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Linux vs. SCO: The Decision Matrix
hexidec writes "Haven't seen this here yet, though I may have missed it. Anyway... A group of Australian techies have put together an analysis matrix of the likelyhood of each SCO Unix claim being true, and what outcome would most likely result if so. Puts a lot of the various recent suppositions in one handy place."
...all the linux is unaffected conclusions, while probably right, make is seem a little like the following line of analysis:
...
1) Something here
2)
3) Profit!
I don't know, just seemed like kinda a cheesy chart to me, although a lot of the points he made were decent enough, the analysis seemed cheesy.
"But that's just my opinion, I could be wrong" - Dennis Miller
I am distressed that most of the anti-SCO argument seems to be based on the fact that SCO continued to publish Linux after claiming infringement.
David Boies is a smart man, and surely he or his legal team would have thought of this. They must have some sort of legitimate defense up their sleeve. Maybe a direct attack on the legitimacy of the GPL?
I think it will run something like this: Linux is important to SCO's business. Even though they discovered violations in linux, they had to continue to release linux or suffer grave damage to their business. They should not be made to suffer for the malicious actions of IBM, and they did not voluntarily release their own source code, so the GPL should not apply to their proprietary code that somehow found its way into linux.
Toronto-area transit rider? Rate your ride.
If SCO is right and there is infringing code, then the fact that they willfully released any such code within their own Linux kernel distribution, even after they knew that there was supposed code infringement, released that code into the GPL forever, absolving it from any further claims by SCO.
This isn't necessarily the case. SCO has quite a lot of leeway based on the fact they can claim their GPL rerelease of code taken from the linux community was a mistake, having not realized their own code was in there. The fact that they'd make a statement like that and not point out it's a dodgy argument casts doubt on this entire document.
- If SCO doesn't own the copyrights that it claims --> Lawsuit fails
- If there isn't any infringing code in Linux --> Lawsuit fails
- If SCO can't prove that IBM put the code there --> Lawsuit fails
- If SCO can't convince a court that they were duped into distributing the infringing code under the GPL in their own Linux distribution --> Lawsuit fails
- If SCO can't convince a court that there should be monitary damages --> Lawsuit fails
So what if there is infringing SCO code in Linux and SCO manages to play the duped victim with their own distribution under GPL?First, he claims that Linux is fine becuase SCO indemnified users. No, only customers of SCO linux. There's a big difference there.
Then, he claims that Linux is OK because it only affects IBM from a breach-of-contract standpoint. Yeah, except for it establishing a finding of fact that can be used in later suits against linux users/distros.
Finally, he makes the old, tired argument that the GPL saves us. That's all well and good except that the GPL, being a bit of a non-standard contract, has never been tested in court.
A great deal of what they wrote is either false or misinterpreted. Like the article in Forbes (I think) last month said, the linux community is NOT served by sticking its collective head in the sand and expecting IBM and the GPL to come riding in on their respective white horses to save us. There are real risks here - granted, some of them are farfetched, but stranger things have happened.
-Looking for a job as a materials chemist or multivariat
Perhaps someone could release a "spin-free" version of this document and then let readers draw their own conclusions. I imagine that a few of the conclusions would correlate with this matrix.
This matrix seems like a shot at SCO's attempt to win this case in public as opposed to in court. We all know that this is going to take quite some time to muddle through the court system. We also all know that the courts will have the final decision in this matter.
The whole block is bogus:
SCO makes two independant claims: that IBM violates their contract with SCO, and that Linux contains source code from the SCO Unix code base without authorization. They began with their lawsuit against IBM on March 6th, and at that time SCO board members said that this is about SCO-IBM, not about Linux.
The claims that the kernel contains copyright violations came later, I don't remember the exact date.
Additionally, SCO distributes a version of the 2.4 kernel, and that it's possible that the infringing code is only in 2.5.
_If_ there is a chance to claim that SCO placed their IP under the GPL by knowingly distributing, then it is the support program for their current customers: SCO said that they will continue to support them, and on the Usenix conference session about SCO-Linux one of the speakers mentioned that the source is still avaliable from their support download site.
Are there any SCO Linux customers around? Can anyone download the kernel sources and check if COPYING is still inside?
Hmmm. I don't think that the courts would put up with "we were distributing this code under the GPL, but we didn't read it first" defense. Ignorance is one thing courts rarely factor in, and in the case of corporate contracts, almost never. Deception is a different case, but I doubt anyone can say the GPL is deceptive - it states its intentions pretty clearly.
The fact that they had the GPL on the code makes the understanding of the ramifications a moot point. What SCO has said was they didn't know their code was in the product, and that *might* fly. The fact it was left in distribution for probably ~3 months after such discovery (assuming it took a month to fire the lawyers up and do the groundwork) is the interesting factor.
I was commenting more on the fact that this was about the *only* interesting thing the table had to say.
Sig under construction since 1998.
I have several friends at various Linux vendors who claim that sales are down and that customers have mentioned the suit very often as a reason to hold off on adoption of open source software. The BSA is lobbying foreign governments to avoid open source because of this case, even as we speak. We may be able to fix a few lines of snarfed code in 15 minutes and end the whole ordeal, but Linux may never get its credibility back if contributors can be shown to have caused the problem.
And finally, we come to the root cause of the suit. No, there's no any infringing code. There never has been, and there never will be. But now that SCO's made the accusation, it will be impossible to dispose of. Whenever someone mentions Linux, the "but didn't they steal code from Unix?" question will pop up. Whenever a Microsoft sales rep is talking to a PHB, and the PHB mentions "open source", or "Linux", or even (yes, even) "BSD", the sales rep will be able to say "Ah, but what about that stolen code?" And as the MPAA, RIAA, and BSA have proven so well, stolen's a little red-flag word. No-one wants anything to do with stolen. And not only is Linux tainted, but SCO's nebulous assertions about "Unix" and "SysV" derived works make all Unix-descended systems seem tainted. Which leaves guess who as the sole survivor?
SCO has no proof. IF this suit ever gets to court, and doesn't just vanish into the mist, they'll get smacked down so hard by IBM that they won't know what hit them. But that possibility will always be out there. After all, Linus cannot check every submission to make sure it wasn't "stolen" from some piece of proprietary software. Its impossible. Neither, however, can Microsoft check to make sure that one of their coders didn't "steal" code from proprietary software, or even a GPL'd program. Its a red herring, designed to make Linux look tainted and criminal for a problem that's common to ALL software.
I think everyone's first thought was right - SCO is looking to get bought out. But not by IBM - by Microsoft. The executives and top investors know they're on a sinking ship, and are currying favour with MS to try and get on what they see as more sure footing. And making a bundle off their investments while they're at it, by inflating their stock price and selling during the high.
I sincerely hope these suckers get smacked down hard by an FTA investigation, and whoever's backing them gets nailed with criminal charges.
IBM is going make sure to drag this out and make it as expensive for SCO as possible. By the time any decisions will have been rendered by a judge, it will likely be irrelevant.
Here, here.
In all likelyhood, IBM will drag it out until SCO is dead. It's the only sensible response.
If SCO wanted to save face, and perhaps live on, they'd do better to turn 180 degrees and contribute to Linux. They could actually make a market for an SCO Linux distro and port their proprietary applications to run on their Linux distro and keep licensing the apps the way they always have.
Some people have a way with words, and some people, um, thingy.
For SCO to prevail it will have to establish that it owned the code, and that it was included in Linux distributions with malice and/or a callous disregard for the property rights of the code's true owners, but that SCO's "accidental" release of the same code under the GPL was not deliberate and shouldn't be held against it.
It seems to me that SCO was in a far better position to recognize that the code being distributed as part of Caldera was in fact part of SCO's property than it was for other Linux distributors who did not have access to that confidential code.
You're right, but that's not quite where I'm going with it. I'm just saying that the GPL isn't a savior in this case, I don't believe, despite that people want it to be.
What this means practically speaking is that if SCO violated the GPL, and the GPL is declared invalid, then SCO has instead violated standard copyright law. The statutory damages are $150,000 per incident. Everytime someone downloads the Linux kernel source from their website, ka-ching. Every sale that they've made, ka-ching. Pissing off Richard Stallman suddenly sounds like the better way off, eh?
Well, they're betting the company anyway, so if they lose then Stallman can get his $150,000 after all the other creditors have picked over the carcass. In other words, heads they win, tails don't matter anyway.
The bottom line is that SCO continues to distribute the Linux source code. As such, they're either agreeing to distribute it under the terms of the GNU GPL (which don't allow extra burdens to be placed on the code) or they are directly violating copyrights. They are far better off if they get off with a simple GPL violation
Potentially, although I still don't think that this situation gets all linux users/distros out of the woods. In other words, SCO might be on the hook to Linus (who owns copyright on the kernel), but Red Hat et al might be on the hook for distributing SCO's code - and they don't have any copyrights to fight back with (well, none that matter here). And I don't know how that will shake out - I don't know for sure that they cancel. Basically we have a Mexican standoff, but Red Hat doesn't have a gun. The question might be how far Linus would go to protect them.
Bottom line is you are completely correct, but I'm not sure that it matters, because standard copyright doesn't ultimately protect Linux users and redistributors - only the GPL would do that by effectively open-sourcing SCO's stuff.
-Looking for a job as a materials chemist or multivariat
In August 2000, just days after Caldera purchased the Old SCO server division, the then CEO of Caldera, Ransom Love, made a keynote speech at LinuxWorld 2000. A RealPlayer video stream of the event can be found at DrDobbs Journal's Technetcast
In the question and answer session at the end of the keynote, Love was asked about the possible conflict over Monterey and Linux AI-64
A mp3 capture of the following transcribed portion
SCO has NO effective case against either IBM, HP or anyone else.
Side note: Suppose that dark day comes and certain kernel versions are deemed illegal to use. imagine the bandwidth spectacle that would follow as Linux users worldwide upgrade to "vmlinuz-2.6.x-clean".
I thought the basis of SCOs claim was that IBM
had revealed trade secrets. In that case, SCO
has a strong obligation to take care that the secrets are not revealed, as would IBM. But once the secrets become public knowledge, they are freely available to anyone - SCOs only recourse is against IBM for damages. The fact that SCO published the secrets themselves would be a difficult problem for them to overcome if they sought to prevent a third party from using the material. Perhaps they could appeal to copyright law to protect the former secrets, but they would have to reveal just what they thought had been copied, even under DMCA.
Sounds more like a company that is grasping at straws on the side of the river bank as they are drowning. The 'license fee' that MS recently paid them amounts to throwing them a string that will only be helpful if someone else decides to tie a rope onto the string. My guess is that their only hope is for a judge to make IBM tie on that rope.
Kindness is the language which the deaf can hear and the blind can see. - Mark Twain
Even if you replace the code immediately, you still have to pay royalties for your past infringements or be sued.
Ahh, no. Read a bit about the doctrine of laches.
Best case scenario (for SCO):
if a judge decided that SCO's allegations were true, and decided that royalties need to be paid, then the royalties would begin at the time that SCO informed them..
Worst case scenario (for SCO, assuming they win):
Judge rules that because SCO refused to tell anyone where the alleged infringing code is, that the code has no value, and the Linux users don't have to remove it.
Most probable scenario:
Since SCO refuses to disclose the alleged infringing code, a jude would most likely rule the code in question has no monetary value, so SCO doesn't get any royalties, but it still has to be removed by a set date.
Either way, the absolute best thing that can happen for SCO is that they gain nothing.
"obviously Linux owes its heritage to UNIX, but not its code. We would not, nor will not, make such a claim."
3
-- Darl McBride, CEO, The SCO Group. August 2002
http://www.linuxjournal.com/article.php?sid=629
Check out the 8th paragraph.
----
BTW: scox stock price has surged over the few sessions, and insiders are selling like mad. I think insiders just filed to sell 300K shares after the market closed.
People need to realize that they really could have a case here.. its pointless to embark on this stunt if they didn't feel they had a chance.. just beacuse we have not seen the evidence doesnt mean its real.
If they win, we are all screwed. Even if they dont, the damage being done to public opinion about the OSS movement will take years to repair.
Remember too, its not what *WE* believe, or what we feel is right or wrong, its what a judge decides.. and he wont give a damn about public opinion ( if has a decent judge ), but instead what the facts and arguments from both sides add up too..
---- Booth was a patriot ----
So what you're saying is buy IBM Linux solutions.
Now this presents an interesting problem. You're going to want someone big enough to sue. But you don't want them too big or they'll have better lawyers. Of course, you don't want them to be too small or there will be nothing left to sue if you don't act fast enough.
Maybe there's a better business strategy than "who can we sue".
Their only possible excluse is to claim lack of knowledge of putting the code into Linux. However: their failure to immediately stop distributing it before or when they published their claims, their failure to provide instructions on how to remove the offending code from the previously-distributed versions and thus make them GPL-compliant, and most damaging their claim that their own customers are not in trouble but other users of Linux are, are all going to be very bad for them. Each of these is a good proof that they knowingly violated the GPL and thus the copyrights of thousands of programmers.