SCO Lists Specific Code-Infringement Claims

mugnyte writes "Those tireless folks at groklaw have transcribed and published the documents from the latest IBM/SCO hearing. In it, the exact lines of the supposed Dynix / AIX / Linux logic are given. SCO claimed that Linux's read copy update, journaling file system, enterprise volume management system, AIO (Asynchronous I/O), and "scatter gather" I/O code had been derived from either AIX or Dynix/ptx. Now we can take a look at what SCO thinks makes Linux an enterprise-ready platform started at 2.4, stealing away their market share. However, IBM released these things under the GPL ... so what license did IBM really have from SCO to do this? Which raises the question, What license did SCO have from Novell to disallow this?"

Comments

Computerworld article seems to have this sorted ou

[jenkin sear]

This computerworld story seems to have it sorted out:

1) AT&T licenses SysV to IBM and Sequent
2) IBM writes a bunch of cool enterprise level stuff for their flavor of SysV, and acquires Sequent
3) AT&T writes a letter to their newsletter ($echo) saying their license doesn't cover the derivative stuff, just the basic system
3) IBM eventually kicks their stuff into Linux
6) SCO buys up all the old licenses
7) SCO says the work is derivative after all, and they ownzors it

At some point the chewbacca defense starts to look a lot more rational.

Re:So now we have it

[damiam]

Is the code SCO's? Yeah, probably.

Bull. Not even SCO is claiming it's their code (IANAL, but I'm fairly sure about that). They're claiming that it's IBM's code, but the terms of IBM's UNIX license agreement didn't allow them to release it under GPL.

Re:So now we have it

[zjbs14]

Is the code SCO's? Yeah, probably.

Um, no. This is all code that IBM and/or Sequent wrote and incorporated into their own UNIX versions. It did not exist in any code originally from AT&T->Novell->SCO. SCO is attempting to claim that since it was written to work with SysV UNIX, they have the rights to it. Even AT&T specified almost 20 years ago that such code did not fall under the UNIX license.

Not to mention that the JFS code was originally written for OS/2 before it was ported to AIX.

Re:Linux 2.6 infringement free??

[The Slashdolt]

Actually, if you read the article on groklaw Tables C,D,E and F are all referring to infringements in the 2.6 kernel. So it would seem that the 2.6 kernel is not "safe"....

Re:Computerworld article seems to have this sorted

[Crypto Gnome]

Chewbacca Defense

Chewbacca is a Wookiee from the planet Kashyyyk, but Chewbacca lives on the planet Endor. Now, think about that. That does not make sense! Why would a Wookiee - an eight foot tall Wookiee - want to live on Endor with a bunch of two foot tall Ewoks? That does not make sense!

What does that have to do with this case? Nothing. Ladies and gentlemen, it has nothing to do with this case! It does not make sense!

None of this makes sense.

If Chewbacca lives on Endor, you must acquit! The defense rests.

From an interview with PJ

[BSDevil]

"I started my blog just before the SCO case was filed. Originally, my purpose was just trying to learn how to blog, because an attorney and I were discussing the possibility of me doing some telecommuting work for him, including work on his blog

[...]

My thought then was to try to explain legal news stories as they came along. I was forever reading /. [Slashdot] comments about legal news and most of the comments would be way off, and I realized that there is a hunger for someone to explain what it all means, what the process is, how things play out, to people who aren't in the legal field.

[...]

I didn't think too many people would ever read it, except I thought maybe IBM might find my research and it'd help them. Or someone out there would read it and realize he or she had meaningful evidence and would contact IBM or FSF. I know material I have put up can help them, if they didn't already know about it. "

So in short, yes.

Be careful!

[pb]

DON'T LOOK!

This publicly available Caldera documentation could contain items including but not limited to proprietary, unpublished SCO code, copyrights, trade secrets, and/or patents!

Re:An analysis

[tfoss]

Really? It seems to me that AT&T clearly says they never intended to claim ownership of anything developed by licensees.

-Ted

I did some checking

[jaymzter]

Here is an announcement of Novell selling Unixware to oldSCO. Note:

Unixware has never achieved a substantial market share

Another quote, again no mention of _copyrights_

X/Open introduces the UNIX 95 branding programme. Novell sells UnixWare business to SCO

nwfusion makes this interesting distinction:

1992 - Purchases rights to AT&T UNIX
1995 - Sells Unixware to Santa Cruz Operation

SCO loses Autozone, that is 6,000 sites

[puzzled]

SCO lost Autozone to IBM's Linux efforts. They're a huge auto parts distribution chain with about 6,000 stores the last time I looked - I used to work for a much smaller competitor of theirs that went bankrupt in the mid nineties.

Target has *within the last month* told SCO to go pound sand and done a deal with IBM for Linux conversion. I'm not sure how many locations they have - does anyone have that info handy? Please post if you do.

Sherwin Williams I know less about than either of the other two but IBM has helped SCO to the door there, too.

I hope Darl & company get prosecuted but I feel bad for the SCO troops - this is exactly the same behavior (pump & dump) I saw with the auto parts supplier where I worked in the mid nineties. I wrote a perl script that calculated severance for 4,000 employees and the scumbag behind the whole scheme went right into something much nicer than unemployment and vocational training:

http://www.corporateexpress.com/Mark_Hoffman.htm

Re:No, actually

[Sycraft-fu]

Nothing they've told me as of yet, then again, I haven't asked. Point is that they were interested enough to want evidence. I've filed a complaint with them before and their response was more or less "That's nice, we'll add you to the pile".

Re:SCO Waiting for 2.6.0 before submitting this?

[Curtman]

2.6.0 is now in freeze mode and it will be really hard to remove all the lines that SCO alleges are infringement

I don't know where you got that idea. Remember when the entire VM was replaced in the midst of a stable kernel?

Re:Postal Fraud

[Animats]

So when are any of the 1,500 companies that received letters from SCO inviting them to purchase Linux licenses going to step up and complain to the US Postal Inspectors?

SCO is already in trouble in Germany and New Zealand for such things. In Germany, they're under an injunction not to send demand letters to Linux users, and in New Zealand, the Commerce Commission is looking into SCO's activities. "A person or a company falsely claiming to have ownership of a product or service or the rights to payment could breach the Fair Trading Act", says the spokesperson for the New Zealand Commerce Commission. There are also unconfirmed reports of investigations by the authorities in Australia and by the US Federal Trade Commission.

SCO's "sue and threaten everybody" strategy is backfiring.

Re:Correct use of "steal"!

[Ironica]

Uh, yes you can. You steal something when you don't pay for it. You steal owed payment. You steal value (by diminishing it with a copy).

Let's look at this a little closer, with help from dictionary.com:

steal ( P ) Pronunciation Key (stl)
v. stole, (stl) stolen, (stln) stealing, steals
v. tr.

1. To take (the property of another) without right or permission.

take ( P ) Pronunciation Key (tk)
v. took, (tk) taken, (tkn) taking, takes
v. tr.

1. To get into one's possession by force, skill, or artifice, especially:
a. To capture physically; seize: take an enemy fortress.
b. To seize with authority; confiscate.
c. To kill, snare, or trap (fish or game, for example).

Illegally copying a work does not involve capturing it physically (since the physical object need never leave possession of the rightful owner), confiscating it (again, because it is not removed from the owner), or killing, snaring or trapping (because it's not a friggin' squirrel). So to steal, you have to take, and to take, you have to physically remove something from the owner.

Let's start with the fact that "stolen" IP is almost never in the possession of the "owner" when it it "stolen." Generally, someone copies it not directly from the owner, but from a legal license holder. Therefore, even if it does involve physically removing the item (and, under right of first sale, if you *do* physically remove the item from the previous owner, you are specifically *not* infringing on copyright), you did not remove it from the "owner" as defined by copyright law.

It is possible to steal a CD from your roommate, but that is not copyright infringement. It is possible to infringe on copyright by copying a CD your roommate owns, but that is not stealing. It is possible to steal the CD from your roommate and copy it and pass it out to all your friends, in which case you've both stolen and infringed, but you haven't even done them to the same person. This is why the difference is important: stealing involves possession of a physical object. Copyright infringement does not. Therefore, they have to be defined differently, and so the law makes a distinction.

Re:Correct use of "steal"!

[Ironica]

If you obtain something without paying for it, it doesn't matter that the medium happens to allow a direct copy of it.

Your mistake is that you think "steal" means "obtain something without paying for it." It doesn't. It means removing something from someone else's possession (as more completely described, with dictionary citations, in another post of mine above). If all that was necessary to steal something was to obtain it without paying for it, we'd have a heck of a time with gift-giving, not to mention the Free Software movement.

Laws about stealing are about removal of property without consent. Laws about copyright infringement are about possession, distribution, or use of material without consent. They are not the same. Stop confusing them.

Re:WTF is 2.4 1-01 ?

[jadel]

According to those busy beavers at groklaw the kernel version they are referring to is *not* a vanilla kernel. It's vanilla-2.4.1 with rclock-2.4.2-01.patch from http://lse.sourceforge.net/locking/rclock.html applied.
Looking at the patch, IBM is listed as the copyright holder. The code also acknowledges that it is based on the Dynix implementation.

Re:Or maybe Howard Dean...

[Slack3r78]

And for those of you who haven't heard what actually happened.

Admittedly, the version recorded by the directional mic is pretty funny, but if you had actually been standing there, you wouldn't have been able to hear the man.

Errors

[LemonYellow]

Thanks for the information. However,

i) SCO has added a complaint of copyright infringement. See Groklaw.

ii) The case is being heard by Judge Dale Kimball in *Federal* court, not Utah state court. So, the court is perfectly entitled to rule on copyrights.

iii) As for the process being long or short, who knows. However, it seems unlikely to be very long if SCO fails to bring any evidence to discovery, as has been the case so far.

So, your cut-and-paste review is inaccurate in a couple of instances, but let's see what happens.

A joke, right?

[GreatBallsOfFire]

I scanned through the lists, and found quite a few single line entires in the table. I decided to look one up, specifically net/bridge/br_stp.c. Here's the offending line:

p = br->port_list;

If it wasn't for the history behind this, I'd have to laugh out loud. The only conclusion I can come to is that the majority of the claim comes from structure/union definitions in header files, and they extend it to C files wherever a structure/union member is referenced.

If I get some time, I may do an analysis of the list and determine exactly how little this case actually has to do with IP theft.

Re:To say an unslashdotty thing

[aug24]

I'd say you're off, but not by far.

• SCO has repeatedly and publicly claimed that System V code is in Linux.
• They then indicated that methods and knowledge transferred to IBM by their Sys V license were in Linux.
• Now they are claiming that methods and knowledge created and owned by IBM are in Linux, but that they are derivative works of Sys V.

This requires them to use the 'ultra-viral' definition of derivative, which is that any code which has shared a code-base with Sys V original or derivative code is sys V derivative.

Are you laughing at the fools yet?!

J.

Nonsense

[jotaeleemeese]

You don't do what whatever crackpot on the street tells you to do if you believe you are in the right.

If somebody has an issue with your actions they need to negotiate with you or to force you to change your ways. Since SCO has not negotiated (hint: they have nothing to negotiate, they own nothing in Linux, their plan was to make money, not to correct a legal problem) then the Linux developpers should be told by a court of law that there is actually an infringement.

I will never submit to the first idiot telling me I am infringing on his rights if I believe the claim to be untrue, Linux developpers should do similarly.

IBM is guilty of helping two code bases

[Openstandards.net]

I know that I've read before that IBM is being sued for giving away "derivative works", but I never realized how relavent the derivative part of the issue was until I read this. SCO blatantly admits it in its response, although most of their repsonse salts it continuously with insinuations that IBM gave away code that belongs to SCO. Here's where SCO practically admits they don't have a case YET:

INTERROGATORY NO. 6 (IBM to SCO):

For each line of source or object code and each method identified in response to Interrogatory No. 1, please identify: (a) the origin of the code or method, including when, where and by whom the code or method was created; and (b) all products in which, in whole or in part, the code or method is included or on which, in whole or in part, the code or method is based.

SUPPLEMENTAL RESPONSE TO INTERROGATORY NO. 6 (SCO's response):

At the original level, the origin of the code or method, or that on which it is based, is UNIX System V code licensed by IBM and Sequent, i.e., System V Release 3.2 and System V Release 4.0, as AIX and Dynix/ptx are modifications or derivatives of UNIX System V. At the modification or derivative level, the origin of this code is from AIX or Dynix/ptx as set forth in the Tables and tabbed exhibits in response to Interrogatory No. 1. Because that work was done by IBM and Sequent and because SCO has not received complete discovery from IBM on the creation of this code, SCO cannot provide any further detail as to who at IBM or Sequent created the code or method or precisely when they did so. To the extent the contributions by IBM identified in response to Interrogatory No. 1 publicly identify who at IBM made the contribution to Linux, it appears in the tabbed exhibits in response to Interrogatory No. 1. [blah blah blah...]

SCO clearly admits that the code that IBM allegedly agreed not to share was created by IBM! I understand that they are claiming copyright protection to derivative works, but doesn't this greatly weeken their claim that IBM gave away trade secrets since this is code that IBM clearly wrote?

Until SCO can get a detailed response from IBM, it's difficult for SCO to prove that IBM gave code they wrote for AIX and Dynix/ptx to Linux, since they can't prove that IBM didn't write the code for Linux and then put it into AIX and Dynix/ptx. Without knowing who wrote each line and when and for what purpose, you can't say for sure whether or not code portions SCO highlighed are not a derivative of Linux.

Then, if any code was written with for both IBM's Unix and Linux, then which is it a derivative of? Clearly, IBM was writing code for both platforms, and some of it was bound to overlap. If a developer who wrote the code at IBM was trying to ensure it worked in both platforms, then isn't it, by SCO's definition of derivation, both a derivative of Linux and Unix?

Is there a legal precedent in copyright court cases for when product A (code in question) is a derivative of BOTH product B (AIX) and C (Linux), product B is a derivative of product D (SCO Unix), and owner of product D claims that product A cannot be a derivative of anything other than product B, and this should not have been part of product C, which it was also a derivative of?

SCO's whole ability to sue Linux users is based on copyright of the code in question. Yet both copyright and trade secrecy allegations seem to pinge on this concept of just how far derivative works can be defined.

This case seems to be defining them in contractual terms. Yet even the contractual claims cannot avoid addressing who owns the copyright of "derivative" works. To what extent does copyright law support it in complicated scenarios like this?

Add to that that user of product C (Linux binaries) has no knowledge of product B (Unix source).

When SCO and Novell copyrighted Unix source code, did either of them actually include the lines of code that IBM wrote? Was this all backported into Unix System V? If so, should we be suing SCO for infringement of the GNU since this code is clearly a derivative of Linux?