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Did SCO Actually Buy What it Thought?
Int27h quotes The Age saying "Just before Christmas last year, Novell announced publicly that SCO had known for some time that it did not receive all rights and ownership to UNIX technologies, despite public statements to the contrary. Novell has made public correspondence between lawyers representing both Novell and SCO." Lots of links and commentary on what continues to be one of the strangest stories in the history of Linux.
Where this story was posted yesterday, of course.
When we remember we are all mad, the mysteries disappear and life stands explained.
Mark Twain
And of course Groklaw has had the full analysis for a while now, including the fact that SCOs filings missed mentioning this dispute, even going so far as to deny there was any ongoing dispute with third parties over Copyright...some pants combusting rather brightly over in Salt Lake City.
-- Free software on every PC on every desk
But SCO must know that they bought the farm. On this we can agree.
So if they knew, or should have known, that their rights were not as expansive as they represented, and they knowingly misrepresented the scale of those rights to the persons they offered licenses, and those persons bought those licenses based on those misrepresentations.....sounds like a big fat old prima facie fraud case to me.
SCO Group (NASDAQ SC:SCOX)
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SCO has gone to far now to simply back off, or admit they were wrong. They have invested their whole business in this, and have no option but to go forward and proceed with litigation. If they back of now they loose face and the business will probably crash. If they loose in court, they have the same situation, except they lost alot of money on lawyers instead.
:S
HOWEVER, if they win in the quirky US legal system, who knows. They might make alot of money, and keep on putting out super duper products
I don't think they thought they would be buying the World of Pain they are walking into...
I'd like to believe that SCO didn't exactly know what they were buying.
This would still leave me with some faith in major software corporations, whereas the view of SCO knowing what they were buying and subsequently stirring up all this crap makes me want to wince.
Then again, on second thought, why would I want to have faith in a company that can't read the fine writing? They try to get my to sign my life away each EULA I click by hiding things in the fine writing.
It's like trying to barrack for a winner between Carrot Top and Rosanne Barr. Oh the humanity!
Effectively, SCO is maintaining it's stance that it is on firm ground, with assets well in hand, for the alternative is disaster. Deny reality as long as possible, hope stock price rises as gullible investers throw away money and sell (which SCO execs did) before reality asserts itself. Nice ploy, when you got nothing else.
A feeling of having made the same mistake before: Deja Foobar
2. They must then prove that it is data that they own, and have not authorized other companies to include in placed like Linux.
3. They must then show that it is not code that they, themselves, did not release into Linux, by revealing all of the contributions that they made.
Even then, they only have a case against whoever released it without autorization, and they can file a cease and desist to anybody who keeps distribuiting it after it is shown to be theirs.
Of course, this does not help them, because once it is known which lines of code in the Linux kernel came from SCO, it's fairly trivial to re-write those sections. Since their case depends entirely on these lines being identified and cited, I'm sure most distro companies will even be able to put out a "de-SCO" application that will bring old versions into compliance.
Has anyone given thought that perhaps this M$/SCO/SUN campaign is doing more harm that it appears. This is probably around the 100th article I've read about this. Reading 100 articles == not writing 100s of lines of open source software code. Darl knows that everytime he craps a turd, it distracts thousands of linux programmers from their job. Let's stop paying attention to this crap. Reminds me of the simpsons episode where the giant marketing characters come to life.
I have a question about cleanliness of the kernel (no RMS shower jokes please;). SCO has stated that all versions after some version are tainted. i'll just say version X is the last clean kernel according to SCO since i don't know what the version number is. Recently SCO has been claiming the ABI is one of the infringing elements, correct?. So how is the ABI different in the clean version X and the "tainted" versions?
Yes, this is being counted down on the following website: http://www.scocountdown.com/
However, this expires at midnight, so expect something the next morning.
The current SCO group is just a renamed Caldera, which bought the Unix group from the old SCO, so it is wrong to say that "SCO didn't know what they bought", as the current SCO isn't the company which bought anything in the first place.
Actually, the current SCO is probably just the 5th owner of the very diluted "Unix licencing rights" - AT&T first sold it to USL (Unix System Labs), which was bought by Novell, which resold the licencing rights to the old SCO, which sold off parts of the company to Caldera, which rebranded itself "The SCO Group".
Of course, the current SCO management tries to confuse this issue, probably as they would rather have everyone forget all their contractual obligations with the previous owners.
Further, copyrights are contained in the list of excluded assets, and that list is not modified in any way by Amendment 2.
Further, that copyrights can only be transferred, under title 17, in writing, and that a vauge assertion that there is an agreement to transfer certain copyrights in the event they are required does not constitute a transfer in writing.
What is your interpretation?
- The original agreement could be fulfilled by only granting copyright on the binaries (as a derivative work), not the source. SCO would need copyright on the source to sell it outright, but not to license it or create derivative works, which it appears possible is all the original agreement allows them to do.
- They don't need exclusive copyright to do any of the things which the original agreements give them the rights to; shared copyright is enough (and contrary to what most people seem to think, nothing in copyright law requires it to be exclusive). While it may be possible (if doubtful) for them to claim that they need full rights in order to be able to license Unix, it would be hard to interpret things in a manner which shows that they would need exclusive rights. Even if SCO won this part of the argument, Novell would have an argument that the amendment's granting of rights to SCO does not remove them from Novell.
- The original agreement grants SCO exclusive rights to license Unix; it does not guarantee they will do so profitably. Many arguments in favor of SCO's amendment two interpretation come down to "they won't make money if it's interpreted otherwise." Whether or not SCO manages to make money from it is immaterial. All that matters is whether or not they can license it, and even if you take Novell's interpretation as gospel, they can still do that.
As you note, there's a lot of wiggle room here, but in terms of their assault on Linux I'd say most of it is not on SCO's side of the argument.Ahh, but that is how SCO's plan is brilliant. It is a logical impossiblity to prove a negative. Thus, there will never be concrete proof that there are no violations of SCO's copyright in Linux.
Furthermore, you appear to have fallen for the other common trap, which is that there is SCO "data" in Linux. SCO put it there themselves. The real issue is the mythical existence of code that is somehow in violation of SCO's "IP rights".
The real "Libtards" are the Libertarians!
The article says that Amendment 2 states that ownership of the copyrights is not transferred until/unless it is shown that ownership of the copyrights is required for SCO to fulfill the purchase agreement
Not exactly. It says that they get "All copyrights and trademarks, except for the copyrights and trademarks owned by Novell as of the date of the Agreement required for SCO to exercise its rights with respect to the acquisition of UNIX and UnixWare technologies."
In other words, they get the rights to use, sell, and license code related to Unix and UnixWare. It doesn't say they have exclusive rights to it.
If I were to write a program, then sell you the rights to use it however you wanted, that wouldn't necessarily take away my rights to do whatever I wanted with it unless we both agreed to that in the terms of the contract.
The amendment even goes on to say that should either party be involved in a buy-out of the copyrights (complete transfer of all rights) the other must be notified. This clearly indicates that the Amendment doesn't transfer all rights to SCO.
When will Windows be ready for the desktop?
Yeah, someone as stupid as that should not be allowed to advance any farther than US President.
It's simple: I demand prosecution for torture.
Nightspots says: ... but it's not entirely unreasonable for SCO to state (and then attempt to demonstrate) that ownership of the copyrights is required by them in order to defend against apparent illegal copyright infringment from a third party.
If SCO does not own the copyright there is no need for them to defend it -- that's the job of the copyright owner. And if there is no need for them to defend it, apparently they don't own it.
b.
I spent a few years drafting exactly these kinds of agreements, and having read the SCO/Novell Asset Purchase Agreement, including the dreaded Amendment Number 2, I have to confess, I don't know what SCO's lawyers were thinking.
When you buy technology, you buy 2 classes of assets: (1) the tangible (which includes stored electrons) real-world implementations of the stuff, like copies of the software, units of hardware, copies of manuals, and so on; and (2) the intellectual property rights, including copyright and patent, embodied in the tangible stuff.
The way I'm reading the contract (which could be wrong -- I took a pretty quick pass through it) Novell sold SCO the "stuff" without any of the rights associated with the stuff. In other words, because the stuff was software, Novell sold them pretty much nothing.
When I've done these deals in the past, the purchaser either gets the associated IP rights as part of the deal, or a REALLY broad license to them. From the looks of things, SCO didn't even have the right to make copies of the stuff it bought. That's completely incoherent from a transactional point of view.
That argues for 2 things: (1) SCO's lawyers really pooched it in this deal, which is certainly possible -- I've seen some really dumb language come out of high-end firms, and/or (2) SCO is right, and the agreement couldn't possibly mean what Novell thinks it means, because that makes no sense. SCO might not be able to get that enforced without a court action to do what's called "reformation" of the contract, where the court goes in and rewrites the contract to make it coherent. This is a really rare remedy, BTW, for obvious reasons.
Please, someone who's read this document more closely, feel free to correct me.
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Point and Counterpoint: The Tick - "Spoon!" Neo - "There is no spoon."
They knew this data existed (hello, the linux kernel and all of the CVS logs are open source, they can be read by anyone)
They have the same copies of the contracts as everyone else (Novel, Sun, ect)
They had to know that a judge was going to make them produce evidence and this "We can't show the conflicting code" thing wouldn't fly with a judge.
I worked for a dot-com that provided a service to Corporate Law Firms and I know that they go through a lot of trouble to do their homework. Some of these things would have not slipped their radar.
So is all if this (including us tearing up SCO's claims) just part of their plan? Are we missing the real target of McBride and SCO? I find it hard to belive that SCO and their legal team are, or have ever gone "Oh Shit" since this all started. More like they are saying "This is going exactly to plan".
Someone please shed some light
There put up or shut up day is on the 12th... technicallly the 11th... but they should have turnned in what they have to trun in by Monday Afternoon. Sense they had 30 days from the day that the order was signed.
Even then we will not see what it is for a while less some of the papers are filed in a more public area.
you should read Groklaw.
Chahala
Open Letter to SCO
Dear Sirs:
It has come to my attention that you claim certain intellectual properties involved in the UNIX operating system and that you intend to prosecute those who violate those claims.
To be more specific you claim that Gnu/Linux is a derivative of your Unix IP and as such is your IP. After extensive research on my own part and reviewing the considered opinions of those in the field of IP litigation I have concluded to my own satisfaction that your position consists of bullpuckey.
As such I feel I should bring my company to your attention. My name is James Burgett and I am the executive director of a not for profit organization called Computer and Technology Resource Center (CATRC). We recycle unwanted equipment and give it to underprivileged people throughout the world.
What I feel should come to your attentions is this: We install Gnu/Linux on over 1200 machines a year and we fully intend to continue. We send said computers to schools, not for profits and underprivileged people throughout the world. We have been doing so for over 3 years and I can safely say that all of them could be classed as "servers". On the basis of your pricing (assuming that our inevitable litigation extends past your discount deadline), my organization owes you at least $ 5,036,400 (5+ million).
We also advocate the further distribution of your alleged IP by other agencies and governments at home and abroad and could quite possibly be held liable for a lot more. (I'm sure you can come up with a price for this.) We have also assembled many multi processor systems (By the way, what is your price for multiprocessor systems?)
So based on an assessment of our operations and your claims. I have concluded the following:
Your ownership of the IP is dubious at best (Novell copyrights, Unix system labs vs. UC Berkeley, distribution of all contested IP by you under the GPL while Caldera,.... etc.)
Your ability to enforce your claims is laughable at best (you would have to deal with Novell's copyrights before you can sue anybody, then demonstrate that you did not release said IP as your Linux distribution and last that you have the right to those copyrights at all as they seem to violate some of IBM's patents. This combined with the fact that your lead attorney seems to be under investigation in Florida that may lead to his disbarment leads me to the conclusion that you are not a credible threat.
Your only redeeming feature is your histrionic and ill-conceived rants, which admittedly have an enviable ability to generate press.
As you represent no threat and can only bring us press, I humbly request that you use us in your act of corporate self-destruction.
If you choose not to sue us I should inform you that I have been consulting with my attorneys about options for initiating lawsuits against you based on some of the fallacious claims made by you about operations such as ours that use Gnu/Linux. You have made direct accusations about Gnu/Linux and its users that could only be construed as accusations of theft.
As I am not a thief and find your accusations harmful from both a personal and corporate standpoint I demand that you immediately cease and desist from your unsubstantiated statements or face litigation.
In conclusion let me thank you for this wonderful opportunity to promote our message on your dime and fully expect to be giving away what you claim is your IP long after your company is dead and gone.
Yours sincerely:
James Burgett
Executive Director
Computer and Technology Resource Center
Primary website: www.accrc.org
email james@accrc.org