. It's obvious that in bad faith the University Professor is attempting to slashdot slashdot. He even included a direct link to our homepage. Untold damage!
Sue! Sue! Someone, call SCO!
I assert that my comment is only my opinion, not that of any employer, past, present or future.
It could be that they've got a solid case. It could be that they're working out some great shenanigans. Irregardless, I'm starting to wonder if Linux should be open to the average user to contribute, or if perhaps it should be restricted to a core group of companies and Linus who can afford lawyers to vet the code. Things are getting pretty scary in the open source world, particularly with the lawyers getting involved...
GPL or not
The second principle is that a party's rights can be affected by its later conduct - which can constitute a "waiver," giving away rights. Until recently, SCO was a willing player in the Linux movement, releasing code under the open source ("copyleft") license. Everything that happened to Linux was in the open. Yet SCO delayed in suing.
SCO had made their bed in deciding to take advantage of the open source movement. Now they want to retroactively change the decision.
At the end, he references Slashdot for more info ('itself a demonstration of the power of dispersed individuals working together')."
Now, if only we could breed, we would rule the world! Muh ha ha ha!
I attack the darkness.
GeekNights!
Late Night Radio for Geeks!
This really demonstrates the only Archilles heel that Linux has to fear: software patents.
If Microsoft or anyone else gets coordinated enough, maybe 10 years from now, the software industry will be so littered with software patent landmines that Linux will no longer be able to continue development. This is a very real possibility.
Please, Slashdot readers, we need to join together to figure out how the hell we are going to stop this, or else we need to come up with implementations of new ideas, business methods, software algorithms before anyone else like Microsoft can, and publish them open source so that no one else can claim a patent on them!
Talk to your representatives in Washington, Europe, whereever because this is a very real and very serious threat that **will** kill software development.
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.
Well, there went his credibility...
Sure, the federal government wouldn't let old Brigham retain governership of Utah when it became a state, but wouldn't it by nice if we could install the guy as head of SCO? Even as a man who's been dead for more than a century, he could probably run that ship better than its current leadership.
he references Slashdot for more info ('itself a demonstration of the power of dispersed individuals working together').
I though slashdot was a 'demonstration of dispersed individuals procrastinating together'.
Who knew I was demonstrating power all this time?
This post cannot be rebroadcast without the express written constent of Major League Baseball.
After further thought, the article mentions that SCO implies that "UNIX" could not be recreated without looking at UNIX source.
There is a lot of vagueness there -- aside from the kernel, GNU had recreated the majority of the OS long before SCO owned any such trademarks.
The part they lacked most, the kernel, has been so long in coming almost because of that fact -- they recreated the OS to work with existing kernels, so there wasn't a dire need for one.
In other words, reinventing the OS was more important than reinventing the kernel. But the OS (GNU) was recreated legally, and the FSF owns copyright to every line of code in a GNU project (to prevent silly suits such as this one).
Somebody get that guy an ambulance!
SCO (ex-Caldera) is run by lawyers, and they are not stupid nor crazy. Clearly they have a plan and it justifies putting their company at total risk.
Assume for a second that this case goes to court. What are the chances that it will be resolved quickly? Not good. The matter is arcane enough that it will spend several years going through judgement, appeal, judgement, appeal, as long as SCO can pay their own (cheap) legal fees.
What on earth can SCO be after? I don't believe it's a settlement from IBM. They _know_ IBM, a company that has always lived by the fist.
What else? Their business is bankrupt. They sell _nothing_. Their IP is worthless - indeed, realizing this may have been the trigger that set them on their course.
Nuisance value, that is their game. They are attacking Linux and all OSS by association, and they are attacking it a level that plays directly to the paranoia of managers making a Windows / Linux choice today. What SCO are saying, and getting lots of attention to, is that Linux/OSS is not a safe choice. Even IBM are likely to be sued. How about your business next? If the RIAA can sue ten thousand P2P users, why can't SCO sue ten thousand Linux users?
Normal decent paranoia suggests that Microsoft's hand and money lie behind this move, but that is not the crux of the matter.
What is important is that we are at the stage when Linux/OSS seriously threatens commercial interests, and this looks like an undeclared war by those interests against it. War is not nice, not decent, not logical.
Such attacks can go either way. Linux has never has so much publicity as during the last weeks, and the association IBM+Linux is now strongly in the minds of many managers. This is a good thing. People trust IBM.
The OSS community must counter attack. The best approach would be a collective libel and defamation suit by some thousand OSS developers, seeking punitive damages against SCO.
Such a suit would not win but it would show SCO that their opponents are not helpless nerds unable to understand the meaning of cold, hard steel. Knives out!!
Perhaps someone from the EFF would set up a campaign fund? I would gladly contribute $50 or $100 if it would result in SCO getting slapped with a suit.
Ceci n'est pas une signature
NO you could not have.
there is a difference, a big difference, between an Anonymous Coward IANAL saying "the SCO suit has no merit", and a law professor saying "the SCO suit has no merit".
sure there are no new facts, no brilliant new insights there, (nor from you). it's an opinion piece. What is significant is not what was said, but who signed their name to it.
I just reloaded to see a Reginald Charles selling $55,450 worth of his SCO stock. At $55,450 that's the largest insider trade listed since this thing started.
06/20/03 BROUGHTON REGINALD CHARLES Sold 5,000 $11.09 $55,450
Belief is the currency of delusion.
Is is well known that SCO relies heavially on BSD code. But the BSD license, while it allows forking, strictly forbids suing over derived code. Since linux and BSD share alot of code - I could envision SCO loosing controll over all of their 'intellectual property'
I wasn't aware of the timing, but according to the article, SCO's McBride said:
Let's see. He's saying that IBM quit working on Project Monterey before Caldera bought Santa Cruz Operation's UNIX rights. That Santa Cruz Operation sold the rights precisely because they weren't as worth much at that point.
But part of SCO's lawsuit against IBM is SCO's claim that because IBM quit working on Project Monterey, IBM is conducting anti-competitive behavior.
Since SCO knew about this at the time they bought it, then surely, the price SCO paid for those rights was already discounted because IBM was no longer pursuing Project Monterey.
It's kind of like buying a junked car that had been damaged in a collision and then suing the driver of the other vehicle for wrecking your car. It was already wrecked when you bought the car! At best, the seller might have had a claim against the other driver, but not the seller.
If SCO wins, maybe we should buy the salvage rights to a World War II navy vessel sunk in a World War II battle. Then we can sue Japan for the full cost of the ship plus interest and penalties because they sunk our boat.
But I'd love to hear the Professor's views on the evidence that has emerged thus far. As far as I can see, SCO's case revolves around developments at IBM and Sequent (now owned by IBM). They have talked about RCU and NUMA and JFS and something else I have forgotten. It seems that what SCO have shown so far is equivalent to this: IBM devise a new scheme for (eg) scheduling in the kernel. They implement this new scheme in AIX, sell it to some customers and everyone (including SCO) is happy. Later on, IBM conceives its Linux strategy. They then port their new XYZ scheduling scheme to Linux, offer it to Linus and eventually it gets merged into the Kernel. Now SCO comes along and says that IBM has no right to incorporate it into Linux because it belongs to SCO. The fact that the original technology licensed to IBM has got nothing like XYZ scheduling in it doesn't matter to SCO; as far as they're concerned, since IBM incorporated it into AIX first, the technology belongs to SCO.
All of this begs the question as to what SCO have been showing to their independent experts. Suppose they grab the code for XYZ scheduling, as seen in AIX. Then they grab the code for XYZ scheduling, as seen in Linux. Obviously, these two pieces of code, are going to be a pretty good match, even down to the comments. They tell the independent consultants that the former is System V code (because SCO claims that everything that was ever added to AIX belongs to them). And they tell the consultants that the latter is from kernel 2.4.XX. So the independent consultants, in all good faith, report that there is a match between "SCO code" and Linux code. My bet is that this is what SCO have been doing. I believe that this is the reason for SCO wanting people to sign NDAs. They can't risk anyone who knows anything about the kernel saying exactly what the code represents. It is in their interests to fudge the issue of where the code has come from. If some random hacker has grabbed the original SVR4 code and slipped some of it into a patch that has found its way into the Kernel, that could occasion some sympathy for SCO (not $3bn or even $1bn worth of sympathy). If that is the case, it looks like code that SCO originally paid for is being used without SCO being compensated. On the other hand, if it's IBM's implementation of XYZ for AIX, which they have ported to XYZ for Linux, then SCO's case is dead in the water, and SCO knows it.
Reality is defined by the maddest person in the room
I think Linux itself is not threatened in its essence. Pray hard (if you live in the EU or US) that the EU doesn't follow the US' idiot lead and decide that software can be patented. As long as there are significant Linux players in countries that DON'T recognize software patents (say, China, India, and Brazil, to name a few?), Linux will thrive safe from the software patent menace. I don't think innovation itself will wither, just in certain countries.
Of course, this will come as cold comfort to those of us in the idiot countries, because if M$ and company DO manage to erect software patent barriers to OSS, Linux will be a banned article we cannot legally import.
The logical result of all this will be that the US and (probably) EU will lose their technological edge to China and India and become second-rate powers (and probably not just in the software field) until the software patent madness is overturned.
Our leaders, if they had any ability to think strategically beyond the next election, would realize that Open Source is a critical resource for their countries' ability to compete in the only area they have a critical advantage in -- their technological edge. (Not that I like what's been sliced up with that edge recently, but living in a declining country is an unpleasant prospect...).
"My strength is as the strength of ten men, for I am wired to the eyeballs on espresso."
SCO alleges that "as long as the Linux development process remained uncoordinated and random, it posed little or no threat to SCO...." But in truth, Linux was always coordinated - just by many different hands.
In the final years of the 1930s the german army raced across Europe trashing all opposition in their path. At the time of their greatest military successes the German army was running a field command structure called "mission based" command.
Mission based command placed the authority to act in the hands of the soldiers on front line, the idea being that those closest to the front would undoubtably be best positioned to make fast assessments of a situation. Should an opportunity present itself they were free to exploit it to their advantage without having to check with the beaurocracy above. The overall target was known - to win, and as long as your actions fitted the target it was up to you.
This system worked so well that all fell in their path 'til they hit the English channel and turned on Russia (at the instruction of their one leader).
Contrast this to the latter half of the war. The more centralised command became around the leader and his sycophantic entourage, the worse things got until eventually the leaders own incapability to understand the demands of those at the front line led to the collapse of the whole system.
The first example was Hitlers order to Rommel to stand fast to the last man at El-Almain. The same mistake was made again at Stalingrad and in several other situations.
The distributed, "module based" development of Linux allows developers to react in the same way as the soldiers on the front line, patching and adding features on the fly without having to discuss it with their manager, product manager, product devlopment manager, product development management manager etc. leading to events like the KDE team patching the SSL flaw in konqueror while the MS FUD machine was still denying it was a problem.
NO! before you start saying it their are no insinuated similaraties between OSS community developers and certain historical characters of an evil nature it's the model that's similar. Ironically the intent in the case of Linux is freedom not enslavement.
Hmmmmmm..... Deep fried and look like Squirrel.
T'is very true. If I point a CEO or CTO to my article on Kuro5hin, they'll just yawn and walk away. On the other hand, if I point them to the same article signed by a lawyer and law professor, they're a bit more likely to sit up, take notice and possibly even sell their inflated SCO stocks.
If I say "Let's go to war against North Korea", people talk about putting me in a psyche ward.
If Bush says "Let's go to war against North Korea", people go and buy duct tape and plastic(!).
The difference is not the words, it's who says it and how people listen to them that counts.q1
Free Software: Like love, it grows best when given away.
There are 70 lawyers in my firm.
At least one has come into my office asking if we use Linux and expressed concern about the lawsuit when informed that we do. (Samba, CUPS, etc.)
I explained the lgeal reasons why they should not be concerned but since I am just the IT manager my words have little credence.
This is the kind of article I can forward to all the lawyers who ask as it's from the kind of source they will listen to, speaking a language they understand.
As other posters have pointed out, it's not what he says (which we all already knew), it's who is saying it.
If you don't want to repeat the past, stop living in it.
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.