Novell Quotes AT&T on Derivative Works

grendelkhan writes "Novell has released their latest correspondance with the litigous bastards ordering them to stop the lawsuit by noon tomorrow, and clarify what the SVRX licensing agreements with AT&T meant regarding derivative works. The letter quotes AT&T from the April '85 issue of $echo as stating that they 'claim no ownership interest in any portion of such a modification or derivative work.' So much for the ladder rung analogy." And reader highwaytohell links to today's CRN article in which Eben Moglen suggests that the SCO/Linux lawsuit cannot move ahead "until SCO resolves its dispute with Novell. And regardless of which company prevails in court, he said, customers won't have to pay any company for a license fee since both claimants--SCO and Novell--have distributed the Linux code under the GPL. Once again, SCO have no comment."

Comments

Meanwhile, back on the western front...

[ackthpt]

Assuming that this letter kicks the stool right out from under SCO (and Canopy) while they attempt to raid the cookie jar, we now return to "copyrights, Copyrights, Who Owns the Copyrights?"

IIRC SCO claims the copyrights and Novell claims "NOT!" the battle, what's left of it shifts to SCO having to defend themselves from Novell before they could proceed on anything else.

Looks pretty awful. I wonder when they'll exhibit some sense and give up, granted some heads would roll at SCO, but it's been a long time coming.

Re:Meanwhile, back on the western front...

[Zocalo]

OK, let's wax lyrical and assume that SCO's cupboard is finally bare and it's all over for SCO's case freeing up IBM to go for damages, and maybe Novell, Red Hat and others as well. Once the lawyers are paid off, there is not going to be much left in the piggy back except for SCO's various Unix licences and copyrights, which will probably get transferred to IBM or Novell. The big question then is, what will *they* do with them?

First and foremost, IBM is a hardware and services company; they don't *really* care about software beyond the fact that it helps them shift hardware and services. If they can get revenue from the software, great, but it's a drop in the ocean as far as their turnover is concerned. Novell is primarily a software company, although they do appear to be trying to reinvent themselves as a Linux networking services company to me.

So, what do either of them have to lose by simply releasing all of their newly acquired copyrights and licenses into the public domain? Perhaps not a lot. What they have to *gain* though, is phenomonal; for a start the OSS community is going to see them as the heroes that set UNIX free which brings its own rewards. Best of all for IBM and Novell though, it's going to be a big kick in the teeth for Microsoft and will probably have a serious impact on Solaris sales as well.

It could well be that 2004 is *the* year that OSS really hits the big time that has been inevitable for so long. But who would have dreamed a few years ago that it might be IBM, Novell that made it happen after SCO/Caldera inadvertantly provided the catalyst?

Re:Meanwhile, back on the western front...

[Citizen of Earth]

Moreover, according to the case law I've seen presented on Groklaw, it looks like SCO's theory of derivative works is unreasonable, to say the least.

The question in my mind is whether the judge might make a ruling w.r.t. the definition of "derivative works" that will be used in the case. Her job is only to get the discovery process back on track, but the case hinges on this definition to determine whether IBM needs to show its AIX code to SCO. The judge herself said that it's unusual to take a decision in a discovery proceeding under advisement. If she comes back with a decision on this matter, then the thin remaining threads of SCO's case completely disappear.

Re:Meanwhile, back on the western front...

[gidds]

Well, they certainly seem to have been leaving the door open for future claims and arguments. Or at least, that's how I interpret their continuing refusal, in court, to detail all of their claims -- a few allegations here, a few lines of code there, but not even the judge can get out of them exactly what they're claiming.

Maybe they're still checking the details themselves, maybe they're trying to give IBM as little time as possible to respond, maybe they have something really clever up their sleeves. But personally, I think they know they have nothing, and are either hoping something will turn up (maybe from all the discovery they want from IBM), or that by adding new claims at long intervals, they'll be able to spin it out until everyone gets fed up.

Re:Meanwhile, back on the western front...

[rm -rf $( find . -mt]

Will AT&T ever have a word to say on this?

Re:Meanwhile, back on the western front...

[Anonymous Coward]

Once the lawyers are paid off, there is not going to be much left in the piggy back except for SCO's various Unix licences and copyrights, which will probably get transferred to IBM or Novell.

That can't happen. A court cannot pass down a judgement which would bankrupt a company, no matter how culpable it is. I think the reasoning is that innocent people who are making an honest living working for a dishonest company should not be punished for what they did not control. I learned that during the tobacco settlement hearings. But the law has helped telemarketing scammers too.

Re:Meanwhile, back on the western front...

[sloanster]

So, what do either of them have to lose by simply releasing all of their newly acquired copyrights and licenses into the public domain? Perhaps not a lot. What they have to *gain* though, is phenomonal; for a start the OSS community is going to see them as the heroes that set UNIX free

um, no - if they abandon it to the public domain they would not considered idiots, not heroes -

The public domain dumping ground is the absolute _worst_ place for anything of value, since it's then open season. Some crappy monopolist could just grab the whole thing, put a few incompatibilities into it, call it "new technology", get it patented, and lobby to have laws passed which would make it a crime to attempt to interoperate or reverse engineer the protocols.

Better, much better, if it were all placed under the protection of the GPL. Then they might be considered heroes, and rightly so.

Re:Meanwhile, back on the western front...

[Eggplant62]

Well, they certainly seem to have been leaving the door open for future claims and arguments. Or at least, that's how I interpret their continuing refusal, in court, to detail all of their claims -- a few allegations here, a few lines of code there, but not even the judge can get out of them exactly what they're claiming.

Maybe they're still checking the details themselves, maybe they're trying to give IBM as little time as possible to respond, maybe they have something really clever up their sleeves. But personally, I think they know they have nothing, and are either hoping something will turn up (maybe from all the discovery they want from IBM), or that by adding new claims at long intervals, they'll be able to spin it out until everyone gets fed up.

From everything I've read in the case, especially the transcript, Mark Heise, counsel for SCO, practically requested that the judge allow him a fishing license so they could go through the IBM/Sequent codebases on an expedition to find something, anything to substantiate their code. The requests to see AIX/Dynix are nothing more than SCO saying, "We think we have a case, however, without being able to compare the current code bases, which we do not have, to our own code base and to Linux, we cannot substantiate our claims any better."

In other words, they don't have a case, they know they don't have a case, and they're praying that they can get enough leeway outta the judge that she'll allow discovery on the two code bases in question so they can come up with a case. IBM has known all along that SCO et al are completely full of shit, has anticipated that SCO has no proof of anything and will do anything they can to keep SCO from getting the code they need for their fishing expedition.

The judge can see right through all of the SCO shenanigans. I'd have loved to have been in judges chambers on the 6th to have heard the exchange that went on. I'm betting Heise got a very stern talking to over what's happened so far, and ordered Heise, et al, to do several things:

1. Produce the discovery items that IBM has requested per the order to compel.

2. Indicated that SCO's side of discovery will continue to be stayed until SCO coughs up *everything*.

3. Put a muzzle on McBride, Sontag and the rest of the idiot windbags at SCO as it appears that anytime any one of them opens their mouth, it's been quite damaging to their own case.

Notice how since the last hearing, SCO has become *very quiet*. They issued a very short press release, and didn't hold the press conference that had been promised for after the hearing. McBride hasn't had anything to say since the Harvard thing. This is a good thing. Their attempts to spread FUD have completely backfired, and I'd believe that they finally have figured out the first rule any attorney tells a client: Don't say anything to anyone about ongoing litigation. Shut the fuck up!

IBM and their attorneys appear very confident that they have all the loose ends and every possible defense lined up in case of anything that SCO tosses at them. Notice how much the case has morphed since it's been filed, worse than any chameleon with a bad case of the jitters. I could tell that Heise, with all his whining about what a burden discovery has been for his client so far, hasn't scored *any* points with the judge.

In the end, I believe the judge is going to come back and issue an order stating that SCO is to produce what's been asked of them, *everything* requested by IBM, within 30-45 days. Until then, discovery in the other direction will remain on hold. If SCO again fails to meet what's required of them, I believe that the judge will end up tossing the case as it's already quite weak in substantial claims.

Re:Meanwhile, back on the western front...

[Nurseman]

Notice how since the last hearing, SCO has become *very quiet*. They issued a very short press release, and didn't hold the press conference that had been promised for after the hearing. McBride hasn't had anything to say since the Harvard thing.

The one thing that most impressed me about this case is the differance between the three companies. SCO makes these outrageous claims in the media "millions of lines of code, Thousands of files..etc" And then goes to court and says "we can't show you until you show us".

IBM and Novell are quietly behind the scenes, very professionally making their case. It is like a masterful game of chess, you see piece after piece being moved into place, for a final checkmate. Really a pleasure to watch.

license agreements useless

[potpie]

If SCO actually started selling binary only (or whatever they are) licenses, wouldn't they be violating the GPL for every bit of code that wasn't theirs (assuming they had some in there at all)? Correct me if I'm wrong (no really, I think I might be wrong), but isn't it inevitable that if they have any code in the kernel, it'll be removed not because they have to point out what's theirs but because they have to point out what's not theirs?

Re:license agreements useless

[Anonymous Coward]

IANAL, but that would seem to violate any reading of the GPL I can imagine.

Of course, SCO claims that the GPL is not applicable in any way, so...

I refer you to Eben Moglen's recent position paper concerning that if you want a more lawyerly oppinion of just why SCO is wrong.

Re:How soon we forget.

[Xenographic]

Don't get me wrong, linking them to that term so that they show up on certain Google searches is rather immature.

However, it represents only a 1st Ammendment protected oppinion, and poses no harm nor threat to SCO in any way.

In short, yes, it looks bad and should probably be avoided simply because of the impression certain people in the media try to give of us [1], but it is still a valid form of protest.

We can't all picket SCO's offices [2].

[1] Especially Daniel Lyons of Forbes, who I have recently chastized here for quoting random trolls and jokes as sources for his "story" ... see my posting history. I strongly suggest you not turn to Forbes for financial advice if this is the extent of their "research" ...

[2] Incidentally, as you can read from some rather old Groklaw.com stories, SCO made false signs to mingle with those of the protesters and to malign them, saying something to the effect of 'we support communism'. So any further actions by them would not be the first time they had used an agent provacateur to malign their opponents...

Re:litigous bastards?

[GQuon]

Google has apparently noticed, and now neither litigious bastards or just plain bastards comes up with SCO

Could be wise if they want to avoid a lawsuit.

Wow. That means that either

• Google is more afraid of SCO than they are of the president*.
• Bastards complained that they were wrongfully associated with Darl McBride and co.
• Google has pity on the Caldera employees.

* Michael Moore is now the top miserable failure. How long before they drop him off the list like they did SCO?

They bought the "Linux license" from SCO

[brett_sinclair]

According to one of SCO's lawyers, in a letter published on Groklaw, SCO only managed to sell three "Linux licenses".

Yes. Three (3).

He says: "At this juncture, I am only aware of a license with Computer Associates, Questar and Leggett & Platt."

I'm betting you can get a good price on a used Linux license from them by now...

Re:They bought the "Linux license" from SCO

[pato perez]

Why did these three companies but a SCO license? One could easily conjecture why Computer Associates would want to support SCO. Questar is a Utah company, so it wouldn't surprise me if there were some incestuous link between them and SCO/Canopy. Reason for Legget & Platt? They're based in Carthage,MO--perhaps there's an LDS link? In any case, these companies most likely bought licenses to support SCO--not because they felt SCO's claims have any merit. They aren't likely to sell, even if they could.

Re:They bought the "Linux license" from SCO

[briansz]

I managed a crew of workers some years back at a mid-sized store fixture company that was later acquired by Leggett and Platt.

While I left before the acquisition by L&P was final, if the two companies are anything alike, this is not only poetic, but hardly surprising.

The corporate culture there was comprised of a bunch of new-agey, good-feeling, responsibility-shirking, issue-clouding, completely spineless Yes-Men spewing first class BULLSHIT.

I've decided today after reading that Leggett and Platt bought a SCO 'license' that there is such a thing as Karma. And it's delightful to observe it in action firsthand.

Re:They bought the "Linux license" from SCO

[Our Man In Redmond]

A link to between SCO and Legget & Platt was pointed out on Groklaw:

http://216.211.138.77/company/mangmnt.htm

Michael O'Brien, CEO and Founder of goahead software presented at a SCO
conference.
From 1993 until 1999, Douglas W. Brown(now president of goahead software) was
president of a Seattle area manufacturing company that was acquired by Leggett
& Platt,

Make of it what you will.

By the way, the Carthage that figures prominently in LDS history is in Illinois, not Missouri.

RBC, TICC, SCO

[b00y4]

I was reading through the message boards on Yahoo! Finance for SCO, and there were several messages about RBC, TICC, and SCO, with the implication being that perhaps there was some illegal activity going on in the financing of SCO. I have not read anything about that on groklaw or /. and was wondering if anyone here knows anything about it.

Re:litigous bastards?

[Pharmboy]

aActually, I would disagree. I wrote the BBC and received a reply today. Ironically, they did not seem to address the actual issues I brought up. I do give them credit for at least replying, however, the text of their email is as follows:

Thanks for your e-mail.

I have noted the points you made - as well as the vigorous debate on Slashdot.org about this article.

Well, Stephen Evan's weekly "stateside" column is not a news story, but an analytical look at major events and business trends in the United States.

It is, of course, debatable whether MyDoom/Novarg/Shimgapi was written just to bring down the SCO website, or whether the installation of spamming tools on numerous computers was an additional - or even the main - motive.

That was not the point of Stephen's article.

In his piece he wanted to draw the attention of BBC News Online's audience - many of whom are unlikely to know the ins and outs of the Open Source debate - to the rapid spread of Linux as a commercial application, SCO's attempts to cash in on this fact, and the deep anger that SCO has caused within the Linux community through its legal actions.

Stephen is not the first to draw the link between MyDoom and SCO's actions over Linux - plenty of others have done that before, including virus experts.

Regards,

Tim Weber
Business Editor
BBC News Interactive - www.bbc.co.uk/businessnews

Now, I would disagree with the point of the article, which the BBC won't even claim is an article. They seemed to be more intent on defending themselves than addressing issues. They even brought up Slashdot in my reply, although I didn't tell them I read about it at slashdot. My original letter is as follows:

After reading the story titled "Linux cyber-battle turns nasty" by Stephen Evans, I have to question the research that went into the article. While the author tries to remain objective, there are many assumptions in the article that simply do not hold water.

To put the blame, without any evidence, on a group of Linux users is certainly easy, and at first glance it may seem appropriate. However, a small amount of research would demonstrate the author of the virus would have to be an expert Windows programmer. Generally speaking, programmers who excel on one platform are not experts on another. The differences between Windows and Linux are broad enough to make specializing in both rather impractical. This is demonstrated by the difficulty in porting Windows applications over to the Linux platform, and the fact that Linux runs on many different CPUs by design, whereas Windows runs on the x86 platform only.

A more plausible theory, and one more backed by the facts, is an individual or group who writes a virus that can DDOS (Distributed Denial of Service) any website, and chooses SCO because they know that Linux zealots will be blamed. Its the "perfect crime" in that many will blindly blame someone other than you.

If the author of the article had done any significant research, he would have discovered that all of the well known programmers in the Linux community are quite confident that SCO will not prevail in its court case, and have publicly, loudly, and often told fellow Linux users that it is important to NOT attack, verbally or digitally, SCO. The courts will do their job. The fact is, this attack makes the Linux community look bad, and it is likely that any member of this community would know this, and would be less inclined to participate in these actions.

I can't say with any certainty who created this virus, but in spite of your articles claims, it is NOT obviously a Linux zealot.

By the way, I'm a happy Windows user who dabbles in Linux because it is a fun operating system. I am concerned about the SCO lawsuit, and more concerned about the FUD (Fear, Uncertainty and Doubt) that is being spewed by both sides. I am quite disappointed when an ins

watch the truncat...

[xixax]

Interestingly, the Google news page truncates the CRN headline to:

"Expert Claims SCO-Novell Copyright Dispute Will Halt Linux..."

the truncated bit is "customer lawsuit".

Xix.

Re:litigous bastards?

[pla]

Youd think after the what the BBC published you would try and take this case more calmly?

Some of us really don't give a damn about politics. We do, however, appreciate a good joke, and we do enjoy seeing justice done when the legal system fails in its role.

Having Google's top link to "Litigious bastards" point to SCO doesn't hurt anyone, and made for a good laugh when I first saw that. You could call the MyDoom worm a bit less harmless, but y'know, despite Bruce P begging us all to behave, I really don't give a shit. I egged on the worm, and felt quite pleased when SCO had to change the URL of their web site. Sadly, it appears in hindsight that the worm's author used the SCO attack as a ruse, but the end result remains overall positive. SCO deserves it, and much worse, for their current business model."Litigious bastards" doesn't "call them names", it makes a statement of fact.

Call it vigilanteism if you want, but when a company can get away with obviously "wrong" activities simply because they haven't broken any existing laws, I for one consider it "justice" that they have a fed-up mob come after them to burn them at the stake.

So, behave? Hey, I won't start it. But when a pedophile priest "mysteriously" suicides in a crowded jail cell, we all know what happened, and we all cheer it on. When a father hunts down and brutally disembowels his daughter's rapist, who got off on a techinicality, no one cries for the dead scum. And when a worm targets SCO, well, sometimes two wrongs does make a right.


But, hey... Just my opinion. Feel free to defend SCO's raping of our legal system. And remember, even if they lose, they still got what they wanted (time to sell their shares at a massively inflated rate compared to their actual value). Justice? No. We can at best hope to annoy them, since they've already "gotten away" with the actual offense.

Novell quotes $echo as a legal reference???

[compactable]

... I mean, I loathe SCO as much as anyone, but cmon. This is a small step above pie charts done in crayon.

I'm proud of them finding this, and I'm glad its been brought to SCO's attention, but geez. And publicly announcing this to the world instead of dealing with it in a professional manner - what is is with Utah companies? They're like the morons I work with that reply-all on company-wide emails.

Decorum, children, decorum...

SCO has no comment?

[OpenSourcerer]

I think their comment is right here.

Anything to make this mess go away.

[Linus Sixpack]

It will be nice to see newSCO go down in flames and the legal basis for Linux reaffirmed.

Mostly it will be nice to see the puffery and mugging for stock prices end!

ls

Note the date....

[ptbarnett]

Novell's letter is dated Friday, 2/6/2004.

It was sent via certified mail and FAX. So, Novell can probably demonstrate that SCO received the letter on 2/6/2004.

That was the day of the last court hearing, in which SCO continued to make unreasonable claims of ownership, despite clear evidence to the contrary from Novell. But, do you suppose the letter was received (and acknowledged) before the court hearing?

If and when the judge reads this letter and puts together the time line, what do you think she will do?

Re:How soon we forget.

[j_w_d]

Secondly, who has any real motive besides the Linux users that stand to lose the most? BBC did nothing wrong by pointing the spotlight at the people most likely to have done it.

That opinion is so thick the author undoubtedly lives under a bridge. People with motives - hmm, let's see. How about spammers and computer extortionist and anyone else with a strong economic interest in seeing that the insecurities inherent in Windows remain available to them. Heck, you could even suggest that Symantec has a motive, since there is little economic viability in antivirus software for linux or unix. When you consider that 75% of the MyDoom infections DID NOT carry a payload addressing SCO, then it is quite easily as reasonable to suspect that the SCO thing was just misdirection.

Questar...

[ddavis539]

Is a natural gas utility company operating in Utah. I can't believe they would waste money on linux licenses. I would love to know how much they wasted on licensing fees.

Maybe it's just a coincidence, but they recently raised everyones rates substantially. For example my bill for January was almost $300, which is triple what a normal winter gas bill would be. They claim it has to do with high demand for natural gas, but I wonder if they are attempting to recoup their linux license fees to SCO as well.

The public utility commission is going to get an earful from me tomorrow!

Re:Holy rumour mongering...

[fferreres]

That's true. You can probe it easily. Their stock, instead of being higly volatile, and despite the strong indication that they not only can win the case, but that they don't even have the RIGHT to those claims, and despite the fact they have been lawfully revoked any right regarding those claims, based on the very same contract that granted them the (restricted) ownership of a SVRX, their stock has been maintained all day at a fixed value. A present value.

Somebody, for some reason, I forcing the stock not to fall. Once that "someone" is identified, and it's verified they operate in Bahamas o Caiman, then we'll know it was something very much illegal.

What you will never know is who ordered that SCOX should not go below certain threshold...unless Mr McBride talks in order to avoid jail.

Re:Holy rumour mongering...

[BigFire]

I cannot speak for the previous period. But recently, SCOX restructured their PIPE finance/loan from Baystar/Royal Canadian Bank to have a floor price of conversion for the $50 Million invested. Thus, Baystar would be guarentee of their initial investment. Should the stock price falls below the floor price, SCOX have to pay the difference.

Since the trade volume is so light, it doesn't take much effort of trading amounst friends to maintain the price.

The GPL and IBM's Counterclaim

[Chordonblue]

There's nothing wrong with selling the code in binary form - just as long as you can produce the GPL source code you used (as per the license).

Now IBM on the other hand is arguing an interesting point in their counterclaim. They are saying that SCO are not living up to their agreements because of the lawsuits. According to the GPL, SCO are not allowed to claim ownership on GPL'd code or sue to assert any sort of rights to it. IBM has therefore 'pulled' their right to use any code GPL'd by IBM (and there's a lot of it).

Now, 'pulled' is in quotes because obviously SCO is still distributing (or we can assume they are), some of IBM's GPL-based contributions. This is similar to the way SCO 'pulled' IBM's right to distribute AIX. IBM disputes that right due to wording of the license. SCO disputes the right of IBM's assertion by saying the GPL itself is invalid.

If the trial ever gets to the point of validating the GPL, it will be interesting to hear SCO's side of this one. To quote 'Airplane':

'They bought their tickets, they KNEW what they were getting into... I say, LET 'EM CRASH!'

SCO (previously Caldera) played by the same rules as everyone else when they willingly and actively contributed to the GPL. To all of a sudden claim that the GPL is invalid after YEARS of contribution to it is ridiculous! If SCO makes it through the lawsuit without losing their business it will be a miracle.

It's kind of a shame too because this has nothing to do with the programmers, dealers, users, and other stakeholders. This is about lawyers and corporate exec scumbags enjoying their retirement on some tropical paradise.