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SCO Awarded UNIX Copyright Regs, McBride Interview
Prizm writes "It seems that SCO is continuing to build up its case for world domination, as today it was awarded U.S. copyright registrations for UNIX System V source code by the U.S. Copyright Office. Shares are up 20%, Novell is nowhere to be found, and SCO is releasing binary, run-only Linux licensing. You can read all about it over in their press release." C|Net is also running an interview with McBride.
Listening in on the SCO conference call today, they announced that all Linux 2.4 users are in violation of their Unix copyrights. They will now be selling a UnixWare license to Linux users to become compliant.
yes and once they reach 5% they have to file with the SEC so doubtful this is what has happened.
You have to buy a seat of UnixWare, per the press release. That's $1500 per seat. Do YOU think anyone is going to pay that?
I am not merely a "consumer" or a "taxpayer". I am a Citizen of the State of Texas
Copyright ownership is not "awarded", it is automatic for the creator of a work.
Prior art has nothing to do with copyright, but relates to patent claims for an invention of something that already existed.
What registering copyright is for is beyond me, but it doesn't change much. Either linux contains SCO code, or it doesn't No amount of registering things will change those facts.
I just wish SCO would show us the code or go away. What they are doing now is harassing people.
-- MartinG To mail me: echo kewyjlcxyzvjfxbqwh | tr bcefhjklqvwxyz
If they own the copyrights to SysV code then they can enforce them as they see fit.
If they can prove that Linux infringes upon those copyrights, then they will be able to charge for its use.
Wrong answer. *They* themselves distributed a Linux kernel, complete with source up until a week or so after they filed the suit, IIRC. If it was infringeing then, then they have relased whatever code might be in there under the terms of the GNU General Public License.
Since the Linux kernel wouldn't by any means be comprised of 100% of their code, that makes any Linux kernel that contains their code a derivative work. Which means that they MUST distribute the source to remain in compliance with license.
In other words, SCO, by releasing a binary-only Linux, is violating the terms of the GNU General Public License, and hence, they are breaking the law.
My journal has hot
The bullshit just keeps rising higher and higher...
"...The company also announced it will offer
UnixWare(R) licenses tailored to support run-time, binary use of Linux for all
commercial users of Linux based on kernel version 2.4.x and later. SCO will
hold harmless commercial Linux customers that purchase a UnixWare license
against any past copyright violations, and for any future use of Linux in a
run-only, binary format."
So users no longer have access to Linux source? They can't recompile the kernel? Oh, that's right, Linux is an "unauthorized derivative of UNIX", so I assume they're laying claim to all of Linux now.
"Since the year 2001 commercial Linux customers have been purchasing and receiving software that includes misappropriated UNIX software owned by SCO... While using pirated software is copyright infringement, our first choice in helping Linux customers is to give them an option that will not disrupt their IT infrastructures..."
They have not provided any proof that Linux contains SCO IP... even if it did that does NOT mean that Linux users are committing software piracy.
Hundreds of files of misappropriated UNIX source code and derivative UNIX
code have been contributed to Linux in a variety of areas, including
multi-processing capabilities. The Linux 2.2.x kernel was able to scale to 2-4 processors. With Linux 2.4.x and the 2.5.x development kernel, Linux now scales to 32 and 64 processors through the addition of advanced Symmetrical Multi-Processing (SMP) capabilities taken from UNIX System V and derivative works, in violation of SCO's contract agreements and copyrights."
This is IBM (and formerly Sequent) code. It's NOT SCO's intellectual property. They CLAIM to have control over its distribution, but again, they haven't proven it in court. That certainly doesn't mean they own it.
I could go on but I'm sure many brighter ones will do a better job...
Wanted: One witty yet thought provoking
This sounds like more than it is, but one must understand a fundamental difference between copyright and other IP, such as patents and trademarks.
When the PTO grants a patent, it awards the actual patent itself after an investigation and a determination that the invention meets the requirements for a patent. When a trademark is registered, a different process takes place, but one that also attempts to determine the validity of the trademark.
Copyright registrations don't do that. They just record the fact that someone claimed that something was theirs on such and such a date.
This is a practical matter, as apart from very bare minimum standards, there isn't a very good way to investigate the validity of a copyright application short of an adversarial proceeding.
- Convince SCO to freely license the copyrights to everyone.
- Change the Linux code to no longer be in violation of the copyright.
- Stop distributing linux.
The GPL quite clearly states that if you will not provide source code to a GPLed binary you distribute, and if you will not allow someone you give GPLed source/binary to to redistribute it under the GPL, it is a GPL violation to distribute it at all. SCO can claim Linux in violation of their copyrights but they can't remove Linux from the GPL.Irritable, left-wing and possibly humorous bumper stickers and t-shirts
Since SCO distributed the OTHER portions of the code that are non-infringing with their IP intermixed, they're in an unenviable position of knowingly infringing the IP rights of other holders.
Clause 4 of the GPL requires that you make everything you ship out to be GPL- no exceptions. They've been distributing Linux in the alleged condition for over seven months now- stating that it was "okay" for them to do so, because the alleged IP was theirs to begin with.
They don't own the other 98% of the kernel source- other people do. And they've been distributing it for too much time to be excused for not knowing what was going on.
I am not merely a "consumer" or a "taxpayer". I am a Citizen of the State of Texas
They want all commercial customers to pay for a Unixware 7.1.3 license for EVERY copy of Linux they are running.
Here's my rundown of the call
Freedom Is Universal
Linux-Universe
No, if they encumber the linux codebase with their own license, then the GPL becomes void and no longer can be used to distribute Linux. At that point, the distribution of every piece of linux that they don't explicitly own becomes prohibited, completely, because Linux falls back to copyright law which indicates that the contributors of the other pieces still own them and have not licensed them to any distribution but GPL. Therefore, if they tell people they need to pay to run linux, linux becomes un-runnable.
In fact, if they actually make anyone pay to run linux, then they can be sued by the contributor of every other piece of code for copyright violation. After all, they distributed the rest of the code without a valid license to do so.
How? I've changed my stance on this somewhat.
The GPL doesn't take away any rights whatsoever. It only grants rights, and places conditions on those rights.
If I give you the binary and source code to a program I wrote, and it contains a copryright notice, you have NO RIGHT to distribute or disclose that source NOR it's binary to third parties. Period. The GPL gives you the right to do that, ONLY ON THE CONDITION that you also distribute the source code and make it available.
It's not defeatable at all. Unless they accept the GPL, they have NO RIGHT to distribute the program. At all. Not because it's GPL, but because it is copyrighted and fully protected by United States Copyright Act of 1976, the Software Act of 1980, and various international treaties including the Berne Convention. Failure to abide by the terms of the GPL is called breach of contract. Pure and simple.
My journal has hot
Pertinent passage:
If the copyright holder is the Free Software Foundation, please send the report to . Note that the GPL, and other copyleft licenses, are copyright licenses. This means that only the copyright holders are empowered to act against violations. The FSF acts on all GPL violations reported on FSF copyrighted code, and we offer assistance to any other copyright holder who wishes to do the same. But, we cannot act on our own if we do not hold copyright. Thus, be sure to find out who the copyright holders of the software are before reporting a violation.
Please help metamoderate.
"SCO needs to openly show this code before anyone can assess their claim," IBM spokeswoman Trink Guarino said. The company has said in the past that the suit is baseless.
Regarding SCO's decision to offer a license to users of Linux -- the open-source software that can be copied and modified freely -- Guarino said, "SCO seems to be asking customers to pay for a license based on allegations and not facts."
http://biz.yahoo.com/rc/030721/tech_sco_4.html
"You're gonna need a bigger boat." - Chief Brody
The situation where one company holds another hostage by claiming infringement without every putting up any evidence is not new. To address it, we have declarative judgements. The Linux community could and should ask for a declarative judgement on SCO's alleged copyright violations. Then, SCO either has to put up the evidence, or the judge will rule against them.
Registering a copyright for sourcecode amounts to sending in a form with the code and a fee to the copyright office. They datestamp it and file it away. It's not required to register to claim copyright, or even to register at all. Registering just gives the holder some leverage in court, since in the absence of other information, the side with the earlier registration date wins.
So, since they are just filing now, and have a 2003 registration date, I don't see what this has to do with anything at all. All this means is that they are "officially" claiming copyright, id doesn't mean they's been "granted" any rights at all. That's for a court to decide in specific disputes.
IANAL, but I've sent in a number of Copyright Form TX filings in my day, at about $10 each. Big deal.
I just finished watching the interview and McBride is claiming that the GPL only enforces their claims.....McBride says that the GPL is very clear in stating that there is a difference between donating code and distributing code into Linux kernel. SCO claims that they never 'officially signed away their code' to be used in the linux kernel. He even goes on to say that since there is any proprietary code in the kernel, that the GPL itself is nullified as a valid license for the kernel. Good interview, but McBride still comes off as evasive in some of his responses. (I guess that shouldn't surprise me) This is going to be a major test for the GPL. I'm getting frustrated that we haven't heard more from IBM.
There has been a lot of anger expressed throughout all of the SCO threads of late, most with venom bordering on violence. Keep this advice in mind, however, as you discuss this issue.
If you are a Linux kernel developer, explore your legal options. With SCO's market cap soaring near $175MUSD, there are a few attorney's who might consider contingency representation. If you want to file a class action suit, file it in Madison County, Illinois.
As for your personal comments, keep in mind that Slashdot cannot stop SCO from supoenaing their user records for discovery should you ever decide to sue. If so, be prepared to be REALLY pissed off when you are deposed. They will imply you've been engaging in copyright theft in an attempt to get an emotional response that they can drag out in court against you. I've been deposed; it an emotional roller-coaster.
Remain calm. That is your best strategy. Do not rise to their bait. Refrain from name calling or empty threats. If you truly believe you have been harmed by SCO's actions, then take your case to court or hold off until the IBM/SCO dust settles. Your shouting about the GPL and making threats to tear Darl's nuts off and feed them to him will do nothing but harm to you and any potential case you may have.
"Rocky Rococo, at your cervix!"
I'm not a great shorthand guy, so everybody below will be speaking with weird clipped diction. I'll post my summary and opinions in a followup note. Also, the lameness filter doesn't like my writing style ("too few characters per line") so there is some crap at the end to compensate.
... you can't do anything until IBM case is resolved, right?
... today's announcement ... is a new front. Boies: There would possibility of case-by-case litigation. It is not necessary to resolve the IBM case [first].
... very stark ... that type of code comes from various vendors, primarily other than IBM. #2: SMP, high-end technology, NUMA, RCU. In the early days of Linux, Linux supported 2-4 processors. Now with Linux 2.4, 16-32 processors. Hundreds of *files* were contributed by our vendors. #3: methods and concepts. ... With respect to pricing ... benchmarked on UnixWare 7.1.3.
... how are you going to make them stick?
... software flows from Torvalds to distributors to hardware vendors to end user." "It starts with the end user."
...
12:07 Blake Stowell
Speakers today will be David Boies, Darl McBride, Chris Sontag.
12:08 Darl McBride
In May 2003, we warned Fortune 1500 companies. Enterprise use of Linux 2.4 violates SCO's copyrights and contract rights. Hundreds of files were taken from System 5, or from derived works, or have the same structure, sequence, and organization. Linux would have little multiprocessor capability without our IP. SCO has registered its copyrights. Linux vendors are selling a product with no IP warranty. By not providing a warranty, IBM has profited from Linux, but shifted risk to customers. We intend to use our IP rights carefully and judiciously. SCO is prepared to offer a license for Unixware 7.1.3 to Linux customers.
12:13 Question and Answer
Question #1 Dan Gordon, Bloomberg News
Question: You say Linux violates SCO copyrights. What has changed from contract rights to copyrights?
McBride: This started off as a contract case. With respect to copyright, this is new as of today. What is new today is the copyright registration.
Question #2 Peter Galway, e-week magazine
Question: If enterprise customers don't buy in
McBride: The IBM case is a contract issue
Question #3 Dean Takahashi, San Jose Mercury NEws
Question: Can you more completely describe the offending code and its origins?
Question: [how much will this cost end users?]
McBride: Three types: #1, line by line copying, including developer comments and errors
Question #4 Don Marti, Linux Journal
Question: Ian Lance Taylor says that the code he saw in Unixware and Linux, he saw in other places too, on the Internet.
McBride: A lot of this code is not questionable. IBM RCU code, from Dynix. We're not talking about BSD code. We're talking about high end SMP code.
Question #5 Todd Weiss, ComputerWorld
Question: What was the name of the license?
McBride: SCO UnixWare 7.1.3.
Question #6 Richard Waters, Financial Times
Question: What penalties can you impose
Boies: The copyright laws provide a wide range of penalties. Statutory damages, actual damages, extra damages for willful violations.
Question #7 Robert Mina, Copper Beach Capital
Question: What are the implications for Linux distributors such as Red Hat?
McBride: "Complicated
Question: What about contributory infringement?
No reply at all.
Question #8 David Bark, Wall Street Journal
Question: More about copyright registration date
McBride: We typically register on enforcement.
Boies: Registration is a precedent in bringing a lawsuit.
Copyrightable material was not filed until need for enforcement.
Question #9 Wilstang Gruner
I'm hardly an expert, but RICO is sufficiently broad in its scope (the Feds made it that way on purpose) that it could probably be used against SCO. From this article (http://law.about.com/library/weekly/aa042202a.htm ) about RICO and priests,
"Just exactly how does the RICO statute work? RICO requires that an "enterprise" be shown to exist. "Enterprise" is broadly defined to mean "any individual, partnership, corporation, association, or other legal entity, and any union or group of individuals associated in fact although not a legal entity." The broad definition was thought necessary to address the great variety of informal organized crime organizations and the control organized crime has over legitimate businesses.
"For RICO to apply, the enterprise must be shown to have engaged in a "pattern of racketeering activity," which means that one must show at least two "acts of racketeering activity" over a period of ten years. An "act of racketeering activity" consists of one of a lengthy list of state and federal crimes. Note that the statute does not require conviction of an "act of racketeering activity" but only that the act have been committed.
"The list of "acts of racketeering activity" includes crimes normally associated with organized crime such as murder, kidnaping, gambling, arson, robbery, bribery, extortion, and dealing in obscenity or drugs. However, the list also includes numerous, less heinous crimes. Well into the list one finds mail fraud and wire fraud. These statutes make it a criminal offense to use the mails or electronic communications in the commission of a crime.
"When all the pieces are assembled, one can press a RICO claim by showing that a conspiracy existed among individuals or other organizations during which two telephone calls in furtherance of the conspiracy were made in ten years."
OTOH, IANAL, so who knows?
"I might have made a tactical error in not going to a physician for 20 years." -- Warren Zevon
So, what they are doing is just more fud.
They've not been assigned anything yet, so don't get your knickers in a twist!
Even if they eventually get the copyright for SysV code, it doesn't matter (see my prior post on this).
Sontag didn't speak at all.
...
... Canopy is betting SCO Group, and if they lose, they have other companies. They'll just buy some more IP and continue their long-time campaign of IP litigation. It worked for Caldera International + DR-DOS (which they bought) and they are trying again with SCO Group + Unix (which they bought).
... that's what matters. That's what SCO Group gets paid for.
Boies spoke a little, but mostly basic stuff. Such as: a copyright owner doesn't have to register the copyright until it's time to file a lawsuit.
McBride's main points are:
SCO registered the copyrights from Novell. This gives them a lot more legal ammunition. Before, this was just a contract dispute from IBM. Now, they are opening up another "front" (he used that word) -- everyone who runs Linux is infringing. They can go after people who run Linux, not just people that SCO has pre-existing contracts with.
It's all about enterprise, SMP, RCU, and so on. It's about Linux kernel 2.4, not linux kernel 2.2.
SCO is not interested in pursuing individual home Linux users at this time. They are very interested in pursuing enterprise SMP users. They are not pursuing source code distributors such as Red Hat at this time.
SCO's proposition is: buy a license for UnixWare 7.1.3, and it comes with a covenant from SCO that they won't sue you if you run Linux. They are currently in negotiations with many many companies to sell these licenses. These licenses are run-time binary licenses.
There was complicated discussion in Question #13, Jonathan Collins, VNU, about the GNU Project and the GPL. I would appreciate if anyone could post a word-for-word transcript for that. The part I got was Boies saying that the UnixWare license "... does not provide protection for people who touch the source code." and McBride said "right".
McBride said that the literal copying, which they've been exhibiting, came mostly from Unix vendors other than IBM.
McBride sees SCO as the rightful owner of the "Unix on Intel" market. His position is that Linux usurped that position by offering "Unix on Intel for free", and that Linux did so illegally by copying code from Unix.
My take on all this
Remember that SCO makes a lot of money from their SCO Source program (funded by Microsoft and Sun). It accounts for 40% of their revenus and ALL of their profit. In fact, the only profit that SCO has made in their entire corporate history comes from this program. They don't have to win the lawsuit, they just have to throw enough mud at Linux so that Microsoft and Sun will keep cutting them checks.
Also, SCO is not really an independent company. Canopy Group controls SCO. Canopy chose the legal strategy and the lawyers for this initiative. So it's not like SCO is betting the company
(Hey, remember Jeff Merkey and the Timpanogas Research Group, which was developing NTFS and Netware-related software for Linux? Guess who bought them out? Canopy Group.)
This time around, Canopy isn't going for a pure legal strategy. Legally, their case has big holes in it, such as their distribution of the Linux kernel source after they had actual knowledge of its alleged infringing contents; plus their lack of specific notice to Linux users. Canopy is also going for a strategy of intimidation: buy a $1500 license or we will drag you into the mud.
But most centrally, Canopy is going for a PR campaign. They already took $8 million to the bank from Microsoft and Sun to wage this anti-Linux campaign, and they expect to collect another $5 million this quarter (McBride estimated $8 million on the last quarterly earnings call, but he has revised the number downwards since then). That's why the legalisms don't matter. Whatever convinces your department manager to put Linux on hold and run Windows or Solaris instead