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ZDNet Examines SCO Indemnity Options
Ursus Maximus writes "David Berlind of ZD NET has posted a major opinion/research piece. What do you all think? I don't like the story at all, but he does seem to have made more of an effort to try to find reasons to back up SCO's claims than any of their other supporters have."
from Berlind's Bio ...
... Prior to that, he served as editor-in-chief of Windows Sources, where he led the magazine's push for exclusive coverage of Windows NT for business users.
o si um/speakers/DavidBerlindBio.shtml
http://www.wirelessenterprisesymposium.com/symp
Sounds like permanent brain damage to me.
Ziff-Davis is a Microsoft shill. Their bias
is pretty transparent.
Fear. Uncertainty. Doubt.
Same. Old. Story.
I stopped caring when the guy took the 10-Q filing as a strong piece of evidence against Linux. 10-Q filings need to include EVERYTHING, essentially in "the sky is falling" mode, just in case it does happen and the SEC gets hard core, or even shareholder lawsuits. Yeah, there's always the off chance that SCO might win, but to take this warning in the 10-Q as strong evidence gives strong evidence he doesn't know what he's talking about.
Yeah, I automatically assume anyone who writes an opinion piece I don't agree with is being paid under the table to propagate his or her views.
Take a look at this article from a week or two ago on Groklaw.
PJ compares SCO's worst case scenarios with those of RedHat, IBM & co.
It makes for much more interesting reading than many of the other legal filings I've read... Note how in that article, SCO describes quite a few ways in which its business could fold, compared to rather bland statements that something bad might happen in the off chance SCO ever actually prevailed with some bit of their case.
It's kind of fun to read all the various ways in which SCO might be liquidated, though. I wonder which of them will happen?
To quote the lead comment on Groklaw... "priceless!" ;)
UNIX? They're not even circumcised! Savages!
In that article the guy talks abuot "what is UNIX", and whether a UNIX clone could be built without looking at UNIX source.
1) Linux is API compatible with UNIX. How? Because they read the standards and the man pages. I keep on bringing up that some code that uses select() for timing breaks on Linux because they copied the man page and not the code. Their cleanroom version was copied from the old BSD manpage, and is not bug-compatible to the way that BSD implemented it.
2) They don't even need to be cleanroom, they can just use the BSD code.
What a freakin' moron. Two uninformed pieces.
Maybe you should read past the first sentence of the grandparent post.
RH filed a lawsuit against SCO for "unfair and deceptive actions."
Firing one over the bow like that isn't exactly letting the big boys slug it out...
How did slashdot miss this article?
You don't need to worry.
Read Groklaw. Sit back. Laugh.
Worry? I don't think so.
==
This is my sig. There are many like it but this one is... Oops. Frank, I've got your sig again! Where's mine?
The article, which was truly stupid, ran on ZDNet. While that sounds like Ziff-Davis, it's not. ZDNet is part of CNET, a separate company; they bough it from Ziff-Davis several years ago. Ziff-Davis still puts out PC Magazine (pcmag.com) and Extreme Tech, among other things. Sort of like how Lycos owns Wired.com, not Wired magazine, though those two still have a working relationship that is not apparent between ZDNet and CNET.
Among CNET properties, ZDNet seems to be oriented towards Windows-loving IT pros. Maybe that's part of its Ziff-Davis heritage, or just a marketing decision.
David Berlind argues as if his reasoning would apply to all
the three SCO court cases on the roll. It does not.
The first case (IBM) is based on allegations of contractual
infringements. And the alleged infringements rely on a new
definition of derivative work: since AIX is a derivative of
Unix System V any components extracted from AIX (whether
they have common code with UNIX System V or not) are a
derivative. Accordingly, IBM's contributions to Linux out of
AIX are a violations of SCO' rights. Or so they hope.
The second case (RedHat) is a request for a declaratory
judgment that RedHat distro does not violate SCO copyrights.
SCO is trying to have the case dismissed but in this respect
will certainly fail. When the case really starts, the only
way for SCO to avoid defeat is to show that their copyrights
have been infringed: they have to show common code between
their Unix and RedHat's Linux. They will pass.
Finally, the only case where Berlin's cogitations apply:
Novell vs. SCO. The current case is actually about slander
of title and as such will be dismissed. But it will
resurface quickly as a contractual dispute and there indeed
the judge will have to decide whether SCO bought the
Brooklin bridge.
In between, Berlin manages to call Linux an unauthorized
close: meaning what, who should have authorized it, on the
basis of what? He does not clarify any issues in the SCO
saga but throws up a new question: is he naive or dishonest?
McNealy has been spewing FUD since SCO first announced their lawsuit. This guy's talk prior to the lawsuit would imply that Sun was not just responding opportunistically. They knew about it beforehand, and maybe even contributed to it.
See this article for some McNealy FUD right after SCO started this. Such as:
"We think open source is wonderful and good, but we also believe in copyright and the rule of law," McNealy said.
"We paid a big, big bag of money a decade ago to get IP (intellectual property) rights to do what we wanted to do with Solaris," he said at a press conference announcing a new line of Intel-based servers on Monday. "We've got a free and clear SCO license. Your audit committee won't get a letter if you are using Solaris." said Sun chairman Scott McNealy.
Compare that to HP's response at the same time:
"HP is unaware of any intellectual property infringement within Linux. The complaint is focused on alleged inappropriate behavior by IBM, it is not about infringement by Linux itself of SCO's IP rights."
and Larry Ellison was quick to point to Microsoft as one of the groups behind the scenes:
"All Bill (Gates) says is, 'Give me the opportunity to innovate,' and once again Bill is innovating," Ellison said during a press conference announcing an alliance between Oracle and Sun to promote Sun's Intel-based servers. "You've seen advanced bundling and now you are seeing extreme litigation...They know a lot about extreme litigation."
Correct. IANAL (but I do have a couple of friend who are, and this is how they explained it to me). YMMV/VWPBL etc. etc.:
As long as the ownership of any property (in this case the UNIX IP) is under dispute between two parties in a court of law, then the end user of that property is under no legal obligation to listen to or believe in the claims of either of the parties. The end user is only obligated to the contract she entered into with the original party at the time she started using the property, until directed to do otherwise by the court.
E.g., A rents B a house, and B, in good faith, signs a contract with A to pay a certain monthly rent, gets the keys to the house and starts using it. A couple of years later, C shows up and tells B that the house actually belongs to C, and B should be paying rent to C and not to A. Then, A and C sue/counter-sue each other re. the ownership of the house, and a court starts to look at the matter. While the matter is sub-judice, (and without any clear directive from the court to put the rent in an escrow fund etc.), B is only obligated to follow the contract with A.
This is true especially if the matter is sub-judice. So the issue of indemnity is moot.
cheers- raga
If they lose the Novell suit, they don't have rights to UNIX they can enforce against others. If they lose the IBM suit, their wierd legal theory under which IBM "contaminated" Linux with IBM-developed code to which SCO has contractual rights goes away. And if they lose the Red Hat suit, there's an injunction against them preventing them from sueing end users.
So quit worrying.
2. The fact that it took them MONTHS to produce, even for the court, any evidence supporting their claims -- and even admitted that they didn't have all of the evidence they'd claimed to have,
The real issue is that what evidence they have produced in court is simply pointing out a well-known fact: that IBM contributed code that IBM itself wrote into Linux. SCO doesn't even claim ownership of the code; they are just claiming that IBM was supposed to ask SCO before contributing it. SCO does not claim and cannot support that there is any System V code in Linux.
So, regardless of whether IBM contributed code improperly or not, there is no code in Linux that is a "derivative work" of any SCO property. The asking permission thing is a contract dispute between SCO and IBM and end users can't be held liable for that; nobody but IBM can. And it looks very much like SCO has no control over IBMs actions since (1) Novell has retained the control rights for existing Unix licensees, and (2) the AT&T license gave it no rights over licensees own code anyway.
This may be the faith of the Linux (full of idiots on its side), but the guy doesn't talk about who is right or wrong. The guy says that, the risk that people want you to believe in is higher. You can't dismiss it as many linux zealots do. Of course there are clever people who dismiss it with reasoning, but overall we hear more from zealots rather than serious sources. So the guy says that, there is a risk and here is how you deal with that risk. He doesn't say SCO is right, or wrong, but he says there is definitely a risk. That risk varies from company to company, and he seriously helps you to make a serious decision. Nobody in Slashdot who gives legal advise will come and pay for the companies' legal costs or damages if SCO is succesfull. That's something people are aware of. So simply dismissing SCO's case based on Slashdot is not a smart move. Afterall Slashdot is not for legal and business stuff, it is about laughing and making jokes.
any lawyer will tell you that there's always a risk that a case goes against you, no matter how strong your case.
I work for a large law firm in the UK - we typically advise clients there's a base 10% chance of losing a cast-iron case. Would be surprised if the position is very different in the States (and presumably jury trials are significantly more uncertain).
One of the options the article discusses is to pay insurance premiums to prepare for the coming great onslaught of software patent litigation against open software projects.
The European Union has published a study on patent litigation insurance in March 2003. You can find it on their page on the Community Patent.
That study says that all experiments with this kind of insurance have not been particularly successful and have failed to provide adequate cover at affordable premiums.
I don't know if insurance or indemnification schemes will solve the problems ahead. However, both seem to be aimed at sharing the burden of dealing with litigation risks. That should be the basic idea. Just as people work together to develop great open source software, people should work together to defend it against litigation risks.
See also this post on my blog.
Lenz Blog
Unbiased? No but they do freely admit their bias. On the other hand you can't fault Groklaw for not being thorough. Groklaw at least does a good job validating their bias.
RTFA. He explictly addresses this issue in the backgrounder to his latest article.