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

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!

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.

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