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SCOrched Earth
mm0mm writes "Just hours after we read Darl's open letter on copyrights, Groklaw has another breaking update on SCO up on their website. SCO's Reply Memorandum of Law in Support of its Motion to Compel Discovery is now available. (original document here) The memorandum requests court to order IBM, the defendant, to provide evidence and support their case against ....IBM. :D When I was young, it was the plaintiff who was responsible for preparing enough evidence to present to the court, but in Darl's world, with army of lawyers who will be given 20% of the proceeds from the settlement or of 'a sale of SCO during the pendancy of litigation', apparently rules are different." Lawrence Lessig has a great piece reviewing Darl's nonsensical letter.
Kinda cool to see a reference to a Groklaw URL in IBM's filing. At least ONE of the legal teams knows where to look.
SCO's team, on the other hand, probably starts chewing the rug everytime there's an update...
[IBM] I plead the fifth! [SCO] You can't! We need your testimony to prosecute you!
.. It's not entirely accurate to what's happening, but it's an interesting comparison - and an ironic one - to SCO attacking GNU for being against the US Constitution.
Hopefully the judge will take one look at this this and ask SCO exactly why they arn't prepared to say what they have on IBM.
Did anyone else get excited when they saw that tag line? I love Scorched Earth, the mother of all games! There is actually a 3D multiplayer version now that I like very much.
SCO.com uses Linux
Here is my favorite quote from that article:
My comments on that quote: I'd be willing to bet that whoever challenged Darl to a fight would have actually done it, but Darl, upon finding out that he was about to get his ass kicked, chickened out.What do you think?
(1) These were some of the words off the magazine's cover. The entire title is: "Is SCO Group's Darl McBride THE MOST DANGEROUS MAN in the technology industry? With a lawsuit imminent, Linux users are about to find out.
--
Reference: "You May Be Next" by John Foley, InformationWeek, Nov 24. 2003, pp 20-22.
$CO sux0rz!! Linux r00lz!!
Object or binary code is the code computers use and appears as a series of is and Os.
Ladies and gentlemen, the SCO lawyers have officially stopped doing even the most rudimentary fact-checking (or even plausibility-checking) with people who know anything about the code in question. Perhaps because the code in question doesn't exist.
I saw the previous /. posting when it came up (doing some homework for Latin late at night) and I immediately took the liberty of taking scoletters.com and scoletter.com. I'm hoping to post a huge rebuttal to everything Darly says. See my sig for more anti SCO stuff.
Truer words haven't been spoken. Every slightest rant (no matter how small or insignificant the speaker is) against (insert holy technology here) is put on the front page for all to read and publically decry, but then every move by (insert evil entity here) is also posted so we can all rehash the same arguments again and again and complain that (far superior technology) is not number one.
Anyone know of a more balanced news site? I'm getting tired of reading about how Open Source will change the world every day and why I should convert my manager.
SCO has requested "all versions or iterations of AIX". Why can't IBM request all recent versions or iterations of SCO products to look for inclusion of GPL code? There has been some evidence that such inclusions or copying has occurred.
I don't think this is the fundemental problem. This case needs to be talked about rationally and I think Groklaw (and in a way Slashdot) are providing a forum for this.
The problem to me is that SCO is obviously using the publicity to their advantage, both bad and good. Every time SCO is mentioned in the press, for good or ill, their stock starts climbing. And that's clearly what they are after. Everybody, including McBride, Yarro and their minions know the case is a fraud, but while the stock keeps climbing, it doesn't matter to them.
What we need to avoid is to talk about SCO just for the "tabloid" value inside the Linux community. You may have a point that some of this discussion borders on that, but as long as we keep to the purpose of revealing SCO's true intentions, then talking about SCO here is a good thing.
I've been swashdotted -- Elmer Fudd
Precedent: Rudolf Diesel patented the Diesel cycle engine in 1898. One of the reasons that the far less efficent Otto cycle (4-stroke gasoline) engine was/is more widely deployed is that Diesel would only license his patent for what he considered 'best use', requiring that Diesel engines must inject fuel continuously into the combustion chamber thoughout the combustion/power stroke.
This dictated a much lower power:weight ratio in early Diesel engines, which is appropriate to stationary power genaration but represented a distinct disadvantage for traction-power and automotive use.
Diesel's approach to license was probably not the most lucrative either for himself or society at large, however the *property right* granted by patent (and copyright) law let him make that determination.
To my mind whether commercial EULA, BSD, GPL, Artistic, all licenses fundamentally serve the purpose of allowing the *Author* a degree of control over the application and distribution of his/her work.
This is also how we get an OSS environment where two different Authors (say Linus Torvalds and Richard Stallman) have the right to apply the same license (GPL) according to their own wishes.
Process rights are a good thing. SCO's making the best case it can but I really think it's going to backfire on them. Their rhetoric really doesn't stand up to analysis.
Linux is Linux, if One need clarify their dist: <Dist>/GNU Linux
bsds are of course just BSD
I'd like to point out that the work that Pamela Jones & Co. at GROKLAW is clearly of some real use to IBM in this case. another poster has already mentioned that IBM has specifically cited a transcription GROKLAW produced in their recent filing.
I would also like to remind others that there's a little paypal donation button on the front page of GROKLAW, as mauryisland pointed out elsewhere.
click that button. give her a holiday bonus, just enough to make it hurt you a tiny little bit. and let's see just how robust PayPal's servers are.
Then post to the main page when there's something really big coming, and otherwise let everyone else go on with the usual kernel rumours, Ogg design wins, etc. etc.
I enjoy GrokLaw a lot, and I'm (trying to) read /. for more general news items.
[Rant off :]
I'm in a Unix state of mind.
SCO idea of authors and inventors rights is that they have the right to sell them to SCO, or Microsoft, or some other company which is going to require the author to assign in perpetuity any rights they had to their work.
Darl and SCO repeatedly try to paint themselves as progressive, which certainly is not the case. In point of fact, what SCO seeks is a return to serfdom. During Feudal times serf's were treated as chattel, property tied to more property. They would routinely be transferred along with the property they lived on. Darl would like nothing better than a return to those days, and in fact has staked his company livelihood (and possibly his freedom) on attaining that goal. Except the new serf's are programmers, and the land they are tied to is the code, particularly the plot of code which is the Viscounty of Unix.
"Talk minus action equals nothing" - Joey Shithead, D.O.A.
"Talk minus action equals
I did a little math. With 11,000 resellers, a revenue of $22 million a quarter, each reseller on average does a mere $2000 worth of SCO sales each quarter. $8000 a year! They're tiny!
I'm in a Unix state of mind.
I've been a member for a long time
I thought you got a little asterisk when you subscribed.
Oh.. by being a member, you mean you've been reading this page without paying a dime, and actually registered for a username?
For chrissake, if you don't like the SCO stories, don't read them. If it's free to read (and not taking up any of your precious non-existent subscriber dollars) then I'd suggest... That you PLEASE don't read the articles clearly marked as being about SCO, and that you PLEASE PLEASE don't add comments to them.
A few years ago in Belgium, when the "Vlaams Blok" (Flemish extreme right wing party) was gaining a lot of momentum, the established parties agreed to a "cordon sanitaire" (cord of cleanliness) around that party.
They agreed no one would cooperate with the Vlaams Blok to form a government, however profitable it might have been for each of them (practically or power-wise) separately.
With this "gentleman's agreement" they managed to keep the Vlaams Blok out of government. The agreement only worked on the basis of all partakers abiding by the agreement.
I hope the big software/consultancy companies out there will make up some sort of similar agreement between them, that no one will buy SCO whatever happens.
Let them perish in shame, let the shareholders and management lose all their money. That'll teach them.
I found it interesting to note that the judge listed on the case is a guy I know from my home town. He is an honest and straightforward guy. The down side is he has similar roots to Mcbride, both Mormon and growing up in a farming community/environment. On a side note, it always cracks me up how many people post to every SCO story with "not again." You know there are alot of things that don't interest me on Slashdot, I just don't read them. We're all different folks, get over it. Don't bother posting if you don't care about the story!
This is a non-issue. If IBM were forced to release trade-secret material during discovery, those court documents may very well be sealed at the end of the trial (or, at least, that material may be excised). Moreover, if SCO tried to leverage trade-secret material after the fact, IBM could take them to court for trade secret violations.
:)
So, no worries... the legal system has considered these things.
That's one of the ludicrous things in this case: the trade-secret laws say once it's out in the open, it's no longer a trade secret. You can sue for damages for revealing it, but you can't put the genie back in the bottle. But SCO, after offering source for years, is now trying to claim trade-secret protection on this as-yet-undislosed code.
Groklaw pointed out the other day that for years, the AT&T Unix code had *NO* copyright notices for just this reason - they were trying to protect it as trade secret. It was only after the breakup when they were trying to 'marketize' it that the "THIS IS UNPUBLISHED SOURCE CODE OF AT&T" comment blocks went in.
SCO-Darl's letter literally says "SCO asserts that the GPL, under which Linux is distributed, violates the United States Constitution", but then Lessig says "Finally, notice what McBride doesn't say. He does not say that the GPL is unconstitutional." So what's the difference? Is there some subtle legal distinction between "violates the constitution" and "is unconstitutional"?
Darl's open letter claims that GPL and Free Software Foundation are hurting their Pure Software business model. On the other hand, many companies, including IBM and RedHat are making profit using GPL and Free Software. Why would any judge invalidate GPL and hurt corporations that adapt their strategies to changing markets just to satisfy corporations like SCO who base their business on outdated models ?
getSexySig();
First of all, its no big deal as to trade secrets. The court can enter a protective order, and in cases between competitors, can require that the discovery be "for attorney eyes only," not to be sent to the clients. Clients don't get them either, because lawyers who unlawfully disclose such matter not only lose their ticket to practice, but virtually every penny they have in the underlying civil action.
Any right to use the secret at trial is within the Court's subsequent discretion. Trade secrecy is NOT a device for avoiding civil liability.
In the case of super trade secrets, Coca Cola's secret recipe as an example, the company has a choice: they can comply with a motion to compel or they can risk contempt, which means that a bunch of corporate people will spend some time in jail, and the company will probably face summary judgment against them in the civil action. This has, in fact, happened.
In other words, SCO believes it owns AIX and Dynix, and that IBM used SCO's AIX and Dynix code to improve Linux.
On the other hand, SCO is or has been distributing software that was released under the GPL and BSD licences. They have voided their right to do so. They have allowed software released under BSD and almost certainly GPL licenses to be inserted into their Unix variant.
Under the DMCA and CA76, the FSF and UC can demand that they stop distribution of any Unix-like operating system until all GPL/BSD code is removed.
Suing SCO for violation of the Copyright Act might not be successful in court, but it could be. Even if the suit were to fail (or more likely, SCO go under before a trial), the publicity of such a suit would make it obvious that Open Source adherents are not anti-copyright. We just prefer a different EULA.
What's really wrong with SCO's position? I agree with Lessig:
In SCO's open letter [slashdot.org], they say:
Their argument is that the profit motive is what is important about copyrights. According to SCO, the intent of the author and his right to control the distribution of his work are a secondary side effect of the profit motive and our economy's need for him to profit from his work.
That twisted paradigm underpins SCO's business plan, their market strategy, and their case against IBM.
I believe it's time to sue SCO, in order to make clear that it's the author's right to control his work and who profits from it that matters, and not just his right to profit.
sigs, as if you care.
By the common view of what a copyright should be and provide, yes, perhaps open-source developers are surrendering rights. However, the copyright law that allows people to keep their source code proprietary and sell it is the same law that allows people to DISALLOW proprietary use of their code as well.
The GPL states that the licensed code may not be used unless the source code of that in which it is used is released. Acceptance of the license means that the person using the code is legally obligated, by copyright law, to release that source code. The real question should be whether or not it is legal, under copyright law, not only to deny the right to spread something freely, but also to deny the right to spread something for profit.
By my personal opinion, a copyright is a copyright, and the holder of said copyright should be able to put whatever stipulations on the license that he or she pleases. However, I'm not a lawyer, and I have no idea on what the actual legality of such an idea is.
I think that the more important fact is that even though this is the true crux of the problem, Mr. McBride is trying to obfuscate it in things like his letter, trying to portray the entire open-source community as somehow being inherently against U.S. copyright law. If you're going to put up that argument, Mr. McBride, first you'll have to show us that the GPL's unique use of copyright law is, in fact, not legal.
Can you lay a proper foundation for your request? Does your product predate Coke? Did Coke's product change from something else to something that is close to your product? You do have to make a plausible argument for your claim that Coke stole your formula. In the case of trade secrets, even if you do get a chance to look at their formula in court in private, you may be constrained from talking about it (much less using it) outside of court.
SCO is not asking IBM to reveal trade secrets; IBM has already done the revealing, the case is about whether IBM had the right to reveal them. SCO's foundation, weak though it may be, is the old contract between IBM and AT&T. In it, IBM may have agreed that anything they develop in a context that derives from the old UNIX is a trade secret and that AT&T (whose rights are now held by SCO) must give approval before IBM can reveal those secrets to third parties.
SCO has named specific technologies that IBM has released -- JFS is a clearcut example. JFS is clearly part of IBM's current AIX offering and the code has clearly been revealed by donating it to Linux. ASSUMING the contract is binding and that AIX is "derived from" the old UNIX, what remains at issue is the development history of JFS. SCO cannot know that history without access to IBM's internal documentation -- and US civil law allows them access to those records (discovery). Some of the current argument is over the degree to which IBM must organize the material -- have they satisfied the discovery rules if they simply dump 100M pages of documentation and old e-mail on SCO?
IBM wins this case if they can prove (ie, get the court to agree) that any of several different things are true:
Lest ye forget - Congress has established rules for copyright, and the GPL follows them. Congress cannot take away someone's copyright once it has been granted - unless they change the law to allow congress (or their agency/agent) to do just that. The Linux and GPL copyrighted information would be grandfathered under the old rule, and congress' ability to take away somone's copyright would be challenged and overturned in federal court (quite easily too, I would imagine) based on the wording that IS included in the consitution.
Bleeeaaaah!
Perhaps we should fill the SCO offices with these WMD's (which sound like biological weapons to me) and get Blair and Bush to declare war on them.