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SCO Complaint Filed -- Including Code Samples
btempleton writes "The folks at Groklaw have posted a story including a preliminary copy of Caldera/SCO's amended complaint, including lines of code they allege were improperly included in Linux. The PDF can be found at this story The file lists unix filenames with line numbers and filenames and line numbers from the Linux 2.2 and 2.4 kernels, so folks can now go into real depth."
That would actually be a bad thing for open source, because it would set bad precedent. It would be much better to wait for the case to be resolved. If and only if it turns out SCO code really is in the kernel should the offending code be replaced. I'd be much more interested in seeing the CVS history of the lines in question -- who put them in and when -- than I'd be in seeing a new "SCO-free" kernel.
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That would be an admission of guilt.
Ameding the kernel could actually be bad for the community. It would acknowledge the validity of the SCO's claims. We shouldn't change anything until the offending code is proven, beyond a shadow of a doubt, to be a copyright violation.
Otherwise we'd just look guilty.
What I do think that should DEFINITELY be done immediately is just for the heck of it, some minimal-- maybe not even well-done, maybe just copying code from 2.0 or whatever these files were like before the submission-- patches that remove all of the allegedly infringing code should EXIST, if not be incorporated into the main linux tree, just as a proof of concept.
So that later if SCO is trying to claim "we've been damaged by this", people can respond with "bullshit, those files were nonessential to Linux, look how quickly the community was able to provide replacements and it wasn't even something they had to or had reason to do".
Irritable, left-wing and possibly humorous bumper stickers and t-shirts
That would actually be a bad thing for open source,
I agree. I admit there is a possibility that there is some bad code in Linux (ala SGI, for instance) but at least now we can look through what they are *claiming* is theirs, research the origins for that code, then make a decision. If there is any questionable code, then do the right thing: replace it. My guess is *if* there is infringing code, it would be very minor sections since any large section would have been spotted by now.
Ironic that SCO has been doing everything they can to prevent programmers from doing the right thing.
Tequila: It's not just for breakfast anymore!
"21. By way of example, in the personal computing market, Microsoft Windows is the best known operating system. The Windows operating system was designed to operate on computer processors ("chips") built by Intel. Thus, Windows serves as the link between Intel-based processors and the various software application that run on personal computers."
I count at least 3 major logical errors in that section, and find it's existence in this document unjustified.
1. Windows is not an operating system, but a family of them - Windows 98, Windows 2000, Windows NT are the operating systems.
2. They were not all designed with Intel as the only manufacturer of systems that the OS should work on.
3. The OS does much more than work with processor "chips".
It seems unlikely to me that lawyers proefficient with modern computer systems worked on this document.
IBM has violated 2.01 of the Software Agreement by, inter alia, using and assisting others to use the Software Products (including System V source code, derivative works, documentation rrelated thereto and methods based thereon) for external purposes that are different from, and broader than, IBM's own internal business purposes. By actively supporting, assisting and promoting the transfer of UNIX technology to Linux, and using its access to UNIX technology to accomplish this objective, IBM is (a) using the Software Product for external business purposes, which include use for the benefit of Linus Torvalds, the general Linux community and IBM's Linux distribution partners, Red Hat, Inc., Novell, Inc., SuSE Linux AG and their respective subsidiaries; and is (b) directly and indirectly preparing unauthorized derivative works based on the Software Products and unauthorized modifications thereto in violation of 2.01 of the Software Agreement.
Notice that SysV code is not listed amongst the files in the complaint. The above claim is only true in the case that SCO's Idea of a derivative work is valid.
IMHO, this is actually a reasonable leagal document, where there may be an actual dispute over the idea of a derivative work. However, SCO should not be allowed to change its tack in the middle of discovery, until now this case has been about a claim of copying of sysV code and breach of contract, but now they are claiming here that there was no copying and IBM breached its contract by contributing code that IBM owns into Linux. SCO no longer claims, as they did in there initial filing, that IBM improperly contributed sysV code into Linux. This should not be allowed on the grounds that until now, SCO has been using improper contributions of sysV code attempt to persuade people to pay license fees. This also means that SCO has once again lied publicly about the ammount severity of the copying. In fact the Linux community would not be a party to the dispute if JFS, RCU, and NUMA were removed from the kernel. (These documents do not explain how SMP is affected accept by NUMA.) In that case the court cannot ignore what SCO has stated in public, while allowing them to state something substantivly different in court, its one or the other SCO, not both.
In any case Linux is indemnified by the fact that they asked IBM if all of there technologies were contributed in good faith, IBM said yes, and the Kernel development community had no reason not to belive them.
I still think that SCO has a lot of explaining to do when this is all said and done.
Did Glenn Beck rape and kill a girl in 1990? gb1990.com
Moreover Microsoft originally wrote the Xenix code that became SCO UNIX for the Intel 8086 based IBM PC. Windows NT was designed to run on RISC chips from the start. The 'NT' part is the name of the chip it was going to run on. The original code was written on RISC and as recently as 3.5 it ran on the DEC Alpha.
Windows runs on that RISC Intel 64 bit chip they were playing with (whats the name?)
Like the whole point of Windows NT was to be able to move to other chip lines...
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When the case is in front of a judge or jury and the timeline for how quickly code is replaced is presented the judge might just dismiss the case right then and there. Simply put in infringement cases you need to have damages. If all they had to do was release the lines of code they claim are infringing and it's replaced by the end of the week that goes to show how valuble that code really was. The most they could possibly get, if the judge found the code non trivial, is about $10,000 to $20,000 dollars just as a penalty. That's why I think a judge could dismiss the case as SCO couldn't pay their lawyers with that.
But chances are the case is too political and the defence would protest to get the code judged as infringing or not. It's a landmark case as to the methodology to determing what is infringing and what is not when it comes to code.
To me at least it takes a signifigant amout of code, tens of kilobites worth that couldn't be replaced within a month. Damages would have to exceed a quarter million dollars just to judtify taking the case to court. When code can be replaced so easily where is it's value?
I suspect that IBM has been paying close attention to the 'subversive' activities at Groklaw, but I wonder if they'll ever get any direct credit for it. There's been a great deal of
PJ and her legal elves certainly deserve our thanks.
"...Well, there's egg and bacon; egg sausage and bacon; egg and spam; egg bacon and spam; egg bacon sausage and spam..."
Won't matter. The code in question appears to be contributions by IBM -- things like JFS. There's never been any question but what IBM made those contributions. Now it's an issue of whether IBM making those contributions violated their old contract with AT&T. Which is exactly what the claims from SCO got pared down to this week.
Assume for the moment that IBM loses the contract case -- which seems unlikely. In general, it's damned hard to put "trade secrets" back into the bottle once they're out and as widely distributed as these. The court would probably award SCO damages, but would also note that the secrets are no longer secret, which would preclude SCO from actually getting damages or license fees from anyone else. Any real lawyers willing to comment on that?
"78. However, as is widely reported and as IBM executives knew, or should have known, a significant flaw of Linux is the inability and/or unwillingness of the Linux process manager, Linus Torvalds, to identify the intellectual property origins of contributed source code that comes in from those many different software developers. If source code is code copied from protected UNIX code, there is no way for Linus Torvalds to identify that fact."
Um. If source code was copied from protected UNIX code, how the @#$@%@# would Linus know about it? He doesn't have access to the protected source code - it's protected! The only way to know is if the owners of the protected source code make the claim and are able to back it up! How can Torvalds be faulted for not being clarvoyant? Do they mean identify it after the fact? AFAIK no one can say yet that the origins of code X can't be identified. SCO hasn't even let us TRY - they won't tell us what they want identified!
If what they are actually saying is that open source shouldn't be allowed to proceed simply because it doesn't have massive paperwork assigning every bit of code to some source, they've been hitting the crack again. Email archives, content management back trails anyone? And we can go further than that if we are really forced to - the FSF has been getting copyrights assigned to it for years just in case things come to that pass, and if it becomes utterly necessary that might become common practice.
What I'm hoping will come out of all this is a way that open source projects can set themselves up so that no one can sue them without them actually having done something wrong. (OK, OK - I know anyone can still bring the lawsuit. I mean create a situation where the project dispose of the suit in such a way that it doesn't cost the project or developers much of anything and discourages idiots like SCO from attempting it.) That would be useful, and if SCO is the start of a trend may become very necessary.
"I object to doing things that computers can do." -- Olin Shivers, lispers.org
What's so ironic about the suit to me is that when IBM entered the Unix market with AIX in 1990, they were the *first* Unix vendor to introduce their own journal filesystems and volume management tools integrated into the OS.
These now-common approaches to improving the reliability and flexibility of Unix were part of IBM's value-add to Unix... a bit of heritage from their mainframe and minicomputer perspective. It wasn't enough in the marketplace to overcome IBM's late-ness to Unix and the odd uniquenesses of its registry-based configuration, but it did help somewhat in enterprise environments.
Anyway, after 10 years in the Unix market, IBM decides that having had minimal/modest success in the commercial Unix marketplace, perhaps they would have better luck in the free Unix marketplace (making money selling services,) particularly if they can catch this wave early rather than spending a decade worrying about cannibalization of their own product line. So they take the AIX 'crown jewels' and share them with the free Unix community.
And SCO claims that they are derivatives of SCO's original Unix work?!
If any version of AT&T Unix/Unixware that shipped to people like IBM included journal filesystems or volume management or NUMA SMP, then maybe I could buy it, but given the dictionary definitions of "derived" I just can't.
(dictionary.com entry for
"derive": "to obtain or receive from a source".
"derivative": "copied or adapted from others")
--LP
>>No copyright claims any more. No trade-secret claims any more. It's down to breach of contract against IBM.
And up to $5 Billion for damages.
Wow, a collection of header files that have similar function declarations!!! Unreal! Those IBM bastards!
Correct me if I am wrong, but POSIX compliance does not require a license from SCO. Defining these functions similarly to the SysV style is not a breach of IP. It's the code that these functions represent that may be in breach, but SCO does not outline any of this.
Also, the JFS file system is IBM's own work. Yes, if IBM makes a change to the actually system v code base by adding jfs, then those changes are only usable by the licensees. But there is no indication that the implementation of JFS made any impact on that SYSV standard. Its a code base that is external to the licensed system v code and is therefore not under any of SCO's jurisdiction.
In conlusion, their case is null and void. I hope their board of directors spend a few years behind bars for this spectacular abuse of the US legal system. Maybe IBM can pay off some inmates to make Darl someones bitch.
SCO's filing was 80% fluff and was filled with a lot of mistruth concerning the os marketplace. Looks like it comes down to one question: does SCO or IBM own JFS. The answer there is obvious. Regardless, SCOs bantering about wanting $600 per processor and the like are silly - most linux users don't use JFS anyway. At the end of the day we can expect more suits like this as Linux erodes the value of intellectual property. And it's important to remember that an idea is only valuable if it is a comparitively good idea... Had SCO continued to innovate, and adapt to the market there would be no reason to sue. Linux exists because Unix vendors screwed users for far too many years.
-- $G
Since you know nothing about Concurrent Version System why don't you just ask whether it is possible to know where the specific code came from. The answer is yes. Everything is logged and since kernel contributions go through Linus and several other kernel developers there is no chance in hell that code would just appear in the kernel unaccounted for.
Blaming the demise of SCO on Linux is stupid. They were not moving forward. What really killed the horse drawn carriage was the motor vehicle changing the whole business. SCO blaming Linux for loss of biz is really having a big scratch through the garbage can. Linux is part of a *nix renesance that SCO is not contributing to, and IMHO, has no rights to.
Engineering is the art of compromise.
It is plain-as-day that IBM's adoption of Linux is yet another thrust/counter-thrust in the decades old struggle against Microsoft, especially now that they threaten the Enterprise market with increasingly robust NT 5.0 based system software (laugh if you want, but that's how you need to see it when painting the Big Picture).
By pushing the free OS, Big Blue can use it to sell consultancy, support and best of all, the leases on their fantastically expensive hardware, while at the same time undermining win2k based systems and harnessing the power of volunteering and crazed idealogue hobbyist developers.
It's a masterstroke strategy, where the payoffs easilly make up for the $Billion Dollar outlay and there are beau-coup bucks more to be saved by phasing out the proprietary UNIX development.
One point this thread seems to be missing is that not a single line of the "infringing" lines they've cited were actually from SysV's codebase. They're citing code that IBM authored for AIX, and that Sequent authored for Dynix. Some of it was actually put into the kernel, other bits of code were just provided as reference material for those who wanted to copy it.
SCO's claim at this point appears to be that, because IBM developed technologies like JFS and RCU, [Man, the Wik knows everything] then those technologies automatically became SCO's once they were implemented within a UNIX derivative.
In my admittedly non-legal opinion, just because a certain OS technique was discovered and perfected on a UNIX-derived platform, that shouldn't mean that IBM loses the right to bring the same technology to any other platform they're interested in.
It's not about IBM swiping SCO's secret wonder code. It's about IBM developing its own secret wonder code and then being told by SCO that they have no right to use it.
You want the truthiness? You can't handle the truthiness!
I don't know what article you read, but it sounds like SCO has a case to me.
And if I only used that one sided court filing from SCO as evidence, then I would agree. Fortunately, this is not the only piece of evidence.
First of all, IBM has taken great pains to insure that anyone on their Linux team has never had access to AIX or Sys5 code. It was setup as a clean room exercise. So, their statements are not damning, since they take great care to keep the two divisions isolated from each other.
Second, if you read something beside this ONE filing, you would know that SCO is claiming that any software or code that has ever been included in AIX is a derivative, which is not accurate. IBM had developed some journaling code in OS/2, then ported it over to AIX, yet SCO is claiming it has rights to this software, even tho it is trivial to demonstrate it is not derived from Unix, it is ported to Unix.
Third, just because a concept was introduced into Unix originally doesn't mean its infringing to be included in Linux. Some knowlege becomes virtually "Public Domain" simply because after 20 years, it has been talked about, documented, researched and experimented with by Universities and individuals. Figuring out how to impliment a feature based upon published documentation and freely available (and useable) information is called reverse engineering, not infringement. For it to be infringing, it must be a "cut and paste" job. Independent discovery is not illegal, even in America.
Fourth, IBM helping Linux is not illegal in and of itself. Implying that IBM licensed code, so any help that they were to give Linux is illegal is beyond ignorant. Their first major contribution was over 100 different printer drivers, for instance.
Fifth, IBM has extensive review about what is GPLed and what is not. They have made it perfectly clear that they will not release code wholesale, and instead are releasing code with full support and documentation, after the code has been reviewed. While they *could* make a mistake and release a portion of code that they should not have, it is unlikely considering all the checks and balances they are going through.
Sixth, there is reason to believe SCO owns the right to USE and LICENSE Unix as it sees fit, but not the copyright to actual code. There is even a lawsuit about it. But if you had read more than this one filing, you would know about Novell vs. SCO.
Seventh, So far all the code released before today as proof has been proven to be in the Public Domain and/or BSD. I have not looked at the actual code released today, but I am sure Bruce Perens will have a release within a day or three with the dirt on that. Also, some of the header files that allegedly infringe are from pre-1.0 days, and are easily documented as owned by Linus, since they were posted on USENET freely back in 91-92.
I could go on and on, but this is already more than an AC deserves.
Tequila: It's not just for breakfast anymore!
Part of the problem is that SCO keeps amending their case against IBM, so you are never sure what to expect next. Another problem is that what SCO says in public is NOT what they say in court. Most non technical people would serve in a jury are not really paying attention, so I can't believe its to "poisen the jury pool", as you would expect with OJ, etc. The only logical conclusion is either they really think they are right or they are artificially pumping up the stock.
/. posting SCO stories, but this case does affect my rights online, since I use Linux mainly to run a bunch of servers. If SCO were to win, it would greatly restrict my ability to do this. This would affect my wallet and my favorite passtime, which are the same: Linux. It may not be the same as spywear, the patriot act or other topics, but it does affect my right to make a living and enjoy computing, so I would respectfully disagree with your point.
I hear alot of heat about
Tequila: It's not just for breakfast anymore!
Two lines here, five lines there.... at this rate SCO/Caldera could claim that any software anywhere is "derived from UNIX" if this is the basis of their claims.
I'm relieved that they finally relented and showed the code, now the process can begin either way.
Without seeing Dynix's or AIX's code base you can't be sure if they mean that the code has similar function or is an exact copy since in some cases they map 1 line of Dynix code to 5 or more Linux lines of code.
As an experienced professional, I'm sure anyone can agree that similar function sometimes dictates similar structure in the code.
This just shows how desperate they really were at the outset.
GJC
Gregory Casamento
## Chief Maintainer for GNUstep
Although SCO's complaint pushes heavily on the derivative works angle, it is far more insidious in implying that the knowledge and experience of engineers who worked on AIX & Dynix prior to being assigned to the Linux project are also the domain and IP of SCO. The complaint quotes comments in some of the code that state that it was based on the work of a specific engineer from another project (AIX?). The complaint further states that the existing community of Linux contributors, apparently a hapless group of bumbling amateurs and hobbyists, lack the knowledge, experience and hardware-testing resources to create enterprise level product. That gap could only be filled by the expertise of IBM's professionals who honed their knowledge through many years of developing AIX and Dynix. By extension, any work done by these IBM and Sequent engineers on Linux could be deemed part of SCO IP even if it bears no resemblance to or has no precedence in Unix source code.
Groklaw:
80. The first versions of Linux evolved through bits and pieces of various contributions by numerous software developers using single or dual processor computers. Unlike IBM, virtually none of these software developers and hobbyists had access to enterprise-scale equipment and testing facilities for Linux development. Without access to such equipment, facilities and knowledge of sophisticated development methods learned in many years of UNIX development it would be difficult, if not impossible, for the Linux development community to create a grade of Linux adequate for enterprise use.
Could anyone comment on "enterprise-scale equipment" and the idea of the impossibility that "hobbyists" could make Linux work at the enterprise level?
The SCO filing says something like "here's these couple dozen short patches of directly copied code, and discovery on IBM's AIX codebase will show millions more". This filing isn't trying to prove there's enough infringement that damages can be collected. All it's trying to show is that there's the faintest glimmer of evidence that even the slightest infringement occurred, in order to get further discovery and delay the case some more. IOW it's yet another attempt to circumvent the judge's order to show with specificity where all the infringement is.
> SCOX stock price, meet Mr Floor?
Wishful thinking, i fear. For a non-programmer, it looks like SCO did produce hard evidence, and so their stock will rise, at least at first.
Nice try bucko. Though some /. users might be too stupid to understand the concept of mitigating damages, but most of us are not.
Besides, the ones who have a third grade concept of liability ("we better not try to fix it, otherwise we'd just look guilty") wouldn't be able to fix the alleged infringing code anyway, so their opinions are worth nearly as much as SCO's claims.
Its also a false predication in that IBM is supposedly responsible for making Linux free. Because it couldn't be possible that IBM recognized a "successful" development community and positioned itself to gain financially by becoming an early adopter. Of course it's only slightly more amusing that SCO themselves tried to capitalize on "free" software... but failed.
The entire court filing is full of this type of crap.
-- No matter how great your triumphs or how tragic your defeats, approximately one billion Chinese couldn't care less.
No, they are free to use their own copyrighted code wherever they please, subject to the terms of a contract that they signed prior to writing that code in which they agreed to limitations on those uses. The contract appears to allow them to use the code in binary form in any of their own products. But it also says that they can't reveal the methods (eg, source code) without AT&T's (now SCO's) permission. There's an addendum to the contract that appears to provide them with a way out of that part of the agreement. One interesting part of the case will be those bits that came from Dynix; they were developed under a contract like the one IBM signed, but without the addendum; when IBM bought those bits, they probably can't bring them under the IBM addendum.
IBM really needs to have this case play out all the way, in order to establish once and for all what portions of their work the contract applies to. SCO's betting a real long shot here, and there's no way IBM can be found liable for $5B in damages to SCO, but it needs to get settled.
Let me guess, your are one of SCO's lawyers, right?
If you are trying to argue to a judge that your code does not contain any stolen code, then SCO points out the alleged lines of stolen code and then as a result, you go changing it, you will have some serious explaining to do to the judge.
The case here is that IBM allegedly contributed code to Linux that was tainted by SCO's IP. Linux included the code in good faith. The code is now in dispute. Linux now removes the questionable code until the litigants can sort our the issues. There is no LEGAL harm to Linux. Simply put, they are not a party to this case. It is a contract dispute between IBM and SCO. Linux is a third party that is not directly involved in this case. Everything SCO says about Linux is in the press room and not the court room.
Furthermore, if Linux were the defendant and they decided to remove the code until the issue was settled, this would be acting in good faith. I can find no section in copyright law that states that if your are accused of infringing copyright, you must continue to infringe until it is proven in court that you are infringing. If you can quote code in this matter, please correct me.
I am not a lawyer, but I have studied law during my masters program.
Viv
Gmail invites for ip
BTW. I am not Celt, I am Russian. But there are a lot of colorful Gaelic curses - and I wonder that nobody addresses them to Mr. McBride.
Let me explain.
SCO claims that the sysv license they inherited in their acquisition of novell's ip gives them right to all derived implementations, the way the GPL does. By extension, they claim a right to anything ibm ever implemented on top of the sysv code. And they claim ibm is in breach of contract by including sco's IP (the ibm developedn kernel stuff) in the linux kernel.
This is wishful thinking. Obviously their license doesn't say this, and novell has already said sco didn't buy what they thought they were buying, so they don't even have the rights they claim they have. The sco honchos took a look at the GPL and went "why didn't we do that?", and now they're trying to retroactively fool a court into thinking their license allows them that kind of viral rights.
It's not going to work. But they will make a lot more noise trying to get it to work.