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McBride Speaks, In Person And In Print
Phil Windley writes "Darl McBride gave the keynote at CDXPO this evening and held a press conference afterwards. I've posted my summary of his talk and the press conference on my weblog. In his talk, Darl seemed to be saying "Don't hate me. I'm only doing what I had to do."" On the other hand, in this interesting interview with CRN, McBride comes one whisker from likening Linux users to drug users, renews threats to sue end users, and says "all the big guys" are out to get SCO.
and I quote:
McBride: Our goal is not to blow up Linux. People ask why we don't go after the distributors...'If you have such a strong case, why not shut down Red Hat?' Our belief is that SCO has great opportunity in the future to let Linux keep going, not to put it on its back but for us to get a transaction fee every time it's sold. That's really our goal.
From the blog, copied and pasted.
"Carl McBride: Linux Won't Remain Free
The evening keynote at CDXPO is by Darl McBride. On the way in they handed out a pamphlet from WIPO entitled "Intellectual Property: A Power Tool for Economic Growth." I'm not sure who decided to hand it out, but I think its a little silly.
Darl starts out with a history of SCO. He says "SCO = UNIX." (Note: in the interest of my fingers, I'm going to stop typing "he says" and just type the essence of his speech. If I add commentary of my own, I'll note that.) A year ago, the answer to the question "who owns UNIX?" would have gotten a variety of responses. While there are many branches of UNIX, they all tie into the same tree trunk. AIX, HPUX, and others are licensed products of SCO. There are more than 6000 licensees with access to UNIX source code. Now he world knows that SCO owns those licenses.
When Darl joined SCO, its market cap had gone from a billion dollars to 6 million and had about 6 months of operating funds in the bank. When he looked at the assets, he saw $60 million in revenue, a channel of resellers, and intellectual property. He didn't think the company was getting the most from its IP assets and saw IP infringements from "the upstart Linux."
He was told when he examined this space that going after Linux infringements would bring down the wrath of the Linux community on the company. He didn't see the Linux community as one of his assets. His constituents are his shareholders and customers.
SCO set up a licensing program to put UNIX libraries on Linux. IBM threatened that they would not support SCO on their products if they didn't retract their licensing program. 20% of SCO's operating systems ship on IBM hardware. IBM thought the program would imply licensing issues with Linux. IBM was talking about taking major parts of AIX and moving it into Linux. Since IBM makes a large portion of its revenue from its IP, SCO thought this was unfair.
SCO got to the point where they had one option left: litigation. That set in place a chain of events that led to the last six months. What is not in dispute:
SCO owns all UNIX System V source code
SCO owns agreements to all UNIX vendors
SCO owns all UNIX System V copyrights
SCO owns all claims for violation of UNIX licenses.
SCO controls UNIX System V derivative works.
SCO doesn't own the derivative, but they have rights to confidentiality that are the same as for the original work.
The Linux infringements include literal copying, obfuscated copying, derivative works, and non-literal transfers.
Darl takes on what he calls urban myths surrounding SCO.
I am not a Penguin Slayer or a Suit-Happy Cowboy.
SCO does not want to destroy open source or Linux. With the appropriate checks and balances, open source has merit.
End users are not safe in taking a wait and see position. SCO is contacting customers and asking them to take a license of litigate position.
Linux infringements cannot be fixed by simply removing or changing it.
The GPL is at risk, but IBM put it on the table, not SCO as part of the litigation.
Some other points:
There's no free lunch or free Linux. The value proposition of Linux is UNIX for free. Free models such as free music, free Internet, free bandwidth, and free love haven't worked.
Giving away a UNIX-like OS for free isn't a problem. What is a problem is giving away UNIX or pieces of it when you don't own it.
Free software removes the incentive for innovation. There will lost jobs and lack of competition. SCO is in a tug-of-war between those who want software to be free and those who support proprietary software. SCO is a bellwether for this giant tug-of-war.
This country was built on the notion of property ownership and being about to protect one's property. What's left in this company are concepts and ideas. If you take away the ability to protect that, we're reduced out ability to compete as a country (cue the break out the flag, someone).
Predi
is lies. Damned dirty lies. He says:
... but what if hte court agrees with SCO? what if money is passed under the table? this is a case of -very- high stakes, for both sides. If SCO is found in contept ,or anything like that, SCO loses big time, as does MS, as now most people see them as being in bed with SCO (at least in the tech field). The other way, linux wins, big time. Talk about a stacked deck - now it depends on how it's cut.
If I'm Merrill Lynch and have a trading application proprietary to Merrill Lynch and deploy it across all my trading desks, if that deployment occurred where the Linux OS and app are distributed togetherm there are arguments that Merrill would have to provide their proprietary trading application in source form to everyone. That's a problem.
Go read the GPL. Nowhere is that said. This is purely a lie to get people to not invest in linux, or to use it; the only other alternatives, of course, being SCO... and MS. SCO is likely to benefit little - their technology isn't capable of doing what most people use linux for. So MS gets the customers. Combine that with the SCO discount for converting to MS, and everything else...
I'ts pretty damned obvious to those that know even the most basic things about the GPL and IP law that SCO has no case. McBride makes inference after inference, and all of which are lies. Add them up, and to most people, it's a convincing case. Now to get this thing into court and smack him in the mouth.
Given MS's history of buying politicians....
~/ssh slashdot.org ssh: connect to host slashdot.org port 22: too many beers
I orginally posted this on the "IBM Puts Pressure On SCO" article. However I posted it very late. So I will post here again. If you don't like what SCO is doing complain about it. Here is a link to help you contact the people to complain to. http://www.understudy.net/weblog/archives/00000014 .html
Last I checked that's what the MS end user license agreement says:
DISCLAIMER OF WARRANTIES. The Limited Warranty referenced below is the only express warranty made to you and is provided in lieu of any other express warranties (if any) created by any documentation or packaging. Except for the Limited Warranty and to the maximum extent permitted by applicable law, Microsoft and its suppliers provide the Product and support services (if any) AS IS AND WITH ALL FAULTS, and hereby disclaim all other warranties and conditions, either express, implied, or statutory, including, but not limited to, any (if any) implied warranties, duties or conditions of merchantability, of fitness for a particular purpose, of accuracy or completeness of responses, of results, of workmanlike effort, of lack of viruses, and of lack of negligence, all with regard to the Product, and the provision of or failure to provide support services. ALSO, THERE IS NO WARRANTY OR CONDITION OF TITLE, QUIET ENJOYMENT, QUIET POSSESSION, CORRESPONDENCE TO DESCRIPTION OR NON-INFRINGEMENT WITH REGARD TO THE PRODUCT.
You may want to start reading Groklaw if your really worried about this.. I'm getting less worried the more I read.. IBM is being VERY carefull and methodical about all of this while SCO is too busy undermining their own case by making a lot of public noise.
IBM has always been very dangeorous to mess with and while SCO may gain some stock value in the short term anyone who bets on them surviving in the long term is going to lose.
Darl seems to be of the same mindset as lawyers who defend mass murderers.
Not the same at *all*. A lawyer who defends a mass murderer is almost always appointed by the court. This lawyer is there to ensure that the legal rights of the defendant are secured. It's a basic and fundamental part of how our legal system works.
With this in mind, it's easy to be vigorous in defending the legal rights of somebody you detest. It's not self-interest, it's moral duty.
On the other hand, McBride is in a different ballpark altogether. Here's somebody who's clearly seeking personal gain at other's expense.
We're talking about something worse than a scum-sucking lawyer... the PR man!
I have no problem with your religion until you decide it's reason to deprive others of the truth.
With knowledge of possible IP infringement by IBM and others, it would have been illegal for these gentlemen not to follow up on it as agressively as possible.
Unfortunately for Darl, libel, tortious interference with trade and willfully misleading potential investors are *also* illegal, among other recent SCO actions. A CEO has a legal responsibility to lead his company aggressively, but that doesn't give him license to break the law.
As far as copyright infringement goes, SCO has now been spouting about this for a year and thus far SCO has revealed *one* legitimate infringement -- and it was an ancient and trivial bit of code that was removed from Linux without even replacing it, because better code already existed in the kernel.
With respect to the other IP issues, patents and trade secrets, well, the former is really funny because SCO doesn't appear to possess any applicable patents and the latter has also not been revealed, even though SCO has a legal obligation to do so. IBM has now filed *two* separate Motions to Compel, trying to get SCO to say just exactly what IBM did wrong. Early next month, those motions will almost certainly generate a court order. We'll see if SCO can finally invent something plausible when their other option is to be held in contempt of court or to admit that their case is groundless.
In case any true SCO apologists want to point to the million pages of code and the list of Linux files as evidence that SCO *is* complying with discovery, consider:
include/asm-m68k/spinlock.h
What, does SCO own C pre-processor macros?
There was another funny one (which I can't find right now), which happened to mention IBM in a comment regarding a hack used to work around some misfeature of ancient IBM hardware. The file was a driver for said hardware, and wasn't written by IBM.
Pah! It's clear that SCO just grepped the Linux source base (which the community has deduced was version 2.5.59, BTW) for SMP, NUMA, IBM and JFS, excluding matches related to architectures pushed by companies who have been cooperative with SCO (Sun and HP).
You really think a CEO has a fiduciary responsibility to engage in crap like that?
Note to ACs: I usually delete AC replies without reading them. If you want to talk to me, log in.
"awarded millions to some idiot who couldn't figure out that driving a car with hot coffee between her lap"
The facts of this case have been so misrepresented it's become an urban myth.
It was February 27, 1992. Her name was Stela Liebeck and she was a very active 79 year old retired department store clerk in Albuquerque NM. She and her grandson drove her son to the airport one morning and on the way back they stopped at McDonalds drive through for breakfast. Her grandson was driving. The grandson parked the car so she could put sugar and cream in her coffee. She had trouble removing the lid so she put it between her legs for leverage. When she got the top off, the scalding coffee spilled into her lap. (Most restaurants serve coffee that is 130-150 degrees, Mcdonalds coffee is 180.) She was wearing a sweat suit, it held the 180 degree liquid against her skin and helped retain the heat. She suffered third degree burns to her genitals, buttocks, and legs. She was hospitalized for 8 days, immobilized at home for 3 weeks, then went back to the hospital for skin grafts. It was an excruciatingly painful and VERY expensive experience. Luckily, her insurance DID pay most of her bills. In 1994 Stella simply wrote to McDonalds and asked them to lower the temperature of their coffee. She did not plan on suing at the time. Her familly felt that she was due $2000 for lost wages and various expenses. They had to pay the insurance deductible and her daughter had taken time off work to care for her. McDonalds offered her $800. The family hired a lawyer and he asked McDonalds to give Stella $100,000 for her injuries and $300,000 in punitive damages. The lawyer tried to settle the case before they went to trial. McDonalds' position was that Stella knew she was buying hot coffee and spilled it herself due to her own neglect. They knew that they were not liable for someone spilling coffee on themselves. If they took responsibility for this injury, they would have to take responsibility for untold numbers of other things that people do to themselves. They were technically absolutely right. The plaintiff (that's Stella's lawyer really), said that McDonald's knew that their coffee was not drinkable at 180 degrees and that they knew there was a risk of severe burns, and that they had decided NOT to warn their customers and had NO INTENTION of changing their policies. He also showed large color photos of Stella's burns and reconstructive surgery. This is where it gets fun. McDonald's defense lawyers did themselves more harm than good by pressing their point and case which was LEGALLY SOUND, but EMOTIONALLY OFFENSIVE. It turns out that McDonalds had incurred over SEVEN HUNDRED lawsuits from their coffee. A quality assurance supervisor dismissed the complaints as "statistically insignificant". The McDonald's lawyers asserted that Stella was asking for too much money because she was old and therefore didn't have much use left in her injured body parts, therefore she deserved less money. The lawyers also noted that Stella hadn't LEAPT from her bucket seat, so the coffee stayed in her lap making her burns worse. In other words, McDonalds made themselves look like insensitive pricks to the jury, and the jury didn't like it one damned bit. Now for the financial facts: The jury awarded Stella $200,000 compensation for her injuries, but found her 20% at fault, so they lowered it to $160,000. The jury also found McDonald's guilty of "Wanton, willful, reckless, or malicious conduct", which is grounds for awarding punitive damages in the US. The jury was fundamentally disturbed by McDonald's behavior and attitude and they wanted to send a message to the company bigwigs. They based the amount of punitive damages awarded on two days worth of McDonald's coffee sales. $2.7 Million dollars. The judge reduced the award to $670,000. McDonald's appealed and the case went back to court. Stella and McDonald's eventually settled for an undisclosed amount of money. McDonald's has since lowered the temperature of their coffee. Please, research your facts before you speak. -kate
- Kate
"DNA is life. The rest is just translation."
..."and awarded millions to some idiot who couldn't figure out that driving a car with hot coffee between her laps was a bad idea."
.asp
Actually, she wasn't an idiot, and she didn't get millions.
If you investigate the "idiot's" case, instead of parroting the meme, you will find a couple of things you may not have known.
First, the coffee was not "hot". It was near-boiling. McDonalds in New Mexico had apparently kept the coffee super-hot - 180 degrees or higher - both to satisfy health inspectors who were concerned about coffee sitting in pots for hours, and to keep the coffee hotter longer for take-out orders.
Secondly, there were over 700 cases of such cases of people being injured by the boiling coffee.
Third: the woman wasn't driving, or doing anything else other than prying the lid off of the coffee cup between her thighs. The coffee splashed on her pants, and soaked her skin. She suffered third degree burns on her genitals, perineum, buttocks, and inner thighs. She underwent eight days of skin grafts and debridement (think of a steel wool pad scouring the subdermal layers of your now-skinless penis, boys). Normally hot coffee made at home doesn't make third degree burns; it is served at around 140 degrees. Near-boiling coffee, at 180-190 degrees, which McDs had been doing, does. I can add a personal observation: I've been burned by normal coffee, and also I've fallen into a puddle of boiling hot water. Believe me, 30 degrees or more variance determines the difference between a second and a third degree burn.
Fourth. She originally asked to settle her claim for 20 grand. McD's refused her offer.
Fifth. She didn't make millions. Here's a quote from ballinlaw.com:
"The jury awarded Ms. Liebeck $200,000 in compensatory damages (money to compensate the injured party for the injury sustained). The judge reduced this amount to $160,000 because the jury believed the plaintiff was 20 percent at fault. The jury also awarded Ms. Liebeck $2.7 million in punitive damages. The jury considered McDonald's actions reckless and willful, but despite this, the trial court reduced the punitive award to $480,000, which was considered three times her compensatory damages. "
Six. McD's in New Mexico reduced the serving temperature from 190 to 158 after the punitive damages.
http://ballinlaw.com/mcdonald.htm
Seven. The large judgement was not awarded because the woman was burned; it was because McD's had served the coffee at boiling temperature for years, ignoring over 700 instances of scaled customers. They found them willfully negligent for not reducing the temperature long before the 80+ year old lady lost the skin on her lap.
Here's some more documentation:
http://www.mattenlaw.com/FSL5CS/ar ticles/articles6
"The coffee was 40 degrees hotter than most other restaurants keep it - close to the 212 degree boiling point.
A national burn center had issued a public warning not to serve hot beverages over 135 degrees.
There were 700 other burn claims against McDonald's before this injury, yet no action was taken.
The victim offered to settle the case for $20,000 before trial, but McDonald's refused to settle. "
"The jury in this case decided that the coffee was a defective product and that McDonald's had violated products liability laws that assure that consumers are protected.
The jury awarded her $200,000 in compensatory damages (to compensate her for past and future pain, suffering, emotional distress, lost wages, and medical bills). The jury also decided that she was 20% at fault and reduced her damage award by that amount.
The jury also awarded $2.7 million in punitive damages. However, the judge reduced the award of punitive damages to $480,000. The case settled for an undisclosed amount before it was appealed."
Now that we've discussed the facts of the case, I'm up for some editorial comment.
BIG point: The vast, vast majority of liability cases do no