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SCO Hints at *BSD Lawsuits Next Year, And More
osullish writes "The Financial Times reports that SCO is indicating it will sue an as-yet un-named Linux-using corporation within the next 90 days. Also mentioned in the article is possible action against Novell, which recently purchased Ximian and SUSE Linux."
Iaitos points to this rather stiffly-worded notice from Novell (on their site) regarding the non-compete agreement SCO claims would taint Novell's acquisition of SUSE:
PROVO, Utah Nov. 18, 2003: Novell has seen the November 18 InfoWorld article in which SCO CEO Darl McBride refers to a supposed non-compete agreement between Novell and SCO. Mr. McBride's characterization of the agreements between Novell and SCO is inaccurate. There is no non-compete provision in those contracts, and the pending acquisition of SUSE LINUX does not violate any agreement between Novell and SCO.Novell has received no formal communication from SCO on this particular issue. Novell understands its rights under the contracts very well, and will respond in due course should SCO choose to formally pursue this issue."
slavitos points to a ZDNet article covering the same ground, writing: "A characteristic SCO twist in the story: "McBride added that lawsuits likely will be preceded and possibly prevented by communications offering businesses an opportunity to get right with SCO. "We'll be communicating with users what our expectations are," he said.". Oh, that's helpful, Darl - and no, we didn't really expect you to be any more specific."
If your lips aren't yet too tired, ansak writes "PJ has done it again -- okay, "co-ordinated it" would be the better phrase. The transcript of SCOG's conference call is now available (and in danger of being slashdotted without slashdot's help, even!).
#include <std.thanks.to.volunteers.h>"
Another legal theory being thrown about is that SCO's lawsuit (the one against IBM, that is) all leads back to Sequent. Petrol writes "The Inquirer has a story about SCO's action against IBM. 'Sources close to the action describe a trail of code that might well be the target of SCO's ire against IBM and the Linux community.'"
So does this include OS X? That should be an interesting fight.
So does this mean that they intend to sue microsoft too?
Thought microsoft's TCP stack had a little of the *bsd stuff in it.
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Its just going to take alittle while for the peabrain (Mcbride, boies et al) to get the message.
SCO's stock has gone from a high of 21 to 14 today, its no longer reacting to the press releases. Even Forbes is now referring to the canopy group as shakedown artists. McBride and company are increasingly running out of people who will buy their story or invest in their stock.
The last time sco had a teleconference they managed a 50 percent bump in share price. This time they got a 1.5 percent bump. This is despite the fact that they have now widened their suit to include contractual control over Novell and BSD.
The big worry will be what happens when sco does give up the ghost. Theres alot of people that depend on the software to run their businesses. They had nothing to do with the lawsuit and will be hurt when the message does at last get to the brain of the beast.
Wasn't that case settled because of the fact that AT&T had copied a bunch of BSD code, and the realization had been made that both had screwed up and the easiest course of action was to say "From this day forth..." both were legal? that's always been my understanding of that settlement.
If SCO attacks it, don't they also open themselves back up to claims against AT&T (which SCO would now have to defend) of stealing code from BSD and putting it into their codebase (UNIX, SVWhatever)?
My question would be, can they really open up that can of worms again? And if they do, don't they open themselves up to accusations of IP infringement? Would they have to then clean up the UNIX codebase to remove any infringement that the settlement allowed?
Ryan Stultz
I find it very strange that Boies has reached this superstar status on the back of what is by any measure a lacklustre litigation record.
Boies first came to prominence in the Microsoft case. Athough the case was initially 'won' it was overturned on appeal. This has been Boies best result so far.
In the Florida recount case Boies lost what should have been a slam dunk case, demanding that the state perform a recount required by the election laws. Boies lost in this case because he was outmaneuvered by the Republican party lawyers who ran rings arround him.
Boies next took the Napster case, in this case he was successful in gaining a temporary stay of an injunction against Napster. But we later find this was only because one of the Appeals court judges was anxious that Napster survive long enough for the appeals court to be able to make a really important rulling in the copyright area...
I cannot think of a better council for SCO in this particular case. The court will require SCO to reveal the exact code fragments it claims are subject to copyright claims sooner rather than later. At this point the SCO case will quickly unravel since the fragments in question will be rewritten.
There are absolutely no grounds for supressing the specifics of the SCO claim. The whole point of the copyright bargain is disclosure in return for a limited term monoploy on exploitation.
Looking for an Information Security student project suggestion?
Try http://dotcrimeManifesto.com/
The new angle won't work any better. The settlement also protects THEM from BSD suing for stolen BSD code. If they attack it, the holders of that copyright can sue SCO right back.
Plus, you can't just void a contract that legally binds you because you don't like it. They are not the original people who entered into it, but it came along with the code they bought. If they don't LIKE that, they should have looked into it more closely before they bought it. It's called due diligance. If they CAN just nullify a contract for no reason, Novel should nullify their rights to the code.
ASCII stupid question, get a stupid ANSI
To me, this is increasingly sounding like SCO desperately seeking a buyer. While I know that the /. crowd has often raised this flag especially in the early stages, but when it was clear that IBM wasn't biting the bait (drinking the koolaid) the tactic seemed to shift.
Now with the attack on BSD, I think they are trying to get APPLE to bite. I doubt very much that Apple will bite, because Apple knows apples and this one is poisoned.
No company in their right mind is going to purchase SCO at this point. McBride and Co, have tainted with so much vile crap that it will be impossible for SCO to ever come out smelling like a rose. (enough cheezy oneliners yet?)
Anyway, the BSD attack is directed at Apple, and Apple should understand this.
Agent K: A *person* is smart. People are dumb, stupid, panicky animals, and you know it.
A settlement isn't something that can be appealed, as far as I know; and even if it could be, I'd bet certainly not by an uninvolved party.
Even if it could be appealed (and I forgot that it was a settlement, not a judicial ruling), we're long past the final date for filing an appeal.
As for an uninvolved party -- that's not true. AT&T sold all rights on the source code in question to Novell, who then sold it (with strings) to the company that is now SCO. So they are an involved party, albeit several purchases removed. Of course, that weakens their case -- they should damn well have known what they were and weren't purchasing, along with the legal entanglements involved. Failure to do so may very well be illegal, but in this case it would be the stockholders suing the company over failure of due diligence rather than the company suing anyone.
The more I read on this the more I wonder wtf is going on. It has long since passed the point of being rational. SCO may very well have a beef with IBM and contract violation, but it ends there. All the ranting and raving against Linux, BSD, and the rest of the industry is insane.
On an unrelated note, I'm glad to see IBM handling the case the way they are. I'm sincerely hoping that IBM is subpoening Canopus in order to pierce the corporate veil. This kind of intellectual property blackmail is exactly the kind of thing a large corporation doesn't want to see. It's very much in IBM's interest to burn the fields and salt the earth as a warning against anyone else who would try such spurious claims against them. They have to not only take down SCO, but also Canopus. And if the lawyers pull the same level of crap in the courtroom as they're pulling in the press then IBM will probably push to have them disbarred for conflict of interest, improper conduct, etc.
Anyone who has a legit complaint against IBM, Redhat, Linux, BSD, etc. should certainly pursue it in court. But so far SCO has failed to prove that they have any such complaint, and they appear to be throwing up a smokescreen to hide that.
As far as I can remember but is too lazy to look up right now, the Microsoft case wasn't so much 'overturned' on appeal as it was remanded back to a district court for a new trial. Due to Judge Jackson's publicly stating that Bill Gates was a lying bastard (I'm paraphrasing) the Court of Appeal (cannot remember which one) felt that Microsoft may not have recieved a fair and unbiased trial. It therefore ordered a retrial. However, in the meantime George W. Bush had not only won the election but also been inaugurated. His administration decided to settle the case rather than pursue litigation. (Incidentally, during the Reagan/Bush I administrations the joke was that the Justice Department never met a business practice it didn't like. It may seem the Bush II Justice Dep. sought/seeks to operate along the same line.) This outcome may be seen as 'losing' the case. I suppose it's a matter of opinion. However, the outcome can hardly be blamed on Boies.
Parenthetically, I disagree with the Court of Appeal assessment of what might constitute an obstacle or impediment to a fair trial: if a judge conclude after hearing the testimony of a person, that said person is a lying bastard then that is a conclusion based on fact, as opposed to a judge 'concluding' before any testimony that a person is lying bastard, which would seem be based on prejudice (or possibly prior personal knowledge, in which case the judge should recuse him/herself). The latter case obviously imperils an unbiased trial, but the former case? I don't think so. Why should it? The judge has heard the evidence and drawn a conclusion. In that way it appears to me no different than any other conclusion, based on fact, that the judge has to make in a particular case. It may not be very flattering for the person in question, bu massaging of egos is not necessarily the prime objective of litigation.
The liver is evil and must be punished.
When Boies left the Cravath partnership, it was somewhat of a scandal in the legal community. No one walks away from a Cravath partnership (so goes conventional wisdom) -- the average annual salary for Cravath partners is somewhere in the neighborhood of $2.0 million.
IBM has long been one of Cravath's largest and most loyal clients -- in fact, I noticed that Cravath is representing IBM in the SCO matter. I can't help but wonder if one of the main reasons Boies agreed to represent SCO is to go head-to-head with his former parters at Cravath. It wouldn't surprise me if that is his main motivating factor. Boies does not need the money or any more notches in his belt.
The fact that Boies lost a couple prominent cases speaks more to his willingness to take on tough cases with unpredictable outcomes that he finds interesting or challenging.
But do not write off Boies or dismiss him. Don't get me wrong -- I hope he loses the SCO case big time. But he is to be feared.
"Music is everybody's possession. It's only publishers who think that people own it." -- John Lennon
I've said this before, and I'll say it again...
Unless and until we all get off of our collective lazy butts and do something about this, there is absolutely nothing else that is going to stop it.
What this means is that US, the authors, movers and shakers in the Free Software community (not just us Linux folks, but you BSDers, too), have to attack back lest we risk loosing our hard work.
If we can not defend what is ours, then we will loose all rights to our work. How can this be put any more simpler. SCO is attacking our property and we are all waiting for "someone else" to defend it. This includes people like Linus and Andrew Tridgell (Samba) as well as the little folks like myself.
People, get this straight... if we do not attack back (using the courts), then we WILL loose our property and our community. We can't afford to wait for the IBM and/or RedHat cases to play out. We can't afford to let "someone else" deal with it. We MUST act today, now!
My proposed attack method is akin to a bee-sting. Except in rare cases (allergies), a bee-sting is not fatal, but 1000 bee-stings almost certainly will be. What we need to do is file 1000's of small claims against SCO in your local courts, alleging copyright violation. Seek the maximum allowed for your jurisdiction. Be prepared to show that your work was submitted to the Linux Kernel (or any other project that SCO is distributing like Samba) and that said project is indeed licensed under the GPL. Yes, you may need to consult a lawyer to be effective, but this is the price we MUST pay to attack SCO back, and be effective.
As long as our dislike of the legal system keeps us from using it, we WILL loose because of it.
Ron Gage - Westland, MI
If that's the case, I couldn't imagine a worse scenario for him - a client he can't control, and an opponent with unlimited resources and the resolve to smash him like a bug on the great IBM windshield.
I know /. seems to have a bit of groupthink going on here as regards SCO's success. That said, I really do think Boies best-case scenario is to drag things out long enough to get everybody on their side mucho dinero. But that's not going to impress the former partners.
Folding SCO's case everyone cashes out won't make him look good. Losing in court after the same will really make him look bad. Either way, it's a lose/lose situation in the prestige department - it's only in the rankings of "America's top ambulance chasers" that he'll increase his standing.
The only way I see him increasing his legal prestige is either winning in court or strongarming a great settlement. IBM has made it pretty clear that the chances of either of those is near nil. So while you may be spot-on regarding Boies' motives, I can't see what he's thinking. Or the whole thing could be coincidence.
Great post, btw.
-Looking for a job as a materials chemist or multivariat
the so-called "open source" community
You don't see any one saying 'the so-called "gay" community' or 'the so-called "republican" party'. Why does this reporter feel the need to make open source developers look like a bunch of death threat sending hackers? And Darl McBride can hire all the mercenaries he wants, the sissy. All I have to say is 'recoiless rifle'. His undoing will be snide remarks like "There is no free lunch, or free Linux". At the rate he is losing customers, I doubt SCO will be around long enough to file suit against the BSDs.
TallGreen CMS hosting
You need to look at this in the context of their attack on the GPL. My guess is that their ultimate goal is that anyone who "buys" a free OS (Linux, *BSD) has to pay SCO a licensing fee. This is why SCO is not suing any of the distros but is suing IBM for IP infringement and they will sue an end user for unlicensed use of their IP. Assuming they can win the IBM case (not quite as bad as assuming division by zero, but close), they establish ownership of IP incorporated in Linux. If they can collect from an end user, they establish that they are entitled to a license payment for use of Linux.
Likewise, I'm guessing their ultimate goal in attacking the AT&T-BSD settlement is to establish ownership of some IP in *BSD. At this point SCO would establish that users of *any* free/open source OS owe them a licensing fee for using it. Contributing to open source then becomes a form of slave labor for SCO. If that doesn't kill open source, SCO milks the profits of other people's labor and, if it does kill open source, they're in better shape competition-wise than they are now because they only have to compete with the likes of Microsoft, Sun, etc.
Let me state that again on its own: SCO doesn't want to kill open source, they want to turn contributing to open source into a form of slave labor (no compensation) that benefits SCO.
They that can give up essential liberty to obtain a little temporary safety deserve neither safety nor liberty.
Ben
For those of us who are most definitely bipolar, there are other things that help to smooth the ride.
1. Regular sleep. Absolutely vital. If it's past 11PM, you're reading this, and you're bipolar, save a bookmark on this and come back and read it after you've had 9 hours.
2. Healthy diet. Plan a trip to the grocery store once or twice a week to get lots of fruit and salad; try to cut caffeine AND alcohol out of your diet.
3. Regular exercise. Do something regularly that helps keep your average activity level high -- such as biking or walking to work -- and once or twice a week do something that actually involves strenuous exercise, such as playing tennis.
4. Express yourself. Bipolar folks are typically more creative than non-bipolar folks -- something having to do with being able to see both sides of the issue. Pick an art -- an instrument you play, writing, painting, anything -- and improvise on it regularly. You don't have to record it, you don't have to let anyone hear or see what you do, you just have to do it to let that expression get out.
OK, and a beer now and then doesn't hurt. Unless you're an alcoholic bipolar. Then it does.
Well, anyhow, this works for me. And when I don't do it, it doesn't work for me. Any time you can avoid the ups and downs without using drugs is good.