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More Damning SCO Evidence At Groklaw
An anonymous reader writes "There's a very interesting story up at Groklaw right now. PJ reports on new evidence that Chris Hellwig, a SCO employee, contributed code to SMP, XFS, and JFS and did so with the knowledge of his supervisor." Groklaw is thorough, and this is another good example of just quite how thorough.
If it is possible to prove conspiracy, it SCO will be left without any recourse in regard to its so called "intellectual property," which Novell still owns... Also, if conspiracy is proven, SCO, and its board, will face criminal, as well as civil penalties.
Viral software licensing is not freedom, it is in fact GNU/Socialism.
"This is a Linux country; On a quiet night, you can hear SCO and its legal case cracking under the weight of its ever mounting lies."
ELOI, ELOI, LAMA SABACHTHANI!?
If this is true and is proven to be true, heads will roll, namely SCO's.
After all this, I can't believe that this has come out, it doesn't surprise me in this day and age of sleazy business tactics, but this is really low. They should be ashamed of themselves.
I hope the FBI, DoJ and Stock Exachange Commission get involved now as it looks like pumpndump, Fraud, extortion, and slander to me.
"You're on my side and the dark side, like Lando Calrissian?" --Gimpy, Undergrads
He is in the top-ten list of commits to both the Linux 2.4 and Linux 2.5 tree according to the Bitkeeper statistics (which he hasn't faked himself but still should be taken with care).
After a number of smaller network administration and programming contracts he worked for Caldera's German development subsidiary on various kernel and userlevel aspects of the OpenLinux distribution. Last year he joined the fileystem and storage group at SGI and is focussing on XFS for Linux now.
http://www.ukuug.org/bios+profiles/CHellwig.sht
Look here and enjoy SCO's own word on how they supported and contributef to Linux. Year 2000 is the best.
Quote from May 2000
A corporate sponsor of Linux International, SCO has always supported open standards, UNIX Systems and server-based technologies and solutions that benefit business computing. Our engineers have continuously participated in the Open Source movement, providing source code such as lxrun, and the OpenSAR kernel monitoring utility.
Compare this to the legal filing they made here a few days ago telling the Judge that they never contributed Code.
Help fight continental drift.
I guess that's why they are attacking the GPL as much as they are. Since their employee gave away the code under the direction of his supervisor, the only way they can take it back is to nullify the whole process so that proprietary code can never be given away. Otherwise, even if they planted it, it's a losing battle.
Well, there's spam egg sausage and spam, that's not got much spam in it.
I don't think I'm the only person thinking this: what if SCO planted their code in Linux? Maybe they were planning this all along.
Occam's Razor for conspiracy theorists suggests that one should never ascribe to conspiracy what can be ascribed to incompetence. SCO/Caldera submtted a bunch of code to the Linux kernel. Much later, Darl and company come along, see code in the Linux kernel that matches code they have copyright, and without a clue about what they are doing, thing that they've found a goldmine.
Assuredly SCO has given ample evidece of being blindingly incompetent in the past, such that sheer incompetence is hands-down the most plausible explanation here.
-Rob
The can hardly do that. They were quite proud of it at the time.
No, this is not new, but PJ continues to impress.
You remember when SCO first made these claims, and you had a bunch of people running around saying "they might be right, they might be right...", and basically defending SCO?
Where are they now?
Jason Lotito
Her efforts in putting together this site, with the participation of so many knowledgeable contributers is fascinating, and I'm sure it's valuable to those who oppose SCO's legal antics. I find the site to be generally "wide and deep" (thanks, Darl), and I'll wager that the people at SCO take very little humor from it. I wonder if the legal teams at IBM and Red Hat find it interesting? It's seems that there's a huge amount of free legal and technical research being undertaken.
Pamala Jones has my early vote for "Linux Booster of the Year for 2003".
Any judge who believes a company that suddenly claims ignorance after years of marketing Linux under the GPL, unlimited access to Linux source-code, and now proof of Linux code submissions, should have his financials investigated just to be sure his rulings don't return a profit.
= 9J =
That's giving too much moral credit. Maybe they know; maybe they just don't care. But that would be giving them too much intellectual credit. Decisions, decisions. I'm waiting for a Chewbacca defense eventually.
Well, there's spam egg sausage and spam, that's not got much spam in it.
Cross your heart and hope to die, SCO? Or cross your fingers behind your back? Let's see what the evidence shows.
SCO has specifically mentioned the following four as being code at issue in this case: JFS, NUMA, RCU, and SMP, and while it is conceivable that the "subject code" they are talking about in this response to IBM's interrogatory is referring to some other code, it seems reasonable to look at the code they have mentioned publicly. Actually, it's more than reasonable. It's our only choice, until they tell us exactly what code they are complaining about with specificity. Is it true that they never "authorized, approved or knowingly released" any of this code for inclusion in any Linux kernel or as part of any Linux distribution?
Let's start with JFS. In the case of JFS, they not only distributed Linux with JFS, one of Caldera's employees, Christoph Hellwig, contributed code to JFS, as Groklaw reported on July 18. Here is a snip from that article:
And he is listed on this page of JFS contributors. Here is IBM's page on Who Is Using JFS? and it lists United Linux. So they not only released a distro with JFS in it under the GPL, their employee helped make it h
Want to improve your Karma? Instead of "Post Anonymously", try the "Post Humously" option.
how long does SCO intend to bang its head against this particular wall?
... to me this seems like an underhanded attempt to knock the wind out of our sails, regardless of whether or not our ship sinks. fortunately the open source movement does not seem to attract developers that quit at the first sign of difficulty, so i am optimistic that sco will fail even in this capacity.
... i was raised on a farm ... i rode plenty of horses in my day, let me tell you ... and the one thing i learned from shucking corn and milking cows was ALWAYS to claim that the other guy's ranch was really MY ranch, even though the other guy built his ranch all by himself from the ground up and never asked me for any help."
i suppose this does pose a threat to linux in terms of leaving a bad taste in vendors' mouths concerning but there really is absolutely no way SCO is going to shut us down.
even if SCO gives linux and gnu somewhat of a bad reputation, we already have major players in the industry who are committed to supporting linux (ibm, novell, sun). and by the time all of this bullshit blows over, linux will be even more robust and marketable, and our detractors will soon find themselves knocking down our doors once again to profit from our technology.
really the only thing we have to fear from the whole sco debacle is discouragement
but really the most appalling thing about the situation is sco's utter lack of common sense; it makes me wonder how they thought they were going to win in the first place (see below). how do they expect their argument to hold up in court when they STILL HAVE NOT YET PRODUCED ANY HARD EVIDENCE?!?
darl mcbride: "well
SCO, if you are reading this, pack your bags, go home. to quote eddie murphy (quoting richard pryor): "have a coke and a smile and shut the fuck up."
we all get the point that you don't like us, but unless you are going to actually do something about it, piss off.
I believe you are thinking of Hanlon's razor, Occam's razor is more general.
sic transit gloria mundi
You have a point, but I do believe most of the /. community is not so much defending IBM, but damning SCO because they aren't following the rules. In a copyright infringement you are supposed to recieve a "Cease & Desist" order first. Not only did Linux users globally get a "Cease & Desist" order, but SCO has never told any of us what exactly we are supposed to Cease or Desist! You can't tell somebody "Stop that" and not answer the obvious "Stop what?" you will get in response. And insofar as IBM's involvement, we're sticking up for them because they're sticking up for us who can't afford to fight this bullshit.
Kleedrac
Sure we wang, can.
There's a legal premise that would cover that kind of behavior: estoppel. Certain behavior on your part can bar you from later claiming damage in a civil suit. For example, if I told you it was okay to eat my lunch, I could not later sue you for improper consumption of my sandwich.
To the extent that an agent of The SCO Group helped develop and promote these technologies, The SCO Group is barred from making claims against others on that basis. There are lots of other defenses available, and other forms of estoppel than simple promissory estoppel (when you say something is acceptable, either explicitly or implicitly), but the above would apply to many defendants at once.
that in his yearly performance review, somewhere there is mention of contributions made to the kernel. Hell, I look back at some of my performance reviews and there is all sorts of "extra-curricular" stuff. If he had a half way decent boss, he would have included this stuff in his review to show initiative.
This has been known for quite a while, and to be honest it doesn't change that much. SCO will simply claim they had no idea where this code originated for at the time and so never sanctioned its official distribution. Their entire case is ridiculous, however it would be ridiculous even if they hadn't ever distributed linux or contributed to the kernel.
I'll dig up the old standby: RTFA. Better yet, RTFPTLTFTA, otherwise known as "read the f'ing post that links to the f'ing article", as it pretty well spells out the difference between what Groklaw discovered and what's been "known for quite a while" - namely that SCO willfully and knowingly not only distributed but also contributed to specific features of the kernel that they specifically claimed never to have touched in their legal filings. As far as I know, this is completely new - and it's not just an allegation, it's proved in the linked article.
In other words, they both modified and distributed the specific code they are claiming to now have been stolen from them and they did it under the GPL. This code did not get "misappropriated" from SCO's Unix into Linux, this code was put into Linux by SCO. This is huge.
IANAL, but it would seem to me that this blows pretty much their entire case out of the water in one fell swoop. This renders any contractual issues (the basis of their case against IBM) moot and leaves them only one fallback - that the GPL is invalid and is trumped by their own copyright. Of course, this is something they've also been saying now for a few months (not since the beginning of their case, though - I think they probably realized their case against IBM was flimsy at best a while back), but to say this news is "old" or doesn't affect their legal standing seems to be a misunderstanding of the facts.
If these are facts (and it seems Groklaw has done their homework to me), then SCO will get laughed out of court on day one. They did something, they lied about it, then they filed a lawsuit based on that lie... and now they've been caught.
it makes me wonder how they thought they were going to win in the first place
I don't really think they had much of a chance to begin with, but because of economic downturns they decided they wouldn't be going down without a fight, or at least a gasping, death-throw-like struggle... like waving your arms and legs when you're falling off a cliff. It won't help you at all, but hey- why not? Unfortunatley, they decided to fight the bad fight.
Despite all this, I agree with your position of our survival wholeheartedly. Because of the diversity of contributors, Open Source is like sand- they can try to scoop it up all they want, but it'll just slip through their fingers.
Esoteric reference.
In sharp contrast to /.
Jonathan Pearce jonathan@pearce.name
3EAAFB2A http://www.jonathan.pearce.name/
SCO has stated in the court documents that they never knowingly released the disputed code in their Linux disto. One of the vague areas that SCO claims to have rights (of some unspecified type) to is JFS. SCO's marketing department obviously was aware that IBM had contributed JFS, as they made a big deal about its inclusion in the kernel. Now *maybe* they didn't know what JFS code IBM contributed. But now that it's shown that a SCO programmer was working on the JFS code...
Sure a rogue programmer could do something on his own, or not be aware of the legal nuances behind a piece of code. But if a programmer is working on it, and the marketing department knows and advertises it, it's really hard to say that management and legal didn't know about it.
And yet that's what SCO is saying.
Comment removed based on user account deletion
Since they have always refused to provide evidence, the general theory has been that their entire plan from the beginning was to pump and dump their stock, not to win a lawsuit.
IANALBIAALS (but I am a law student)
Well, if the programmer had the OK to release this from a higher-up, or if he did so with a reasonable understanding that it was OK, he was acting within the scope of authority. At that point, SCO knew because he *was* SCO in terms of that transaction.
I didn't do it, nobody saw me do it, you can't prove anything.
.
.
.
Doh!
Boffoonery - downloadable Comedy Benefit for Bletchley Park
Of course, there is lot of evidence against SCO and they will lose their case. But the fact is, even they know it. This whole SCO suit is all about keeping Linux from rapid adoption using FUD and legal tactics. With this strategy, Microsoft and allies have found a way to keep Linux away from the mainstream adopters. What's to stop Micosoft from using another puppet after SCO has lost it's case ? They've got enough money to throw around and huge incentive to do it.
SCO losing the case won't change anything. It's quite easy to bring up another entirely different legal issue concerning Linux and use FUD and media to publicize it. It takes at least 2 years to resolve such a case and Linux adoption will be affected for that period. Whoever said Microsoft has no answer to the Linux movement is merely ignorant, IMHO. Microsoft has laid out the tactics and played the first move. They are taking advantage of the weaknesses in the judicial system to keep legal issues concerning Linux afloat for a long time. What shoud the community do against these dirty tricks ?
Redhat's fund towards fighting future legal challenges is a step in the right direction. What we need is some way to certify Linux as free from copyright infringements and patent issues. A consortium (a division of OSDL, may be) can be formed to exclusively monitor the legal aspects of Linux Development process. A request for copyrights of all the code gone into the Linux kernel can pre-empt further copyright infringement lawsuits. I am not sure about the practicality of these steps, but we need to develop a sense of trust in the minds of mainstream adopters about the linux development process and other legal issues. Feel free to toss in your ideas.
getSexySig();
It seems statments from the man himsel are rare, but here are several interesting comments from Hellwig himself on the case.. (there are several others in the same thread.)
I feel sorry for the guy.. like so many other linux contributors caught up in this BS..
"Most of that stuff is also bullshit. The folks in IBM LTC that work
onm the kernel are mostly ex Sequent, not ex AIX folks. Now
Sequent also had a SVR4 source license for Dynix/PTX, but in fact
most of the scalability changes in SVR4.2 SM / ES actually come from
Sequent! (Just take a look at the Authors of the VFS and VM design
documents for SVR4.2 ES / MP).
AIX OTOH was only developed with a SVR3 source license up to AIX4,
and neverless the actual kernel does not resemble SVR3 or SVR4 at
all, and although I'm not sure I think they even only used it for userland
not the kernel.
AIX5L (that project Monterey) had additional components licenses from
SCO UnixWare like procfs or bfs - but IBM has very strict policies
that the AIX5 and Linux groups basically don't communicate. For example
I was involved in the JFS/Linux project which is very similar to the JFS2
in AIX5L because they're both based on JFS in OS/2 - when there were
bugs found in the old OS/2 codebase they weren't able to inform the
AIX folks about it or send patches. Similarly I wasn't able to get
information about the layout used for Posix ACL on AIX when I started to
implement those for Linux."
If you use them both, do you get Gilette's razor, with Occam's shaving you close, Hanlon's closer still?
Just because its a 'supervisor' doesn't mean the legal department sanctioned the 'code release'.
,etc.. I'm talking 'employees' here, regardless of position )
Unless you get specific permission from the actual 'company', the actions of any individual can still be considered improper. ( excluding the board, or CEO
---- Booth was a patriot ----
And of course, you all convieniently ignore IBM's counter suit which includes patent violations for stuff the slashdot crowd would ordinarily claim were "obvious".
I'll bite
You are forgetting the fact that these patents were not enforced until SCO picked the fight. Also SCO never asked for clarification, they just filed suit. IBM probly has some hideous patents hidden in its massive fortress of leagal solitude. I feel no remose for the kid punces the 800lb gorilla in the face, and then claims to be the victm when he gets his ass kicked.
As for Communisim, since when is doing your own thing communism, I like, enjoy and profit from open source software. In a way it is the Nash Equilibrium, in which we do not only what is best for us, but also what is best for the group. Now this is decidedly not communistic, its enlightened self intrest. After all its free as in freedom, do you horde your speech?
I am done, so why don't you take your troll energy and post some goatse links.
Did Glenn Beck rape and kill a girl in 1990? gb1990.com
Once the Groklaw site is no longer slashdotted go there and look at the discussion about Mr. Hellwig
He was not a peon and his boss was in charge of a couple of programs that SCO publicly supported. Like LSB.
That being said all the code writes to some extend are peons, but that does not mean SCO managements are not responsible
Lastly they will have an impossible task claiming that their peons are different from IBM's peons.
If SCO is not responsible neither is IBM. If works both ways.
Help fight continental drift.
So this should be an affirmative defense against violating their copyright on these portions of the code that they intentionally placed under the GPL, assuming that the corporate entity SCO knowingly did so, the agent had proper authority (it would be hard to argue he didn't, since they had some of these specific claims in their marketing literature and under United Linux joint press releases and so on). Nonetheless, as with any legal argument, there are no guarantees or magic bullets in court. You still have to go pitch that the GPL was a legimitate contract that was entered into by SCO and the recipients/licensees.
Now it starts to seem more clear why SCO's attorneys want to attack the GPL itself. If the contract is illegitimate for other reasons, it seems like it could weaken an estoppel defense. Furthermore, to actually invoke promissory estoppel, I think you need to show that there is a lack of mutual assent as to the contract or the terms thereof. Since there's really no acknowledgement at all of what code may or may not have been "lifted" or where the infringement occurs, it's not yet possible to invoke estoppel until the discovery phase airs all this stuff out publically (which may never even happen).
> I wonder why Chris Hellwig himself does not reply.
If he's smart he has a lawyer advising him about that kind of thing right now.
Sheesh, evil *and* a jerk. -- Jade
Similar thing happened with AT&T and BSD, IIRC. AT&T claimed that their code was in BSD. It went to court. It emerged that it was AT&T that had taken code from BSD, rather than the other way round. AT&T settled for an undisclosed amount.
This is not true. It is the responsability of the managment to know.
And even if your peon thery holds. IBM could use the exact same argument. We didn't know we put code in. It was just one of our peons.
>Doesn't matter what employees do, it's a question of whether the top executive know
BEEP. No Soup for YOU!
Any employee of a company can be an "Authorized Agent", or in common language a representative. This responibility is handed out by giving you:
A phone with direct dial.
A business card.
A paycheck that covers time spent outside the building (and not sick or on vacation.)
Permission to speak to non-employees during business hours.
And many more trivial type things.
Anything a company lets you do is your job and their problem. Thats why corporate manuals are always thick books.
And laywers get rich.
doesn't matter if he was a peon really.. his supervisor knew, he was acting on behalf of sco(for all that matters he was sco).
if their system sucked so much that it lacked control that's their own goddamn fault.
when you're going bankrupt you can't really start saying that "no, we didn't place those orders for which we are in debt now! you see, it was the summer intern who had only told his boss! the ceo didn't alert the board so they're invalid!!"(of course, special cases apply but for everyday things.. and i'm pretty sure hellwig was properly permitted to contribute, back then they publicly played as if they wanted to contribute.).
well.. having no basis for suing should stop most people from suing, but people do it anyways if they feel they can benefit from it. there's an intresting link to some hellwigs own comments from google groups a little upward from these comments. i know i'm too lazy to pick it up.. and it's 4:20 am and i gotta draw some diagrams.
world was created 5 seconds before this post as it is.
Assuredly SCO has given ample evidece of being blindingly incompetent in the past, such that sheer incompetence is hands-down the most plausible explanation here.
And what we're all waiting to hear, is if they've been criminally incompetent.
Refuse to make a statement in your sig!
Without a kernel debugger, developing an SMP kernel becomes increasingly difficult. Register at Groklaw, or wait till the article is published for all the nitty-gritty details.
"This is another tinfoil hat theory that has no real proof to back it up."
... well you know the rest.
Well MS was the first company to pay SCO a ton of money to bankroll this thing. SUN was the second. These companies have repeatedly said awful things about linux and open source sometimes reffering to OSS developers as communists and cancer.
It makes perfect sense to presume that MS is behind all this. It's just like them to something like this and they even hinted at doing something like this in one of the haloween documents.
If it walks like a duck
War is necrophilia.
I didn't visit Slashdot when the cuecat controversy happened, but after reading this comment I went over the archives.
Cue cat may have had alot of money, but they blew it all giving out silly bar code scanners. This was their buisiness model.
The SCO has alot of money, and they are spending it all on litigation. This is the SCO's buisiness model.
There's a substantial diference.
Sangloth
I'd appreciate any comment with a logical basis...it doesn't even have to agree with me.
Personally I lean toward the "SCO Upper Management is a bunch of fucking loonies" theory. Here's an article that puts concrete numbers on the effect SCO is having on linux adoption.
4 .a sp
http://blogs.ittoolbox.com/linux/archives/00019
16% may be a big number or a small number, depending on your point of view, but it's not what I'd call a palpable blow to Linux.
It's rare that you're presented with a knob whose only two positions are Make History and Flee Your Glorious Destiny.
He must be made to pay, a la Kenneth Lay, for his hubris.
The only problem with that is that Kenneth Lay hasn't paid. At most, they're going to hang a minor board executive and pin the whole thing on him.
I'd rather see him pay a la King Louis XIV.
swiiiiisssh! thump! spurt!
Which is to say, couldn't they conceivably claim issues with JCS, NUMA, RCU, and SMP code that's simply separate from what their boy Hellig was working near?
I realize that either way their argument is crap but it, if they are going to pull something like that, it's crap that they can still, albeit insultingly, disingenuously, and vexatiously, hold onto their claims and simply fail to admit what obvious liars they are?
Just wondering.
Sure, you can buy a dead or dying company and sue as if the damage had been done to you, but...
You just bought the company, and not only do you get the parts you wanted, you get the other parts, too. Just ask look into buying former/current property used for dry cleaning. Simpler yet, buy property with asbestos insulation.
Perhaps the new SCO bought the old SCOs damage, but they also bought the old SCOs actions wrt Open Source, including Christoph Hellwig's contributions, and all the implications thereof.
My other hope in this current chunk of mess, aside from SCO getting what it deserves, is that Hellwig doesn't suffer for any of this. Not to neglect the rest of the Open Source community, but it may well end up with Hellwig being at the eye of the storm.
The living have better things to do than to continue hating the dead.
Quothe Mr. Hellwig:
"It might be more interesting to look for stolen Linux code in Unixware,
I'd suggest with the support for a very well known Linux fileystem in
the Linux compat addon product for UnixWare.." (sic)
hint hint...
hint hint hint..
HINT HINT HINT HINT HINT!
Any sufficiently advanced influence is indistinguishable from control.
Between Caldera and old-SCO, there were nearly a dozen programmers than contributed to the Linux kernel, and are acknowledged in various CREDITS files in the source. As is a senior level manager who not only knew about Chris's work, but encouraged it.
Further, given that Caldera's marketing department was touting some of the features (SMP, JFS, etc) in their literature (for their Linux distro), SCOX (nee Caldera) has no way at all to convincingly argue that this was not authorized or not known about.
SCO's toast.
-- Alastair
IANAL (did you forget YOUR IANAL?), but I know that if a delivery boy were to crash into my car, during his delivery, I could not only sue him but his company, as well (did the legal department sanction that crash?). I also know that an "x-buyer" for company has the "appearance" of authority for up to 2 years. What does that mean? Even if he doesn't work for the company anymore, he can still order from suppliers and the company will be liable. The company has to notify each supplier or public announce the guy no longer works there. The law doesn't care what GOES INSIDE THE COMPANY. The law cares about what appears to be the situation to your average reasonable individual. Employees are the "agents" of the company. Though their scope is "narrow", if they act within the scope of their employment, it is as if the company is acting, itself. Legal department != company. Otherwise, the legal department would just go on break, and the company would never be liable for anything . . .
Sdelat' Ameriku velikoy Snova!
Any judge who believes a company that suddenly claims ignorance after years of marketing Linux under the GPL, unlimited access to Linux source-code, and now proof of Linux code submissions, should have his financials investigated just to be sure his rulings don't return a profit.
In this I wholeheartedly agree. Not to mention that if this goes to court, which it presumably eventually will, killing as much time as possible so the perps can liquidate as much of their holdings as they think the SEC will ignore.
I hope the judge explains the penalties for perjury very carefully to the members of both legal teams while stareing straight at the SCO side of the table. Including Darl McBride if he has what it takes to show up without dipping his face in liquid nitrogen to keep it straight while he testifies.
Bah, bunch of losers, and I'm damned if I can understand why the VC and market analyst people cannot see that. There must be some kind of a soundproof barrier between reality and the guys bidding this crap on the marketplace floor...
But like P. T. Barnum said, there is one born every minute.
Cheers, Gene
The evidence that SCO was broadly aware of this work lies in the SCO Linux 4 ("powered by UnitedLinux") marketing materials.
There is an interview from August last year where Darl McBride not only says that SCO Linux would be "certified enterprise-ready by IBM", he also says that he understood what Open Source was in 1994, when he was first shown Linux.
I do not believe that Darl McBride can continue to pretend that he (i) didn't know what the GPL was about, or (ii) that he didn't know that Linux was going to the Enterprise.
Unfortunately, it's kind of hard to use the Chewbacca defense when you're the one suing.
I have always thought it a cheap trick when a story creates a character that is so utterly unbelievably evil that all you what to see is them crushed under the grinding wheels of a gravel truck and extruded thru a rock crusher. And then of course they do in the end just to satisfy the primitive parts of your brain. This I believe is the hallmark of an inferior story and the definition of poor literature.
However here we have in real life several characters (that is SCO's upper managerment and new found lawyer buddys) that fit this description neatly. So let hurry this story line along - I will go pop some more popcorn.
And if that was the argument being made you might have a point. But the article provides proof that SCO employees, operating under their manager's authority, put the code in question into Linux. This is not merely a distribution, but a contribution.
The Restatement 2d of Agency says the following:
7
Authority is the power of the agent to affect the legal relations of the principal by acts done in accordance with the principal's manifestations of consent to him.
26
Except for the execution of instruments under seal or for the performance of transactions required by statute to be authorized in a particular way, authority to do an act can be created by written or spoken words or other conduct of the principal which, reasonably interpreted, causes the agent to believe that the principal desires him so to act on the principal's account.
Where the agent is the employee and the principal is the employer.
As to whether or not a given jurisdiction follows the Restatement, that's not a question I can answer. What, incidentally, is your jurisdiction?
...the only thing we have to fear from the whole sco debacle is discouragement...
Let me nominate distraction as the biggest risk. Whenever one has had to circle the wagons, the resumed journey is never the same. A wonderful model of meritocracy may be forever changed into a quasi corporate structure -- at the extreme, leading to a world where Legal has to vet everything before its release.
This needn't be a negative, just acknowledgement that linux must evolve in an unexpected way, in order to survive and prosper in this unexpected New World. Still, I shed a tear.
"Inquiring Minds Want to Know!"
"Ai! Ai!" wailed Legolas, "A Balrog is come!"
s/Legolas/Darl/
I don't think a picture of PJ has ever been published, but I'm definitely getting this visual of 60'+ tall, wreathed in smoke, with a lash of flame close at hand for when fools trespass.
Keep up the good work PJ - and where is that 'donate via paypal' button on your site?
I am very easy to get along with, but I don't have time to waste being nice to people who are being stupid. -Theo
Thing the first, contracts do not have to be "signed" only "agreed to", a signature is only and singularly prima-facia evidence of agreement, not some magic fairy-dust of holy cannon with powers obscure and sublime.
Thing the second, the contract is right there for you to read, it is called the "General Public License".
The prima-facia evidence of agreement is, in fact, the act of distribution. The only legal way to distribute a work governed(*) by the GPL is to agree to the GPL.
If it(+) is not evidence of agreement, then it is INSTANTLY and UNARGUABLY prima-facia evidence of copyright infringement. Remember the whole $150,000 each instance penalty and all that?
This isn't rocket science here. Either they had express individual permission to distribute the material from ALL the authors, OR they agreed to the GPL, OR they are copyright thieves. There is no fourth choice with respect to this body of code.
(*) re "governed by the GPL". I can have a body of code (art) and give it to different people with different agreements and understandings attached to each separate transaction. Nothing magically lets one provanance [historical path of possession] jump the curb into another, even if the two pass eachother on the same network adaptor. If SCO *GOT* the material under the GPL, and didn't go back and re-get it under some other more invested agreement with each author (really the holder(s) of copyrights) then they can only distribute it in turn under the rules and restrictions placed on them by the provanance, namely the GPL.
(+) "it" being, "taking the code (art) contributed (and hence, who's copyright is owned/held) by parties other than the distributor".
So if they got it ONLY by GPL they may ONLY pass it on by GPL.
Period.
Innocent people shouldn't be forced to pay for inferior software development.
--"Code Complete" Microsoft Press
It could get more complicated than that. IIRC, SCO is claiming that its existing code was taken from another product and put into the Linux kernel. In that case, the "scope of authority" would have to be the authority to relicense that code under the GPL.
But if the programmer only had authority to help write code for the Linux kernel... that doesn't necessarily include the authority to relicense SCO's other code.
Anyway, I think SCO will lose because they released the code under the GPL. Copyright is strict liability. Even if they didn't know there own code was in it, publishing it under the GPL puts it out under the GPL.
The fact that their own employee may have contributed some of this code directly only adds fuel to the fire that will take SCO down.
BTW, I'm a law student too.
SCO's case was never based on fact, they were using litigation as a business tool. A republican behavior becoming all too popular these days. And what's the downside? DirecTV sues the innocent along with the guilty and who's stopping them? And don't get me started on RIAA. And when it comes to fraud look at Enron, WorldCom and Putman. Millions of people bilked out of billions of dollars and how many have gone to jail? Three or four? McBride's playing the odds that even if the ploy doesn't work...and it's safe to say it's probably not going like they hoped...the company was dead anyway and their chances of facing any serious prison time were slim to none. When government is in the pocket of big business lobbyists, this is the reality. Welcome to Bush World.
Let's not take anything away from the outstanding research from Groklaw, though. That's really good work by someone there.
That's our life, the big wheel of shit. - The Fat Man, Blue Tango Salvage
Sorry, blew the post...
The details of the contract from the GPL which govern are encompased in the following:
1) That SCO did receive the Linux kernel under the GPL.
2) That SCO did either modify existing code or add additional code to that kernel.
3) That SCO did gather those modifications together, thus creating a derrivative work
4) That SCO did then distribute that derrivative work either:
4a) as a compostite work under the GPL as requrired by their inclusion of the GPLed code they did not create themselves
OR
4b) in direct and deliberate contravention of the governing agreement (the GPL) and thus in violation of US and International copyright law.
5) That SCO did, through the actions of their employee(s), also directly submit many/some/all of those modifictions to the central management facilities of the Linux kernel, with the understanding that accpetance of such submission was prima-facia evidence of agreement to allow others to distribute those changes under the GPL.
In the case of 4a and 5, separately and taken togher, SCO needs must have put at least one chain of provenance of that code under the terms of the GPL
In the case of 4b SCO has spesifically and directly broken the law and may be held liable before a civil (or ciriminal in the DMCA age) court.
In no case is SCO stripped of their ability to separately distribute their WHOLLY ORIGINAL code (art) under any ADDITIONAL terms they wish, establishing a separate entitiy and provanance for such further distribution.
They MAY NOT, however, "take back" the GPLed provanance because they spesifically waived that right when they established that provanance.
They also MAY NOT separately distribute under new/separate/other provinance any elements (art) of their manufacture which are not themselves WHOLLY ORIGINAL.
The last is the fine point that makes some people barf up FUD so easily. If I sit down with a clean editor and make (say) a serial driver module that can be linked to the Linux kernel, I may keep it to myself, distribute it under GPL, or distribute it (separate from the kernel) under any other termis I choose. In fact I may do ALL THREE at the same time. The blank editor (and presuming the absence of significant copying) creates a "new work" with no provanance.
If I start with the *EXISTING* linux kernel serial driver, then I may keep it to myself or distributed it under the GPL, but I *MAY *NOT* distribute it under other terms I choose. The original work retains its provinance, and so its legal standing within my new work.
This is no more different than writing a novel. If you write a novel from scratch it is yours. If you write by simply editing my novel it is still mine even though it is also now kind of yours.
The only grey area comes when you write a new novel on a blank page, by reading all of my work, and then basing "significant" portions of your novel on the characters and situations that you harvested out of my work. [This being why you, for instance, cant write (and expect to publish with impunity) your own "Star Trek" novel without the permission of Paramount, who owns "Star Trek" just now.]
This is not that hard people... 8-)
Innocent people shouldn't be forced to pay for inferior software development.
--"Code Complete" Microsoft Press
Maybe the whole suit isn't intended to win, but to kill off Linux by losing. Once execs hear "SCO lost their assets because one of their programmers contributed to Linux" they will do whatever they can to keep their own employees from contributing.
The statutory position (Corporations Act 2001 (Cth) ss 128-30) codifies the common law and allows certain "good faith" assumptions to be made, including that a person held out as an officer or agent is properly exercising the power customarily given to a person in that position. As the person giving away the code is a senior figure in SCO's open source operations it may be held, under Australian law, that the outsiders were entitled to assume that he was authorized to give away code on his corporate employer's behalf.
Again I have no idea of the general US position.
Congratulations, you hit the bullseye :). It now remains to wrap it up in appropriate legalese.
I realise some of those examples are criminal cases, but it doesnt matter: its symptomatic of the whole system. Im sure there are tons of other examples of cases with no merit at all still winning or having to be settled. Unfortunately, the facts have very little to do with our American "Justice" system.
Manipulate the moderator system! Mod someone as "overrated" today.
We really are dealing with people that should not be let out without adult supervision.
Can criminal proceedings be started on fraud such as this in the state of Utah?
What PJ & company have done is assemble the pieces to show that what was being contributed by Christoph Hellwig (and other peons at SCO) was well understood by both his immediate boss and by corporate management. There is no plausible deniability.
Probably the best thing to come out of all the GrokLaw digging is this quote:
The full thread is here.They that can give up essential liberty to obtain a little temporary safety deserve neither safety nor liberty.
Ben
They could simply say that Hellwig was doing this in his spare time, or that he and his boss were coding for Linux in their spare time. The problem here is, Hellwig is a peon. Just another worker bee. Doesn't matter what employees do, it's a question of whether the top executive know. Did they know what Hellwig was doing? Did they realize all the implications? Those are the real questions. And here we enter the realm of plausible deniability (lawyers can jump in to correct me anytime now). Did the executives know what one worker bee was doing? Hell no! Why do they care what one of their workers was doing in his free time?
Wake me up when Hellwig's boss's boss's boss's boss knew about the problem, understood the implications, wrote a letter, and forwarded it to his boss, who then fired it up through management to the upper echelons.
You're wrong actually. A CEO is entirely responsible even if he is not aware of what is happening. This is the first thing anyone learns in asset protection. You have to be aware because if you are not you will still be held liable. CEO's have been held liable in the past. This is not theory, it has happened.
Time makes more converts than reason
1) IBM has more patents that M$
2) Meritless case has no affect on adoption according to gartner & the like. In fact, the opposite appears to be happening - more adoptions since lawsuit announced. CIO's aren't scared of this. I'll go dig up the graphs if I really have to, but I'm drunk and tired tonight, and tired of seeing them in the trade rags.
3) You have made it clear that you are worried about that which you should not be worried about.
I HAVE SPOKEN.
They've only filed one legal case.
Just one.
They've said that they'd file more.
Lots more.
Maybe lots and lots more.
But they've only filed one so far.
Barratry means filing multiple cases to harass someone. Like if I drag you into court on some charge (real or not). Then I file another one against you. Then another one.
It would be VERY INTERESTING if SCO did file more claims and a judge ruled that SCO was attempting to harass "Linux".
Uhm, this is a federal case, is it not? Last time I checked, federal judges are appointed for life. There are a few exceptions, e.g., bankruptcy judges, but no federal judge is elected.
This should be a strong deterrent to lawyers everywhere who want to mess with geeks and intellectual property lawsuits. I mean, look at SCO, even with the money they have paid Boise and co., those lawyers heads must be reeling trying to understand all this stuff like NUMA and JFS and RCU. Do you think the other petty ambulance chasers trying to sue the gun manufacturers and mcdonalds and philip morris want a piece of this? And remember, the ultimate killing machine awaits, the geek-lawyer hybrid; available exclusively at IBM.
SCO: 800-726-8649
Verisign: 800-361-8319, 888-642-9675
Diebold: 800-433-VOTE (8683)
I see three examples of it here. The opening phrase allows the writer to say, "Oh, I didn't think you wanted that information." The phrase "authorized, approved or knowingly released" allows the writer to respond that any releases (note they never claim not to have released the code) were not sanctioned. And, of course the big one: "the subject code." Until SCO deigns to define what code they're talking about, they can continue to claim that any releases they authorized are not the code in question.
In spite of this, they're in for a rough time if they need to argue in front of a judge that all of Caldera's pre-lawsuit Linux work was unintentional.
===== Murphy's Law is recursive. =====
Unfortunately, it's the same one that blocks the mass of computer users from understanding their machines - the mechanisms will mirror and magnify only the actions of those piloting them. When a monkey looks into a trading floor, no Warren Buffett looks out.
I bought this house and you know I'm boss
Ain't no h'aint gonna run me off
Like M$, the ruling will be too late to be of any use to anyone. SCO will have lost all of their business, and probably their one friend, the Convicted Monopolist of Redmond, long before then. SCO will be outlawed in most of Europe. The investors (who in this case deserve exactly what they will get for being totally stupid) wil be mounting class actions, Slashdot will no longer report the case because people have started to die of boredom, Windoze 2020 will have a major root exploit, will need 64GB of RAM, and will be rejected by the masses, Redmond wil have degenerated into a ghetto for unemployable hackers, the latest 256 bit Athlon will need helium cooling, Intel will still be trying to sell 128 bit processors that don't run Windoze, FreeBSD will be competing fiercely with Linux for No. 1 position on the desktop, following the merger of Boeing and Airbus, and much product rationalisation, Concorde MK 2 will be in flight trials, a new variety of GM pig will really be able to fly............
None of that will necessarily happen of course, but the fact is that whatever happens in court will no longer be of importance to anyone except McBride, who will be trying to save face to the very end, when he will be declared bankrupt. The rest of the world will simply move on and forget this momentary aberration, as they will have forgotten the insignificant little man who occupied the White House without being elected.
"Bah, bunch of losers, and I'm damned if I can understand why the VC and market analyst people cannot see that. There must be some kind of a soundproof barrier between reality and the guys bidding this crap on the marketplace floor..."
Look at the whole dotbomb crap, there were VC's everywhere that dumping Millions if not Billions into companies that did'nt even have a formal business plan.
Just because someone has some VC money, it does not grant them any amount of intelligence. In fact it appears to do quite the opposite.
So Long and Thanks for all the Fish.