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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."
my guess about why redhat is not offering indemnification is that it would be setting itself up as an easy target.
Maybe RH figures (not unreasonably) that it is better to let the big boys slug it out. I think if it were a choice between RH's lawyers and IBM's lawyers, I know who SCO would go for.
Humorous signatures are over-rated.
Berlind makes no mention of the validity of SCO's claims--his argument is simply based on the existance of the lawsuits. That's like telling the manager of the local fast food franchise to give in to the mob's protection racket, because if you don't pay them off and your store gets trashed, you might get fired. Even if the local mob is two 12 year olds with nerf guns. It is idiotic to argue for imdemnification without analysing the threat posed by the SCO lawsuits. Anyone can file a lawsuit--it doesn't mean you should pay a 3rd party to indemnify you.
Basically, you have one question to ask yourself: How much peace of mind do you have now and how much more are you willing to spend for a little extra?
Others here have argued that the appearance of such warnings in the popular press - making Linux a risk - was part of SCO's intent all along. Don't know if they're right but the warnings are here.
Move along, there's nothing to see here, just another analyst mouthing off without actually doing his homework.
When will they learn to read Groklaw?
http://techupdate.zdnet.com/techupdate/stories/mai n/What_did_SCO_buy.html
This was another garbage article by Berlind IMHO. Even if SCO did "own Unix" (which it does not!) The whole idea is irrelevant. None of "Unix" got put into "Linux". Even if a few lines out of millions got copied in the there, the concept of "de minimi" applies. Such as small amount is in there that it is irrelevant. Case closed.
'nuff said.
Is the juice worth the sqeeze?
Reading the same FUD crap over and over through 'normal' media outlets is really getting old.
Though, I must admit, this is probably one of the better FUD articles I've read. Rather, it takes a new approach...
"Hey, normal users don't need to worry - you're safe. It's the big companies that have to worry. Just forget about it, and let SCO do their thing."
I'm not sure -- but it appears to me that the article is somewhat geared towards telling normal Linux users to abandon concern for the SCO situation and let the corporations take it all on alone.
Perhaps a new FUD tactic attempting to break up the community?
Regardless, I have a headache after reading it. 99% of the information in that article I've read 20 times already - with the only exception being the articles strong attempts to alleviate any concerns that normal Linux users may have of being sued.
Moreover, in this article too, nowhere has he questioned the validity of SCO's claims. He seems content to criticize other companies for their indemnification programs.
I was actually reading the article with great interest until I read the paragraph you quoted above. After that, thoughts of "how much is this writer getting paid to write this?" started dancing in my head.
by the complications surrounding indemifying Linux because they don't understand the nature of Linux distributions. Linux and a distribution are not the same, yet Berlind keeps confusing the two in the case of HP, Sun and IBM, even though two of them contribute code and the other offers Linux on its hardware via Red Hat; one of them is suing SCO and the other two are indemifying against SCO lawsuits.
I don't see anything wrong with Red Hat's position; the software business is after all a get-rich-quick-via-litigation arena these days, and they are a valid target. So I don't buy Berlind's arguments of a preemptive strike either.
I'm not arguing against indemnity per se, but, especially in reference to Linux, I don't think anyone really knows how to measure it as an insurance cost; the estimates are currently wildly high or low. There would be a high barrier to entry from most insurers point of view in any case, which is why the big companies do a lot of research and wait to be sued over a product rather than take out a policy and cross their fingers.
insecurity asks the wrong question irritation gives the wrong answer
ZDNet is, effectively, advising their readership to pay protection money to SCO, in order to protect their image? Gee, that's a nice house you have there, be a shame if something happened to it. And those are nice kids you have...be a shame if something happened to them.
Give me a break. First of all, what are your chances of actually being sued by SCO? Fairly slim, I suspect. And even then, a simple motion that says "Your honor, Novell claims they have the copyrights to this material, and SCO is involved in legal process with them. Until such time as SCO can demonstrate that they actually own the property they are claiming, I move the case be placed on hold.
Second, so SCO sues you - I don't believe that they can win (see Groklaw for exhaustive details. You don't look bad to anyone except perhaps a few SCO or MS shills. Everybody else thinks you are a hero!
Finally, even assuming that SCO does own the copyrights, they still have yet to prove that any of their code is in Linux. That's what the IBM lawsuit is all about. And if you check the analysis on Groklaw, SCO is digging their own grave at warp speed.
Ziff Davis is being irresponsible and is givnig VERY bad advise.
Why does anyone still believe in these "analysts" any more? And I fail to see how an opinion piece by a former Microserf in a Microsoft-mouthpiece is news...just more of the good ol' FUD from the same ol' sources...
Never underestimate the predictability of human stupidity...
You should never give money to a terrorist. What is the purpose of indemnity? Does SCO own any copyrights to System V Unix? A lot of people want to know. It seems unlikely that SCO owns any copyright to IBM's code but you never know with certainty what a judge will do. I think if SCO had any real hope in the courtroom they would not talk so loudly to the press. I am not altogether on IBM's, Red Hat's or Novell's side but none of them make several outlandish press announcements a week while they let their business go down the sewer. It may take a long time but when this is done SCO and Darl will be very dead. If Novell really gets 95% of license sales and lawyers get 20% what does Darl get? It doesn't look good for the stockholders.
The author avoids thinking about the case, and instead treats the outcome as a black box whose final outcome is too mysterious to even think about. This is not your standard contract dispute, this is SCO getting desperate. The proof of that comes in their laughable attempts to show any proof of stolen code, their continually varying claims, line counts going from millions to dozens, switching from contract to copyright claims, contradictions from one press release to the next, lying to the judge, idiotic remarks about the GPL being unconstitutional and a danger to national security ... no one who has a valid claim wanders over such a large map without ever getting to the point. SCO's behaviour is more like a drunken walk or Brownian motion. They have no goal except to keep walking.
Perhaps there is some doubt as to how much of the copyright Novell and SCO actually own, perhaps some of the finer points are in doubt too, but there are far too many clear cut lies from SCO, and that AT&T statement from 1985 really cuts the ground from underneath them.
Once you get that in perspective, the reason to not offer indemnification makes a lot more sense.
Infuriate left and right
Another interesting question to be asking is whether paying said money actually protects you in any fashion from being sued by SCO. First off SCO has shown they are ready and willing to terminate interminatable licenses at any time with anyone. Second off SCO has shown great interest in trying to legally implicate even further anyone who gives them money. Witness their recent incident in which all SCO UNIX licensees recieved a letter saying "Certify to us you are not using any linux installations containing SCO code, or we will terminate your license".
It's like kidnappers. Show them you're willing to cooperate by handing over the ransom, they'll just ask for more...
Or KDE Zealot. Or Mac Zealot. Whoever.
Lotta Zealots around here get the
gratuitous hyperboost.
No. This one is more than heartfelt.
ZD was/is an agent provacatuer sponsored by
Redmond. These guys kissed Mickey's foot
straight into Chapter 11. Now their supposed
to be "objective"? C'mon, these clowns made their
reps praising Windows 3.1. Yeah, they really
know their stuff.
I'm sorry, they're pretty hard to take seriously.
I can't count the number of Gartner, IDC, Forrester and other 'experts' I've had my clients drop their services.
IT Analysts are one of the biggest scams going.
This guy is the Executive Editor of Tech Update. He got his degrees in Computer Information Systems. (and he wears those stupid emo glasses) Why is he talking about the legal issues of the whole SCO debate?
I want this thing to go to court so we can hear arguments that actually have consequences. Really, no matter how it ends, it ends well for open source. If the very best thing happens, SCO is vaporized in the markets after the judgement against it. In the very worst case, IBM gets hammered, linux essentially becomes quasi-legal, and we can embark on the largest and most productive exercise in civil disobedience in a generation.
No, that isn't the point, and it this is bordering on strawman argumentation.
Of course you would expect such behavior from someone in that place. That, in fact, is exactly the point. Given such an investment in the past, looking at that in light of current behavior is simply sensible.
This is no different than considering a politician's background then looking at what they're currently peddling.
I'll leave it as to others to think about this in context with the rest of your ZD rant, and only say this. Suppose you're covering the local farming industry, and in order to survive as a company, you have to keep the Big Local Farmer happy. That's fine, but if people doubt your integrity when covering that particular farmer, I don't believe you have any legitimate complaint.
I forget what 8 was for.
..."once you pay Danegelt, you never get rid of the Dane".
There's an idea for a new term, "thescogroupgelt"... hmm, doesn't roll of the tongue too well. How about "canopygelt"? (-:
Got time? Spend some of it coding or testing
- IBM urgently writing a 'clean' kernel, when they don't know what is tainted?
- Novell releasing NetWare as GPL? Who would migrate to NetWare simply because Linux was no longer an option?
Both of these silly suggestions imply people want to run Linux for its kernel - whereas most people have limited interest in the kernel, but want an OS to let them run applications.
The information on indemnification wasn't bad, but the legal advice is essentially "Stop and think - accidents can happen to you". FUD
They aren't allowed to ask for the money, because of why they're asking for the money.
They're asking for you to pay for their "intellectual property" in Linux, and there isn't any. The short name for what they're doing is "fraud", and yes, it is illegal.
Got time? Spend some of it coding or testing
The author says that those who dismiss SCO's claims haven't really analyzed their merits, but have relied on the opinions of others. But he doesn't do any merits analysis either. He just looks at who has indemnified their users and who hasn't -- that is, the opinions of others -- and suggests there is something significant in IBM's and Red Hat's failure to offer indemnification.
There isn't. Whether you distribute proprietary software or GPL'd software, there is always a nonzero risk that some of your code, one day, might be held to infringe someone else's intellectual property rights. Indemnifying against that risk therefore has nonzero cost. Proprietary software vendors can cover that cost in the license fee they charge for the software. But GPL software vendors do not and cannot charge a "license fee" for the software.
Obviously, GPL software vendors can and do charge for other things, such as maintenance and support, access to FTP and web sites, or even copies of the program. But they cannot charge a "license fee" for the right to obtain or use the program. If you can't and don't charge a license fee for the code, you shouldn't be expected to provide either a warranty or an indemnity.
I guess most people realize this guy knows little about computers, and nothing about law, so his main claim to fame is...that he is a journalism major writing for Ziff-Davis? That means his rant is just a nicely worded Slashdot troll.
To be fair, to write a really good summary of what's going on, you'd need to be skilled at law, software development, and journalism, and I'm fairly convinced that anyone that's really competent in all three areas is not going to be making a living as a journalist.
The degree of uninformed commmentary all over the place means that few people *do* have a good handle on what's going on. From what I can get from reading this guy's archive, he tends to hobnob with CEOs/upper management of tech companies, who naturally are going to happily feed him whatever line they think will best manipulate him. He isn't going to sit down and start reading through legal code.
So, is he uninformed and parrotting BS? Sure. On the other hand, are *most* people involved? Sure. The only people that I'd really claim to know what's going on are in IBM's legal team -- and those folks, beside having an obvious bias, take the approach of not saying anything that might be wrong. Lawyers are conservative about making statements. Journalists, on the other hand, need to make impressive announcements and insights on a constant basis. Does this mean that accuracy suffers? Sure. But if it didn't, they wouldn't get paid.
I agree that anyone at this point that's worried about using Linux because of SCO is pretty much either uninformed or awfully paranoid. I've keept a reasonably close eye on groklaw and other parties involved -- and I've never even coded on the sections in question or taken any civil law courses. I think that Slashdot *was* overeager to pronounce SCO full of hot air, but at this point, they really have no case against Linux users. There are so many counterarguments that could be used if even one failed that would blow away their argument that it isn't even funny.
IBM shareholders might be a bit worried about the continuation of AIX, which is more at risk than Linux, but honestly, I still wouldn't lose any sleep over it if I had a bunch of AIX deployments. Given the data that's come up from Novell and IBM, and how weak SCO's arguments have been once in the light, this case shouldn't have been a worry for at least a month or two now.
May we never see th
Certainly it's complicated but not beyond human reason to comprehend. Let's take just one line:
IBM's AIX has a different question mark over it. Nonetheless it's a question mark
This says one thing loud and clear: You've never worked with IBM on a project. They're as Death Star about IP as anyone I've ever worked with. And that was WAY before the SCO business ever surfaced. That's not even going into detail on the merits of SCO's case. But he didn't have to, so neither do I.
weigh the total cost of protection versus the risk of being sued by SCO (or maybe someone else).
Spoken like a true low-level pussy. You can get sued these days whether the other side has a case or not. Some cases are just to keep you distracted while one of their partners moves in on your deal. If the threat of litigation puts you off these days, you might as well consign yourself to a life of being someone else's bitch because that's all you're going to be. If the other side knows that's all it takes, they'll make it a reality.
And before anyone steps up and says that's easy for me to say because I've never been sued...screw you. I've been through it twice already. Litigation is just another business tool today so learn to deal with it. Best thing you can do is keep your professional liability insurance paid up and learn how to find the "oh, shit" lawyers (they're not even always the most expensive). The ones who send out a letter and the other side goes, "Oh, shit, not them." Just the name on the letterhead can make you a bigger pain in the ass than you're worth. I spend time down at the courthouse talking to lawyers, ask them who they hate to see coming. After a while a handful of names will surface. They're usually bastards, but they're your bastards. It makes a difference. Lot of firms just run up the charges and don't really do the work. You have to find the ones that actually work for their 300/hour. Talk to the court house people. Who files the most appeals when they lose, those people are motivated to win.
Plan for it. Budget for it. It's going to happen even if you're St. F'ing Peter. You'll get through it.
That's our life, the big wheel of shit. - The Fat Man, Blue Tango Salvage
I recall OpenUNIX (UnixWare 8) being sold as the great melding of UNIX with Linux. I know they have a lot of GNU userland tools (always have; I hit the Skunkware site regularly when I had to work on OpenServer 5) but part of me thinks they tried to meld some kernel stuff as well. They claim that their Linux compatibility stuff in the kernel is cleanroom, has anyone checked? People can ask for specific code modules instead of the general fishing expedition that SCO is doing.
Dear Sir,
:)
I would like to point out something:
"SCO is a tiny company in Utah, with opposition that includes some of the
largest companies in the world, millions of Linux users, and the leaders of the
cultish open source movement."
Why is it that anytime there is something in the world that doesn't fit a mold
which is familiar to the layperson it is considered "cultish"?
I like GNU/Linux because it helps me run my business and because of all of the
other advantages of open source and free software and because I dare to be
different and think that some ideas should be free and open to the public.
Our founding fathers believed this. Why is it so hard to convince people
these days.
I do not think that makes me a member of some cult. If it does, then this
country is truly in deep trouble when it comes to personal freedoms.
Aside from the glaring inaccuracies and omissions, which I won't bother to
point out since the refutation of most of what SCO has said is on the net for
all to see, you're article disappoints me because it resorts to this type of
name calling to prove it's point.
What most people interpret as "cultish behavior" is the love and the attachment
which Linux users have to the operating system that they have worked so hard to
create. This sentiment is prevalent in many other communities. Last time I
talked to a die hard windows fan, I could swear I was talking to a cult member.
Please remember, that by stereotyping an entire community, such as you have
done in your article, you seek to diminish it's voice.
Good day, GJC
=====
Gregory John Casamento -- CEO/President Open Logic Corp.
Gregory Casamento
## Chief Maintainer for GNUstep
Considering you can't even properly form a motherfucking sentence, I'd say he's a bit more reliable than you are.
There really needs to be a "-1: Posted by a Fucking Moron" moderation.
'Standards' in computing only impress those who are impressed by things like 'standards'.
I could say the same thing about your post with regards to the microsofties. The predictable "this one is an intelligent troll against those linux communists, mod it up!" Really, I don't get why people who hate linux even come to slashdot, trolling is the most retarded idea of fun I've ever heard of.
True genius is grasping a situation like a peice of fruit, and peircing it just right so that it drains dry.
SCO isn't claiming to hold the copyright on Linux. They are claiming that IBM placed code into Linux that they did not have a right to. This does NOT mean that SCO claims ownership of every piece of Linux code. It means that, IF they win, they can have the code removed from Linux. The rest of the code is owned by whoever contributed it.
'Standards' in computing only impress those who are impressed by things like 'standards'.
This may sound off-topic at first, but please bear with me.
The logic in the article reminded me of the Y2K situation. At the time I was Chief Financial Officer for a mid-sized non-profit organization, and I was approached repeatedly by attorneys and accounting firms with the same argument: there MIGHT be a problem, and if you cannot show that you took appropriate steps to deal with it, you could be held negligent.
Of course, what they wanted was for me to hire them to perform an audit of our computer systems and hardware, in exchange for a hefty fee. Instead, I simply pointed out that I was better qualified, and better positioned, to evaluate our risk exposure than any lawyer or outside accountant, and that I had already done so to my own satisfaction. (I did keep records.)
Similarly, IT managers running Linux should be quite competent to determine what risk they face from SCO without the need for legal counsel. Most of them, obviously, have decided that the risk is not sufficient to demand indemnification.
I read that article in disbelief as the author continued to suggest that *end-users* needed indemnification from lawsuit. He even compared it to buying a car that contained some sort of unlicensed patented technology as though using something that you bought leaves you open to legal liability. Has this *ever* happened? What complete and utter horseshit!
At *most*, the "indemnification" that a company or end-user would require would be some sort of guarantee that, should they be required to stop using any part of Linux, an alternative would be available. I think the weakness of SCO's case and the response of the community has already allayed those fears.
In fact, that's the entire reason for using Open Source as opposed to closed alternatives. Everyone knows that, should just about *any* part of Linux or any other Open Source project be encumbered, a suitable replacement will be found.
"I assumed blithely that there were no elves out there in the darkness"
So no, you don't have to be a Linux zealot not to want to hear such a crappy work of journalistic spin.
The problem is some PHB is going to ask...
"Well, what do we do if SCO does win the Novell suit and the IBM suit and the Red Hat suit?"
Business people don't like risks they're not protected from. It's not likely that the warehouse is going to burn down, but they keep it insured just so that they don't have to run the financial risks associated with that happening. They're not going to take "That won't happen." for an answer, they're going to want a plan for the "What if...".
If you have a disaster recovery plan for an earthquake but you're not in California... your PHB is going to want you to have a recovery plan for SCO too.
Oh, come on! Sun's business model is stuffed. Sun is haemorraghing cash. Sun's flagship product, Solaris, is good, but it's expensive. Why run Solaris, when for most tasks, Linux is just as good, costs less and runs on cheaper, commodity, Intel hardware?
Linux is destroying Unix sales and of all the Unix vendors Sun has the most to lose. They had originally tried putting Linux in the low-end niche, which is why the bought Cobalt. But that hasn't worked and more and more companies are moving their high-cost Solaris servers to low-cost Linux ones. Sun has much to gain if SCO win.
It's also shrewd for Red Hat to sue SCO. After all, Red Hat could have left it too IBM and Novell to fight the battle for them. Red Hat, however, knows lawsuits and SCO are all about the Benjamins. By joining the fray, Red Hat forces SCO to hire even more high-priced lawyers.
Ultimately, Berlind may be right about Red Hat being a canary in the Linux coal mine, but with its stock price up 200% in the past year, its singing quite nicely.
#include <ianal.h> //But I read a lot of Groklaw
I can't imagine any legal theory under which such a suit wouldn't be summarily dismissed, and I wouldn't be surprised if the dismissal were with predudice and possibly even sanctions against the filer. Of course, given the RIAA's success at terrorizing people for downloading music (not distributing it) such a theory may somehow exist.[100% ISO 646 Compliant]
SVM, ERGO MONSTRO.
There's one thing I never understood about the whole "You have to license parts of the kernel from us!" If you did this, wouldn't all the GPL code in the kernel be linked to a non-compatible license?
If so, this would mean, you lose the right to use everything but the SCO code, and you would have to negotiate with each individual person and group that holds a linux copyright.
So, if SCO is right, who would actually buy a license? A switch to *BSD would be painful, but surely easier than trying to negotiate terms with Linus and Alan that would allow their code to link with SCO licensed code.
Or maybe SCO can come up with a GPL compatible license. Sure worked for X Windows!
Yes, it does. Everything would drop to default copyright (no-one has any rights but the author.) SCO just choose to ignore it for now.
Marxist evolution is just N generations away!
Here is my letter:
Hiya,
Apparently unlike your other readers, I quite liked your article "Know your
options". One point you didn't mention is that imdemnification is so rare as
to be almost nonexistant throughout the software industry. Microsoft does
not imdemnify windows users; Apple does not imdemnify Mac users; Sun does not
imdemnify solaris users; IBM does not imdemnify AIX users; and HP does not
imdeminfy HPUX users! Who does offer imdemnifiation? Well, some of these
companies will imdemnify if the client wants it enough (I only know for
certain with HP, but would be unsurprised to find they all will). Given
this, it seems more than a little odd to expect any imdemnification of Linux
users. I think the only reason anybody is getting linux imdemnification now
is that the cost _in this case_ is lower than the PR value.
As for the relative merits of the case, I personally have read an awful lot,
and am pretty damn confident. Here's the hurdle race I see SCO needing to
run in order to demonstrate that I owe them money on an ongoing basis:
a) SCO owns UNIX rather than Novell.
b) SCO manages to overturn AT&T's statement on derivative works and
c) convince the judge that AIX is a derivative work
d) SCO convinces another judge that since AIX is derivative, any code based on
AIX (such as RCU in linux) is therefore derivative.
e) Somehow the IBM contrabutions cannot be removed -- perhaps they've been
copied to too many places, making it is impossible to ensure all traces are
eliminated.
f) SCO manages to convince a judge that the GPL is meaningless, rendering it
functionally equivilant to the public domain.
g) Having succeeded at destroying linux and the GPL, most programs runs on
other more obscure operating systems (BSD, Hurd, etc.). After the GPL is
rewritten to revalidate it, SCO would have to start again against whichever
OS people jump ship to.
For the first hurdle, I'm guessing odds are 50/50. Beyond that I see every
single hurdle to be huge, I would consider a case based on even one to be a
long short. To try and jump all of them, well winning the lottery six tmes
in a row sounds more likely... Having said that, even if SCO gets past the
first hurdle they can expect to achieve quite a bit of damage to the linux
community.
But the purpose of this letter was to point out that imdemnification just
doesn't happen, not to discuss SCO's chances of success at repositioning
itself as a linux parasite.
...because in order to rule in favor of SCO the court would have to redefine "derivative work" in such a way as to create major problems for just about every piece of software out there.
Who would own Norton SystemTools? Who would own Netware? Who would own OSX? Who would own Windows?
If the answer to all of these questions was "SCO," would it be the end of the IT industry as we know it? Why isn't anybody indemnifying me against that?
Eternal vigilance only works if you look in every direction.