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SCO Fails to Produce Evidence
BlueSteel writes "For those of you that need that daily SCO fix, Groklaw has the declaration of Ryan E. Tibbitts of SCO, stating why they haven't produced any evidence... and that they need recent AIX and Dynix/ptx code from IBM before they can comply."
Has everyone already seen that and decided it wasn't important?
How did SCO get a copy of "IBM AIX source code, an old version labeled MERCED/9922A_43NIA"?
I doubt that IBM would have just turned over source to AIX as part of the trial, much less an old version, so how did they get it?
-twb
Let me get this straight...
They need *proprietary* code from IBM in order to prove that Linux, an *open source* OS, the source widely downlodable... contains SCO proprietary code?
I'm a dreamer, the world is my playpen. But hey, I'm a serious person, I can't dream all the time.
This reminds me of that movie Fargo where W.H. Macy keeps faxing illegible copies of VIN numbers. I wonder if Darl will wind up caught in a roadside motel somewhere.
--- http://davidnehme.blogspot.com
They are taking IBM to court - so that they can get the most recent versions of AIX to compare to Linux. Huh? Don't you need evidence before you have a case? From the stuff on groklaw it sounds as if sco simply presumes that there is infringing code, but has no real proof. SCO should go to jail for wasting the american peoples legal system's time.
From the page:
It also suggests complaining to the securities and exchange commission, which you're entitled to do if you've lost investment money as a result of any wrongdoing that SCO might have committed.Thank you for your attention.
Request your free CD of my piano music.
If I recall, the judge said, "put up or shut up!" right?
So they failed and the excuse is pretty ridiculous. Their claim is that Linux's code is owned, in part, by SCO. To prove this, they only need to show their code in their source in their product and show where it is identical within Linux's code. How is it necessary that IBM show completely unrelated code from AIX?
The judge didn't care that it was over the holidays and was probably very aware of that fact. Using the judge's knowledge as an excuse is probably just insulting enough to make the judge rule against SCO on this matter.
So I guess we wait to hear the wrath of the judge now?
This is pretty amazing, since they've been claiming all along that Linux infringes and they have proof. When asked for proof they have now said in writing that they can't produce that proof without seeing code they don't have.
In other words they've never had specific proof.
So their whole case is apparently hinged upon their tenuous claim to ownership of IBM authored code which they claim they own, but have never seen. They hope they can claim ownership of that code on the basis of a very broad interpretation of derivitive works and that code IBM wrote into AIX was derived (by their incredible definition) from their copyright works (the missing link) and that they then moved this into Linux.
IANAL but you can't run around claiming someone infringes on your copyrights and then go on a fishing expedition for the evidence, you need something evidence to present to the court in the first place.
This bubble may burst much sooner than I had anticipated.
"Gee, Yer Honor, we *really* need to see the code that IBM has before we can determine what they put into Linux... What's that? Oh, why yes, I *am* a fisherman!"
C'mon, who the hell are they trying to kid? The judge will take one look at this, have a hearty laugh, and say, "Not on my watch, asshole!" This is a fishing expedition to rival that of Moby Dick.
SCO hasn't any evidence. However, they're going to mewl and cry that they were wronged. Unless and until they can show proof, they're fucked.
You know, I kinda feel sorry for SCO's employees. I am sure many of them have little to do with this litigation against IBM, and all of the nonsense that has gone along with it, as this crap is the doing of SCO's administration.
SCO has certainly earned quite a reputation. I am sure it will be very difficult for SCO employees to find work elsewhere because employers will fear that SCO will go after them for absurd acusations of IP theft.
Could it be, that SCO can not release the infringing parts, because they don't have the right to it.
If the infringing parts are contained in "IBM AIX source code, an old version labeled MERCED/9922A_43NIA", which is the version of Merced, that IBM and SCO worked on, and this whole thing was based on AIX, the don't even have the right to release the code, because it is a trade secret between IBM and SCO.
So, please IBM, allow SCO to release the possibly infringing locations / parts.
I hope SCO spends itself out of existence on legal fees.
That would be awful both for Red Hat and IBM (who should otherwise be getting some amount of reparations in their countersuits) and for SCO's current investors, some of whom probably imagine that the US has a swift justice system that wouldn't allow SCO to make outright lies without sanction.
Reserve your ire for SCO's current leaders, particularly the ones whose insider trades (filing to buy stock options and sell shares after SCO's internal discussion of the IBM litigation but before that litigation became public knowledge) and deception have earned them millions of dollars so far. These guys are next to the Enron executives in the United States' ongoing experiment: "How hard is it to profit from million dollar lies and escape punishment?"
It's not like it took a huge dive this week or anything.
Speak before you think
You don't "own" derivative works. You have rights to your contribution towards it.
If IBM takes their part of the work and uses it elsewhere, SCO doesn't have any claim to IBM's part.
Of course they don't own Unix anyway, Novell does. So it is a moot point.
I (we) uniformly disagree on the theory that everything IBM added to AIX must not also be added to Linux. Because substantive technologies are not derivative works, specifically:
However, to devil's-advocate this:
Device, filesystem drivers used with Linux may be considered derivative works, even if not shipped with the Linux distribution, and therefor subject to GPL. *Linus* has said exactly this, and while I personally doubt that SCO is going to prevail (see contract details between AT&T/Novell/SCO/IBM which decidedly establish that this type of additions are not restricted to confidentiality or considered deriviative works.
Which means basically that if the FSF had licensed a GPL Unix to IBM, they would right now be taking the reciprocal (but logically identical) position as SCO is with respect to license requirements.
I continue to think SCO loses (and continues to look like halfassed morons), with this tack but remember the Linux community does apply similar logic around IP.
Linux is Linux, if One need clarify their dist: <Dist>/GNU Linux
bsds are of course just BSD
"Oh no! SCO couldn't produce any evidence! Maybe that's because THERE IS NO EVIDENCE!"
Or, for all you know, it's because the evidence is difficult to produce in such a manner a judge can make sense of. A geek can look at code and say "Yep, that was copied." whereas a judge could look at code and say "programming can be a very exact process, it's possible the code just ended up being similar"
I'm not defending SCO here, I'm merely pointing out that making a bet that they don't have evidence is irresponsible. Goofy things can happen in a court room.
"Derp de derp."
The problem with that is you cannot just bring suit to compel a company to open up its proprietary code for you to check for violations. You have to make a realistic case that there are violations *before* getting access. Otherwise, what's to stop every out-of-work coder from bombarding software companies with nuiscance lawsuits saying "You used my sekrit weeblefetzer quicksort variation without a license! Spend $500,000 responding to my demands for evidence or settle (buy a license) for $69,900!"
Remain calm! All is well!
Some people are suggesting that they're setting themselves up for an appeal, Microsoft style.
" is it the defendant's job to prosecute himself?"
No, but it is his job to turn over evidence to the prosecution in accordance with court orders. For instance, if you wanted to prosecute someone for a GPL viokation, you'd probably need to demonstrate that your suspicions of GPL violations are credible, at which point a court will for the defendent to hand over source code to you to verify your claim and win your court case.
Vote for Pedro
But definitely keep an eye on the Groklaw site.
:)
I was trying to keep an eye on Groklaw when it suddenly stopped responding, so I figured it was time to head over to slashdot and see what was new. Sure enough, I found this article pointing to the smoking ruins of what used to be an informative site.
I wonder if it's time for OSDL to offer their hosting services to Pamela?
This didn't make sense to me at first, but I think I've figured it out.
Basically they still own the rights to when IBM rewrites SCO code. That way IBM can't just get the code from SCO, change some variable names, and open source it.
I think IBM ought to just give SCO their own code back without the parts that IBM has made. I mean they've got IP to protect too.
I think what happened is this:
Now things are going to get nasty for SCO. What I'm surprised about is how people keep getting surprised by IBM's "Ninja Lawyers" and how tight their IP controls are. It's a long running industry gag.
Now Mr. Tibbits says they need recent AIX and Dynix/ptx code from IBM before they can comply.
Have they identified offending lines in the kernel source or have they not. Darl claims they have already matched code to the Unixware code and now they can't seem to reproduce it for the court. What's wrong with this picture?
It also suggests complaining to the securities and exchange commission, which you're entitled to do if you've lost investment money as a result of any wrongdoing that SCO might have committed.
You can complain to both even if you have not lost money yet. And again, I have to say: complain to the FTC and/or the SEC, it's easy and even non-Americans are allowed to complain there about an American company.
------------------
You may like my a cappella music
What SCO needs to do is call up the IBM sales team and request a new copy of AIX and the source code for same. Clearly SCO should simply ask to become a licencee of AIX and abide by IBM's terms.
HAHAHAHA
What a JOKE.
It gets better if you actually READ the documentation that is posted on GROKLAW - like section 13 for instance.
The premise of the SCO claim is becoming painfully apparent. The claim is that the moment IBM put ANY new code into AIX that this new code became a derivative copy of AIX and thus SCO has the right to control it.
I shall use an analogy here - an opera.
======================
I write an opera and you listen to it. You also are a talented song writer just as I am - perhaps more talented and you can easily write your own operas. But - this is not what happens. For whatever reasons you decide to IMPROVE my opera and then release it.
So you add in some new songs of yours to my opera and your version becomes more popular than mine. Mine in fact dies. So - do I have claims apon your version of the opera? Do I have claims against your songs? Do I have claims against say a single line you modified in one of my songs? How about individual words you might have changed? What if you changed the spelling of some of these words? Should I have claims against the sequence of letters you used to spell a word?
So you see - since YOU had the power to NOT use or contribute to my opera, I do get to make all sorts of outragous claims and I do get to control you.
On the other hand, suppose you are NOT a talented writer. Suppose you are just talented at arrangments. Suppose your friend is a talented writer and you find he has all these great songs that you can import into my opera. Clearly, your friend will not lose the rights to his copyrights by your actions. In fact, he may and I may grant you the right to make a derived opera so it is clear in this case that nobody has stepped on anyone's toes and there can be no claims by me on you.
The confusion stems from the fact that there is no boundry when you make the modifications. I get to claim you are making a derivative work - which you may have the right to do. And the question then becomes whether I get to control your work because some of it happened to be used in something I wrote before you did.
In staying with the analogy of the opera, suppose we get to the point where you feel your songs have a life of their own and you chop out 100% of my original material. Basically this is what IBM did.
Well, when at least _SOME_ of my material was in the derived work I may have had the right to control some aspects of the derivative work. When NONE of my material exists any longer we are left with the question of whether what you created is still a derived work which I get to control.
===============
So is it?
Well - In a way it is. And in a way it isn't. The way I read copyright law, I may in fact still get to control your work even though it is exclusively your work.... simply because during its history it was co mingled with mine. The premise for this claim is that your work would NEVER have existed were it not for my work and the structure it imparted.
This is a very important premise because when we look at software projects, the vast majority of new clean implementations suffer very bad teething problems and often lose their market share. Examples include Wordperfect, Mozilla and many others.
However, the practice in our industry is that each separate function bears its own copyright. As to code inserted in-line in functions - well - that is not as well sorted out. It becomes pretty arbitrary and the vast majority of us simply chose to not waste our time fighting about it.
===============
New analogy:
Lets look at a house. I build a house on my lot and you buy the lot next door and live in my house. You pay rent to me and get a contract from me that you can make tenant improvments. You ar
And by doing the right thing, he gets Karma-helping Informative mod.
1f u c4n r34d th1s u r34lly n33d t0 g37 l41d
Lets get this straight, in SCO's Notice of Compliance the attatchment was an explanation of why they couldn't find any evidence?
How is this Compliant with providing evidence as the judge ordered?
... and in the DRM, bind them.
16. Our engineers have reached the conclusion that parts of Linux have almost certainly been copied or derived from AIX or Dynix/ptx. In those cases, confirmation of this opinion would require access to more current versions of AIX and Dynix/ptx
"Almost certainly"? What happened to the "millions of lines" of source code, and the "DNA of Linux"? They appear to be saying, "We think we might have a case here, but we're just guessing really".
Did SCO just blow their own case out of the water? Is this what made them think they have ownership of Linux IP? A guess?! You know, I really thought they must have had *some* basis for these claims even if they were tenuous - I guess I was wrong, and they really are deluding themselves or just outright scam-artists.
SCO claims that their contract with IBM gives SCO all rights to any improvements to these Unix licensed products. In a way, that's kind of like GPL, except for corporate greed, although it seems that it did not provide for any means for SCO to actually get that source code they claim to own. SCO believes that IBM did develop improvements for AIX and/or Dynix/ptx (I presume the original Sequent license for Dynix had a similar provision), and that IBM also contributed those improvements to Linux. SCO thus believes that code they own is in Linux, but cannot positively identify it because they don't have the AIX and Dynix/ptx code to cross check with. Apparently SCO would assert that any code found in AIX or Dynix/ptx is either code originally licensed, or code that was added later by IBM and still covered under the license agreement.
The clause that gives SCO ownership of improvements to AIX and Dynix/ptx is itself suspect. If there is no provision for transferring that code to SCO, then how is such a clause to have any meaning. And how can it be determined if any improvements were developed by IBM or simply acquired by IBM under other licensing (including GPL) and integrated? If I had sold a piece of code to IBM that would improve AIX and/or Dynix/ptx, a contract between SCO and IBM cannot take ownership of the rights to that code away from me (and I have no contract with SCO). It would not be any different if IBM did this with GPL code. Nor would it make any difference if IBM did this with BSD code. And it wouldn't even make any difference with public domain code (since the public by definition has all rights to use it, so any ownership is moot in that case).
Suppose there is some common code in both Linux and AIX. SCO might well assert ownership of that code. But what if the code was originally in Linux and subsequently put in AIX (if it is GPL that might be a problem, but suppose it is a public domain, or BSD licensed piece of code). What if the code was in another free licensed OS like FreeBSD, and subsequently put in both Linux and AIX (in either order of time). Or it could be public domain code. SCO won't have any ownership rights to that code (although they could likely have usage right like anyone else).
SCO will have to do more than merely show that some code is in both Linux and AIX. They will have to prove that IBM developed the code and put it in AIX first, before putting it in Linux. If IBM put the code in Linux first, even under a GPL license, as original owner they also have the right to put it in another system under another license ... and more importantly, cannot subsequently withdraw the rights already granted under the first contribution. So if they put code in Linux under GPL, then put it in AIX under SCO's assertion of ownership rights through the Unix license (which is in dispute), IBM would not be obligated to make AIX open under GPL (since it is not putting it as GPL'd code in AIX). And since the rights under GPL are already released, even if SCO prevails to own the code because IBM developed it, it has no means to withdraw the rights already released under GPL. What SCO would have to prove is that the development was done at IBM, under IBM ownership, for AIX and/or Dynix/ptx, now subject to the disputed license, then donated to Linux under GPL. Just looking at the AIX and Dynix/ptx code isn't going to show that.
Suppose the worst happens and SCO prevails and the courts believe that certain (at that point identified in court) pieces of code are owned by SCO and their unlicensed distribution and use infringes on SCO's intellectual property. Linux can deal with this very effectively by simply releasing a new version (wanna place bets on how quickly that will happen) without any of that code from IBM. SCO's current case is against IBM, not against Linux. So even if SCO were to prevail, their recovery under that case is only against IBM. There will be two areas of infringement in Linux to consider: the past and the future.
now we need to go OSS in diesel cars
It would seem to me that they would need recent code to prove that IBM is *still* in violation, not just their old stuff. Of course no one on /. dares mention that.
A blog about stuff.
I nominate this for the best comment ever posted on Slashdot.
RaGe
We're all just noise on the wires..