SCO Says IBM is Beating Up on Them

SCO's McBride claims that IBM is stage-managing all the attacks and bad press, which would probably explain why I cleared this article with IBM World Headquarters before running it (not!). The publisher of Linux Journal invites SCO to sue. One of SCO's lawyers has this barely coherent interview where he spouts legal rubbish for a gullible reporter. There's an interview in German (machine translation) with SCO's execs. And finally, SCO is still hoping for a settlement with IBM. Update: 08/22 18:26 GMT by M : ESR responds.

Comments

Unilever says it's not going to pay license fees

[DavidNWelton]

http://www.vnunet.com/News/1143155

"As far as I'm concerned it's an issue between SCO and IBM, and I expect that IBM's resources will win the day,"

Clueful Judge

[pjrc]

On every SCO story, invariably someone posts a paranoid concern that perhaps a clueless judge will be assigned to the case, and rule in favor of SCO. These are often moderated to +5, which is quite silly since Judge Dale A. Kimball has already be assigned to the case, and we can see that he's got a reputation for being fair and capable of understanding cases involving technology.

Groklaw has very extensive research on Kimball's history, which is nicely summarized and easy to read. Every case has links to much more detail. The overall appearance is that Kimball will probably do the right thing.

Probably most important is the Jacobsen vs Hughes copyright case. Apart from considering much of the material uncopyrightable historical facts, Judge Kimball was quite unimpressed by the plaintif's failure to act in a timely manner to mitigate damages. Quoting from that article:

"Had Jacobsen voiced his disapproval in 1996, Hughes would have had the opportunity to take the offending material out of the books," Kimball wrote. "For Jacobsen to wait until three volumes of the series had been published before voicing his disapproval, when it is clear he had ample opportunity to let Hughes know of his disapproval as early as 1996, results in extreme prejudice to Hughes."

Obviously this bodes quite well for IBM and all Linux users. SCO of course will claim they stopped distribution of linux, but this ruling at least shows that Judge Kimball isn't likely to be be charmed with the deplorable way SCO has conducted itself. Kimball's willingness to consider the writing a separate work, even though a part of it was loosely based on Jacobsen's also casts quite a shadow over SCO's chances (assuming the unlikely worst case scenario that SCO has an ace up its sleeve, rather than the bogus examples we've seen so far). It's certainly a good sign that Kimball is unlikely to buy SCO expansive theories about what constitutes a derivitive work.

The groklaw page has examples where Kimball has ruled against big business, where he's shown competence at handling software intellectual property disputes (eg, Altiris vs Symantec), and where he's handled very complex cases.

While nothing is 100% certain going into the courtroom, it is a fact that the Judge Kimball has been selected to hear this case. His history shows he's competent, fair, and at least in Jacobsen vs Hughes, he doesn't tollerate the sort of shenanigans SCO has been pulling!

If they really had a case

[panurge]

Would they be operating entirely by press release? There's a nasty possible point here. SCO wants a jury trial. They are sending out press releases like crazy, loads of exposure on the net. When (if) this case comes to trial, it will be hard to find anyone who knows anything at all about IT/IP who will not be liable to be removed from the jury. A jury consisting entirely of Mormon farmers might just be exactly what SCO wants. (This is not an anti-Mormon remark, I have Mormon relatives).

What ever happened to the idea that once a case was under way it was sub judice, and if either party discussed it outside the courtroom it was highly prejudicial to their interests?

Re:Whole reminds me of the British empire

[LMCBoy]

Funny, but the line:

Linux Programmers: We don't need a copyright. We wrote it and we have the GPL.

Should read:

Linux Programmers: Duh, of course we have copyright! Without it the code couldn't be GPL'd.

GPL'd code is copyrighted by its author, it is NOT public domain. End broken-record mode.

Heise.de interview

[theolein]

Firstly three cheers to heise.de for asking pointed critical questions that shitrags like CNet don't have the fucking moral stamina to do.

A Quote:
c't:Mr. Sontag, the code that showed in the Forum has been analysed by experts. The result: the code was introduced by SGI into Linux, not IBM.

Chris Sontag: That's correct. This example is not from IBM., but from another of our licencees. I can't comment about who that is at the moment.

c't: The copy (of the code in SCO's presenttation) seems to reach far further back than your rights to Unix. On top of this, they seem to have already been distributed by AT&T under the BSD licence i.e. they're freely available, could have gotten into Linux from there.

Sontag: This is completely untrue. We own all the files of this code with the complete development tree all the way back to the original 1969 version. We have researched all the tapes and all versions of the code. The code in question comes the exact version of the Unix System V code that we licenced in our contract to SGI. This version was available to SGI and was never in BSD or other releases. And the to-the-letter copy of this code is in Linux. We are raising awareness about such flagrant violations.

c't: But you can't use this as evidence in your claim against IBM?

Sontag: Correct.

c't: Why are you then showing exactly these pieces of code? Your suit is against IBM..

Sontag: We've found many kinds of copyright and contract breaches. The copying of code word for word was the most obvious kind and we wanted to demonstrate this. This is why we showed this in public and why we also show it under NDA. In the case of IBM we have not yet such cases of direct copying, but we haven't researched all the code yet. In IBM's case, it is mainly about another kind of breach of contract, namely the inclusion of derived code in large amounts. The contract states that all changes in the code and derivations thereof remain part of the origionally licenced code.

c't: Your interpretation of copyright law -- relating both to directly copied code as well as derived works-- is described by Professor of Law, Egen Moglen, as being both snesless and as invalid in court

Sontag: Moglen is not exactly known as an IP expert. I've spoken to IP experts and they state that Moglen's interpretation senseless.

c't: Your lawyer, David Boies, is also no IP specialist.

Sontag: True but his special area is contract law and that will be the deciding factor.

c't: You didn't perhaps hire him because of his role in the Microsoft case?

Sontag: Let's say that that aspect will at least not hurt us.

c't:Are you going to sue this other licencee now?

Sontag: I can't say anything about that now, but we're holding all our options open

The rest is an interview with McBride about who has more resources SCO or IBM. Darl thinks he's got enough. The only interesting question is Darl's opinion of the GPL:

c't: You're acting in a very agressive manner in the Forum. You're declared war against Open Source, because it's destructive for the Software branch. Does the whole movement have to die so that a couple of software companies can survive?

McBride: I really meant the GPL there. There's a lot of valuables work in Open Source. Only the extreme claim that nothing that one has developed belongs to oneself anymore can not go carry on any more. Something must change in the GPL or it won't survive. I've discussed this with many representatives of the Open Source movement.

I wonder if their answers consisted of the words "FUCK" and "YOU"?

Lots of PR, no lawsuits

[amcguinn]

SCO have made exactly two legal filings to go with all this PR dross they were boasting about.

First, they filed a suit against IBM (not on copyright grounds).

Second, they amended the suit to remove some of the more blatant lies from it.

That's the lot. None of the many contradictory allegations they've made against other Linux distributors or users have been backed by any legal action whatsoever. They didn't even bother to contest the application to get an injunction against them in Germany to stop them spreading this FUD. The injunction stands (in Germany).

Manual tranlation of the Heise article

[Apogee]

Don't know if this is good old Karma whoring, but I don't like the fishy fish tranlations, and since I speak german...

SCO: We keep our options open for further law suits

The dispute on whether parts of code from Unix development have possibly entered into Linux, and therefore whether rights held by SCO have been violated, has gained momentum again. At the SCOForum in Las Vegas, the SCO group has for the first time publicly presented parts of code and comments, which are supposed to prove the allegation of the company against IBM and the Linux community. Pictures of the code, which were published on Heise online, led to a first analysis by open source developers. Further investigations led to the assumption that the code shown in greek letters in SCOs evidence for code theft may point towards a transfer. Greg Lehey, for one, thinks so. Bruce Perens, however, merely concludes that none of the evidence brought forward by SCO would be sufficient to prove SCO Group's rights in court. SCO, in turn, argues that the code is protected by a licence with SGI.

c't spoke to Chris Sontag, Vice President Intellectual Property SCO, and Darl McBride, head of SCO, about the origins of the purported stolen code, the further directions of the legal dispute and the situation of SCO as a company.

c't: Mr. Sontag, the code sequences shown by you on the forum have been analyzed by experts. Result: Silicon graphics inserted them into Linux, not IBM

Chris Sontag: That is right. This example is not from IBM, but another of our licensees. At the moment, I cannot comment on who it is.

c't: The copy is supposed to go much further back than your rights on Unix. Moreover, it is said to have already been distributed by AT&T under the BSD licence, therefore freely accessible, and could have entered into Linux that way.

Sontag: That's completely wrong. We posess all files of this code with the complete source tree (lit: pedigree) in all version, up to the origin in 1969. We have looked through all tapes and all versions of the code. The code in question dates from exactly the version of Unix System V which we have delivered to SGI and licenced with a signed contract. This version was at the disposal of the licensee, and it was never in BSD or other releases. And the letter-by-letter copy of this version is found in Linux. We want to point out such flagrant breaches.

c't: But this evidence is useless in the dispute with IBM?

Sontag: Correct.

c't: Why then are you demonstrating exactly this code publicly as evidence? You are sueing IBM.

Sontag: We found several kinds of breaches of copyright and of contracts. Literal copying of code was the most obvious kind, and we wanted to prove this as well. Therefore, we have shown it in the public talk, and demonstrate the example also unter terms of an NDA. In the case of IBM, we have not yet found such cases of verbatim copying, but we have not examined everything yet. With IBM, this is above all about a different kind of breach of contract, namely the transfer of derived results on a very large scale. The licensing agreement provides that all changes and derived products remain within the originally licensed body of work.

c't: Your interpretation of copyright law -- concerning direct copies, as well as derived works -- was said to make no sense and not to be admissible at court by Egen Moglen, Professor of Law at Columbia University.

Sontag: Moglen is not exactly known as an expert for intellectual property (IP) law. I spoke with IP experts - and they think Moglen's interpretation makes no sense.

c't: Your lawyer David Boies is no IP specialist either.

Sontag: Correct, but his expertise is in contract law, and that will be the decisive weapon.

c't: You really didn't chose him for his highly publicised role in the Microsoft case?

Sontag: Let's say that aspect won't harm us at least.

c't: Will you sue this other licensee, as well?

Sontag: I can't comment

Re:Yup

[samwhite_y]

The part I am responding to is this.

"And has been doing. Forbes points out that SCO has pulled this same shit with Microsoft -- and won. In this case they bought the rights to an old, 'decrepit' version of DOS and proceeded to sue the shit out of Redmond. They are crafty bastards. And they basically leverage intellectual property law to fuck other people over."

To compare the DRDOS suit with the current SCO activity means that you have not been studying your history. The basis of the DRDOS (the "decrepit" version of DOS) lawsuit is as follows.

DRDOS was superior (by many peoples accounts) to DOS for a brief period in Microsoft's history. The Windows operating system (Windows 3.1 and earlier) ran on top of both versions of DOS. Microsoft deliberately put into their Windows code a test to see if it was running on top of DRDOS and then create a nasty looking crash. Microsoft then spread rumours through its vendors that DRDOS was unreliable. This killed the market for DRDOS.

There is clear and verifiable evidence of this and this is why Microsoft settled.

To compare the current SCO lawsuit to a lawsuit based on clear criminal behavior is to legitimize SCO's current lawsuit -- exactly why Forbes and other magazines give the current lawsuit credibility. The previous lawsuits were valid, why can't this one be as well? Absurd, unfortunate, but probably true.