IBM Files for Partial Summary Judgement vs SCO

Armchair Dissident writes "The Register is reporting that IBM has filed for partial summary judgement against SCO. Groklaw also has the story, and is saying that SCO was still offering the disputed code for download as recently as August 4 2004. If this is true, then - according to Groklaw - SCO's case must surely be scuppered. Again."

Comments

Don't be so cheap, everyone

[Bring back the old t]

Pay your $699 fee, and shut up!

Re:Don't be so cheap, everyone

[Xenographic]

Didn't you read? They're planning to raise their prices.

Anyhow, I submitted something just like this, only with about a dozen links to more information (sadly, I don't have all of them here now), so perhaps I can explain more --

This motion follows IBM's motion to strike Sontag's declaration as incompetant (he doesn't know jack about IBM's internal source controls, but he made a number of wild guesses and swore to them under oath), as well as IBM's movement for a declaration of non-infringement concerning their Linux activities. It is ironic on the last part that SCO doesn't want to let them have one, and it says at the same time that they're not arguing that IBM has infringed on their copyrights now.

I'd link those motions, but I don't have time. They can all be found on Groklaw's legal documents page. Just be sure you're looking at the SCO vs. IBM part, and that you start at the bottom & scroll up--both SCO's complaint & IBM's counter-claims have changed over time, and you want the most recent version.

If they were to grant all of IBM's motions, they would be enough to rend pretty much all Linux-related issues from this case, and would leave SCO with almost nothing that could stand on its own and SCO would still face the counter-claims.

Of course, the judge has to be really strict on granting summary judgements. There have to be no material (relevant) issues of fact to decide--the evidence has to be so one-sided that no rational trier of fact could possibly decide for SCO on any of the issues the judge decides. This is important because the judge rules on the law, while the jury rules on the facts in any jury trial. If you can't guess from that, a summary judgement is where the judge gets to decide an issue early because there are no material issues of fact for a jury to decide.

In other words, though IBM's motions are well-argued, they face a *very* high standard of law here. Please note that while Enderle has said that he would decide for SCO, that's irrelevant because the trier of fact would have to be rational, and logic is not Enderle's strong suit.

Re:Don't be so cheap, everyone

[Anonymous Coward]

"Pay your $699 fee, and shut up!" ... you cock-smoking tea baggers!

Even if they offer a "download"

[Anonymous Coward]

Even if they offer a "download" of the disputed code, how do we know they didn't just copy some random code which did exist in the kernel?

Re:Even if they offer a "download"

[meringuoid]

Even if they offer a "download" of the disputed code, how do we know they didn't just copy some random code which did exist in the kernel?

If they offered their disputed code for download as part of SCO Linux, then they put it under the GPL themselves.

Their get-out for this is 'we didn't know our code was in Linux!', which might have been a case for them... if they didn't carry on making Linux available after they supposedly discovered their code in it.

By leaving SCO Linux available for download under the GPL after they knew their alleged property was in it, they've GPL'd that property. Hence, they're stuffed.

Re:Even if they offer a "download"

[Anonymous Coward]

The real question is that can SCO recall its copyright. Just because it offered the code does it preclude it from unoffering it. They can not sue people who have THAT code but can say that derivative works are illegal if there was such a clause in their license, which it seems there was.

Re:Even if they offer a "download"

[minotaurcomputing]

"how do we know they didn't just copy some random code which did exist in the kernel?"

I guess we'll just have to take their word for it.

Re:Even if they offer a "download"

[albalbo]

I don't think it's necessarily the case that the code becomes GPL'd by default - although that argument could be made - just that by continuing to make it available, other people can have a reasonable expection that the code is OK. It's called estoppel, and it basically means that their past behaviour would stop them from suing people.

Re:Even if they offer a "download"

[ajs]

And they did offer it for download for a LONG time. Many people, myself included, were posting links to the kernel source RPM on their ftp site for the first 6 months or so of the suits, here on Slashdot. I have a downloaded copy of it.

It was the 2.4.13 kernel with some patches, so if AND ONLY IF, SCO has a problem with code that was added after 2.4.13, can they really mount a case that that code was not put under the GPL by SCO after the suit began.

Re:Even if they offer a "download"

[Anonymous Coward]

Actually they are not stuffed.

A good analogy would be the trial of Sadam Hussien. When he was put on the stand he declared the invasion to his country illegal and asked the judge under whose authority he was being tried.

SCO is also not claiming they wrote a huge amount of the code that is in Linux. They are claiming that IBM illegally released code based on SCO code... You know the case no need to recap here but why would them releasing disputed code make them "stuffed". Please elaborate.

Re:Even if they offer a "download"

[meringuoid]

You know the case no need to recap here but why would them releasing disputed code make them "stuffed". Please elaborate.

Because they released it under the GPL. IBM can point to the GPL licence attached to the Linux kernel they downloaded from SCO's own site, and say that this gives them all the rights they need to redistribute the code therein.

Re:Even if they offer a "download"

[Anonymous Coward]

I think you're forgetting the important point.. the GPL is invalid as a license so they don't have to follow it.

At least that's what Darl thinks.. he's insane though.

Re:Even if they offer a "download"

[Scarblac]

Well, they claim it is their code, it is downloadable from their website, as their product "SCO Linux", under the GPL. If that doesn't make the code in question released under the GPL, I don't know what does.

Re:Even if they offer a "download"

[eric76]

Assuming for the sake of argument that SCO really did own the rights to the code, if they did not wish to distribute the code under the GPL, they would necessarily have to cease distributing the code when it was discovered.

SCO's continued knowing distribution of the code under the GPL should clearly indicate their acceptance and intention to do so.

Re:Even if they offer a "download"

[CmdrGravy]

They are saying that IBM have taken some of SCO's code and then ( somehow ) been inspired by that to write AIX etc which they then used to improve Linux.

By selling or giving away there own version of Linux which incorporates the improvements made by IBM SCO are saying that on the one hand IBM has ruined there business by improving Linux but on the other hand that they are happy to sell, give away and work with the version of Linux which has ruined there business and that I think is a slightly ridiculous point of view to take.

Re:Even if they offer a "download"

[bobetov]

I've been wondering why they haven't taken down the code from their servers. It just occurred to me that they may not have anyone in their company left who knows *how* to.

Re:Even if they offer a "download"

[eric76]

Even if they offer a "download" of the disputed code, how do we know they didn't just copy some random code which did exist in the kernel?

Simple -- compile it and see if it runs correctly.

Re:Even if they offer a "download"

[bloggins02]

Actually, this is not the argument given in the Request for Partial Summary Judgement (and yes, I read the whole thing, I was bored last night).

The argument given by IBM is that SCO cannot on the one hand sue IBM for breach of contract and damage done by said breach and on the other hand knowingly continue to offer (and through advertising, tout the benefits of) the "offending" code in question.

The key word here is knowingly. IBM claims (and I think claims correctly), that since the code (Kernel 2.4) is still available on their website after they knew about it, SCO waives their right to sue for breach of contract on the code in question.

If the judge agrees, then game over for SCO.

Re:Even if they offer a "download"

[Waffle Iron]

The real question is that can SCO recall its copyright. Just because it offered the code does it preclude it from unoffering it. They can not sue people who have THAT code but can say that derivative works are illegal if there was such a clause in their license, which it seems there was.

However, in addition to their proprietary license, they chose to offer THAT code under a license, the GPL, that allows the recipients to recursively redistribute it. Since they still offer it, they have done this knowingly. SCO (or more likely, Novell) might retain a copyright on some code, but the terms of that license specify that it can't be "unoffered" from any recipients. These recipients may in turn redistribute it as they please.

In the worst case, IBM would just have to download the Linux code again from SCO's public FTP server and run a script to pointlessly replace any identical strings of text in IBM's kernel sources from SCO's source files.

Re:Even if they offer a "download"

[Steve Franklin]

"A good analogy would be the trial of Sadam Hussien. When he was put on the stand he declared the invasion to his country illegal and asked the judge under whose authority he was being tried."

I strongly suspect the problem with Saddam's argument is that international relations are pretty much anarchical. There is no world government per se. There are treaties that forbid invasions, but as we have seen, they are not worth the toilet paper they are printed on. In this arena, might still makes right. What is disgusting about the whole affair is the mockery it makes of a judicial process based on non-existent law. To use the form of law to punish someone who is guilty of annoying the powers that be in Washington is a joke. They just don't have the nerve to act like the Imperial force they obviously think they are.

How does this relate to SCO? In one quite basic way. SCO is using the form of the law to try to intimidate and even blackmail people when they have no legal position at all. They are, in short, megalomaniacal to the point of transferring the methods of national aggression to the field of commercial relations, where they are virtually unarmed.

Re:Even if they offer a "download"

[Anonymous Coward]

But SCO is claiming that the GPL is invalid so how can they offer code under a license they claim is invalid.

Re:Even if they offer a "download"

[slipstick]

As IBM's motion clearly points out it's called "waiver". By knowingly distributing the code under the GPL, SCO has waived all claims against IBM(and anyone else) for any code that might be in Linux illegally(I say might because I think the whole idea is a sham).

Anyway, basically SCO can't sue someone else for the same action they are in fact performing.

Re:Even if they offer a "download"

[Anonymous Coward]

Actually lets look at it another way. I'll use MS as an example just because it was the first one to come to mind.

MS gives WinCe code to a company with but with a very restrictive license agreement that prohibits them from distributing it or distributing derivative works.

Company a disregards these terms and distributes a derivative work.

MS starts its shared source initiative and distributes the WinCe code years later INCLUDING the derivative work as part of the complete package.

Is the company all the sudden absolved of its contract breach simply because they code is now available to all? It would seem stupid to think so as the lawsuit is not about current loss but about damage done in the past and recouping lost revenue.

Re:Even if they offer a "download"

[Anonymous Coward]

First. Let it be known that I am a staunch supporter of Linux and OSS. But I have to say that your argument flies in the face of logic. To say that code included in SCO's Linux distribution becomes automatically GPLed is a red herring. If SCO was unaware of the presence of their code in the Linux kernel at the time, then the action was not voluntary. However, I'm sure you are the first to scream that shrink wrap licenses shouldn't be valid because the user couldn't read the license before opening the package. You see? It just doesn't wash. If shrink wrap licenses should be invalid by your stance, then this application of the GPL should also. Your views are thoroughly inconsistent.

A better defense would be if Linus changed the license for the Linux kernel to the BSD license. In that case, the whole thing with SCO becoes moot because anyone can have access to the code for any application. It's likely that Darl and company would drop the lawsuit because they could now benefit from Linux in a bigger way than before and everyone (except for religious demagogueic idiots like Stallman) would be happy. So, in essence, YOU are stuffed. Please think your logic through carefully before spewing it all over Slashdot and embarrasing yourself.

I've been arguing with my Linux using friends for a long time that Linus should change the license to a truly free one. One free of the viral restrictions of the GPL. That license is the BSD license. Think about it people. I personally call out Linus on the table. What about it you herring eating freak? are you gonna make sense for once, or not? Change the license. Get away from the communistic GPL. Stallman bugs you, why don't you bug him back?

Re:Even if they offer a "download"

[frp001]

So... If you are distributing somehting under a license which is invalid. What does this mean?

Re:Even if they offer a "download"

[hhawk]

Why can't SCO Claim.

1) we didn't know it was there
2) Once we found out it was released everywhere by IBM the horse was way out of the barn.
3) IBM'S "illegal" actions have boosted the Linux market place
4) To stay competitive we have to release a copy of Linux, under GPL, to be competitive.
5) But all of this is a result of the fruit of IBM's "illegal" actions so they still owe us damages.

What I don't understand is how they can try to sell Linux lic. when their own vers. of Linux is available under GPL; that opens the door for it to go into every other linux copy legallly (assuming (even) it was there ilegally in the first place..)

Which leads me to believe their effort to sell lic. for Linux was only to show a market price for such so that they can rack up a high amount of "damage awards" against IBM, Et. Al.

e.g., we would have sold 10 zillion of these your honor but the defentant released our IP so we need 50 zillion in damages; $50 for every copy of Linux in use...

Re:Even if they offer a "download"

[vk2]

If IBM added code to linux for which they didn't own the copyright - then its not GPL'ed even if the original author distrubutes the code that IBM added to to linux without proper copyrights. I agree they own the copyright to the stuff they wrote - hence the word "independent" in the memorandum.
SCO is wrong as a matter of law, and IBM is entitled to partial summary judgment on SCO's contract claims, for at least two independent reasons.

Re:Even if they offer a "download"

[mr_z_beeblebrox]

I've been wondering why they haven't taken down the code from their servers. It just occurred to me that they may not have anyone in their company left who knows *how* to.

Don't be a fool, EVERYONE at SCO knows how to take it down:
TO:sco.com web server
FROM: SCO Legal
RE: Linux Download availability

It has come to our attention that you are offering Linux source code for download. This is a direct infringement of SCOs valuable IP portfolio. SCO (caldera) has worked hard to get credit for other peoples work, you are diminishing it. You are hereby ordered to CEASE AND DESIST.

Any lawyer can do that!

Re:Even if they offer a "download"

[CmdrGravy]

"To say that code included in SCO's Linux distribution becomes automatically GPLed is a red herring. If SCO was unaware of the presence of their code in the Linux kernel at the time, then the action was not voluntary."

Assuming that it is a defence to say that you haven't checked the exact code you are releasing under a specific licence all that carefully and so didn't realise it was in fact derived from your own proprietary code then fair enough I agree with you.

However now that they do know what the infringing code is ( as we know their MIT Deep Divers have identified millions of lines of code ) the fact they are still choosing to release it under the GPL means that they are know, knowingly, releasing that specific infringing code under the GPL which then undermines their case entirely.

Your arguments about ditching the GPL in favour of a "free" licence are just nonsense. People who use the GPL do so because they don't want their work just hoovered up by anyone without them giving anything back to the original creator or the community at large - that's why they choose the GPL, because they like the protections it offers them.

A lot of people/companies who would love to just use anybodies work they liked without the creator getting anything would love people not to use the GPL but that is never going to convince me the GPL is a "bad viral nastiness".

Re:Even if they offer a "download"

[m_evanchik]

That the left hand doesn't know what the right hand is doing at SCO should not come as a surprise.

While the parent post was made in jest (or at least taken in jest), the reality may very well be that, on the technical side, SCO is so demoralized and moribund that they don't have anyone to monitor what is on their servers.

My guess is also that the actual technical people at SCO are probably pretty disgusted with upper management's new strategy, and may be exhibiting some passive-aggressive behaviour by letting the GPL'd work stay online.

Re:Even if they offer a "download"

[msobkow]

Finally, it would seem rationality is coming to the forefront. Now lets see if the legal system has any sanity and quashes this SCO garbage already. We've all wasted far too much time and resources on the IP leeches already.

At least maybe the mess will help force some changes on the USPTO. (No, I don't care how overworked you are. If you can't do the job right, then let the backlog build up until someone ponies up the resources to deal with the backlog.)

Re:Even if they offer a "download"

[phrostie]

it means they have violated the copyrights of all the other kernel developers, because nothing else gives them the right to distribute it.

Re:Even if they offer a "download"

[Stumbles]

If you are truly a staunch supporter of Linux and OSS your comments of the General Public License being viral embarrasses you and your only real intent was trolling.

If you are not happy with the requirements of GPL then switch to FreeBSD or some such.

Re:Even if they offer a "download"

[Anonymous Coward]

Bill, is that you?

Write your own damn operating system! You can't have ours!

Re:Even if they offer a "download"

[databank]

This is a good example but the key thing is a) whether or not Company A "disregards these terms" and b) destributes a "derivative" work.

What constitutes disregarding? If Company borrowed the "Hello World, Program" with equally restrictive license agreements to look at does that mean that no one in that company is now allowed to EVERY write a "Hello World" program because it's considered Derivative? If the program was written in C, and it's rewritten in Shell, Pascal, or perl is that derivative? The fact that MS gives the code to a company has to have some "reasonable" room to disseminate the information that's given. Obviously a line by line copy of code shouldn't and never should be cut and pasted into any work. But where does the limits of "derivative" work begin and end?

Considering that SCO pointed to code such as signal.h as being a "derivative" work when any programmer knows there's no way this can be "derivative" it's unique to the hardware platform, and has to be engineered as such, makes one realize that SCO's claim is shakey at best when they point to code that they say is stolen which is wrong.

Re:Even if they offer a "download"

[Anonymous Coward]

Well, they claim it is their code, it is downloadable from their website, as their product "SCO Linux", under the GPL. If that doesn't make the code in question released under the GPL, I don't know what does.

It doesn't. Not much does, in fact. The only point that can be made is that, by offering the Linux code (the GPL'd stuff) along with their own code (their (alleged) kernel code, which we assume they don't wish to GPL), they are infringing on the copyright of the non-SCO code, by distributing it without a license!

Really, the GPL can't force anyone to license their code in any way. The only thing it can do is to allow people to distribute GPL'd code, if they follow the rules. No rule-following, no distributy-allowy. Simple. And yet misunderstood so often, on both sides of the FOSS debates...

Re:Even if they offer a "download"

[Anonymous Coward]

we would have sold 10 zillion of these your honor but the defentant released our IP so we need 50 zillion in damages; $50 for every copy of Linux in use...

Actually, that would be <em class="Dr Evil" pinky="mouth">500 zillion dollars!!!</em>

Re:Even if they offer a "download"

[pagan_odysseus]

the problem with most of the posts on this subject is that they make legal arguments based on facts as commonly understood and reported in the media. this approach fails to take into account the fact that money, like mass, exerts a force of gravity. federal courts are like distant planets, and one of the ways even more distant planets can be discovered is by observing the gravitational perturbation of the orbits of the nearer planets caused by the presence of the farther, unseen planets. there's a big planet with a lot of money influencing this case, and no law/fact analysis can be adequate without taking this planet into account. it's the planet with the most to lose if sco loses and linux continues to gain ground.

Re:Even if they offer a "download"

[Scarblac]

Oh, I agree that they are in no way forced to distribute their code under the GPL.

The thing is, they do distribute their code under the GPL.

Re:Even if they offer a "download"

[sir99]

SCO also distributed 2.4.19 as recently as last August, although the link no longer works.

Re:Even if they offer a "download"

[B'Trey]

No, the GPL can't force them to do anything. That's the whole point. They were not forced. Grant that they are correct for a moment - that the Linux kernel includes code to which they hold the copyright. They certainly haven't proven this, but we'll give them the benefit of the doubt. Assuming this is true, they knew that the kernel in their distribution contained their own propreitary code. They knew that this code was distributed under the GPL. They did nothing to stop distributing the code. Of their own free will, without force from anyone, even after knowing that their proprietary code was in the kernel, they voluntarily made it available for download under the GPL.

At a minimum, what makes code released under the GPL is when the owner of the code knowingly distributes that code under the GPL. SCO has done precisely that.

Re:Even if they offer a "download"

[Aim Here]

Linus can't change the Linux license even if he wanted to. All of the 2-3000 contributors would have to agree to that or have their code written out. That is quite simply unrealistic and impossible.

Hope this helps.

Re:Even if they offer a "download"

[Anonymous Coward]

Hmm... are we creating new words for the illiterate masses?

s/expection/expectation/g

Re:Even if they offer a "download"

[Anonymous Coward]

IANAL. If the code would not be GPL'd, they would have no right whatsoever to keep distributing it. If that is the case, by making linux available for download, SCOX would be infringing on the copyrights of each and every kernel developer that hasn't issued them an additional license that allows them to distribute their kernel code.

Re:Even if they offer a "download"

[slipstick]

Actually I disagree. If I gave away your code that I didn't own under the GPL and you knew about it but continued to distribute the source under the GPL you would lose all rights to sue me. It doesn't matter that I didn't own the code.

Your proper response would have been to sue me for copyright infringement, not distribute the code, and make it clear to everyone that is distributing the code, that you own the copyrights and haven't released it under the GPL.

Now in IBM's case they do own the copyrights so it's even more clear, but in either case you can't stop me from doing something which you are knowingly doing even if I did it first. Of course you could claim you didn't know, but than how do you sue me? So once you know, you must stop distributing your own code under the GPL.

Re:Even if they offer a "download"

[fwarren]

The whole point is not really GPL or not GPL

Here we go

1. IBM is not at fault, becuase it was the intention of the AT&T contract that they could do what they want with homegrown code.
2. IBM is not at fault, because NOVELL waives any wrongdoing in doing what they want with homegrown code.
3. IBM is not at fault, because even if SCO owns UNIX V, and the NOVELL waiver is no good, and IBM is wrong about the intent of AT&T. SCO is distributing poirtions of UNIX V on their website, therefore they have no right to claim that any UNIX V code in IBM homegrown code that made it into linux is damaging. Since, after all SCO is already distributing it for the whole wolrd to see.

---------

Re:Even if they offer a "download"

[slipstick]

Darl? Darl? Is that you?

Hey you weanie if your going to troll at least make a good argument.

To the extent that SCO didn't know that their code was in Linux than the GPL would be null-and-void. HOWEVER, you(I'm assuming your Darl until otherwise notified) filed a lawsuit claiming you knew about all kinds of your code in Linux. Now you have certified to a court that in fact there is NO Unix System V code in Linux. Yet you continue to distribute Linux on your website. So, once you knew about any of your code in Linux you MUST stop distributing it or you have agreed to place it under the GPL. Secondly since you've also certified that in fact there is no Unix System V code in Linux you don't have a case anyway.

Lastly, I'm sure you would just LOVE for Linux to be under a BSD license, than you could steal all the hard work of the community you hoover.

Go away Darl, your not welcome here.

Re:Even if they offer a "download"

[teromajusa]

"I personally call out Linus on the table."

You can't personally challenge someone anonymously, dipshit.

Re:Even if they offer a "download"

[budgenator]

the left hand doesn't know what the right hand is doing
Equaly plausable is that they leased a server, or the server is actualy owned by Novel now, that the files reside on and they let the lease expire before they scrubbed the files; I've seen graphics that were the same on both Novel's and SCO's websites. Now they are stuck, a ftp server is dishing out their files and they could have lost the right to access the server to remove them, while DNS is happily pointing to the server.

It's easy to assume that when you haven't paid a bill in a while that the server files are deleted, but often they just change a password for ftp access so no one can delete the files.

Re:Even if they offer a "download"

[davidsyes]

The funny thing is is that their lawyer just might spell it as:

sieze and deceased...

Re:Even if they offer a "download"

[Spl0it]

If IBM added code to linux for which they didn't own the copyright - then its not GPL'ed even if the original author distrubutes the code that IBM added to to linux without proper copyrights. I agree they own the copyright to the stuff they wrote - hence the word "independent" in the memorandum.

Actually I'm almost positive that regardless of who put the code in, if the ACTUAL owner of the code distributes it knowingly and continues to do so then said code is GPL'd because they authorized it by a) releasing it with they're software b) continueing to do so. Also I'd like to point out what someone else previously mentioned... if SCO says the gpl is invalid and therefore the code they have had available for download is therefore not gpl'd then they have a lawsuit coming because they've infringed every single developer whois submitted code.

Re:Even if they offer a "download"

[Anonymous Coward]

Actually this is not entirely correct:

SCO distributed it free of charge, without any special license or NDA prior to (and continued to after) "finding" NDA code that IBM allegedly contributed has an interesting effect. Some of the documents between IBM and AT&T/USL indicate that IBM is no longer bound to hold something as protected after it has been made generally available to the public. The license also has a letter of clarification amending the license to explicitly state (in addition to the 1985 $scho newsletter) that ONLY the actual code that came from AT&T/USL was protected, that code that the licensee wrote was NOT (but any code from the licensed product that was incorporated into that code was still protected).

SCO is attempting to assert that they own ALL code written by anyone that has used their products, and that they even own thrid party code that was incorporated into their products! What nutcase would sign onto a contract that read like that? Most people would decide they were better to write their own OS (it is not like IBM has NO experience with OS'es!) than to perpetually gift anything that touches the blessed code to the licensor.

Would you agree to buy a roll of electrical cable if you were told that the company that manufactured the wire retained ownership of not only the wire, but gained ownership of anything that the wire was used in (and you had to PAY for that priviledge!)?

BTW, SCO: "SHOW ME THE CODE!" (There are two motions to compel on this point, both of which SCO has blatantly stated that they feel no reason to show to IBM or the judge/jury/court)

Re:Even if they offer a "download"

[fymidos]

>If I gave away your code that I didn't own under the GPL and you
>knew about it but continued to distribute the source under the GPL you would lose all
>rights to sue me

Actually no, he still has the right to sue, but the code is definetely gpl'ed. He would have a hard time proving there were any financial damages of course.

He can continue distribute the code under GPL, although the rational thing to do would be to use the code's original license.

The sco case of course is much simpler than this scenario.

Re:Even if they offer a "download"

[DaveInAustin]

If you read IBM's document, you will note that before and after Darl started his lawsuit (and you know that Darl claimed he tried to read agreement with IBM before he sued), SCO advertised the fact that their newest version of Linux contained JFS. How could they not know about it being in there? Independently of that, IBM also has mountains of evidence that they, or Sequent never had an agreement with AT&T they lost any control at all over code that touched the Unix base code.

Re:Even if they offer a "download"

[Curtman]

Grant that they are correct for a moment - that the Linux kernel includes code to which they hold the copyright

Don't grant that. They've been saying right from day one that this isn't about copyright. It can't be. They don't hold any copyright to the code in question, and Novell has cast doubt as to weather they own copyright to Unix even.

Re:Even if they offer a "download"

[Curtman]

They're not that big. They know what's going on. I've got email correspondence with Blake Stowell in my Inbox acknowledging that he personally knows its available for download and doesn't see a problem with it because the GPL is invalid. That's their story, and they're sticking to it (this week anyway).

Re:Even if they offer a "download"

[Anonymous Coward]

when a patent is invalidated, the patent office should re-imburse the court costs of the party that invalidates the patent, after all it's their fault that the invalid patent was assigned in the first place.

Re:Even if they offer a "download"

[Curtman]

Much as I'd like to jump on the bandwagon, I'm skeptical about Microsoft being a big factor in this one. I think its much more likely that MS is sitting back, and taking notes for it's upcoming legal shenanigans. If Microsoft were involved in a big way, they wouldn't be doing so many completely stupid things to destroy their credibility. Bill's got enough minions to figure out that will backfire.

Re:Even if they offer a "download"

[Curtman]

They still do. They've got a datasheet right here that lists many of the features that they are now bitching about.

• Linux 2.4 Kernel - The new Linux 2.4 kernel is a key component of the OpenLinux Server product. The Linux 2.4 kernel provides significantly improved hardware support for new hardware devices, improved SMP scalability, larger memory support (up to 64 GB of RAM), faster I/O performance, and many other performance boosting enhancements.

And I love this one:

• Permission and Service Audits - Files and services have been audited and updated to give them appropriate access permissions and running privileges that reduce security risks.

Errmmm, so you've audited the system for security, yet somehow didn't notice your own products showing up in it. Uh, yeah.. That sounds reasonable.

Re:Even if they offer a "download"

[midav]

Actually I'm almost positive that regardless of who put the code in, if the ACTUAL owner of the code distributes it knowingly and continues to do so then said code is GPL'd

It is not entirely correct. You can not GPL code de facto. However, if you continue distribution of your own code which you do not want to GPL as part of GPLed work, it severely cripples your chances to collect the damages.

The reason for this comes not from the copyright law, but from the equity law. By distributing code under GPL SCO gives the recepients the reason to believe the latter receive certain rights according to the license. Hence, SCO's denial of the rights contrary to the license puts them into position where they did not hold their end of the promise (have 'dirty hands') and equity law does not allow plaintiffs with 'dirty hands' to collect damages.

Similarly by distributing their code within GPLed work they give a reason to believe that it is OK for the code to be there and be distributed.

Code itself, however, is still not GPLed and should be removed as soon as SCO will care to point to the code in question and prove that they have either copyrights or other interest preventing the copyright holder from choosing certain types of licensing.

Re:Even if they offer a "download"

[Curtman]

I've got the answer!

All they have to do is distribute the source in PDF using the wingdings font! Surely nobody will crack that like those pesky open sourcers did with their Greek font.

Re:Even if they offer a "download"

[EzInKy]

I've been arguing with my Linux using friends for a long time that Linus should change the license to a truly free one. One free of the viral restrictions of the GPL. That license is the BSD license. Think about it people. I personally call out Linus on the table. What about it you herring eating freak? are you gonna make sense for once, or not? Change the license. Get away from the communistic GPL. Stallman bugs you, why don't you bug him back?

The GPL says for the price of allowing the distribution of your small contribution you are entitled to distribute everyone else's contributions. That's like paying $1 and receiving $1,000,000 in return. Seems like a pretty profitable arrangement to me.

Re:Even if they offer a "download"

[ArtisteTerroriste]

>The thing is, they do distribute their code under
>the GPL.

I believe they don't distribute any Sys V code under the GPL, because this is NO Sys V code in Linux.

Anyone notice how IBM keeps saying in filing & court that to date, SCO hasn't provided a single line of infringeing code.

Or as SCO says, referenced in this latest filing by IBM:

"IBM keeps insisting on something that is not part of SCO's claims, so it should come as no surprise that files or lines of code in System V have not been identified"

Re:Even if they offer a "download"

[Anonymous Coward]

>>Grant that they are correct for a moment - that the Linux kernel includes code to which they hold the copyright
>Don't grant that. They've been saying right from day one that this isn't about copyright. It can't be. They don't hold any copyright to the code in question, and Novell has cast doubt as to weather they own copyright to Unix even.

He said "grant for the monent" - it was an assumption for the sake of his argument. "Even if X (copyright) is true, then Y"

Re:Even if they offer a "download"

[Curtman]

He said "grant for the monent" - it was an assumption for the sake of his argument.

How do you misquote someone, and quote them correctly right above it? I don't know, but you pulled it off.

He said "Grant that they are correct for a moment"

Well we're not granting that, because thats not what they're claiming, therefor there's nothing to be correct about.

Re:Even if they offer a "download"

[msobkow]

Excellent idea! Maybe those who've had to defend against invalid patents should be entitled to sue the USPTO not just for the expenses, but for the loss of reputation, loss of potential revenue, etc.

Everyone else in industry is responsible for their actions and subject to lawsuits. Why should a government agency be any different if they are going to perpetuate such blatant and expensive incompetance?

Re:Even if they offer a "download"

[Ohreally_factor]

Grant for a moment that you might have trouble with hypotheticals. It could be a problem reading the word "if".

Re:Even if they offer a "download"

[Ohreally_factor]

If Microsoft were involved in a big way, they wouldn't be doing so many completely stupid things to destroy their credibility. Bill's got enough minions to figure out that will backfire

If MS is so slick, how do you explain why they funded that Linux "study" at AdTI?

Re:Even if they offer a "download"

[Ohreally_factor]

It's an even better bargain. If I decide to modify GPL code, but not distribute the code, i.e., use it in house, I don't even need to GPL my code modifications!

Re:Even if they offer a "download"

[Curtman]

If is fine. You could say:

"If SCO owns copyright to code which may be in the kernel"

That's a valid hypothetical situation. However if you say

"If SCO is correct in its assertion that it owns the copyright to code which may be in the kernel"

Then you'd be talking out of your ass, because thats not what SCO is saying. Thats what they lead the media to believe, because once you point out to someone that they don't own this code, and don't even have these features in their OWN PRODUCTS. The whole thing seems foolish. Its a very important distinction. Go ahead and create as many hypothetical situations as you want, but make sure the conclusion has something to do with the hypothesis.

Re:Even if they offer a "download"

[Curtman]

I don't know of any study funded directly by Microsoft. Microsoft funds AdTI, which came up with that balony all on its own. (We are talking about the Ken Brown/Minix load of crap right?) Because apparently even Microsoft saw right through that.

Re:Even if they offer a "download"

[Ohreally_factor]

Microsoft funds AdTI, which came up with that balony all on its own.

Can you back up this assertion? Has either party opened their books to show who funded the study?

Regardless of whether Bill Gates personally directed Ken Brown to write the Samizdat FUD, there is a pretty clear relationship there. And ADTI is a known FUD mill posing as a think tank. Why would a company fund a FUD mill? Maybe to generate FUD?

Because apparently even Microsoft saw right through that

I merely questioned how slick MS could really be, given that they funded this study. I didn't say that they were complete idiots; obviously they would back away when the study turned out to be "unhelpful". Your characterizing their actions of backing away from a stinking turd that they helped foist on the world as "saw right through that" makes me question your intentions here. Your characterization would almost lead one to believe that MS is at the forefront of fighting anti-linux FUD.

You've stated that you don't believe that MS is engaging in any of the current round of FUD but is laying back and waiting for their moment. While no doubt MS has much more in reserve, they have not been laying back. Their fingerprints are everywhere.

I'm all for taking a critical look or two before jumping on a band wagon, but you seem more intent on muddying the water than clearing anything up. You shouldn't jump to the opposite conclusion if you question the basis for someone else's conclusion.

Re:Even if they offer a "download"

[Ohreally_factor]

"If SCO is correct in its assertion that it owns the copyright to code which may be in the kernel"

Then you'd be talking out of your ass, because thats not what SCO is saying. Thats what they lead the media to believe. . .

So they led the media to believe it without actually saying it? That's a pretty neat trick. Unless I misunderstood you, which is quite possible, as it's hard to hear your voice through several layers of clothing (your underpants and pants).

From day one, SCO has claimed that Linux contains code to which they own the copyright. Where have you been? Sightseeing in the Sigmoid Flexure?

Re:Even if they offer a "download"

[Curtman]

You seem to be mistaken about the way this works. You see, you accuse them and provide facts to back up your claim. You don't accuse someone, and challenge the recipient of your drivel to prove you wrong. Well, maybe you do, but you seem like a bit of an ass. Trust me, I hate Microsoft as much as anybody out there, but making baseless claims like this is no better than SCO blaming us for DDoSing them.

Bill is evil, but he's not stupid.

Re:Even if they offer a "download"

[Curtman]

So they led the media to believe it without actually saying it? That's a pretty neat trick.

Thats precisely what they've done. Look here in the initial press release. Search for "copyright", and you won't find it. You'll find:

• the owner of the UNIX operating system, announced today that it has filed legal action against IBM (NYSE:IBM) in the State Court of Utah, for misappropriation of trade secrets, tortious interference, unfair competition and breach of contract.

Then head on over here, and you'll find a multi-page document on how great copyright is, and how all these big bad Linux companies hate copyright. Blah, blah, blah.. DMCA is also good.. GPL is unconstitutional.. Blah blah.. FSF undermines copyright and patents.. Blah blah..

Where is the accusation that IBM put code that it owns copyright of into the kernel? Lets look at one of the infamous teleconference calls with McBride:

• First, the copyrights are not important to our current enforcement actions.
  -- Darl McBride Friday, May 30, 2003

They talk about copyright all the time, but never say we own the copyrights to JFS, NUMA, RCU, etc and IBM put them in the kernel. They don't say that, because its not true. They would be sued for slander and libel if they said that.

Re:Even if they offer a "download"

[Ohreally_factor]

From the letter to the 1500 (PDF):

We have evidence that portions of UNIX System V software code have been copied into Linux and that additional other portions of UNIX System V software code have been modified and copied into Linux, seemingly for the purposes of obfuscating their original source.

and

We believe that Linux infringes on our UNIX intellectual property and other rights. We intend to aggressively protect and enforce these rights.

There are plenty more examples.

Re:Even if they offer a "download"

[Curtman]

But that has nothing to do with the IBM trial that is going on. And also doesn't mention copyright. They do not have a copyright on anything contributed by IBM. I don't know why you're still going on with this. Let it die man. They don't own the goddamn copyrights, and thats not what they are in court over even if they did.

Re:Even if they offer a "download"

[Ohreally_factor]

There really is no reason to "trust you". When someone I don't know, who has never given me a reason to trust them says, "Trust me," my universal translator kicks in, and I hear the words, "Fuck you." And backatcha. Trust me, Curtman.

pagan odysseus has suggested that there are bigger players hiding behind SCO and the anti-Linux FUD campaign, a contention that has well documented evidence. (Baystar, AdTI, Halloween memos, etc.) There are fingerprints all over the place. Granted fingerprints are circumstantial evidence, but you seem to be saying that without direct evidence such as an eyewitness, discussion on the topic of who is behind this should be verboten.

Re:Even if they offer a "download"

[Curtman]

Fine, enjoy your fantasy world. The rest of us will have to deal with the facts. But hey, you're probably right. Microsoft paid a bunch of cash to have the study written, then discredit it themselves. I'd love to hear your theories on what their motive might be.

Re:Even if they offer a "download"

[Ohreally_factor]

Wow, such a powerful argument. Did you formulate that while checking for polyps?

You continue to mischaracterize the situation. MS did not discredit the study. The Unix and Linux communities did that. MS sought to distance themselves when it became apparent that the study was a steaming pile. They said that the study was "unhelpful".

For someone who claims to hate MS, you sure seem to take their statements in the best possible way.

Re:Even if they offer a "download"

[Ohreally_factor]

If the letter has nothing to do with the IBM case (not yet at trial by the way), then why has IBM included it in it's exhibits?

If SCO has never claimed to own copyright to any code in the Linux Kernel, then why would IBM make a motion for summary judgement to the effect that no SCO copyrighted code has been improperly placed into the Linux kernel?

It's funny that you won't grant for the sake of argument that SCO might have code in the kernel, yet you accept SCO's statements at face value, even when they conflict with other SCO statements.

You state that the letter doesn't mention copyrights. What rights does it mention? "Intellectual property and other rights." Now, exactly what IP rights might SCO lay claim to? Patent rights to Unix Sys V? I don't think so. Trade secrets? No, that can't be it. Trademark? Trademark to the Unix name resides with someone else. So by process of elimination, we arrive at copyrights. They are referring to copyrights, Watson. Unless there is some other form of IP that you are privy to.

I'll let it die when you stop making misleading or erroneous statements. You can tap dance around the copyright issues just as SCO has, but you'll notice that IBM's attorneys have called their bullshit, thus the motion for summary judgment.

Re:Even if they offer a "download"

[Curtman]

Now I see where you are confused.

Copyright, is real. It is:

• Copyright is a legal term describing rights given to creators for their literary and artistic works.

Intellectual Property is an offensive buzzword that management types use to distract people from the fact that they have no copyright.

Re:Even if they offer a "download"

[Ohreally_factor]

I think you must have one of those steel ball bearing minds, i.e., totally impenetrable. Try this press release on for size.

During the past seven months, our company, along with Boies, Schiller & Flexner, has uncovered a number of substantial software code issues as they pertain to our UNIX intellectual property and Linux," said Darl McBride, President and CEO, The SCO Group, Inc. "By far the most important asset of this company is our ownership of the UNIX operating system and today we are investing in the protection and future of UNIX. Boies, Schiller & Flexner is now moving beyond the contract issues we have with IBM. The firm will be enforcing and defending SCO's intellectual property rights, including the protection of our UNIX System V source code and our copyrights that were reaffirmed as a result of the BSDI settlement agreement."

More:

"As part of the expanded scope, the firm has been engaged to support SCO regarding issues relating to copyrighted Unix code incorporated into Linux without authorization or appropriate copyright notices," the company said in Tuesday's release. "Code that has been identified includes Unix System V code as well as copyrighted code included in the 1994 settlement between Unix Systems Laboratories Inc. and Berkeley Software Design Inc. SCO acquired this code and associated copyrights in 1995 from Novell."

You're being overly literal minded and arguing semantics. How charmingly sophmoric! Even more charming that your argument is wrong. However, unfamiliarity with the English language might be the least of your problems. Your big problem is that you stated that SCO never claimed to own copyrights to code in the Linux kernel. That has made my job easy; I have only to find a single instance where SCO has made such claims. So far, I've given you three.

My advice: In the future, avoid making hard to defend generalizations, especially when you are basing them on the utterances of a company famous for it's double-talk. Learn to read between the lines and to understand implications. SCO might have thought they were safe making implications, that if they tap danced hard enough they couldn't be pinned down, but their words are coming back to haunt them, and IBM is nailing them down with those very words. This might be too subtle a point for you to catch, however.

Re:Even if they offer a "download"

[Curtman]

Take your own advice pal. They don't have copyright of IBM's code. Thats why it doesn't say anywhere that they do. It says they have copyright of "UNIX System V source code". That's entirely possible that they do. The issue with IBM is exactly what they say it is in the first paragraph you pasted. "the contract issues we have with IBM". Contract. Copyright is a different set of laws altogether.

THEY DO NOT CURRENTLY HAVE A LAWSUIT DEALING WITH COPYRIGHT OTHER THAN THE NOVELL SUIT.

Go away you fool.

Re:Even if they offer a "download"

[Ohreally_factor]

Oh, my, now you're shouting! That must mean you've won the argument.

You seem to have problems with public debate. Perhaps you should have a time out until you can cool down.

Oh, and by the way, they do have a suit that deals with copyright. It's known as SCO v. IBM. If you examine IBM's counter claims and motions for summary judgement, you'd understand this. And you call me the fool? Hah! You crack me up!

Anyway, go ahead and have the last word, and be sure and use lots more caps and call me more names. I think my work here is done. Actually, I should thank you, as you did most of the work for me by demonstrating that you don't know what you are talking about.

Re:Even if they offer a "download"

[Curtman]

It's known as SCO v. IBM

I believe you are referring to the copyright complaint regarding IBM's continuing to sell AIX after they "terminated" IBM's contract.

But one more time, the complaint (and basis for the AIX dispute):

• Breach of IBM Software Agreement
• Breach of IBM Sublicensing Agreement
• Breach of Sequent Software Agreement
• Unfair Competition
• Interference with Contract
• Misappropriation of Trade Secrets

At least according to SCO it is. But hey, you would know better than them right?

go ahead and have the last word

Thank god for small miracles.

Re:Even if they offer a "download"

[Anonymous Coward]

Please read this.

It's clear that you're wrong about the copywrites, why not just bow donw gracefully?

Re:Even if they offer a "download"

[Curtman]

Posting anonymously now are you?

That document is IBM's legal statement that SCO does not own the copyrights for the code they contributed. That is not being disputed. SCO already admitted that, so it's not a shocking development either.

Patent hammer

[nightsweat]

I would think IBM would have a way to enforce its huge patent portfolio in a way that would torpedo SCO entirely, and not just in court.

Maybe they could offer a $50/year licensing fee to other open source companies that use their patents and a fee of one BAZILLION dollars to SCO to use their patents.

Re:Patent hammer

[island_tux]

Merde, Ce n'est pas con du tout sa ! :)

Re:Patent hammer

[Albanach]

They could waive their patent rights for software distributed under an OSS approved license, but to charge would probably fall foul of most licenses and halt distribution of the software. Not exactly desireably.

Re:Patent hammer

[Anonymous Coward]

You need not worry IBM will get to that at the proper time.

They are laying a foundation for several other motions and additional cliams.

SCO will be flushed down the drain when this is over, I pity (NOT) the folks pulling the strings.

Re:Patent hammer

[nightsweat]

I was thinking of the patents that many are claiming much OSS already violates. A token payment from the manufacturer that cleared them and their customers from further suits I think would be desirable.

Of course, some people find Ed Asner desirable so what do I know?

Scuppered?

[YetAnotherName]

Ah, "to scupper":

v. 2. put in a dangerous, disadvantageous, or difficult position

Yep, that's it.

Re:Scuppered?

[nightsweat]

And now I wonder about the times I ate at the rusty scupper. Did the chefs not wash their hands or use old meat or something?

Re:Scuppered?

[edunbar93]

If I recall correctly, scuppers used to be some kind of a cleaning mechanism on a sailing ship.

I think a better reference would probably be "scuttled", which is typically what one does to intentionally sink a ship, while one is onboard.

Re:Scuppered?

[Moofie]

Scuppered is perfectly acceptable in this context. As in "This apple be rotten to the core, I shall scupper it! Avast ye!"

Scuppers are ventilation systems for the bilge. The bilge is where all kinds of ick grows. It's also a trash bin.

Re:Scuppered?

[Anonymous Coward]

No, scuppers are the openings cut just above the main deck line, that allow water to flow off the main deck back to the sea. Your pirate phrase is correct, as it translates to "the apple is rotten, throw it overboard", but it has nothing to do with the bilge (unless you count not letting all that deck water getting into the bilge).

What's the quickest this could be finished?

[Paul Crowley]

If the judge basically doesn't extend SCO the benefit of the doubt any further on any of this, how long might it take for the whole thing to be completely dead, stop quivering, be visibly a corpse? How long can SCO continue to drag the threat out before it's dead?

Re:What's the quickest this could be finished?

[sotonboy]

Sounds like a question for a slashpoll

Re:What's the quickest this could be finished?

[CyberLord Seven]

They can continue until Micro$oft stops giving them money. SCO has been a cheap source of Linux Fear, Uncertainty, and Doubt for over a year now. What's a couple million more dollars to a company that has billions in reserve?

Re:What's the quickest this could be finished?

[cdrudge]

IBM files motion. SCO gets a chance to file a reply trying to debunk IBM's motion. IBM gets to reply to the reply. Then a hearing gets set. Then the judge rules on the motion.

I think best case you are looking at a month or two, assuming nothing else gets done.

Re:What's the quickest this could be finished?

[prhodes]

If the judge basically doesn't extend SCO the benefit of the doubt any further on any of this, how long might it take for the whole thing to be completely dead, stop quivering, be visibly a corpse? How long can SCO continue to drag the threat out before it's dead?

It's going to be a while, I think:

• 1. The whole business of the Partial Summary Judgement(PSJ) on IBM's 10th Counterclaim has to be resolved.
• 2. This new PSJ has to be resolved (IBM filed, now SCO responds, then IBM responds to SCO, then there are oral arguments, then the judge issues a ruling)
• 3. Any additional motions must be resolved.
• 4. Whatever's left of SCOs claims goes to trial.
• 5. IBMs counterclaims go to trial (this may be combined with 4, I'm not sure).

So, it may be a while. I suspect IBM has other motions ready to gut the rest of SCOs claims, and these will need to be resolved. The only way I can see this resolved quickly is if SCO just folds, and that's IMO unlikely - it would expose them to massive shareholder lawsuits & probably an SEC inquiry.

-Phil
IANAL, I just read Groklaw

Re:What's the quickest this could be finished?

[slipstick]

I agree its still going to be a while but I think we can make a better guess than that.

The grandparent post stipulated that the judge wouldn't give SCO any more wiggle room, which I don't believe is all that far-fetched. Here, I take wiggle room as "we need more discovery", as opposed to "my nephews sick I need more time to file". The latter is what I would characterize as normal operations, the first is wiggling.

IBM filed their first PSJ on or about May 21st. The initial oral argument was scheduled for Aug. 4th but this has been moved to Sept. 14th. Presuming a couple of days for the judge to ponder and that decision would be handed down around Sept.16th. So, let's call it 3 and 1/2 months. Thus, from the date of Friday's filing(Aug.13th) that would place a resolution on the contract question by or about Dec.1st or so, call it Dec.7th for good measure.

Now, presuming further that both PSJ's go in IBM's favor, there would be little left to argue as the rest of SCO's case hinges entirely on their claims in the contract claims. I will guess that IBM will file a few more of these PSJ motions, basing them on the two already in play. So I will guess that by mid-May of next year almost all of SCO's case will have been dismembered. Effectively making "this" over. There will of course be the inevitable clean-up which will occur because IBM has all their counter-claims and I guarantee they are not going to let those drop. So sometime around November of next year I suspect SCO will declare bankruptcy or negotiate that IBM take over SCO operations with no money changing hands.

Whether IBM desires to persue old Darl and his cronies for some malfeasance I can't guess in which case the "whole thing" won't be over for some time, but all the nasty stuff will be over by May or June of next year.

IANAL yadda yadda yadda...

Re:What's the quickest this could be finished?

[shanen]

I think it depends on the SCOX stock price. Currently fluttering around $4. Kind of a race to see which bottoms out first, their market cap or their credibility. I rather suspect they'll be forced into bankruptcy if the stock drops much more.

Then Murphy would probably intervene, and the IBM lawsuit would be frozen as an "asset" for SCO's creditors.

Re:What's the quickest this could be finished?

[mwood]

There are other factors.

When SCO v. IBM winds up, lots of other cases become unstayed. RHAT v. SCO. SCO v. AutoZone. SCO v. Novell. And [drumroll] IBM v. SCO.

Notice that SCO can't disengage from IBM even by losing. The beatings will continue until IBM has what it wants.

Re:What's the quickest this could be finished?

[Epi-man]

Thus, from the date of Friday's filing(Aug.13th) that would place a resolution on the contract question by or about Dec.1st or so, call it Dec.7th for good measure.

Could this possibly make Pearl Harbor day slightly less painful for Americans in the future? One can only hope!

Re:What's the quickest this could be finished?

[angle_slam]

It won't be one month. According to the Utah Local Rules, SCO has 30 days to file its response. Then IBM has 10 days to file its reply to SCO's response. So it'll be 40 days before the court even has all the motions. Then it still has to set oral argument. Depending on the judge's docket, it could be weeks or months until the judge makes a ruling (or it could be just a few days).

Re:What's the quickest this could be finished?

[Curtman]

Isn't there a few weekends in there? Maybe a holiday or two, that the SCO executives will be busy celebrating? Surely they should be given 60 days to file. See you in November.

P.S. We'll be taking an extended Christmas this year because last years was cut short in late January.

Re:What's the quickest this could be finished?

[roystgnr]

Kind of a race to see which bottoms out first, their market cap or their credibility. I rather suspect they'll be forced into bankruptcy if the stock drops much more.

Market cap and net worth are two different numbers. Having a small market cap can only hurt your future net worth if you were relying on being able to issue more stock, and since SCOX is planning to do the opposite (they want to launder their Baystar money by using it to buy back the stock they've been printing for their executives) then as a company they don't care even if their stock gets so cheap Nasdaq delists them.

The SCOX executives are undoubtedly pissed about the plummeting stock price, but not because it limits how long their company can stay afloat, just because it limits how fast they'll be able to take stock speculators' cash for themselves in the meantime.

Re:What's the quickest this could be finished?

[jgoemat]

December huh? What a nice early Christmas present it will be to read the oral arguments and judgement on this one :) IBM keeps painting SCO into a corner. First they forced the drop of trade secret claims. Now they're being forced to drop their ridiculous interpretation of the contract. In oral arguments, I bet SCO will file a third amended complaint that complains the following:

1. There were 161 lines of UNIX SYSV in a few versions of Linux (SGI admitted accidentally putting that in and it has since been removed)
2. IBM distributed Linux during the time this code was present
3. IBM therefore improperly distributed our UNIX SYSV code for a time
4. That, your honor, is why we terminated their license and are suing them for $50 billion

I'm just kidding of course, or am I?

Re:What's the quickest this could be finished?

[slipstick]

You should be painfully aware that my analysis putting this at early December was based on the idea that the judge don't hold no more quarter for wiggling, and the obligatory IANAL. So there could be alot of legitimate wiggle room that the judge can't do anything about and must give them or risk having it thrown out on appeal.

Our best indication will come in September. If the first motion for summary judgement is heard when it is expected to be, than IMHO it's much more likely that December will be when this motion will be heard.

Re:What's the quickest this could be finished?

[elgaard]

>The only way I can see this resolved quickly is if SCO just folds

I am sure this "valuable" asset of court cases would go to Baystar if SCO folds up.
It would just mean even more delays.

Re:What's the quickest this could be finished?

[MrResistor]

# IBM distributed Linux during the time this code was present ...except that IBM, most carefully and specifically, does NOT distribute Linux. They are merely resellers, like Best Buy or Fry's. So the arguement becomes "We're suing IBM for $50 billion because SGI accidentally put 161 lines of SYSV code in a few versions of Linux."

I don't think the judge would find that funny.

Re:I'd just like to say..

[SatanicPuppy]

In other words you're glad they're getting slapped like the bitches they are?

Word. Sue IBM? Bad idea. But if you do it, you best make sure you've got your shit together.

Summing up IBM's 100 page PDF in 1 sentence...

[VC]

Authored by: sef on Monday, August 16 2004 @ 11:34 AM EDT Posted on Groklaw, Sef is the author, not me.

"We didn't do it. Even if we did, these guys said we could, but we didn't. And even if we did, which we didn't, not only did these guys say we could (but we didn't), but these nobks did the same thing, so we should be allowed to do it. Which we didn't."

Re:Summing up IBM's 100 page PDF in 1 sentence...

[Mr Guy]

One sentence? Must be some of that new math.

Re:Summing up IBM's 100 page PDF in 1 sentence...

[Anonymous Coward]

So you copy a groklaw comment and post it as your own. How origional.

Not!

Re:Summing up IBM's 100 page PDF in 1 sentence...

[Anonymous Coward]

We apologise for the fault in the parent post. Those responsible have been sacked.

Re:Summing up IBM's 100 page PDF in 1 sentence...

[Anonymous Coward]

base 0.25

Re:Summing up IBM's 100 page PDF in 1 sentence...

[BoneFlower]

Is it not possible that the parent is the same person who posted the Groklaw comment?

Unless of course you are the groklaw comment poster, you have no way really of knowing this. So bugger off.

Re:Summing up IBM's 100 page PDF in 1 sentence...

[corellen]

try opening your eyes and reading the whole post he gave credit to the orginal post from groklaw. go back under your bridge.

Re:Summing up IBM's 100 page PDF in 1 sentence...

[HiThere]

It's all a single quoted string, so I think it counts as a single sentence. In fact, as a sentence fragment (i.e., a part of a sentence).

The longest sentence I've seen (without using embedded quotes) was three pages long. And in Finnegan's Wake. And, as expected, essentially unintelligible. So a sentence isn't a measure of length.

Re:Summing up IBM's 100 page PDF in 1 sentence...

[snake_dad]

Who cares.. as long as SCO gets sentenced :)

Re:Summing up IBM's 100 page PDF in 1 sentence...

[jgoemat]

What? It's four sentences, count the periods :)

Time for a class action suit

[Tenebrious1]

Against SCO for making us with mod points have to dig through yet another SCO discussion.

Re:Time for a class action suit

[Armchair Dissident]

That's why I always mod in the morning before posting an article about SCO :-)

Re:Time for a class action suit

[freakmn]

You sir, just saved yourself the trouble.
http://slashdot.org/faq/com-mod.shtml#cm600

WTF?!?!?!

[Killjoy_NL]

What is this? a legal slapstick ?

Costs ?

[Anonymous Coward]

I hope IBM follow this up with a request that SCO have to pay legal costs. 100 pages at rate even Tony Soprano would be ashamed at extorting ... erm charging ... should push SCO into chapter 11

Re:Costs ?

[slipstick]

They've already counter-sued for that and much,much more.

Trust me SCO as we know it will no longer exist. Darl and his cronies however, will likely make out like bandits. Hopefully, IBM can sue on something to get Darl and his boys personally and not just SCO.

Re:Costs ?

[Anonymous Coward]

by the time this is all over, there will be a bloody paste in a whole in the ground filing for chapter 7, if things go well for them.

Re:Costs ?

[SlowMovingTarget]

Hopefully, IBM can sue on something to get Darl and his boys personally and not just SCO.

Unnecessary. If I remember correctly from previous newsclippings, the SEC is already sniffing around Darl and his boys for securities fraud (pump and dump of SCOX).

Re:Costs ?

[slipstick]

You may be right but from reading the filings from IBM's lawyers I'd much rather trust them to nail Darl to the wall than the SEC. When IBM's lawyers get riled they take no prisoners.

Derivative, but still important

[grunt107]

IBM goes on to argue that old agreements with AT&T and expert witnesses make it clear that IBM was allowed to do what it liked with "derivative works." It would have been bad business for IBM to agree to broad terms banning it from controlling "derivative works," it says.

If the AT&T contracts show the approval of derivative works, any AIX code IBM developed and then added to Linux would definitely be out of scope.

I think someone is SCO-rewed on this one.

Re:Derivative, but still important

[killjoe]

What's especially ironic is that all this came about during discovery. IBM had a chance to interview all the people who were parties to the contract and put their statements into the court records. Maybe before the lawsuits somebody could argue some vague wording but not anymore.

Thanks SCO!

Mwahaha

[Anonymous Coward]

It's really cool to see how the things that we're pointing at here on Slashdot (like the still-available linux downloads) and going "wtf, SCO can't do that", we're finding eight months later IBM suddenly bringing this thing up in a legal finding and going "SCO did this, they can't do that".

It's funny, IBM's legal team doesn't miss anything but they seem to always wait until the most opportune time to bring it up. Meanwhile even if SCO's case hadn't been baseless in the first place, they seem to be doing absolutely everything possible to sabotage it short of bribing the judge.

Hey wait a minute, bribing the judge.. hmm...

You know, something just occurred to me. I think I know what SCO might be up to. Have you ever seen "The Producers"?

Re:Mwahaha

[Anonymous Coward]

Ha! Yeah, Microsoft alone has 120%. Won't they be pissed?!

Re:Mwahaha

[Mateito]

Hey wait a minute, bribing the judge.. hmm...

With what? Stock options?

Re:Mwahaha

[Dravik]

Isn't the whole point of hiring a good legal team that they will use each opponents mistake at the most opportune time?

Re:Mwahaha

[dR.fuZZo]

It's funny, IBM's legal team doesn't miss anything but they seem to always wait until the most opportune time to bring it up.

It is funny. Shouldn't they have been putting this out in their weekly press releases?

Re:Mwahaha

[drinkypoo]

It's funny, IBM's legal team doesn't miss anything but they seem to always wait until the most opportune time to bring it up.

If only their software development teams were capable of this kind of activity, AIX wouldn't be pronounced "aches" and people would actually look forward to moving their company to an IBM solution.

Re:Mwahaha

[sharkey]

Sure. Judges have to wipe their asses, too.

Re:Mwahaha

[Pharmboy]

It is funny. Shouldn't they have been putting this out in their weekly press releases?

I would think not. They have been quiet about SCO allowing downloading of Linux until now, and now SCO has been distributing it for well over a year after they filed the original suit. This is more powerful than bringing it up 2 weeks into the suit. Also, they didn't want to bring it up until they had the other evidence, or rather, until it was shown that SCO had no evidence (which they knew would happen.)

Like comedy, good "lawyering" is a matter of timing. I don't pretend to understand the timing before the fact, but you have to admit, it appears the timing to release this info is pretty good. I have to trust their lawyers on this one.

What I think is more important that WHEN the case will be settled is the fact that IBM has contributed to settling the case in the public eye and discredited SCO's FUD machine. One year ago, many uneducated people assumed SCO was correct. I mean, IBM licensed Unix, SCO "owned" Unix, IBM put stuff in Linux, so it could have been Unix code, right? This is not so much the case anymore, as the general public is more aware of what derivitive products are, that SCO is not Santa Cruz, and of course, that Novell may actually own what SCO claims to own.

Re:Mwahaha

[Steeltoe]

Unless they go through every page on the SCO-site manually, they probably got it from some news-source. I wouldn't be surprised if searching through /. is actually becoming standard practice for lawyers to get ideas about their angle of attack/defence on technical issues.

Don't underestimate the value of opinions from thousands of people across the globe.. It's unprecedented in our history. IBM certainly knows the open source community well enough to warrant that a substantial portion of their employees reads /. and similar sources.

Where is the Linux code?

[yttrium]

Anybody have the address to the Linux 2.4 code?

Re:Where is the Linux code?

[RepeatedEigenvalue]

Well, if you're on x86, it starts at 0x100000, but is then re-mapped to PAGE_OFFSET+0x100000 if paging is turned on.

Hope this helps.

Re:Where is the Linux code?

[cdrudge]

http://www.kernel.org/pub/linux/kernel/v2.4/

Re:Where is the Linux code?

[SCO_Shill]

http://www.sco.com/support/linux_info.html

In today's world

[RU_Areo]

can't they just kiss and make up?

Re:In today's world

[WindBourne]

Why? IBM has this won WRT the linux stuff. I am also guessing that they have it won WRT the *nix contracts.

Re:In today's world

[Hieronymus Howard]

can't they just kiss and make up?

Would you really want to kiss Darl McBride?

Re:In today's world

[Anonymous Coward]

No. In today's world, anyone who's not With Us is Against Us. Only total extermination is allowed. No shades of gray. No compromise with the Forces of Evil. We are Good. We are Pure. We are Holy. They are Satan. They are Evil. They are Liars!

Welcome to the 3d Millenium! Believe exactly what we believe and no one gets hurt.

Puzzle Pirates Re:Scuppered?

[kbs]

It also happens to be the Puzzle Pirates filter replacement for the word fucked

Re:Puzzle Pirates Re:Scuppered?

[Anonymous Coward]

Last night my girlfriend and I scuppered.

hmm

I guess some people might like "difficult positions."

Re:Puzzle Pirates Re:Scuppered?

[Linux_ho]

U 2 r kinky, spittin etc.

"Webster's Revised Unabridged Dictionary (1913)"
Scupper Scup"per, n. OF. escopir, escupir, to spit, perhaps
for escospir, L. ex + conspuere to spit upon; pref. con- +
spuere to spit. Cf. Spit, v.
(Naut.) An opening cut through the waterway and bulwarks of a ship,
so that water falling on deck may flow overboard; -- called
also scupper hole.

Uhh

[Anonymous Coward]

Ask google?

scuppered ... again?

[SABME]

With all due respect to Armchair Dissident, this is the first time I'm aware that IBM has refuted all of SCO's assertions on a point-by-point basis, and called into question SCO's motives in bringing this case to trial. So it's hardly the case that SCO is "scuppered again." It's just that the wheels of justice turn slowly, in the interest of giving all parties a fair hearing.

According to Groklaw, this is nowhere near the end of the case, since SCO still has the opportunity to rebut IBM's motion, IBM then can refute the rebuttal, etc. etc. But it may be the beginning of the end.

The previous "scuppered again" reports from Groklaw (and other sources) are the results of developments in other trials as well as independent investigations (outside the courtroom) into the merits of SCO's claims. Based on the linux community's technical consensus (again, outside of any trial) that SCO's claims are meritless, I think we've known SCO's case was doomed all along. We're still waiting for it to play out in the courts, though, which is where it counts.

Re:scuppered ... again?

[Armchair Dissident]

I don't disagree with you at all. Indeed it is precisely because of SCO's constant ability to 'get out of jail free' that I made the remark. I don't for one instance believe that this is the end of the case, companies will always drag out a court case as long as they possibly can - and SCO has been particularly good in this respect.

The "scuppered. Again" comment was mainly as a result of this from Groklaw:

You don't want to miss reading page 76. It's where IBM tells the judge that as recently as August 4, 2004, SCO was *still* offering the Linux 2.4 kernel for download, the very code it is suing IBM over. [....] I think, therefore, that SCO's case just went poof, on this one issue alone.

I think that Groklaw are probably right here. SCO no longer has the argument that they didn't know the code was still being distributed, so they have - by definition - been distributing disputed code under the GPL. Bang goes their case. But it's not the first time that their case has apparently gone Bang. All the claims of disputed code that turned out to be nonsense - for starters - should have scuppered their case. This one's going to drag on until SCO have no more money to fight with - IMHO.

Re:scuppered ... again?

[drinkypoo]

It's just that the wheels of justice turn slowly, in the interest of giving all parties a fair hearing.

And here all this time I thought it was to give the lawyers more chances to make money. Silly me.

Re:scuppered ... again?

[Anonymous Coward]

"This is not the end. It is not even the beginning of the end; but it is, perhaps, the end of the beginning."

There goes SCO's karma...

[phyruxus]

they'll be defaulting to -1 for all their logged in lawsuits from now on.

>>"Although SCO for months perpetuated the illusion that is had evidence that IBM took confidential source code from Unix System V and 'dumped' it into Linux, it has become clear that SCO has no such evidence," IBM says in the court filing.

Moral: Don't troll. Yes Darl, even in court. *Especially* in court!

Re:There goes SCO's karma...

[Andy_R]

the technical term for being -1 for lawsuits, is a 'vexatious litigant'.

H.ere in Britian if you waste too much of the court's time, the court can declare you to be a vexatious litigant, and you lose the right to file suits. This would do wonders for SCO's share price!

Re:There goes SCO's karma...

[Anonymous Coward]

the technical term for being -1 for lawsuits, is a 'vexatious litigant'.

H.ere in Britian if you waste too much of the court's time, the court can declare you to be a vexatious litigant, and you lose the right to file suits. This would do wonders for SCO's share price!

Hmm, I don't know if we have such a thing in the States. Really I doubt it, a well applied ruling like that would help clear the civil courts of what we call "frivilious litigation". However, something like this could also be abused by using it to block unpopular causes or people who still have legitimate cases (i.e. civil rights lawyers in the 50's and 60's). So as long as you can trust your judiciary it could be useful.

On a completely different note, does anyone else think that "Vexatious Litigant" should be a class in the mock-RPG ProgressQuest?:)

Re:There goes SCO's karma...

[mwood]

"...does anyone else think that "Vexatious Litigant" should be a class in the mock-RPG ProgressQuest?"

No, but Dave Barry probably thinks it'd be a good name for a rock band.

Re:There goes SCO's karma...

[chill]

The U.S. has a similar process, but it is almost NEVER used. I remember 60 Minutes (a T.V. news show) covering a case of this, once. Some woman had filed several hundred lawsuits. Things like suing the neighbor kids for bouncing their basketball after 5:00 p.m. and causing her distress from the noise, etc.

She finally had pissed off enough judges to have her right to sue stripped.

Re:There goes SCO's karma...

[Atzanteol]

In the US one can be slapped hard for lawsuits that are deemed "frivolous."

Only case I can think of involved Uri Geller, who apparently was made to pay $20,000 to the defendant...

Damn it!

[tod_miller]

I just gone and bought a license from SCO as well... and now you say they don't have a leg to stand on?

www.ebay.com

For sale, hardly used, SCO unix licenses.

You beat their ass good big blue! I don't want thier own mothers to recognise them!

SCO shows that everyone can hate you, and you can still try and make money. At least Microsoft stole thier crap from someone fair and square.

Patents

[Anonymous Coward]

Are like the atom bomb. If you use them you lose your ability to use them in future.

they could offer a $50/year licensing fee to other open source companies that use their patents

The GPL prohibits this.

Re:Patents

[HiThere]

The GPL prohibits this for code that IBM distributes. But IBM doesn't distribute much GPL code (except internally). That is why it is important that:
a) the cost be nominal (it's a non-recoverable sunk cost), and
b) the license be irrevokable, and entend to those who use n-th generation copies/derivations.

OTOH, to the extent that IBM has distributed GPL code to those customers who run Linux on IBM mainframes, IBM has already waived those rights. (I don't know how significant this is.)

Re:Patents

[Curtman]

But IBM doesn't distribute much GPL code (except internally)

Excuse me? IBM distributes a hell of a lot of GPL code. Every time they sell a server with Linux on it, thats what they're doing. Every time they contribute something to a GPL project, they're essentially doing the same thing.

Re:Patents

[HiThere]

True, every time they donate code they are entering into the GPL limitations on that code. As to the other point though...

I don't know the technicalities of how the software gets installed. It could well be that as a part of the set up sequence the customer is given a DVD or Red Hat or SUSE and told "Put this in the DVD drive, push the load button, and follow the instructions." If this is what happens, IBM wouldn't waive ANY GPL rights during the process.

Since I don't know how the process works, I'm not willing to say how significant it is for their patent rights.

Re:Patents

[Curtman]

entering into the GPL limitations on that code

I'm not sure if you misspoke there, or actually believe that, but you should know, that the author (AKA copyright holder) isn't limited in how he can use that code. Only people who receive the code from them under the GPL, are bound by it if they choose to accept it. And they are not required to accept the licence to use the code. Only to modify and distribute it. There's an important difference there.

It could well be that as a part of the set up sequence the customer is given a DVD or Red Hat or SUSE and told "Put this in the DVD drive, push the load button, and follow the instructions."

You think IBM drops off a box with the Costco stickers still on it, and a bundle of CD's to their customers? Oh, man.. That's rich. And how did we get to talking about patents now?

Re:Patents

[HiThere]

entering into the GPL limitations on that code

By donating the code, IBM had agreed to allow it to be used under the GPL. Thus they have "entered into the GPL limitations", i.e. agreed to allow any patents in that code to be used in any derivitive work.

You think IBM drops off a box with the Costco stickers still on it, and a bundle of CD's to their customers?
I was envisioning their customer engineer walking the customer's SysAdmin in the set-up process. Which would be both reasonable, and wouldn't impose any GPL restrictions on them. And I will agree that there are many other approaches that they could take, but IANAL, and I don't know exactly how close to the edge you can walk without coming under the license as a distributor.

Re:Patents

[Curtman]

They haven't "entered into the GPL limitations". They've granted people a license to use their software. End of line.

(Sorry, just watched Tron)

Re:Patents

[MrResistor]

Excuse me? IBM distributes a hell of a lot of GPL code. Every time they sell a server with Linux on it, thats what they're doing.

You couldn't be more wrong. IBM is very careful about this.

When you buy a Linux server from IBM, what you actually buy is the server, a Linux distribution (from SuSE, Red Hat, TurboLinux, etc), and the service of having an IBM technician install your chosen distribution for you. IBM never distributes Linux.

I can buy a boxed Linux distro off the shelf at Best Buy. Does that make Best Buy a Linux distributer? No. Buying a Linux distro from IBM is exactly the same.

Re:Patents

[Curtman]

Can you tell me what license this patch is distributed under? Or this one, or most of the other ones for that matter?

And yes it does make Best Buy a Linux distributor.

Re:Patents

[MrResistor]

Can you tell me what license this patch is distributed under? Or this one, or most of the other ones for that matter?

You've completely missed the point, which is that IBM is not the distro providor, and thus is not under direct obligation to you.

And yes it does make Best Buy a Linux distributor.

Only in the retail sense, NOT in the GPL sense. Selling a SuSE boxed set places Best Buy under absolutely no obligations under the GPL. It's SuSE that bears that responsibility.

Same goes for IBM.

Re:Patents

[Curtman]

No. You missed the point. HiThere said:

But IBM doesn't distribute much GPL code (except internally

That is incorrect. IBM distributes a lot of GPL'd code.

You're lucky that you can still moderate

[Gothmolly]

I can no longer moderate since I've been to The Anti-Slash Jihad Website. If you read that site, never click any links to Slashdot, they pick you off by your HTTP-Referrer.

So, which parts of the case is allready dead

[KjetilK]

There has been a lot of stories on /. which says something like "if this goes through, the SCO case is effectively dead", and that "it is going to happen in weeks".

I must admit that I have gotten a bit tired of SCO stories (weird, huh?), but I can't remember seeing a ruling that has killed parts of SCOs case.

So, can somebody please summarize: Which parts of SCOs is dead now, by court rulings?

Re:So, which parts of the case is allready dead

[CmdrGravy]

I think so far as the IBM case is concerned all the parts of SCO's case ( at least the case they boasted they had in the media ) are dead apart from the dispute about whether IBM is allowed to do what it likes with the software it has written.

Read Groklaw for more info about all this stuff though.

Re:So, which parts of the case is allready dead

[LowneWulf]

Well the biggest part was the trade secrets claims. SCO rewrote their claims, dropping the pretense that SysV has any trade secrets, instead making the primary issue that of contract infringement.

IBM has two motions for partial summary judgement in the queue. The first is for a declaration of copyright non-infringement. If this passes (to be evaluated in September), then the courts will declare Linux to be free from copyright issues from SCO. The second, this recent one, is for partial summary judgement against SCO's contract claims, which is what saves IBM.

Linux wants the first. A lot. It effectively kills SCO's legal threat against Linux. The latter is what nails the most important part of SCO's case vs. IBM, and probably kills SCO in the process.

Re:So, which parts of the case is allready dead

[Anonymous Coward]

In related news, SCO has decided to switch from selling Unixware and Linux IP licenses to BSD.

Re:So, which parts of the case is allready dead

[Doppleganger]

There's also SCO's ability to threaten people who don't make all the certifications demanded in the letters they sent out to all their customers... the DC case pretty much killed that one, though SCO is still able argue that they should have gotten an answer in 30 days or less if they want to. *snicker*

Re:So, which parts of the case is allready dead

[MonkeyGone2Heaven]

So, can somebody please summarize: Which parts of SCOs is dead now, by court rulings?

Isn't that like asking during a 'Friday the 13th' movie which parts of Jason are dead?

Target acquired

[Stephen Samuel]

SCO was still offering the disputed code for download as recently as August 4 2004.

1. Target foot.
2. Pull triger
3. Scream
4. Get bigger gun
5. repeat 1-4
6. Profit!!!! (M$)

Re:Target acquired

[David McBride]

You missed one:

0. Insert foot in mouth?

Re:Target acquired

[Stephen Samuel]

No. It's easier to pick up the (byte sized) pieces, and stuff them into your mouth afterwards.
Oh, and 3 should have been " Scream (at GrokLaw)".

P.S. It must be quite the bitch running around the Linux community named D. McBride.

Re:Target acquired

[jgoemat]

No. It's easier to pick up the (byte sized) pieces, and stuff them into your mouth afterwards.

Except the result may be more pleasing if the foot was inserted into the mouth before the shot was fired.

Re:Target acquired

[scharkalvin]

You missed one:

0. Insert foot in mouth?

Don't you mean insert GUN in mouth?

Re:Target acquired

[Stephen Samuel]

ooohhHH!!!!! Two fer one!

Re:Target acquired

[SenseiLeNoir]

nope.. then you cant do the repeat, as it would take out haev the brain, casuign a "Brain Exception" to occur, terminating the loop, and perhaps the process ;)

When will it end?

[houghi]

I wonder how long it will take for SCO to trow in the towel. Not only that. I wonder what will happen AFTER they trow in the towel.

My best guess is that they will drop all charges and as a result the other companies will drop their charges.

The end result will be that our friend Darl has made a LOT of FUD and a lot of money. He has truly found the way to 3. Profit.

Re:When will it end?

[Anonymous Coward]

Probably about as long as it'll take them to throw in the towel...

Re:When will it end?

[Kwil]

The towel won't get thrown in until Darl's house in a non-extraditing country has been completed.

After all, it's unlikely the SEC is able to turn a completely blind eye to the SCOX shenanigan's

Re:When will it end?

[SCO_Shill]

Let's wait and see what the SCO Information Minister has to say first. This is all probably good news to SCO, seeing how IBM has been "delaying" like crazy.

Re:When will it end?

[red floyd]

Let's wait and see what the SCO Information Minister has to say first.

The IBM dogs are hurling themselves to the death against our brave lawyers! There *is* SysV code in Linux! I triply guarantee it!

Re:When will it end?

[rost0031]

My best guess is that they will drop all charges and as a result the other companies will drop their charges.

I don't think that the other companies will drop charges against SCO just because SCO dropped all their charges. IANAL, but the other companies could probably find a plethora of issues to sue SCO over, especially if it becomes clear - in a court of law - that SCO was lying the whole time. IBM will leave just enough of SCO lying around for the other companies to pick the over the bones of Darl and his litigation machine.

Re:When will it end?

[Performer Guy]

SCO cannot throw in the towel. Everyone understands that at the end of this case IBM will make an example of SCO. IBM has already filed some counterclaims and IBM's legal fees alone will empty SCO's warchest. Add to this the claims of Red Hat and others and they'll be picking over the smouldering crater. There will be no profit for SCO in this, only death. I just hope they go after McBride et.al *personally*, but maybe that'll have to wait for the class action lawsuit filed by SCOX investors once SCO is gone.

Re:When will it end?

[k98sven]

You don't "drop charges", you settle. The "charges" in "dropping charges" are criminal charges this is not a criminal case, it's a civil one. In a civil case you make a complaint.
They could "drop their complaint", and when both sides do that per some agreement, it's called a settlement.

Besides that, it's not one case. It's several. SCO would do good to drop or settle all their cases, because they're no good. The DaimlerCrysler complaint has been dismissed. The IBM and Autozone cases look really bad, and the Novell case looks like it's headed for a dismissal soon too.

They could settle in the IBM case, sure, but I don't see why IBM should just drop their counterclaims without getting anything in return. Many of them are pretty good.

Same thing goes for Redhat. Redhat started their suit. Why should they drop it? The basis for their suit as well as part of IBM:s counter-suit is Lanham act violations, e.g. SCO caused their business damage through their FUDding.

Dropping those cases without anything in return would imply that SCO didn't cause them damage, and thus that they really didn't have a case.

If SCO is going to play this thing to the end, the others are going to play it to SCO's end.

Difference between IBM & SCO

[CmdrGravy]

Reading the documents filed by IBM and by SCO I am constantly amused by the fact that I have no clue at all what SCO are getting at in there filings but the IBM filings are crystal clear and make perfect logical sense.

The best bits of this filing I think are the pages and pages of testimony from ( by the looks ) almost everyone involved in drawing up the and signing the original contract who all say unanimously

"This contract certainly does not provide SCO with the rights it says it is provided with, this was discussed at the time and all parties were agreed that it was not the case since to do otherwise would be so blatantly silly that no one would ever sign such a contract."

Also the way IBM have culled SCO's many accusations to the single matter of the contract dispute and then ( in my opinion ) thoroughly destroyed that even more effectively than they destroyed SCO's previous claims is very impressive and kind of suggests that this has been IBM's plan all along and everything is moving very smoothly for them.

Re:Difference between IBM & SCO

[tigre]

"This contract certainly does not provide SCO with the rights it says it is provided with, this was discussed at the time and all parties were agreed that it was not the case since to do otherwise would be so blatantly silly that no one would ever sign such a contract."

Except of course SCO, who spent millions of dollars purchasing a dying business and left all the real power with the previous owner.

Re:Difference between IBM & SCO

[mwood]

Exactly. IBM's team have been patiently clearing the board and marshalling their pieces for a satisfying win. I think the board is pretty well cleared now.

SCO Stock is up!

[chipwich]

SCOX (http://finance.yahoo.com/q?s=scox) is up almost 10% at of 10:30 EST. It must be true! Why does this stock move paradoxically to the news?

Re:SCO Stock is up!

[amacedo]

There is a good reason for this. Which is actually bad for SCO.

Yesterday the stock hit the 52 week low has well as the same price it had *before* announcing it would fill the suit against IBM. Its just a bounce off a very value. Curiously enough there seems to be some volume.

Re:SCO Stock is up!

[CmdrGravy]

Heh heh, yeah "up" to 4.22 which is quite a long way down from the 25 or whatever they had got to at the beginning of all this nonsense.

Re:SCO Stock is up!

[div_2n]

You may find some information on possible reasons here

Re:SCO Stock is up!

[tehcyder]

Is this one of those "dead cat bounces" I remember reading about?

Re:SCO Stock is up!

[Anonymous Coward]

It's Microsoft's 80 Million (allotted to FUD Linux) making it rise.

Everytime something comes up to sink SCO, MS has people buying their stock to counterbalance it.

Sort of like the XBox; MS is not making any money, but they can't save face by getting out of the market.

After trying to bleed all their competitors dry for years, MS may eventually run dry themselves.

Re:SCO Stock is up!

[Anonymous Coward]

The stock is *very* heavily shorted and thinly traded. Of the approximately 8.5 million shares that are available to be traded on the public market, more than 50% (that's 4 million plus shares!) are shorted. A typical stock is considered to be heavily shorted when it reaches 10-15%.

This means that when someone wants to cover their short position, they push the price up somewhat.. particularly when it's heavily shorted and thinly traded. It's known as "short squeeze".

Re:SCO Stock is up!

[The Analog Kid]

The stock is no longer being shorted as it's below $5, and it considered a "penny stock"

Re:SCO Stock is up!

[Mes]

Yes, no new shorting under $5. But current shorts, like me, are not affected. Ill wait till this stock is literally pennies.

Re:SCO Stock is up!

[Anonymous Coward]

Yesterday the stock hit the 52 week low has well as the same price it had *before* announcing it would fill the suit against IBM. Its just a bounce off a very value. Curiously enough there seems to be some volume.

WFT does this paragraph mean?

Pity I don't have mod points for "overrated", because anything with that hideous of spelling errors and grammar errors doesn't deserve interesting.

Re:SCO Stock is up!

[Anonymous Coward]

Perhaps true for many individual investors; but not true in general. This restriction is simply your broker trying to protect you from yourself (and them, from the lawsuits that would follow).

Other types of accounts can short stocks much more liberally than you.

Re:SCO Stock is up!

[Secrity]

Two reasons: SCOX is a lightly traded stock and SCO has set aside money to buy SCOX stock in order to make the price do what SCO wants it to do. Lightly traded stocks have weird fluctuations because the low volumes do not dampen any wierd moves. SCO has an incentive to buy stock at times to make it look like bad news, was good news for SCO stock. I wonder if on the day that SCO loses the IBM suit, if SCO will buy stock to prop up it's price.

Re:SCO Stock is up!

[Xtifr]

According to what I've been told, it's not "simply your broker"; the limit is official NASDAQ policy. Not saying that you couldn't find a way to set up a deal outside the market, but that sort of thing is probably risky for more than merely financial reasons. But IANASB (I Am Not A Stock Broker).

Of course, if the stock goes down much more, SCOX will once again be in danger of being de-listed, and if that happens, then I suppose that NASDAQ rules will no longer apply. But then, would you really want to short them at 50 cents a share? Frankly, at that price, I think it'd almost be more fun to buy some, just to show to your friends or use as toilet paper or something. :)

Re:SCO Stock is up!

[Anonymous Coward]

Not true. Depending on your broker you may be able to short well below $5 per share. For example Vanguard is still letting people short SCOX

Credit where credit is due.

[throughthewire]

It's a bit disingenuous to say, "The Register is reporting..." and "Groklaw also has the story," when in fact Groklaw had the scoop on Monday.

bring back.....

[zogger]

....duelling.

it's ALL phonIE #'s

[Anonymous Coward]

perpetrated by the usual band of wall street of deceit felons.

you wouldn't have to look very far to determine whois the 'whizzhard(s)' behind the 'curtain', or the direction of the wwwinds of change, which are bullowing at gale force/farce.

see you there? tell 'em robbIE. don't save everything for the upcoming interview/deposition?

Groklaw has the story first, not "also"

[Jayfar]

Not to dis the Register, with their brief writeup dated today, but Groklaw had the story yesterday morning, including comprehensive analysis. To write that Groklaw "also has the story" is off the mark. Groklaw is, as usual, the preeminent primary source.

Re:Groklaw has the story first, not "also"

[Anonymous Coward]

Groklaw is, as usual, the preeminent primary source.

Actually, the court is the primary source, as it released the redacted summary.

Re:Groklaw has the story first, not "also"

[Jayfar]

True, good point. But for IANAL folks, such as myself, the Groklaw analysis is a big value add to the raw filings. Without that, many of the court documents may as well be written in sanskrit.

Re:Groklaw has the story first, not "also"

[Anonymous Coward]

Jesus H Christ. Now Groklaw has fanboys too.

Re:Groklaw has the story first, not "also"

[Anonymous Coward]

While 'first' may be techically correct when used to compare when the different articles appeared, 'also' is correct in this case because The Register article is listed before the Groklaw article in Armchair Dissident's posting.

also: in addition to

SCOX Market cap 63.95M

[Anonymous Coward]

Q: Why doesn't IBM just buy out SCO for a cool 64M?

A: They're probably getting more than 64M in free publicity from those jerks.

Re:SCOX Market cap 63.95M

[number6x]

How many other companies with small caps will line up to start suing IBM?

If IBM earns the reputation as a company that will settle for a few million instead of fight, they will find themselves surrounded by mosquitoes!

Look at Microsoft, they get sued all the time. MS is probably spending more on lawsuit settlements each year than they spend on keeping the XBox division or the Great Planes division afloat.

IBM hasn't lasted over 100 years by giving money away to settle frivolous lawsuits. They know the long term consequences.

Re:SCOX Market cap 63.95M

[Anonymous Coward]

"Look at Microsoft, they get sued all the time."

Microsoft has to take a lesson from that one episode...

"Buy 'em out boys."

"Hey, what the hell are you doing?!"

Re:SCOX Market cap 63.95M

[Anonymous Coward]

IBM hasn't lasted over 100 years. It was founded in 1924.

Re:SCOX Market cap 63.95M

[Anonymous Coward]

Moral of the SCO story:

If you have a bogus patent, sue one of

• EV1
• Sun, or
• microsoft

These guys will pay up incredible sums of money to kiss your ass.

If your claims are bogus, never even think of suing IBM.

Re:SCOX Market cap 63.95M

[Anonymous Coward]

IBM hasn't lasted over 100 years. It was founded in 1924.

Depends on where you start counting. IBM became IBM in 1924, but that was a name change, not the start of the company. The Computing-Tabulating-Recording company was formed in 1911, which still isn't quite 100 years, but pretty close. But C-T-R was actually a consolidation of some other companies, among them International Time Recording Company, formed in 1900. So if you count from ITR, it's slightly over 100 years. But ITR actually acquired much of its technology buy buying some older companies, like Dey Time Register Company, founded in 1889.

Re:SCOX Market cap 63.95M

[infochuck]

Q: Why doesn't IBM just buy out SCO for a cool 64M?

A: Dude! Do you know how much 64 megs of RAM costs these days? It's pretty cheap...

Buy them

[5m477m4n]

With all the court fees, lawyers, and FUD that SCO is costing IBM, I would think it'd just be cheaper to buy them. There, now we most certainly own the code.

Re:Buy them

[CPM User]

The IBM lawyers are on the payroll anyway. This case won't have cost them much more than their wages.

Re:Buy them

[0123456]

Buying them would merely encourage other dying companies to sue IBM. Better to beat them down into the dirt: even if it costs more in the short term, it will save money in the long term.

Re:Buy them

[ckaminski]

No, because this sets a bad example/precedent. Oh, we're going out of business. IBM's our customer. Let's sue IBM, get bought out, get some cash, and get out while we can!

Nope, not at all what IBM wants. It's like giving into terrorist demands. It's just not done.

Re:Buy them

[BCW2]

Why pay for something the court will give you later? IBM will be able to pick over the carcass of SCO after the bankruptcy liquidation, and get anything they might want.

Re:Buy them

[Anonymous Coward]

#1 moral of the SCO story:

If you have a bogus patent, sue one of

• EV1
• Sun, or
• microsoft

These guys will pay up incredible sums of money to kiss your ass.

If your claims are bogus, never even think of suing IBM.

I'd call this a dupe...

[LilMikey]

...but the date is right there in the article. Seriously though, haven't they tried this a few dozen times already?

Re:I'd call this a dupe...

[Doppleganger]

Uh... No.

IBM filed for another PSJ on copyright claims just recently, so maybe that's what you're thinking about.

This is the PSJ that, if it's won, would pretty much gut SCO's case against companies with Unix licenses that contribute to Linux. The other one would gut SCO's ability to make any sort of claim along the lines of "Linux contains code copied from the Unix we own".

And then, in Novell's corner, there's another PSJ that would gut SCO's ability to say they own pretty much anything.

Of course, with all the cases SCO started, it's easy to blur them together... I'm not even gonna think about the other three cases.

Re:IBM

[mr_z_beeblebrox]

Sorry to say this, but IBM is going down...

Yes they are! They are going down HARD on Sco. When they get up, they will brush SCO off their knees and do what they do.

Re:IBM

[tehcyder]

Yes, you're right, Netcraft confirms that IBM is dying.

Re:Mwahaha / SCO wouldn't dare

[mr_z_beeblebrox]

SCO's case hadn't been baseless in the first place, they seem to be doing absolutely everything possible to sabotage it short of bribing the judge.

In a case this big only bad come even for the bad guy out of bribing the judge. Two scenarios:
Sco "Here judge, here's ONE MILLION Dollars to help you think about this"
1. You are attempting to bribe a judge, go directly to jail.
2. "You are a piss-ant attempting to bribe a judge one million dollars to rule against one of the richest corporations in the world. Let me see if they make a counteroffer and I will get back to you"

Because they own linux.

[Anonymous Coward]

or whatever.

Explain ....

[gstoddart]

Yes, this is way the hell off topic, but I'm afraid of following your link due to the warning. I suspect I'm not the only one asking this.

WTF is the linked site for? WTF would simply visiting that site cause moderating to go away? And, in general, WTF?

Re:Explain ....

[Anonymous Coward]

WTF is the linked site for? WTF would simply visiting that site cause moderating to go away? And, in general, WTF?

Visiting another site from /. can do nothing. The way /. handles links now, it has no way to know where you've gone to. But returning from /. from that site apparently revokes one's moderation ability. Which, in essense, liberates you from the toil of having to do /.'s moderation for them without any compensation.

Re:Explain ....

[Fnkmaster]

It's basically a gathering ground for trolls, where they post links to specific Slashdot posts that they want to be modded up (generally something that is trollish) in order to get lots of attention to it. Visiting the site itself won't hurt you, just don't click on the Slashdot links on the site unless you have HTTP referers disabled since apparently (according to the original post) Slashcode picks that up now and puts you on a moderator-banned list.

Re:Explain ....

[drinkypoo]

You mean if I click a link from there I never have to moderate again? Woohoo! (And yes, I have looked in the preferences, I know where the checkbox is, stfu.)

Re:Explain ....

[Anonymous Coward]

I am so amused, I can't resist. So, from one AC to another: If you read the FAQ, you'd know you don't have to moderate. You just turn it off in your profile, if you had an account. Us ACs don't have profiles, of course, but don't need'em, we don't moderate either. BTW, here's another cool thing: NO ONE is going to read this (except maybe you, poster).

Re:Explain ....

[Anonymous Coward]

Thank you, Captain Obvious. I don't know what I would've done without your assistance in pointing out that fancy new option. I never would've found it on my own.

Learning how to interpret legalese

[Anonymous Coward]

I think your summary fails somewhat by missing the key issue being expressed in the legalese. It's the same issue expressed in the title of the submission, so perhaps interpreting the shorter title here will be of more use to readers trying to learn legalese:

Redacted Memorandum in Support of Motion for Partial Summary Judgment On Breach of Contract Claims,

actually means:

"Let's get together with you guys tomorrow, your team can bring the crack and ours will hire the hookers."

No!

[sethadam1]

Why do people keep saying this?

The company is already way overvalued! Why let all the execs and stockholders get lots of money for a company that has been nothing more than a dishonest bully?

Anyone who is suggesting IBM buy them is completely missing the point. That's what they want!

Re:No!

[sm8000]

"Anyone who is suggesting IBM buy them is completely missing the point. That's what they want!" Exactly. That'd be giving SCO money, bottom line.

How did the Registry get it so wrong?

[slipstick]

The Register claims "IBM goes on to argue ... that IBM was allowed to do what it liked with derivative works."

This is NOT what IBM's motion claims. In fact it's the exact opposite of what IBM was arguing. IBM's motion claims that the agreements with AT&T applied only to "derivative works" as defined by the US copyright office and truck loads of case law. "Derivative works" here having it's naturally understood meaning that the work must contain part of the original(or some substantial simularity).

So basically IBM was saying that they aren't allowed to distribute the source code to ALL of AIX or Dynix or any part that CONTAINS System V code, but they can distribute any of the code from these that belongs only to IBM(called homegrown code in the motion).

Since noone is claiming that IBM has given away all the code to AIX and Dynix, and because SCO has basically given up any pretense of showing code in Linux that might have come from System V AND because the only code SCO has actually pointed to belongs ENTIRELY to IBM which is expressly NOT derivative code, than IBM is well within their rights to distribute it.

In other words, "It belongs to us and we can do with it what we like, now piss off."

As opposed to "Sure part of it belongs to you but the contract says we can do with it what we like, so piss off". If this was the case I would be backing SCO here, but since it isn't, I want SCO to fry.

Re:How did the Registry get it so wrong?

[slipstick]

Oh wow, what really, incredibly bad form...

That should of course be "How did The Register get is so wrong?" We have an application here at work which we refer to as "The Registry". It was a natural slip up, mea-culpa, so am I forgiven?

Re:How did the Registry get it so wrong?

[Anonymous Coward]

It's a 100-page document. You clearly haven't read it all.

They argue that, yes, but that's a follow-up, after they say, EVEN IF you buy the notion that we're not allowed to do whatever we want with our own homegrown code, then the contract STILL wouldn't bar us from using it.

Please note that they have testimony from all the people who actually signed the contract in question saying that it does NOT cover anything but derivative works which contain UNIX System V code, and that it does not assert ownership over anything but the UNIX System V code. In other words, they can do whatever they like with derivative works which do not contain any UNIX System V code.

Now, I can't blame you for missing that in IBM's motion--it's positively huge--but that IS what IBM argued. They argue for a lot of contingencies--covering all the bases as good lawyers should--so don't be surprised to find them arguing against even some of the more absurd positions.

Re:How did the Registry get it so wrong?

[slipstick]

Not to get in to a pissing match, but I clearly have. But you've missed my point.

"They argue that, yes, but that's a follow-up, after they say, EVEN IF you buy the notion that we're not allowed to do whatever we want with our own homegrown code, then the contract STILL wouldn't bar us from using it."

"They argue that, yes,...", of course they argue what I said it's their first friggin' arguement. It is the whole basis of the AT&T contract. The contract is specific about the fact that IBM could do "whatever they want" with their OWN code. This isn't at all the same as saying IBM could do whatever they want with a "derivative work", eg. create a 3rd derivative work with their OWN code. Of course IBM could do that, the AT&T contract simply codified normal copyright practice.

But claiming the AT&T contract gave IBM the right to "do whatever they like" with a derivative work is simply wrong. Since the only derivative work that the AT&T contract could possibly speak to was the one IBM created when they produced AIX(or Dynix but that's Sequent) and the AT&T contract was specific about NOT allowing IBM to release any source code from AIX that contained AT&T code. In other words it didn't allow IBM "to do whatever they like" with a derivative work! And The Register doesn't do anyone any favors by claiming it does.

I've made them an offer...

[Saeed al-Sahaf]

The company is already way overvalued!

I sent an offer of $699, but as yet I have no response. I think it's quite generous, I can't imagine what's keeping them.

missing the point

[einhverfr]

You folks are talking copyright here, and IBM's hearing on Partial Summary Judgement on this issue is next month (they filed this motion some time ago).

This story is about IBM moving for PSJ on the contract claims, basically stating (among other things) that the court should be able to rule on whether IBM is permitted contribute their in-house code into Linux as per the AT&T contract. This is actually quite a bit worse for SCO than just a copyright PSJ because this will hurt many other aspects of their case.

IANAL, etc.

Already underway

[einhverfr]

IANAL, but I believe there are patent claims against high-availability features in IBM's counterclaims.

Re:Mwahaha / SCO wouldn't dare

[Anonymous Coward]

Yes... that's why if you reread the sentence you quote, it says "they seem to be doing absolutely everything possible to sabotage it short of bribing the judge". In other words, SCO "bribing the judge" would sabotage their case, and it is the only possible action they could take to sabotage their case that has not yet been performed.

Not quite right...

[mark-t]

FTA on Groklaw...

In the beginning of the case, they said they didn't know the allegedly infringing code was in there when they released Linux under the GPL. They can't say that since they filed the lawsuit in March of 2003. Now, in August of 2004, they are *still* distributing the same code under the GPL. Under the terms of the GPL, there is no taking that code back that I know of. I think, therefore, that SCO's case just went poof, on this one issue alone.

Remember, since SCO was also alleging that the terms of the GPL itself were not valid, the fact that they continued to distribute it under the terms of the GPL was meaingless.

What this does *NOT* do, and they are right to assume this, is automatically make the GPL apply to their code, since there was no obvious intent to do so. If the GPL is not valid then absolutely nobody, including SCO, has permission to distribute Linux without permission from the copyright holders on the code. Does SCO have this permission outside of the terms of GPL? No? Then it makes SCO guilty of continued and willfull copyright infringement.

Re:Not quite right...

[gvc]

IBM has a separate counterclaim re GPL and violation of IBM's copyrights.

Their point in this request for summary judgement has nothing to do with GPL. All they are saying is that SCO can't expect IBM to keep it (JFS etc.) confidential while they (SCO) continue to publish it. As SCO has stated over and over, this particular claim has nothing to do with copyright, and therefore nothing to do with GPL. It has to do with confidentiality.

Re:Not quite right...

[Physics Dude]

Remember, since SCO was also alleging that the terms of the GPL itself were not valid, the fact that they continued to distribute it under the terms of the GPL was meaingless.

SCO may consider it meaningless, but it certainly won't be meaningless to a court of law. That's like me repackaging someone else's book and selling it and claiming that is within my rights because I don't accept the author's contract with his publisher(s) to be valid.

What more does SCO have to do? Write it out for you? Oh wait... they DID! They are themselves distributing source code with copyright notices and documents describing the specific licencing issues for the code! Oh, and since you actually bought SCO's lame argument as being justified... I happen to have this really great bridge for sale ...

Re:Not quite right...

[mark-t]

Okay... *IF* the GPL is invalid, SCO is guilty of copyright infringement, regardless of anything else.

If the GPL is mpt invalid, it is worth noting that SCO's IP cannot be held under it because SCO allegedly never willfully placed it under the GPL in the first place. Allegedly, it was not SCO who placed it there in the first place, so SCO is free and clear in this regard. The fact that they made no effort to mitigate damages leaves them looking pretty dirty, but their code does not automatically fall into the GPL because of this. However, even this scenario still leaves SCO guilty of copyright infringement, however, because they do not agree with the terms and conditions of the GPL, which is a requirement for obtaining permission to distribute the GPL'd work.

Re:Not quite right...

[Physics Dude]

Allegedly, it was not SCO who placed it there in the first place, so SCO is free and clear in this regard.

It's this assertion that I don't necessarily agree with. IMHO, It's irrelevant WHO originally started distributing 'SCO's code' under the GPL. The fact that they are actively and knowingly offering this code packaged under the GPL is, well... it's them actively and knowingly offering this code packaged under the GPL. Yes, SCO is free and clear of placing 'their code' there in the first place, but they're NOT free and clear of distributing this, 'their' code, under a GPL license. You can't just claim that because 'someone else' (this hypothetical 'someone' who placed their code under the GPL illegally) that SCO has no responsibility for the legal licensing they are distributing.

They, SCO, themselves are offering and distributing it under the GPL. This goes well beyond "not mitigating damages". SCO is offering this code bundled with a license that says "Here, you can use this code as open source software".

Re:Not quite right...

[mark-t]

*IF* SCO actually owns code in Linux, aand giving the benefit of the doubt, that they did not know it was there until March of last year, the fact that they continued to distribute it "under the GPL" is meaningless with respect to automatically applying it to their code because they allege the GPL to be meaningless already. Whether or not they are wrong is irrellevant, because even with the GPL as a valid license, the GPL still cannot be made to apply to code that was not ever placed under the GPL by the copyright holder in the first place. They are free and clear even though they continued to distribute it because they attest that the GPL is meaningless anyways. It is only because the issue at hand is about IP that they allegedly own in the first place that this works out that way.

Understand further that all of this is assuming that SCO actually had some of their code put into Linux without their knowledge or consent. If they knew about it from the beginning (difficult to prove), or, more likely in my opinion, they do not actually have any code in Linux that they have any rights to compensation for at all, then none of this applies.

The long and the short of it is that whether the GPL is valid or not, it cannot be made to apply to a work that never received the copyright holder(s) permission. It would only constitute implied consent after this whole fiasco started if they had not ever alleged that the GPL was invalid. They did, pretty quickly too, so the implied consent angle is screwed.

It is still worthwhile to remember, however, that SCO _is_ guilty of deliberate and continued copyright infringement either way. If the GPL is invalid, then nobody, including SCO, has a right to distribute Linux, so SCO has knowingly continuing to distribute a copyrighted work without permission from the copyright holders. If the GPL is valid, then SCO is still guilty of copyright infringement because, by the terms of the GPL, one must agree to its terms in order to obtain permission to distribute the work. SCO's challenge of the GPL's validity is proof that they do not, so SCO forfeited its permission, so SCO is still distributing copyrighted material without permission from the copyright holders. But even a valid GPL cannot be made to apply to SCO's own code without their permission.

Re:Not quite right...

[Physics Dude]

Thanks for the reply. Yes, I agree wholehartedly with virtually everything you've said with the exception of SCO being somehow absolved of any responsibility for knowingly continuing to distribute 'their code' with a GPL license:

They are free and clear even though they continued to distribute it because they attest that the GPL is meaningless anyways. It is only because the issue at hand is about IP that they allegedly own in the first place that this works out that way.

That seems patently silly.

Are you seriously saying that a party can actively and knowingly distribute their own code to a third party under a certain license yet have no obligation to honor that license simply because they claim it's not a valid license?

Either I'm very dense this morning, or we're somehow just viewing things in a frame of reference.

Just because SCO is justified in their own mind doesn't mean they're justified in any legal sense.

Re:Not quite right...

[mark-t]

Are you seriously saying that a party can actively and knowingly distribute their own code to a third party under a certain license yet have no obligation to honor that license simply because they claim it's not a valid license?

In general, no... but in this particular case, yes. You see, the code in question, according to them, was placed under the GPL without their knowledge or consent. Implied consent would have normally been given once they became aware of the infraction once it was clear they were unwilling to cease distribution, but they then claimed that the GPL itself is not valid, nullifying any possibility of inferring implied consent, even though they continued to distribute the code. They still maintained the rights to distribute the code because they owned it, but everyone else owed them money. That it was distributed "under the GPL", is irrellevant if they are right that the GPL is invalid, but even a valid GPL can't make their code fall under it until there has been an irrefutable ruling to this effect and SCO has either given explicit consent (or implied consent, for example, by continuing to distribute even after the ruling). The fact that they made no effort to mitigate damages makes them look pretty bad in a court of law, btw... and even if they did own the code in question, SCO may be denied right to compensation because of this. But it doesn't affect whether a valid GPL can be made to apply to their code since they claim they didn't willfully put it there in the first place.

And of course, this whole scenario is painted in the bizarro world where SCO is actually right about everything they've said about their code in Linux. But even that won't absolve them from the continued copyright infringement.

Re:Not quite right...

[Anonymous Coward]

Go back to Groklaw and read it again. It has EVERYTHING to do with the GPL. That is the basis for their request, that SCO repudiated AND violated the GPL, and therefore have lost all rights to distribute ANY copywrited (or not) portions of Linux. If IBM wins this, based on their arguments, than any other contributor to Linux can go after SCO for copywrite violations.

IBM has not kept any of it's contributions to Linux confidential. That would violate the GPL.

And RedHat's restraint of trade case?

[Anonymous Coward]

And just to be clear... the September judgement is what RedHat's case is waiting on to proceed, right? So once IBM gets that, RedHat gets to start looking for damages?

It sure is one sentence.

[gmac63]

One sentence. Followed by one sentence. Followed by one sentence. Followed by...

I give up. Reality is too much for me. Somebody pass the LSD.....

Re:Mwahaha / SCO wouldn't dare

[mr_z_beeblebrox]

Yes... that's why if you reread the sentence you quote, it says "they seem to be doing absolutely everything possible to sabotage it short of bribing the judge".

I understood that and added that they wouldn't dare. Thank you for your assistance.

Re:Patent hammer, the sledge is still in the shed

[Anonymous Coward]

They're saving that for when Micrsoft tries to pull the 3 patent shuffle. How long till we see REDmond vs. big BLUE?

another egregious error by The Register

[ToLu the Happy Furby]

The Register wrote:

"Second, even if the AT&T agreements could be read to preclude the disclosure of homegrown code - and they cannot be - any breach based upon such a reading has been waived by Novell on behalf of SCO, and by SCO itself," IBM says in the filing, referring to the time in which Novell owned the rights to Unix before SCO.

Totally wrong. Instead, IBM is referring to the fact that Novell only sold some Unix rights to Old SCO, and that among the rights they retained was the right to direct SCO to "amend, supplement, modify or waive any rights under, or assign any rights to, any System V License". And, in the event that SCO refused, to do so themselves.

More broadly, SCO did not buy the existing System V licensing business from Novell. They only bought the right to sell new Unix licenses, and also to handle administrative duties on existing licenses in exchange for a 5% commission. IBM's Unix license is still with Novell, not SCO. SCO acts as a go-between on Novell's behalf, but that's the extent of their role.

Re:another egregious error by The Register

[slipstick]

Yup, I saw that too but I had already caught The Register on one, no use pointing out two faults.

Can we safely assume than The Register totally cocked this one up?

BTW, besides acting as a licensing go-between, SCO also bought the exclusive right to develop and sell licenses to any new versions of Unix System V. So SCO owns Unix System V Release 4. Although I don't believe they would own the copyright on any code in Unix SVR4 that was previously in Unix SVR3.2(or anything before SVR4 for that matter). So, to the extent they added new code SCO owns that but nothing previous to it. At least that's my understanding, they did pay $100 million for something.

Re:another egregious error by The Register

[ToLu the Happy Furby]

BTW, besides acting as a licensing go-between, SCO also bought the exclusive right to develop and sell licenses to any new versions of Unix System V.

Correct, this is what SCO sells under the name UnixWare. (Indeed, Novell had already started marketing under the UnixWare name before they sold it to SCO; version wise, it was System V version 4.2 at the time of the sale.)

So SCO owns Unix System V Release 4. Although I don't believe they would own the copyright on any code in Unix SVR4 that was previously in Unix SVR3.2(or anything before SVR4 for that matter). So, to the extent they added new code SCO owns that but nothing previous to it.

Well not exactly. The original Novell-SCO Asset Purchasing Agreement specifically stated that Novell maintained all copyright in System V software. A year later, the infamous Amendment 2 to the APA changed that to state that Novell would retain all UnixWare copyrights except those "required for SCO to exercise its rights with respect to the acquisition of UNIX and UnixWare technologies." Those particular copyrights were never identified, nor were they explicitly transferred. Of course, this dispute is at the center of the SCO-Novell Slander of Title case, although it probably won't be adjudicated there because all Novell needs to get the Slander of Title claim thrown out is for their interpretation to be reasonable, not that it necessarily be correct.

Perhaps that's what you're saying, with the caveat that what SCO bought from Novell was System V 4.2/UnixWare and not System V 3.2.

they did pay $100 million for something.

Right. They got the UnixWare source code and all in-progress development, the UnixWare trademark, the full right to any new licenses of UnixWare or any UnixWare derivative they created, the full right to Novell's exclusive service and maintenance contracts with all its licensees, copyright to all the various UnixWare manuals, the 5% fee for administrating pre-existing licenses on Novell's behalf, and other assorted odds and ends.

Whether all that (without the copyright to the pre-existing System V/UnixWare codebase) was worth $100 million in 1995 is an interesting question. Hindsight would seem to indicate not. On the other hand, hindsight has vindicated the size and importance of the Unix-on-x86 market, which at the time, between Xenix/SCO Unix/OpenServer (which SCO already owned) and System V/UnixWare, SCO seemed to have all to itself. (haha)

Plus they didn't need the System V 4.2 and earlier copyrights to execute the UnixWare business, because they had a perpetual right to use, modify, and license the System V/UnixWare code. Really the only reason they would need the copyrights is if they wanted to sue people.

Re:another egregious error by The Register

[Anonymous Coward]

> they did pay $100 million for something.

SCOG did not pay Novell for anything. They bought something from oldSCO, and for much less than $100m.

Now oldSCO did buy something from Novell. They bought the business of selling UnixWare and of collecting licence fees from existing users and passing them back to Novell. Again this was much less than $100m.

There was also an amount mentioned of $84m which is the expected fees collected by oldSCO to be paid to Novell for which oldSCO would be paid a 5% commission.

The $84m is lumped in with the shares and ~$10m that oldSCO paid but it has nothing to do with the 'price' of UnixWare.

http://www.siliconinvestor.com/stocktalk/msg.gsp ?m sgid=20342458

Re:another egregious error by The Register

[slipstick]

mea culpa - your right SCOG must be kept seperate from oldSCO. Thanks for the clarification.

Even so, my point was really that somebody paid something to Novell for the rights to produce UnixWare etc. etc. not just for acting as a licensing agent.

This is the SECOND summary judgement motion

[Animats]

This new motion is IBM's second motion for partial summary judgement. The first one, asking for dismissal of the copyright claims, was supposed to be decided this month, but that's been put off until September 15th. If the copyright claims are dismissed, it's over for everybody but IBM. That's the one we all care about.

The new motion is about IBM/SCO contract issues. That doesn't directly affect anybody else. Only the copyright claims matter to unaffiliated third parties.

Re:This is the SECOND summary judgement motion

[Xtifr]

Almost, but not quite true. First, the contract issue matters to other companies that have SysV licenses, like Daimler-Chrysler and Autozone. And second, it matters to people using the IBM code at the center of the contract dispute: JFS, RCU, AIO, etc. If all that code is clean, then the copyright issues turn into almost nothing in any case.

Re:IBM

[K1-V116]

Why am I suddenly picturing a rampaging bull elephant squashing a pigmy? Teach them to poke an elephant with a blunt stick....

New theory - IBM did it

[TimButterfield]

or some other pro-Linux company.

Wait. Wait. Here me out. I am just playing the devil's advocate here to bounce an alternative theory off of the group. I do not think this is true, but 'what if' ...

This is the scenario:

1. A (privately) known bad case is put forth with great publicity.
2. Distrust regarding Linux is created due to the FUD surrounding the case.
3. After a sufficient length of time, the case is publicly shown to be legally invalid.
4. The case collapses.
5. The negative becomes a positive.
6. Profit!

I know, too many steps.

It is easy for many /.ers to think of Microsoft as the evil giant seeking to destroy Linux. What if this case is more like a legal vaccination? The SCO case could be used to create legal precendents to make it more difficult to attack Linux in the future. That which does not kill you makes you stronger.

To repeat, I do not think this is what is happening, but I do find it interesting to consider the possibility.

Re:New theory - IBM did it

[vettemph]

Your scenario reminds me of what I wrote on groklaw this morning about Newham, London Choosing MS over linux.

It's a new type of marketing technique.

My Post:

Hint to MS: Rigged from the get go??? Authored by: vettemph on Tuesday, August 17 2004 @ 10:07 AM EDT Maybe Newham was already going with MS from the start when MS gave them an incentive to act like they would try linux. After which, of course, they choose MS instead.

You do recall the "switched to apple" and "switched to MS" campaigne with the fake users reportedly switching plateforms? I think the "switched to MS" user was a fake in response to the "switched to apple" ads.

I think Newham was a planned publicity stunt that MS will use as "case law".

PS- TimButterfield(16686)??? wow, you've been on slashdot since the beginning.

Congrats IBM Legal!

[Anonymous Coward]

"IBM's legal team doesn't miss anything"

Agreed. If IP Law was an olympic sport these guys would be gold metalists.

I wonder if this planning went way back to the IBM/Novell/SuSE investment back at the time that Novell bought SuSE. What better way to cement a valuable ally with the rights to Unix. Damn they're smart.

Re:Congrats IBM Legal!

[Anonymous Coward]

Actually, I'd rate them like the Welsh heavyweight Colin Jones.

Massively capable, sunning pnches but waits until the 10th round before working on his opponent.

He won a suprising number of fights but when he lost it was in the early half of the fight and he'd never showed any capability.

Because...

[schon]

Why can't SCO Claim.

1) we didn't know it was there

Because they're still distributing it themselves.

2) Once we found out it was released everywhere by IBM the horse was way out of the barn.

Irrelevant. If you want to try to claim damages, you MUST do everything in your power to stop infringement.

3) IBM'S "illegal" actions have boosted the Linux market place

Again, irrelevant. How popular something is has no bearing.

4) To stay competitive we have to release a copy of Linux, under GPL, to be competitive.

That does not logically follow. Damages have no bearing on you continuing to be competitive or not.

5) But all of this is a result of the fruit of IBM's "illegal" actions so they still owe us damages.

By continuing to distribute it themselves, they are declaring that the value of the infringement is $0.00. There are no damages to be awarded.

Here's what SCOX should have done:

Once they discovered the 'infringing' code, they must immediately stopped distributing the material themselves, then contacted the responsible people to arrange for damages (which they claim was IBM.) In doing so, they must (as a matter of law) identify the lines of code that are 'infringing'.

They should then contact every distributor of Linux they know about (I'm guessing that a notification sent to Linux, kernel.org, along with a press release might be acceptable in this case), and notify them of the status of their claim, the lines of code that were at issue, and demand that they cease distributing the 'infringing' material.

Failure to follow these steps means that they can't claim damages.

There is *NO* (as in zero, nil, nada, zip, bupkiss) valid legal reason to not follow these steps, and many valid legal reasons they should.

The only answer as to *why* they didn't is as follows:

Either 1) they know they have no case, or
2) their lawyers don't know anything about the law at all, and should be disbarred and charged with fraud.

Re:Because...

[geschild]

I'd go for answer number three, which consists of answer 1 plus answer 2....

Distributing should NOT be heald against SCO

[Ungrounded Lightning]

In my opinion, a company's distribution of source for GPLed products for which it released versions should NOT be held to void its IP claims to any of its proprietary code inserted by others - even if it continues to distribute versions containing the code. I see this as both a matter of law, derived from the GPL's own terms, and as a matter of good policy for GPL promotion.

The GPL explicitly claims that it does NOT purport to grant a license to proprietary code improperly inserted into a GPLed distribution by someone who does not have the necessary rights to place the code under GPL. But it does demand that any person (or company) who distributes object containing GPLed code must make the source available, and if even one copy goes out without the source attached the only permissible way to do that (so it can reach a repurchaser of the oject) is to make the source available generally for a minimum time, as by a web or FTP site.

So a company who distributes a modification of a GPLed project may be required to distribute the code for a time, under penalty of loss of the right to copy and/or distribute GPLed code forever. If the company THEN discovers someone ELSE has included their pride-and-joy in the base distribution, they're in a catch-22:

- If they stop distributing the source, they lose GPL rights. This could be a BIG cost.
- If they DON'T stop, AND this puts their proprietary code under GPL, they suffer the loss of their IP.

So the doctrine of estopple should not apply: Their IP is already exposed - taking down their distribution won't significantly mitigate that damage, since it will be available elsewhere on the net. But taking it down WILL generate other costs for them.

And since the GPL doesn't claim to grant rights to code improperly inserted, it can be argued that the improperly inserted proprietary code is not under it, until such time as the owners deliberately, with intent, insert it themselves - despite their continued distribution of the source improperly containing it, in order to meet their GPL obligations.

Now the GPL advocates might want to argue that, nevertheless, the victim of such theft must now either free the code or stop distributing and lose all GPL rights. But IMHO that's a bad idea.

Such a position would greatly hamper the adoption of the GPL codebase by companies with code they wish to keep proprietary - because unknowing propagation of code stolen from them within a large software release (such as a Linux distribution) would leave them on the above cleft stick: Give away your family jewels, or suddenly shut down all your GPL business-model activity.

Of course IBM's lawyers had to try making this assertion. But for the future of the GPL I hope that either the case is decided without a ruling on this issue or (better yet) IBM's claim that this frees the (allegedly) SCO code is explicitly rejected.

(Meanwhile, perhaps the maintainers of the GPL might want to add a bit of verbage to clarify this issue to a future version?)

Re:Distributing should NOT be heald against SCO

[mcc]

- If they stop distributing the source, they lose GPL rights. This could be a BIG cost.

Tough crap for them. The entire premise of the GPL is that you don't have to pay money or arrange licensing for the use of the GPLed code, and in exchange you extend the same courtesy to those persons who receive the same GPLed work from you. If you don't accept this then you have no right to continue distributing GPLed works.

If what you're saying is that SCO was distributing source to fulfill a prior obligation created by distributing a binary, then no, that's different, I agree, and I don't think that would constitute placing their embedded IP under the GPL. But putting the GPLed materials up for public download-- for anyone, including NEW persons who never recieved a binary from SCO or Caldera-- cannot really be said to be there for the purpose of fulfilling that obligation. This is a new act of distribution.

Also, did SCO continue to update the kernel mirror on their website once the lawsuits were launched? Or did they just leave the one they had in place? That would change a lot if they did.

But nevertheless, if you're interpreting the GPL in such a way that you can get a situation where SCO's distributing Linux from their website, but for you to download and redistribute Linux would be a violation of SCO's IP, then the GPL might as well not exist.

Re:Distributing should NOT be heald against SCO

[iamacat]

Easy, stop any further distribution of the compromised product and, if your existing customers ask for the source, send them a version with your stolen code stripped out and an explanation.

But if you continue to distribute the binary with both your code and GPLed code, you have no recourse. Just because your code is stolen, you have no right to steal mine in return by violating my license terms.

Realistically though, if you shipped a GPLed product, having this free functionality out was probably in your business interest. What does it matter to you that you unknowingly "provided" some of it yourself?

Re:Distributing should NOT be heald against SCO

[fymidos]

>In my opinion, a company's distribution of source
>for GPLed products for which it released versions
>should NOT be held to void its IP claims

If a company puts code under GPL, it does not lose IP rights. They can still sue anyone who does not respect the GPL (under which the code is licensed).

If they stop distributing the code they do not lose any "gpl rights". And they can always distribute "their" code in any license they see fit. However, most the code in question is really IBM's code, so such a move would propably ignite a furious counter-attack.

>Their IP is already exposed

It is not their IP. The court will have to decide that, since it still is IBM's IP unless proven differently. However *if* they really felt it is their ip they should/would distribute the code under the license they see fit. This is a weak point in their argument. See, if that is the case, and it is their IP why did they choose GPL to distribute it?

>the maintainers of the GPL might want to add a
>bit of verbage to clarify this issue

There is no issue here: if stolen IP is inserted in GPL code, GPL is very clear about it. Only this is not stolen IP and the whole case is not about that.

If what you describe ever happens, the company in question will simply distribute their code with their choice of license and GPL code with GPL license.

Re:Distributing should NOT be heald against SCO

[EzInKy]

Now the GPL advocates might want to argue that, nevertheless, the victim of such theft must now either free the code or stop distributing and lose all GPL rights. But IMHO that's a bad idea.

Since you are defining non-licensed distribution of code as theft, then it would also be a bad idea to allow someone to steal others code by not following the GPL. Besides, it could also lead to many other companies "accidentally" placing code under a free license only later to claim it back thus disrupting the whole Open Source development model.

Re:Distributing should NOT be heald against SCO

[pjrc]

Wow, you've bought into SCO's position regarding their distribution of GPL'd code.... that it was improperly added by a third party and their subsequent distribution does not obligate them to honor the GPL's terms because they were deceived. Or maybe this subtle is a "devils advocate" thing?

Well, you haven't entirely bought into their twisted logic... you didn't leap to the "GPL is invalid", but rather the GPL's requirements are a "bad idea".

Interesting as this arguement may be, it's a moot point in SCO's case. It's been clearly shown that SCO (then Caldera) was very well aware that the Linux kernel they distributed contained the enterprise-class features in question (NUMA, JFS, etc). They made press releases touting these features. It's also been well documented that SCO's people were involved in contributing some of the disputed code to the kernel, and SCO's management was well aware and approved. All this evidence is very well documented on groklaw.

Even though "tricked into distributing your own proprietary code under the GPL" doesn't apply to SCO, let's take a moment at the core of your arguement:

Now the GPL advocates might want to argue that, nevertheless, the victim of such theft must now either free the code or stop distributing and lose all GPL rights. But IMHO that's a bad idea.

Such a position would greatly hamper the adoption of the GPL codebase by companies with code they wish to keep proprietary - because unknowing propagation of code stolen from them within a large software release (such as a Linux distribution) would leave them on the above cleft stick: Give away your family jewels, or suddenly shut down all your GPL business-model activity.

You believe it's a "bad idea". I disagree.

1: Regarding "greatly hamper the adoption", you're just dead wrong. Take a look around. Adoption of GPL code is progressing very well. Linux is growing dramatically. There's a saying that I believe applies: "if it ain't broke, don't fix it".

2: The primary purpose of the GPL is to ensure freedom to modify and distribute original and modified code. That is why the GPL exists, not to enhance adoption by companies with particular proprietary interests.

The intended effect of ensuring freedom and protecting against proprietary ownership is to build a community where participants collaberate together for their common good. This is the purpose of the GPL. As the community grows, the code is adopted by a wider audience.

In case you haven't noticed, it's working very well. I believe that put the GPL's terms firmly into the category of "good idea".

Regarding the risk of exposure to unintentionally releasing proprietary code under the terms of the GPL... it is a risk. Probably not nearly the risk you make it out to be. Several companies have reached settlements with the FSF (usually over very willful violations of GPL terms). The process has been quite and typical settlements have been very reasonable.

So yes, there is risk in distribution of GPL'd code. Based on history of actions, I believe that risk is relatively minor. Compare that with the risk of incoperating proprietary code. At this point, there are basically two code bases available to implement a unix-compatible operating system. How does the risk of a ugly, expensive, restriction-imposing lawsuit from Linux/FSF/OSI/etc compare with the risk of such a suit from SCO ?

Re:Distributing should NOT be heald against SCO

[Ungrounded Lightning]

If what you're saying is that SCO was distributing source to fulfill a prior obligation created by distributing a binary, then no, that's different, I agree, and I don't think that would constitute placing their embedded IP under the GPL.

Yep. That's EXACTLY what I'm saying.

But putting the GPLed materials up for public download-- for anyone, including NEW persons who never recieved a binary from SCO or Caldera-- cannot really be said to be there for the purpose of fulfilling that obligation. This is a new act of distribution.

Nope. If they shipped even one binary without source, they must make the source available to all comers, in order to make it available to anyone to whom a copy of the binary-only release was transferred. This has the side-effect of making it availalable to people who did not get the object from them - but it IS still required.

It would make sense to me to require them to post a conspicuous warning on the download site that this source is being provided solely to satisfy that obligation to previous customers/downloaders, that it contains (through no fault of their own) IP over which they are claiming rights, that they have ceased selling or otherwise making available the code to new users, and that new users downloading and using the code may infringe on their claimed rights, yadda yadda.

Re:Distributing should NOT be heald against SCO

[Ungrounded Lightning]

Since you are defining

(actually, not disputing the definition of, for the sake of the discussion)

non-licensed distribution of code as theft, then it would also be a bad idea to allow someone to steal others code by not following the GPL.

Quite.

And SCO (or other people in the postion they claim to be in) would have to stop selling the product to new customers (unless they replace the offending sections or throw in the towel and releast them under GPL).

I'm just saying that if the GPL is interpreted to give them no way to act legitimately while defending IP claims over improperly-inserted code, it puts at risk code that companies did not INTEND to release, and thus inhibits adoption of the GPL by companies otherwise inclined to do so.

Re:Distributing should NOT be heald against SCO

[Ungrounded Lightning]

Wow, you've bought into SCO's position regarding their distribution of GPL'd code.... that it was improperly added by a third party and their subsequent distribution does not obligate them to honor the GPL's terms because they were deceived.

Not at all.

I'm saying that:

- The GPL itself CLAIMS not to apply to code illegitimately inserted.

- That leaving no way for companies that are in the position SCO claims to be in to defend IP they did not intend to release will result in companies that otherwise would release SOME of their code under GPL chosing to release NONE, for fear of compromsing the REST of it.

This would greatly reduce the amount of code released under GPL. So the issue needs to be addressed - if nothing else, to eliminate the ambiguity.

1: Regarding "greatly hamper the adoption", you're just dead wrong. Take a look around. Adoption of GPL code is progressing very well. Linux is growing dramatically.

Yes it's progressing. But I claim it will progress faster if the issue is addressed than otherwise.

Meanwhile, let's see how the results of the SCO suit affect the progress - especially if the "meeting GPL obligations legitimizes past 'theft'" doctrine is accepted by the courts.

2: The primary purpose of the GPL is to ensure freedom to modify and distribute original and modified code. That is why the GPL exists, not to enhance adoption by companies with particular proprietary interests.

It is also there to encourage the release of code to that commons. By guaranteeing your not locked out of future revsions of your own code it encourages that release. But if it puts at risk code you didn't intend to release, it discourages release.

I claim we can have both those cakes, not just one.

Re:Distributing should NOT be heald against SCO

[EzInKy]

I'm just saying that if the GPL is interpreted to give them no way to act legitimately while defending IP claims over improperly-inserted code, it puts at risk code that companies did not INTEND to release, and thus inhibits adoption of the GPL by companies otherwise inclined to do so.

I can see where it would be safer for a company to stay all the way out than it would be for them to get halfway in. All the way out means any of their code found in OSS would have had to been inserted in some neferious way. That still doesn't rule out the said company itself being behind the infringement.

Re:Distributing should NOT be heald against SCO

[ansible]

Nope. If they shipped even one binary without source, they must make the source available to all comers, in order to make it available to anyone to whom a copy of the binary-only release was transferred.

I don't believe this is the case.

They need to make the source available to anyone they gave the binary to, but that's it. If I got the binary 2nd-hand (from one of the original recipients), then it is that entity, not the original distributor who is obligated to make the source available to me.

Now would probably be a good time for me to re-read the GPL.

At any rate, even if I'm wrong about the above, there is no need to put up the source on anon-ftp. They just need to offer it to anyone who asks. Anon-ftp is the most convenient way for all parties, but not the only way to make the source available.

So, in my non-lawyer view, SCOX has done hardly anything to mitigate the damages from the inclusion of "their" precious IP into the Linux kernel. That's what IBM is arguing, and I don't see how the judge can ignore that.

Re:Distributing should NOT be heald against SCO

[True Grit]

That leaving no way for companies that are in the position SCO claims to be in to defend IP they did not intend to release will result in companies that otherwise would release SOME of their code under GPL chosing to release NONE, for fear of compromsing the REST of it.

First of all, SCO's argument is crap. They've known at the highest level that they've continued to distribute the code under a GPL from their site, and THEY WILLFULLY CONTINUE TO DO SO BECAUSE THEY DON'T RECOGNIZE THE VALIDITY OF THE GPL. So this argument simply doesn't apply to them.

Second, how realisitic is this *really*, in another, more general case?. Because you are implying that they've already examined their own code and made a distinction between what they're willing to release under GPL and what they aren't (which SCO claims it never did). How likely are they then to *make* this mistake after explicitly and overtly doing the research to *avoid* the mistake? Its a stretch, to say the least.

Re:Distributing should NOT be heald against SCO

[Bloater]

If they shipped even one binary without source, they must make the source available to all comers, in order to make it available to anyone to whom a copy of the binary-only release was transferred. This has the side-effect of making it availalable to people who did not get the object from them - but it IS still required.

That is incorrect, the GPL requires that you offer to and do (on request) supply the source to anybody to whom you distributed the binary. You do not have to distribute the source to everybody in the world, since then if you gave your best mate an installable CD, you would then have to supply the source to anybody in the world that asks you. They provide the source to those to whom they provided the binaries, and if those people provide the binaries to somebody else, they must provide the source on request - probably with a notice that some code has been removed as it was not permitted in the original release.

And I don't believe that they would have an obligation to even distribute their own IP to those they've already supplied binaries to. They would still have an obligation to distribute the source *minus* their IP to those people.

Waiting for boat at train station

[salesgeek]

What's really interesting about all this SCO nonsense is that thier case seems to share a philosophy I see often on /. concerning intellectual property:

1) An overbroad definition of derivative works and an understanding that I build part A. You build parts B, C, and D on part A. All your parts are belong to us, thank you for playing.

2) Somehow that I worked on your code in the pase prevents me from creating new simmilar code in the future. If you do create it, I own it.

All of these ideas are flawed in that they assume that intellectual property is like a rental property where all your improvements belong to the landlord.

IBM wins for creativity in punishing SCO...

[gsfprez]

Notice who they got to compare Linux and SVRX (and AIX and Sequent) code against each other?

A REAL LIFE MIT scientist... and not just any fictitious MIT scientist.... but Dr. Randall Davis, Director of Research for CSAIL.

i read that and said to myself... wholly fscking shit... THAT is funny.

Re:I'd just like to say..

[Anonymous Coward]

Yeah, but sue

• EV1
• Sun, or
• microsoft

... Profit!!! even if you don't have your shit together.

They'd still totally screwed ...

[Anonymous Coward]

1) we didn't know it was there

Yes they did. We have press releases with them bragging about the very features they now complain about. And not the former management, either, but the current management.

2) Once we found out it was released everywhere by IBM the horse was way out of the barn.

This is why the rewrite of their complaint quietly dropped the trade secret nonsense.

3) IBM'S "illegal" actions have boosted the Linux market place

That it boosted Linux is not a claim upon which relief can be granted. That it edged SCO out of the marketplace is what they have to (and effectively are) claiming.

4) To stay competitive we have to release a copy of Linux, under GPL, to be competitive.

They're claiming they "didn't mean to" release it, in spite of documentary evidence that they did. If they change this tune now, they'll have even more answering to do. Moreover, it's hard to see how that would make them more competitive.

5) But all of this is a result of the fruit of IBM's "illegal" actions so they still owe us damages.

Well, this filing concerns those contract provisions, and effectively destroys them. IBM has all the original signers of the contract lined up to testify that SCO has completely misinterpreted their rights under the agreement, and that it was never intended to mean what SCO claims it does. Neither SCO nor their current management were ever a party to the original SVRX license SCO is waiving about now, SCO only acquired interest in it when it purportedly became AT&T's successor in interest for it.

So your line of arguement is probably a better one than theirs, but at this point they're totally screwed in my non-lawyer opinion.

Available for download?

[nurb432]

But ( assuming they are telling the truth for just a second ) why would that matter? They own the rights, they can distribute it how they feel, with varying agreements...

It may not be smart, but if they own the code, they can do want they want with it.

( no, I'm not debating their ownership, just that the 'available for download' part seems shallow.. )

Re:Available for download?

[talks_to_birds]

The point is not the distribution, but the fact that while SCO was *still* distributing Linux, they had already sued IBM for distributing it also -- Linux that allegedly contained wrongfully contributed IP

One of the points at http://www.lamlaw.com/

>>> 6) the act by SCO to actually engage in the business of distributing itself the very property it claims was wrongly contributed (to SCO as well as all other recipients of the Linux code) <<<

t_t_b

Re:Available for download?

[Xtifr]

First of all, even if they own certain bits as they claim, there is no way they own the whole thing. So, no, they can't distribute Linus's own code or Alan's own code or HP's own code, or...

And second (and more important), even if they did own the whole thing (which they don't), the fact that they've been distributing it for free, with a copy of the GPL, and no indication that any other license does or should apply, bars them from making certain legal claims against other companies. Look up "estoppel" and "laches" in your handy local legal dictionary. This is the point that IBM is raising.

Consider, for example, the Grateful Dead. They (or their surviving members and heirs) have the legal right to control their own music. But if they tried to sue someone for distributing one of their concert recordings, they'd lose[*], because they've had an official, published policy for over twenty years that fans can trade and distribute their concert recordings.

Ironically, SCO can probably still sue someone for distributing Linux who doesn't comply with the GPL! In fact, they might want to try that, since it's the only way they're going to win any kind of suit anytime soon! :)

[*] I'm glossing over a couple of irrelevant details here, like their no-attempt-to-profit and no-official-release requirements.

Interesting point

[MarkusQ]

While I agree with you in spirit, I can't help but think that what you are suggesting would be far worse than the problem it proports to solve. If someone knowingly distributes something they wrote under the GPL, then they have done just that. No waiting for an indefinite period and saying "April fools!" or "Gosh, we knew our code was in the stuff we were distributing under the GPL, but we didn't intend it" or shouting "Psyche!" at the world.

In the circumstance you discribe, there must have been some other version of the software, distributed under some other terms, before it was ever added to the GPL'd aglomeration. What they should do is strip their code out, and distribute the GPL'd mass minus their code under the GPL, and offer their original product under whatever licence they wish.

They don't have to "stop all their GPL activities" but they shouldn't knowingly distribute something under the GPL (or, for that matter, under any licence) if they don't intend to honour its terms.

-- MarkusQ

Re:Interesting point

[Curtman]

And of course we need to come back to the central issue. The code in question is NOT sco's. They don't own the copyrights for JFS, NUMA, RCU, etc. They only claim (in the most confusing possible way) to have authority over IBM via its licensing so they can dictate what IBM can and can't do with its OWN code, they they wrote, and have copyright of. Anything else that comes out of McBride's mouth just sounds like that gurgling sound that toilets make when you flush. I subscribe to the JFS mailing list, and have for quite some time. Even a casual reader would pick up on the fact that the JFS in Linux is not from the same lineage as the JFS in AIX.

Re:Interesting point

[Ungrounded Lightning]

If someone knowingly distributes something they wrote under the GPL, then they have done just that. No waiting for an indefinite period and saying "April fools!" or "Gosh, we knew our code was in the stuff we were distributing under the GPL, but we didn't intend it" or shouting "Psyche!" at the world.

But if they UNKNOWINGLY distributed it, and as a result were now obligated to distribute the source even after they discovered the matter?

The GPL was (allegedly) intended to allow people to CHOSE what, if any, of their code they wanted to release - as a price for combining it with other people's GPLed code - and what to continue to hold closely (but not benefit from those other people's code without separate arrangements). They can CHOSE to waive IP claims against particular pieces of code that THEY THEMSELVES inserted or release-approved. They did NOT chose to waive the IP claims on OTHER pieces of their code that SOMEONE ELSE inserted without their knowlege or permission.

In such a situation they already have a problem: They can't sell the code to new customers without waiving their rights to the purloined IP, or replacing it with something else (competing against their own stuff with something perhaps less functional). But having to welch on their obligations arising from what they already shipped, and then being penalized for it, is an escalation that should not be required.

In the circumstance you discribe, there must have been some other version of the software, distributed under some other terms, before it was ever added to the GPL'd aglomeration.

I disagree with your premise. Even the very first version of the code they used as a base may contain the purloined code. But that's all part of their decisionmaking on what to do for their NEXT release (if any) of this particular product.

What they should do is strip their code out, and distribute the GPL'd mass minus their code under the GPL, and offer their original product under whatever licence they wish.

Which would be a legitimate choice for the NEXT release.

But it doesn't solve the basic issue: If they distributed object without source they must continue to make the matching version of the source generally available for a time.

They don't have to "stop all their GPL activities" but they shouldn't knowingly distribute something under the GPL (or, for that matter, under any licence) if they don't intend to honour its terms.

But hosting the source is NOT "distributing" it in the sense that was meant (selling a product for which they recieve a benefit from other people's GPLed work). It is meeting an obligation incurred when they DID distribute the product, before discovering the offending code insertion.

My point is: If they find themselves, through no fault of their own, in a position like SCO claims to be in, how do they defend their IP without violating the GPL?

In particular, if they chose to defend their IP claims, and the claims are legitimate, how can they act rightly and aviod being fried (like SCO is no doubt about to be)?

If the GPL actually does NOT give them a legitimate way to handle such a situation, companies with major IP investments to protect will be loath to release ANYTHING AT ALL under GPL for fear of compromising code that they did not intend to put at risk.

IMHO this is NOT the droid we want.

Re:Interesting point

[mwa]

My point is: If they find themselves, through no fault of their own, in a position like SCO claims to be in, how do they defend their IP without violating the GPL?

Go through all the source they are currently distributing and mark that which they claim copyright to. This, of course, would require that they identify the code which a) they have refused to do (IMO, because it doesn't exist) and b) would provide the Linux authors exactly the information they need to write around it.

If a GPL author presses them to cease and desist distributing GPL code commingled with their precious un-GPL'ed IP, then to comply with the GPL they must either stop distributing Linux or un-un-GPL their precious IP. The bottom line is that if their claim to intellectual rights in Linux is true, all distribution of Linux must cease, including theirs.

If SCO really wanted to protect their IP, they would have served proper notice as to what it was and demanded it be removed. If SCO really wanted to kill Linux, they would have un-GPL'ed "their" pieces and gone back to their "pure" SCO UNIX product line. Neither of these is what they want. SCO UNIX has failed in the market against Linux. Linux is what customers want. SCO wants to own Linux.

Failure to do anything at all to prevent further infringement is likely to be considered estoppel.

Re:Interesting point

[MarkusQ]

If they (our hypothetical potentially wronged propritary software developer) want people to to take their claims seriously, they should conduct themselves in a manner that supports that position. In other words, do what's right rather than what's expedient. This is generally known as "acting in good faith".

Suppose they are distributing a binary mass of GPL'd goo, call it BGv13, and the associated source code SCv13. One day they discover that it contains proprietary code P. What should they do?

1. Stop distributing BGv13
2. Notify the world that they should also stop, and explain clearly what the problem is. Note that under the GPL, the world would be obligated to listen.
3. Notify everyone to whom they gave BGv13 that there is a problem and a update will be coming soon.
4. Produce SCv14 = SCv13 - P, and compile it to produce BGv14. Start distributing that.
5. Notify the people from whom they got the tainted version of the problem, and work with them to resolve the problem.
6. If anyone to whom they had given BGv13 asks for the source, they should appologize and explain that the source for that version is unavailable due to licensing problems, and send them BGv14 & SCv14

All of this should be done as soon as possible, and in a non-confrontational manner. Once they are not themselves contributing to the problem, they may want to pursue the matter (at apropriate levels of firmness) with anyone who is still distributing P without a license.

What they should not do is continue providing BGv13 for over a year, threaten people right and left, but refuse to tell anyone what P is or why they even think it's in SCv13 in the first place.

It isn't rocket science. What do you do if you find out that you're in the wrong seat at a concert (or someone else is in your seat)? What do you do if someone starts reading your paper on the subway? Do you atempt to resolve things reasonably, communicating what you think the problem is, or do you start by yelling, threatening, etc.?

-- MarkusQ

Re:Interesting point

[Bloater]

If someone knowingly distributes something they wrote under the GPL, then they have done just that. No waiting for an indefinite period and saying "April fools!" or "Gosh, we knew our code was in the stuff we were distributing under the GPL, but we didn't intend it" or shouting "Psyche!" at the world.

But if they UNKNOWINGLY distributed it, and as a result were now obligated to distribute the source even after they discovered the matter?

If they don't know that it contains their IP, then they cannot be obliged to honour the license they have given you for that part.

But they *do* know. They've known for over a year and now that they know, they are offering the Linux Kernel under the terms of the GPL. If they are not offering the whole under the terms of the GPL then under the terms of the license they have for any legitimate parts, they must stop distributing the whole thing, or remove those parts that they do not offer under the terms of the GPL.

They have not done that. They are currently offering the whole Linux Kernel under the terms of the GPL, so anybody that gets that code off of them can do anything with it that the GPL allows.

They also claim to have thoroughly reveiwed all the code, so they *must* know either that it contains their code and that anybody who gets it off of them has a license under the terms of the GPL, or that it doesn't contain their code.

This is probably why they changed their lawsuit from a copyright infringment case to a breach of contract case...

Linux is safe.

Eros is Dying

[Anonymous Coward]

It is now official. Netcraft confirms: Eros is dying

One more crippling bombshell hit the already beleaguered Eros community when IDC confirmed that Eros market share has dropped yet again, now down to less than a fraction of 0.0001 percent of all servers. Coming on the heels of a recent Netcraft survey which plainly states that Eros has lost more market share, this news serves to reinforce what we've known all along. Eros is collapsing in complete disarray, as fittingly exemplified by failing dead last in the recent Research Projects That Promise Much But Go Nowhere networking test.

You don't need to be a Kreskin to predict Eros's future. The hand writing is on the wall: Eros faces a bleak future. In fact there won't be any future at all for Eros because Eros is dying. Things are looking very bad for Eros. As many of us are already aware, Eros continues to lose market share. Red ink flows like a river of blood.

Let's keep to the facts and look at the numbers.

Eros leader Jonathan Shapiro states that there are 7 users of Eros. How many users of KeyKos are there? Let's see. KeyKos is at about 8 percent of the Eros market. Therefore there are 7 + 1 = 8 users of either Eros or KeyKos. This is consistent with the number of Eros Usenet posts.

Due to troubles at University of Pennsylvania, abysmal development speed and so on, Eros went through a "focus shift" by doing a useless rewrite in C and was taken over by Johns Hopkins University, who attempted to continue development on this troubled OS. Then the project was sidetracked while precious development resources went towards creating Yet Another Useless Version Control System. Now it is dead, its corpse turned over to yet another charnel house.

All major surveys show that Eros has steadily declined in market share. Eros is very sick and its long term survival prospects are very dim. If Eros is to survive at all it will be among OS dilettante dabblers. Eros continues to decay. Nothing short of a miracle could save it at this point in time. For all practical purposes, Eros is dead.

Fact: Eros is dying

If This Were on IRC

[Kurt Wall]

<IBM> "All your base are belong to us."
<SCO> :-(

I think you have missed a part of the endgame...

[Duhavid]

I will not be super suprised to find that Daryl et al find themselves jobs requiring relocation to Redmond.

Re:How did the Registry(sic) get it so wrong?

[Anonymous Coward]

Nope: This belongs to us and we can do what we like; but even if it did belong to you, your contract says that we can do what we like with it. And even if you claim your contract doesn't say that, we have lots of witnesses to back up our interpretation and anyway, Novell says it doesn't belong to you and you're too afraid to sue them about it and finally, you aren't even the company we wrote the contract with, so the whole thing is irrelevant in the first place.

Oh, by the way, we've got proof you're committing serious fraud and we know where you live.

Who's got a scorecard?

[bs_02_06_02]

Is there a scorecard out there? If so, I'd like to see it... maybe summarized in baseball terms... by inning?
Anyone?

The reason I ask is that I've purposely ignored any mention of SCO, Darl McBride, and lawsuits for at least the past 10 months. It seems that there's a light at the end of the tunnel, and I'd like to catch up.

Re:Who's got a scorecard?

[Srass]

I dunno about a scorecard, but I picture it like this: It's the bottom of the 9th, IBM's loaded the bases, and SCO's got a roundheaded kid pitching (Darl, you blockhead!)

Re:Who's got a scorecard?

[DashEvil]

See what ignorance got you!

Have fun in nowheresville!

IBM is fighting this the only way it can

[phrostie]

IBM is fighting this the only way it can be faught.
SCOX has been playing a shell game of issues and evidence.
when ever IBM has asked to define the issues or evidence SCOX has moved to the
next wallnutshell.
what IBM has done is to say to the Court, OK, but they can't go back to that
later. one PSJ is bad enough for SCOX, but when they start adding up SCOX
starts to run out of wallnuts to use for misdirection. before long they will be
sitting at a table with all their nuts smashed.

Re:IBM is fighting this the only way it can

[Captain DaFt]

"before long they will be sitting at a table with all their nuts smashed."

Heh... If only... };->

Pre-SCO Xenix history...

[argent]

My recollection was that Xenix was developed by Microsoft and SCO was mostly a porting house until Microsoft split them off in the late '80s. Both SCO and Microsoft, for their own reasons, have been reluctant to acknowledge the degree of Microsoft's involvement in early commercial UNIX development since then, but they were terribly proud of it at the time.

Here's an online document that seems closer to reality.

"Microsoft purchased a license for UNIX 7th Edition from AT&T in 1979, and announced on August 25, 1980that it would make it available for the 16-bit microcomputer market. Xenix was not sold directly to end users; Microsoft licensed it to computer manufacturers who then ported it to their systems. The first ports of Xenix were to the Zilog Z8001 16-bit processor.

"Altos shipped a version for their computers early in 1982, Tandy Corporation shipped one for their 68000-based systems in January 1983, and Santa Cruz Operation (SCO) released their port to the Intel 8086processor in September 1983

"Xenix varied from its 7th Edition origins by incoporating elements from BSD Berkeley Software Distribution, and soon possessed the most widely installed base of any Unix flavor due to the popularity of the inexpensive x86 processor, even though the port created for Tandy computers proved to be more robust.

"When Microsoft entered into an agreement with IBMto develop OS/2, it lost interest in promoting Xenix. Microsoft transferred ownership of Xenix to SCO in an agreement that left Microsoft owning 25% of SCO. However, Microsoft continued to use Xenix internally, submitting a patch to support functionality in UNIX to AT&T in 1987 , which trickled down to the code base of both Xenix and SCO UNIX"

-- Xenix at The Free Dictionary

Re:Pre-SCO Xenix history...

[RPoet]

For reference, that article was "lifted" from Xenix at Wikipedia -- using the primary source is always best :)

Re:Pre-SCO Xenix history...

[argent]

Thanks, I should probably have tried Wikipedia before Google.

Re:Mwahaha / SCO wouldn't dare

[Anonymous Coward]

Thank you for pointing out the blatently obvious.

(and also for being a gigantic douchebag)

Daryl. Is this where i post positive SCO messages?

[Anonymous Coward]

I really feel that SCO will have good reply to IBM's thing.

will the a/c

Only 8.5 Million?

[bill_mcgonigle]

Of the approximately 8.5 million shares that are available to be traded on the public market

So somebody with $600M to burn (e.g. Novell) could buy all of the public shares of SCO for $34M and make all the problems go away?

Say, given Novell's past entanglement with SCO that almost sounds like a setup. The conspiracy theorists would have a ball with that one.

Re:Only 8.5 Million?

[bluGill]

In theory. In practice when someone (company or person) sets out to buy a large portion of a company's shares, their buying affects the price. They get the first few shares cheap, but now those shares are not on the market and they need more, so the price needs to go up to get people to sell. Not to mention if the rumor gets out (and there are SEC rules, if you own more than 5% or 20% - I can't recall - you have to file paperwork stating your intentions) those who are considering selling may wait for a higher price.

That said, it is done. More than one company has been bought out this way. Generally because someone looked over the books and saw something. For instance land is generally carried on the books at the cost they paid for it, not what it is worth, so if a company bought land in the 1890s you might be able to buy the company, sell their land for more than you paid, and have a company left over! Similar things have happened when companies have had a lot of original art on the walls (this might not have been on the books at all).

A text-book case.

[biendamon]

That logical critique of Enderle's keynote belongs in a text-book. It is systematic and devastating. Nothing I can say will do it justice, so I'll just recommend that Slashdot readers interested in logical argument construction (and deconstruction) read the piece. It's long, but well worth it.

Re:A text-book case.

[dont_think_twice]

Unfortunately, that critique is not devastating, although it is systematic. The author points out every logical fallacy used by Enderle, but never makes the case that Enderle is wrong. It is good to point out why Enderle's case is not what he is claiming, but it would have been much better to then show exactly why he is wrong. It is not like Enderle is the prosecuter, and it is just necessary to introduce reasonable doubt to win. There is a very strong and convincing case to be made that not only is Enderle a moron, he is an incorrect moron. I wish the author had made that case.

Re:A text-book case.

[MrResistor]

I think I have to disagree. Once you remove all the fallacies, contradictions, etc (and I think they missed a few), from Enderle's speach, what, exactly, is left?

last plane out

[harvey the nerd]

I for one would to know how many plane tickets Darl and Blake plan to buy for Brazil, etc. Single or family? or "Let's do it in the bunker Adolf"

scuppered AGAIN

[jgoemat]

SCO's initial complaint focussed on trade secrets. IBM's requests for documents and interrogitories asked SCO to point to the exact trade secrets that were at issue. Of course SCO was supposed to do this when initially informing IBM of the supposed contract breach and give them 100 days to mend it before terminating the license. Nine months later in December 2003 when fighting the motion to compel in front of Judge Wells, SCO's lawyer argued the whole time about how they needed IBM code before they could identify the trade secrets at issue (of course they lost as they should have known the trade secrets and have evidence before starting the case). In fact, I doubt there are any trade secrets in Unix SYSV. To be a trade secret, you have to keep it secret. UNIX has been distributed to colleges and over 30,000 licensees. USL lost the BSD case, opening up the source code to an operating system VERY similar to UNIX. Anything in BSD is not a trade secret, and probably anything in UNIX since it was so widely distributed. Facing the motions to compel and IBM's arguments of law, SCO was forced to drop the trade secret claim.

SCO first introduced the warped interpretation of section 2.01 of their license that now forms their case in the February hearing. They used an analogy of a ladder, saying UNIX was steps 1-10, IBM added steps 11-20 but they can't give them away since they are built on the UNIX ladder. This has flown in the face of the standard definition of derivative works and takes a really biased eye to see that in the contract language. Ever since then I have been wanting IBM to step forward and call them out. IBM silence puzzled and frustrated me. Now I finally see their reason. Since SCO has made this the basis of their case since that February hearing and their second amended complaint, IBM has methodically been building evidence and taking depositions as to what the contract actually meant.

Now they come forth and I realize I'm not crazy. Every single person involved in negotiating the contract thought the same way I do, that it is plain ridiculous to think the contract means the licensee is prohibited from using their home-grown code elsewhere. Some companies were a tad worried about that provision of the license and AT&T was happy to clarify it (as they did in the AT&T-IBM side letter) saying that any code developed by the licensee was owned by the licensee. They even sent such a statement out in their $echo newsletter, and eventually changed the license wording to make it more clear. This did not change the meaning of the license at all, it just clarified the intent. From every single deposition (over 10) from both sides that came up with and negotiated the license (AT&T and IBM), we see that SCO's interpretation is plainly wrong.

IBM has several arguments to back them up:

1. Since you have to look at the contract with a lot of bias to see SCO's interpretation, the language seems unambiguous and the judge can rule that SCO is crazy.
2. If it is ambiguous (after all, many licensees requested clarification and AT&T did have to put that in the $echo newsletter), all evidence as to the intent of the parties falls squarely in IBM's favor.
3. If SCO's interpretation is correct (which would be a large stretch of imagination), Novell has waived any wrongdoing by IBM as is their clear right in the APA with Santa Cruz (no matter what SCO says)
4. Since it is a form license used to many customers and not a separate negotiated contract between individuals, any ambiguity must be decided against the party that came up with the license (AT&T->Novell->Santa Cruz->SCO)
5. "SCO's interpretation of the Software Agreements in this case would plainly produce an absurd and commercially unreasonable result." AIX is comprised of over 63 million lines, less than 100,000 of which are UNIX SYSV. That would mean that for using code that amounts to less than 0.16% of the entire product from a third party, that third pa

SCO - Still looking for Linux Engineers?

[Anonymous Coward]

Job Title:
Senior Software Engineer
Requisition # 40235

Type:

Posted 13 January, 2004

Location:
Delhi, India

Department:
India Engineering

Reports To:
Manager of Engineering
Apply Now

Job Description:
Design and develop systems-level software for Linux and provide systems support by performing the following duties:

Job Responsibilities:

Analyze the performance of hardware and software interfaces and identify alternatives for optimizing usage of computer resources
Apply generally accepted programming standards and techniques to assure efficient program logic and data manipulation
Participate in designing, coding, testing, debugging, configuring, and documenting operating systems and software
Provide assistance and routine consultation to users in the development of operating systems and software
Install software and user utilities for modifications and upgrades of operating systems and workstation environments
Plan and execute software version upgrade releases and custom interfaces
Work with others to develop alternative system and software designs
Recommend selection, approval, and acquisition of hardware, software, networking components, and services
Install, configure, and test workstations with supporting hardware, software, and networking components
Other duties may be assigned.

Education and/or Experience:

Must be proficient in the use of C or C++. Java experience desirable
Must be knowledgeable in the operation and design of Unix, Linux, or BSD
Knowledgeable in the area of object-oriented software design and development with experience in developing system management software
BS in CS, CE, or EE required. MS preferred.

I hope they go after Canopy!

[Xtifr]

I'm not sure why you got modded funny - seems like a perfectly reasonable suggestion to me. But beyond that, I hope they go after Canopy and Ralph Yarro! TSG ain't gonna have enough money left to cover all the damage they've done, and it's pretty clear, IMO, that a lot of the money that's come out of this scheme so far has been funneled to Canopy. Now, if Canopy were just sucking money out, it might be hard to prove they were actively involved, rather than innocent beneficiaries, but the CA deal, where CA ended up buying SCOSource licenses as part of a settlement with another Canopy company may be the chink in the armor that IBM needs to go after the bastards. We can only hope!

My summary of the memorandum

[UnknowingFool]

IANAL but here's my summary of the memorandum.

First, SCO says that IBM stole millions of lines of code and put into Linux. IBM has asked SCO to identify the lines many times. A judge has ordered SCO to do so twice. SCO has not done so to this date.

Instead, they keep changing their claim. Then the case became about "trade secrets" IBM stole. IBM has asked SCO to identify what trade secrets or what code are invovled with these trade secrets.

SCO no longer says its about trade secrets. Now, it's about code that IBM contributed from AIX and Dynix into Linux. SCO argument is that since they own System V, according to the licensing agreements between AT&T and IBM, they own all dervatives and anything else IBM creates. Thus IBM cannot contribute code to Linux because SCO owns it. SCO does not identify all the lines but does identify the modules that contains this derivative code (RCU, SMP, etc). Because IBM violated this agreement, SCO has the right to terminate IBM's license.

Using an expert from MIT, IBM says that all the modules that SCO mentions contains no derivative code but is original.

IBM mentions Amendment X. Back in 1996, in an agreement (Amendment X) with Novell and old SCO, IBM acquired a "irrevocable, fully paid-up, perpertual" license to System V for the sum of $10 million. Novell eventually sold some rights to SCO but kept enforcement rights.

IBM then brings out everyone and their dog that participated on the original license from AT&T, IBM, and Sequent. Everyone involved agree that AT&T does not and never owned any derivatives of System V created by their licensees or by third parties for their licensees. All parties (especially AT&T) emphasize that any original code created by their licensees and not derivative were never claimed by AT&T. Since AT&T never claimed it, SCO cannot either. AT&T reps and former counsel disagree with SCO current interpretation of the license agreement that AT&T drafted. IBM supports this with a few documents from AT&T including the $echo newsletter.

So as a matter of law, IBM says that summary judgment should be granted because it is all one-sided. Citing case law since everybody who was party to the original license agrees with IBM and all documents support their view and SCO has not produced any testimony or documents otherwise, IBM owns all their own original code and any derivatives of System V. Thus they could not have breached the contract.

Also, even if IBM breached the contract, the contract cannot be terminated because of Amendment X. Additionally, even if the contract could be terminated, SCO does not have the right to do so. Novell still retains the enforcement rights of System V. Lastly IBM notes that SCO should not be able to sue IBM over contributions to Linux if SCO itself still distributes Linux knowing it supposedly has "stolen SCO code"

OH NO!!!

[jonnystiph]

The /. disease is spreading....
From the article
haven't finished reading the memorandum myself

Laugh, its supposed to be funny. Jerk.

Re:OH NO!!!

[jonnystiph]

By the who ever moded the parent.

The /. disease is spreading....
From the article
haven't finished reading the memorandum myself

Laugh, its supposed to be funny. Jerk.

The last line was directed at you. Mod me a troll me now dumbass. This time at least I have it coming.

SCOX == MSFT

[Anonymous Coward]

Whether you're looking at funding, or you're looking at market tactics , they are the exact same thing.

Master's of Business Administration is not a respectable degree in China or India. Only in America, and that's not going to last. It got us here, but times have changed.

Sorry, are we talking about...

[leonbrooks]

they lose GPL rights

...the same people who asserted in court that the GPL was unconstitutional?

No wonder Slash lopped your _Rod off. (-:

Novell case may be a factor

[walterbyrd]

If scox loses it's case against novl, then it could be ruled that scox doesn't even own the copyrights to begin with.

If that happend, then - for sure - baystar would demand it's $50 million back from scox. And baystar would have a very strong case.

Ift that happend, it would end scox right away.

Is it just me

[nickthisname]

or does anyone else think SCO should go back to their orignal name of Caldera, since that is Greek for "big hole in the ground" ?

general public?

[SenseiLeNoir]

This is not so much the case anymore, as the general public is more aware of what derivitive products are, that SCO is not Santa Cruz, and of course, that Novell may actually own what SCO claims to own.

I think the "general public" havent a clue what SCO means (some dogfood company maybe?).

Probably think Santa Cruz Operation is some sort of railroad company.

IBM is that thingie in the phrase "This computer is IBM PC Compatible", must be some sort of god.

Re:general public?

[Ohreally_factor]

Probably think Santa Cruz Operation is some sort of railroad company.

I thought they made skateboards and beach wear.

Re:general public?

[Pharmboy]

I think you underestimate the public. Most people in America own stock, after all, in either a 401k/SEP/IRA and with after tax dollars. They are not massively educated about tech companies, but they are not nearly as blind as the average person was just 20 years ago.

I know tons of people who still make less than 30k yet own stock. This ain't the 80s anymore.

Slightly off-topic tom this particular thread

[Ohreally_factor]

Hey Curtman, we're missing your valuable input over on this topic. At least read the nice linked article over at Groklaw. Then maybe you could tell us your famous crow recipe.