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SCO Adds Copyright Claim to IBM Suit
An anonymous reader writes "News.com.com reports that the SCO Group has significantly widened its Unix and Linux lawsuit against IBM,
adding a copyright infringement claim to the already complicated case." There's also another story discussing the copyright claims.
This is good news. IBM surely has the money to fight the defense. Granted, who knows... maybe IBM did commit some heinous act of open source, but at least SCO's ammending the copyright issue will bring the entire issue to the forefront and get us all a resolution faster. Certainly, its better than waiting for the breach of contract issue to get resolved, then waiting through a copyright case.
I'm no lawyer, but so far as I understand, if this carries through and the verdict is against SCO and the judge feels the case had no merit, IBM should be able to turn around and sue for (very significant!) damanges.
The only asset SCO has that's worth dirt right now is UNIX licensing. Wouldn't it be poetic if the outcome of SCO's market gaming were that IBM sued SCO for all assets, including that, then turned around and freed UNIX once and for all? :)
(Just kidding. This is Darl, and Linux is bad, you smelly hippy.)
I watched Darl's presentation at Harvard in its entirety last night. He (and the CIO at SCO) dodged so many of the questions it was getting boring. Namely Linus' claim of remembering two write 2 of the 70 header files submitted as "infriging" by SCO.
You'd think that after hearing a CEO of a company speak...I'd at least give more validity to their claims. But after hearing Darl...it felt like he was struggling to stay afloat.
Better than Flickr - Manage, Share, Archive
IBM has told the judge that SCO did not comply with her earlier order to specify their claims precisely (in terms of what Linux code was involved). There was apparently a ~30 minute conference with counsel in chambers before the open hearing. It doesn't sound like the judge was too sympathetic to SCO; from one witness's notes:
From other comments the judge made (see the Groklaw write-up), it sounds like SCO may get one more really final order to lay out the specifics of their case. (Ha!)
IBM did not move for dismissal, to the surprise of some observers. My theory is that IBM thinks they have SCO on the run, and want to make sure there is nothing left of them but a glowing crater when this is all done.
So the question is... will Novell sit on the SCO side of the courtroom or the IBM side? Better yet... if Novell is claiming they own the copyright, won't the Novell/SCO issue have to be resolved before the now ammended complaint against IBM can be resolved? My understanding is that once a case is ammended, it must be resolved in full. SCO can't now try to get the contract dispute handled separate from the copyright issue, but the copyright issue is still just that... an pending issue. It'd be pretty sad if SCO had to first deal with Novell, then IBM. They might run out of money first... then they have to start selling the Linux and Unix again.
http://weeklywire.com/ww/02-23-99/slc_cb_a.html
http://www.lds-mormon.com/6303056a.shtml
Seems that Utah is scam central...
putting the 'B' in LGBTQ+
If SCO is going to seek damages for its distribution of AIX after license termination (which Novell and IBM claim it cannot do), can we then as folks who have contributed code to GNU and Linux and all the GPL'd goodies not seek damages from SCO in a class action suit for their violations of the GPL? It seems that they revoked their copy permission long ago by distributing GPL'd works linked to code they licensed non-freely. And they still distribute schtuff to Caldera clients. I'm sure someone would be willing to bankroll that.
Oh, and I should add that the copyright infrigement isn't about Linux, its about AIX being distributed by IBM after SCO revoked their license.
But remember, SCO revoked IBM's license due to trade secret violation...
Violations that SCO isn't going to legally persue
Which rhymes with Catch 22
Which sums up SCO's claims now quite nicely.
I really really wish the slashdot "Do not show stories from the following: Caldera" tick box applied to real life. This thing isnt going to go away for 5 to 10 years, and I can see it ruining a lot of productive time and effort on the opensource side. Its going to haunt us for the forseeable future, regardless of who wins the first round, the second round, the third round and so on. Technicalities will be found, loopholes will be exploited, cases thrown out, new cases raised, you name it. This case isnt going anywhere.
>SCO's comments in the media are not SCO's legal case. That's another
>matter entirely, and one that has been considerably more carefully
>orchestrated.
Interestingly, IBM referenced SCO's public statements in their filing today: http://pacer.utd.uscourts.gov/images/203cv00294000 00103.pdf
The document states that "SCO has identified no more than approximately 3,700 lines of code", then quotes Darl McBride comments at Harvard this week saying "[T]here is roughly a million lines of code". IBM concludes that if McBride's statement is true, "then SCO should have identified them in response to the Court's Order."
Bottom line, SCO's public statements are now in play. Their "more carefully orchestrated" media comments are now a major liability.
I don't know about Novell's permission, but they definitely need the judge's permission. And she hasn't granted it yet. In fact, as I read things, all she did was give SCO an extension in the time they had to satisfy the discovery (though she also asked IBM how long it would take them to respond fully).
I think we've pushed this "anyone can grow up to be president" thing too far.
The funny things is that SCO claimed to terminate the license based on IBM actions which it now admits it can't prove. So if they terminated the license (assuming it was within their power in the first place) on those grounds how can they now claim damages? Sounds like IBM can counter-sue for contract violations and easily dismiss the copyright infringement charges by showing the court the Unix license text. SCO had to tell IBM in writing what they were doing wrong with enough detail and enough advanced warning for IBM to remedy the problem. If IBM failed to fix things SCO's only recourse would be to sue for contract violations, not the ability to terminate the license.
Good to know you can't completely get away with talking so much BS.
The bottom line is that SCO is probably worthless. The values of the stock is to a few insiders, and the strategy is to keep the charade going so the stock will continue to be an attractive item to a few high end gamblers. By the time the SCO crashes, they will no longer be a problem because they will not be able to pay the lawyers
"She's a scientist and a lesbian. She's not going to let it slide." Orphan Black
I complement you. You seem to have hit the nail on the head. Your analysis fits nicely with SCO's "rungs to the ladder" nonsens^H^H^H^Htheory.
From today's hearing;
Heise referred to the 1985 Agreement point 2.01, that "modifications
to SysV code must be treated as derivatives", and he claims that AIX
and Dynix are such derivatives. SCO feels that AIX and Dynix code
has been put into Linux, and that IBM admitted it publicly. Heise
made an analogy to "the first 10 rungs of a ladder", but the ladder
goes to step 20 now, and maybe step 16 has some issues with it.
Heise said that IBM "has not proven ownership of *their* code" and
that they must do so to show that it's OK to put it into Linux.
Heise gave a printout to the judge, and described it as showing
line-for-line ("in red") copying, and mentioned Async I/O and Scatter
Gather as two areas in question. Said they want IBM source code.
Judge said it is SCO's requirement to show: "this is about your
response, and compliance to the court order".
At that point, Heise said SCO cannot identify violations. The judge
said "The problem is, unless you identify those codes, then IBM is
not in a position to have a response. We're at an impasse, and the
case cannot continue with an impasse, that's why there was a court
order".
Heise went back to the ladder analogy, saying "maybe rung 15 to 16"
might be involved, but they cannot identify the lines because SCO
doesn't have derivative IBM code. Heise then made comment (which
drew some audible "Huh?" responses from the audience), that
"Arguments of the case aren't appropriate at discovery." Went on to
claim that they have identified 400 million lines of Unix code and
300 million lines of Linux code affected, but also admitted that SCO
has not submitted everything required by the court order
Truly laughable. Makes you wonder about the enviroment in SCO that cooked this up.
Take the cheese to sickbay, the doctor should see it as soon as possible - B'Elanna Torres, "Learning Curve"
Is this going to be one of those court cases that takes years to be settled?
There must be some old-timers out there who have seen this type of thing in the past; how many series of filings -> hearings -> more filings -> more hearings -> ... does it take?
It doesn't seem that complicated to me...
My understanding was that SCO had to specifically ask for those additional transfers, they had to specifically state it was necessary in order for them to exercise their previous rights. Since SCO did not in fact state this, they didn't get the additional rights.
I didn't find anything to that effect in the document. I provided the link. If anyone can find something that says they have to ask for additional permission, please point out the section number.
This reading of the document says that they now own the unix source code and that they now also own exactly the minimum set of copyrights necessary to enforce that ownership. No further transfers needed. (The other exclusions seem to be for things like Novell products, rights Novell didn't have in the first place, or rights it already contracted away.)
Which is exactly what SCO is claiming. So what will matter, with respect to the copyright issue, is whether the judge will read it this way.
And (if I, a non-laywer, understand this correctly) with Novell saying they didn't get the copyrights and SCO saying they did, the judge will probably decide it on one of two bases.
1) If the judge decides that the text is clear, she will decide according to the clear meaning.
2) If the judge decides that the text is ambiguous, she will determine WHO WROTE the text, and decide in favor of THE OTHER PARTY.
We need to prepare for the possiblity that the judge decides in favor of SCO on this issue - either because the text seems (to a lawyer) to clearly transfer enough copyright to SCO for them to go after IBM (and other Linux distributors), or because Novell wrote it, so any ambiguities are their fault and must be decided in SCO's favor.
So lets have a plan B available to defend our turf.
There's lots of ammo, and for any particular piece of code you only need ONE shot to defend it.
- Portions of UNIX code released into public domain or under other licenses by SCO or one of its previous owners, or an owner of enough rights to do this. (Let's try to do this without resorting to SCO's distribution of Linux. They might get away with their claim that their ignorance of the inclusion of their code by others exempts it from the GPL, while their continued distribution of the REST of the code, now that they actually shipped some, is actually required for a while longer by the GPL.)
- Stuff freed by the BSD case.
- Stuff tracably separately written.
- Court decisions about recycling interface definitions for interoperability being fair use.
And I'm sure there are others.
Bantam Dominique roosters crow a four-note song. Once you've heard it as "Happy BIRTHday" you can't NOT hear it that way
Dear Sir,
SCO has done nothing but double talk for the term of this whole debacle.
To get us and the rest of the world to take your claims seriously you need to show the code *without* requiring an aggregious NDA which is overly broad.
In most copyright cases that I am aware of the primary goal of the plantiff seems to be to *cease being damaged*, but by specifically not showing the code in an acceptable forum, you, Sir, have allowed yourself to be *further* damaged.
You have failed to uphold your end of the case at every turn:
1) Refusing to show the code to the community with out requiring an NDA
2) Purposfully giving IBM 1 million pages of paper with a font so small that it is useless
3) Continually upping the damages which you have caused yourself, by not allowing us to remove the alleged code, if there is any.
Your case is the equivanlent of saying "I own something in your house and I'm going to charge you monthly rent for it, but I wont tell you what it is so that I can continue to extract fees from you". This is absolutely preposterous.
It is absolutely transparent to everyone involved in this case that you are out to capitalize on GNU/Linux's success by using this scheme. It is, to many in the community, a betrayal of monumental proportions that SCO/Caldera has done this when they were once one of the many companys involved in *promoting* open source.
I have a few challenges for you:
1) Show your code in plain daylight, my email is associated with my id here so all you need to do to reach me is click your mouse. We've been begging, no *pleading* with you in every way possible to show the code in a way which isn't an obvious sham (the aforementioned NDA).
2) For any files/code that is in common *prove* to us that it is infringment, unlike the trivial examples you showed at Las Vegas which weren't even SCO's, but come from BSD. Again... we've been hoping that you might do *this* to no avail.
3) Prove my assertion that you're only trying to leach off of Linux's success wrong.
I very seriously doubt that you'll be able to rise to all, not to mention even one of these.
GNU/Linux was built by us, and is maintained by us and would have surpassed UNIX sooner or later with or without IBM's input.
Good day,
Gregory Casamento
## Chief Maintainer for GNUstep
A SCO press release from today states:
The SCO Group Exchanges Series A Convertible Preferred Stock
They are refering to the $50 Million infusion they recieved in October 2003. Does this type of transaction play into the theory of pump and dump and lining pockets or is this a normal long term stategy that any company would benefit from?
Bad boys rape our young girls but Violet gives willingly.
SCO is in a sticky position unless they can produce approximataly that entire million lines of code. If they say they have it, but dont produce it, they are in contempt of court in their own case. If they say thay dont have it, in statements before the court, they are then loading IBMs guns for them in the Lanham Act counterclaim.
Dave Marriott, counsel for IBM at the hearing, replied that HP has, in fact, contributed to Linux. Talk about not having done your homework...
Oh, it was much better than that (I was there). David Marriott didn't just say it -- he whipped out a stack of copies of HP documents describing their contributions to Linux and passed them out to the Judge, the court reporter and the SCO attorneys. Even more impressive, Marriot had a perfectly straight face when he handed the stapled photocopies to Mark Heise.
Note to ACs: I usually delete AC replies without reading them. If you want to talk to me, log in.
The problem is one corp has been allowed to hold an entire industry in turmoil, manipulate the stock market, threaten the corporate world, and not one segment of the so-called American legal system has put a leash on them.
By dropping prior claims and initiating new ones, SCO is just showing (again) that they have no valid claims. Isn't it time that Darl and his supporting team of lunatics were locked up?
Or is there some perverse American "right" to run around accusing and threatening an entire industry without fear of reprisal, provided you just stop making the accusations before you're forced to prove they're true?
Tired of this crap. I was tired of it almost a year ago. More than anything, I just am stunned that they haven't been yanked short by an order to stop making accusations and laying charges until they prove at least one point!!!
I do not fail; I succeed at finding out what does not work.
Considering the amount of cash IBM have already wasted on this exercise, they may as well take Darl's shrunken head as a warning to anyone else considering fscking with their plans. Rather than being money wasted, the fiaSCO becomes a useful precedent.
Xix.
"Everything is adjustable, provided you have the right tools"
"Of course, he's made millions selling SCO stock since this fiasco began, he'll never need to work again."
As luck would have it, Darlin' Darl the Dark, does not have any vested stock options to sell at this time. He draws a realtively small, (about 160K), salary and his stock options are held up pending a string of profitable quarters. Regrettably, IBM appears to have interceded in that endevour and the SCOundrels will not see another quarter. (read that either way: profit, or wrt time.)
The Flatlander