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The SCO Trial Through A New Lens
An anonymous reader writes "On Yahoo! News they've got an article by Paul Murphy entitled, SCO, IBM and Outcomes-Based Circular Reasoning. Murphy claims to be 'a 20-year veteran of the I.T. consulting industry, specializing in Unix and Unix-related management issues'. He writes, 'By itself this was a straightforward contractual dispute that could, and should, have been settled quickly and easily.' And that, 'Although SCO hasn't formulated its complaint in this way, I believe it could meet these, or similar, requirements quite easily and therefore has every reason to be confident that the court will eventually enforce its stop-use order against IBM.' He also goes on to insult Linux advocates by stating that, 'the position being run up the flagpole by what Stalin famously called "useful idiots" is first that the lawsuit itself is no longer a real issue and secondly that its consequences have been generally positive.'"
I thought GNU's Not Unix
The reason Tannenbaum apparently gave Linus a "C" for his kernel hack probably wouldn't have been that the code was bad or derivative, but that he disapproved of sacrificing design elegance for a performance benefit available only on the x86.
Here is what Tannenbaum really said:-I still maintain the point that designing a monolithic kernel in 1991 is a fundamental error. Be thankful you are not my student. You would not get a high grade for such a design :-)
Note the smiley.Slashdot: Where nerds gather to pool their ignorance
I find it hard that you have to negotiate to settle an issue when you are completely in the clear by the terms of the contract.
SCO's interpretation of the contract is so overbroad that it is absurd. The definitions they are using for the terms are completely different from the normal usage of the same terms.
For example, a derivative work incorporates the original work or elements of the original work. But SCO takes the view, with nothing in the contract to support them, that developing your own code to run under their UNIX makes it a derivative work even though it has never contained any element of the original work.
If he had paid attention to any of the hooplah surrounding this case, he would have known 2 things:
He also seems to miss the fundimental point that the case doesn't concern the 'reverse engineering' of UNIX functionality that IBM received from SCO. SCO is asserting ownership of code written by IBM under an interpretation of AT&T's derived works agreement that has been challenged, disavowed, and discarded by pretty much everyone.
It is more commonly attributed to Lenin, but it seems that he didn't really say it either:
"Lenin, it is said, once described left-liberals and social democrats as 'useful idiots,' and for years anti-communists have used the phrase to describe Soviet sympathizers in the West, sometimes suggesting that Lenin himself talked about 'useful idiots in the West.' But the expression does not appear in Lenin's writing. We get queries on 'useful idiots of the West' all the time, declared Grant Harris, senior reference librarian at the Library of Congress, in the spring of 1987. We have not been able to identify this phrase among his published works."
The source of this passage is a work entitled "They Never Said It: a Book of Fake Quotes, Misquotes, and Misleading Attributions", authored by Paul F. Boller Jr. and John George, published by Oxford University Press in 1989. The text goes on to explain that the phrase apparently first appeared in a John Birch Society pamphlet labeling President Ronald Reagan a "useful idiot" because of some agreement he had negotiated with the Soviet Union.
btw, most of Lenin's writings are available for searching at http://www.marxists.org/archive/lenin/
Quoth the article:
"According to SCO, it is the legal successor to AT&T..."
That is a fact in dispute. It seems the rest of the article is founded on this premise.
If SCO does not "own" Unix, then the arguments in the article fall flat.
It was Lenin who said that and he actually didn't say it. It was invented by the John Birch Society to describe Ronald Regan.
Source
There is much more evidence that Lenin referred to them instead as "Deaf Mutes" which is much less of a marketable term for the anti-communists to use in describing how communists view their dupes.
Article that Makes Reference to the Deaf Mutes Quote. This quote was also referenced by Theodore Radzinsky in his Stalin Biography as being authentic.
"The so-called cultural element of Western Eurpoe and America are incapable of comprehening the present state of affairs and the actual balance of forces; these elements must be regarded as deaf-mutes and treated accordingly....
(The Lufkin News, King Featurers Syndicate, Inc., 31 July 1962, p. 4, as quoted by the Freeman Report, 30 Sept. 1973, p. 8).
This guy is making a totally specious argument, by comparing the Compaq vs. IBM case to the Linux case. I stopped reading after that, because it was quite stupid. In another mal-formed post below I elucidated this, but here's a summary: Compaq V. IBM was about copyright infringement. Any re-implementation of the BIOS was likely to have identical code, since we're talking about optimized assembly. Compaq had their "Chinese wall" in place to be able to prove that they didn't copy anything. There was no contract dispute, either.
On the other hand, all you need to do to prove that Linux is not a copy of SCO is compare the source. They're different. Linux does not infringe SCO's copyright, and it never did.
He also confuses Trademarks and Copyrights. He says "Linux is Unix" because it does what Unix does. But when people say "Linux isn't Unix" they're talking about trademarks.
Imagine if Coca-Cola sued pepsi for violating their trade secrets or something. You wouldn't say "Pepsi is Coca-cola because it tastes kind of like Coca-cola.". No, Pepsi is a Cola (that's the name of the flavor of Coca-cola, pepsi, RC-cola and so on). You can't make the argument that Pepsi tastes like coke, and because you want to call it Coca-cola, then Pepsi is violating Coke's trademarks. That would be retarded. This isn't a "new" perspective, it's just some retards musings.
autopr0n is like, down and stuff.
This could be of interest to PJ at Groklaw.
Re: SCO V. IBM -Thursday April 28/05
Author: Robert Weiler (204.247.40.---)
Date: 04-29-05 16:45
Dear Paul,
I have over 25 years in the software business, most of it on Unix systems and I have worked for two SVR4 licensees. It was very clear at both of these companies that code that we created belonged to us and that AT&T did not control it in any way. The only copright notices that we placed in our code was our own, not AT&T's. This is explicit in IBM's agreement, and it was made explicit in the $echo newsletter. The notion that SCO controls the subsequent work product of everybody that has ever seen Unix source is complete nonsense and would in fact be illegal restraint of trade in most states. Your notion seems to be even more expansive than SCO's; as I read your argument, any code that ever ran on AIX and was subsequently ported to Linux would belong to AT&T. This idea is so silly it doesn't even merit a response, so I'm asuming that I've misinterpreted what you wrote.
SCO's notion of what constitutes a derivative work is not only completely at odds with the SOFT aggreements, it is at odds with copyright law. If the only thing that SCO has is a few suggestive emails and the 'mental tainiting' argument that you espouse, then IBM will win on summary judgement as a matter of law. And according to Judge Kimall, that is apparently all they have.
Finally I should note that even if SCO were to prevail on their contract dispute with IBM, it means absolutely nothing to Linux. At worse, the offending code is removed, any liability is IBM's.
I would greatly appreciate it if you would inform yourself on the issues of this case and write a followup article. Every CIO should be evaluating a migration from Windows and proprietary Unix to Linux as the cost savings are dramatic. It would be very, very unfortunate if any CIO delayed a transition to Linux based on misinformation about SCO's legal propects which are virtually nonexistant.
This guy is way out there
I think it's worth noting that this article was written almost two years ago, and since then information has been published invalidating virtually all of Murphy's assumptions. SCO has amended its complaint since then several times. I'm not sure what the point is in bringing this article up again after all this time, other than to embarrass Murphy, perhaps?
this guy is really just spreading more SCOx FUD for them.
I never said I was smart, I just said I was smarter than you
SCO issued a stop-use order with the 100-day hiatus required under the contract, but IBM neither changed its behavior nor embarked on good-faith negotiations to settle the issue.
And what really happend:
SCO issued a stop-use order with the 100-day hiatus, but failed to include in that order an explanation of what IBM did wrong, or how they could correct it as required under the contract, and so therefore IBM neither changed its behavior nor embarked on good-faith negotiations to settle the issue, because SCO never gave them that option.
How can you be Posix compliant and NOT implement the same interfaces?
Exactly. Interfaces are considered non-copyrightable because they are required to be the same for compatability. I forget the precise legal wording, but interfaces are descriptive of what something is supposed to do, not expressive of how it works. Suffice to say this theory of SCO, despite playing this up in the press, only tried this once in court, and was smacked for it.
The enemies of Democracy are
I'm not calling Mr. Graham a troll or shill. Just wrong. Consistently wrong on this issue.
-- @rjamestaylor on Ello
Rumour had it that he started as an entry level sysadmin and wrecked so much stuff they made him a manager. This is the Peter Principle at work boys and girls... Posted anonymously for obvious reasons.
The Peter Principle is where you get promoted because you're good at what you do until you become incompetent at your new position and stagnate.
The Dilbert Principle is probably what you mean. You're a total dumbass, therefore you get promoted to management.
The author ignores a number of inconvenient facts.
First, and foremost, SCO's bluster about Linux and copyright infringement predates their lawsuit against IBM. Whether or not IBM violated its contract with SCO is not the community's beef with SCO; the community is up in arms because SCO had the gall to suggest that Linux was a big ripoff of SCO's proprietary unix code and began to do things like sell linux licenses, as if it had some right to collect that money. So this is not merely a "simple contract dispute".
Moreover, he is skewing the origin of Linux. Regardless of the author's qualifications, the two people most able to state whether or not Linux was or was not dervied from Minix or contained Minix code would certainly be Linus Torvalds and Andrew Tannenbaum. Tannenbaum said, "I told [Ken Brown, President of the Alexis de Tocqueville Institution] that MINIX had clearly had a huge influence on Linux in many ways, from the layout of the file system to the names in the source tree, but I didn't think Linus had used any of my code." Eric Raymond may have been citing this to make a point, but when Linus and Andrew both are clear on the point that Linux did not use Minix code, then I believe take their assertions on that point.
The assertions about due diligence are equally off-base, as the Open Source Risk Management company is offering insurance against claims of copyright infringement. It is basically absurd to suggest they could get millions and millions of dollars of insurance underwritten without due diligence against the product they were insuring - which, in this case, is the code that comprises Linux.
Finally, the author completely ignores how unclean SCO is with its own source management. They distributed a version of Linux for quite some time, and continued to distribute it even after they had made public claims. If they had discovered claims but continued to distribute the code, one could quite easily argue (and surely IBM will) that they have themselves have placed whatever code is in question under the GPL.
This only touches on the number of issues he manages to gloss over in a few brief pages. By no means do I think that David Boies would have been involved on contingency unless he felt he had some chance of winning, but the fact is, SCO is bleeding money like tomorrow's bacon, and it is hard to imagine how anyone would care to purchase a real product from SCO in the future, given their propensity to do things like, say, sue their customers.
Certainly, at this point, Canopy can only be hoping that the payoff from the lawsuit against IBM and other actions will be sufficient to justify flushing the company. But even *if* SCO managed to prove IBM contributed tainted code, there's a mountain of counterclaims to deal with and SCO has to try to establish damages, and it's hard to see how SCO can justify damages that are a significant multiple of its own market capitalization at the time the offense occurred. It would be like Harold Welte suing Asus for $2B or such. It may sound like a nice round number, and SCO can say that it wants "infinity times infinity" for damages, but that doesn't give it a snowball's chance in hell of actually seeing such damages.
Got Graham on my mind for some reason.
-- @rjamestaylor on Ello
I will first state that I go read Groklaw, but I read more than just the posts. I have read a large percentage of the filings.
I feel the writer ignores or is incorrect on these points:
1: Novell (who at the time believed they had the final say on matters of this nature (via the contracts drawn up from the sale of unix to SCO)) specifically told SCO to back off and allow/ignore whatever transgressions theoretically occurred. SCO ignored Novell and this caused the legal battle to grow.
2: The writer mentions that SCO needs to find any patches that were rejected as a result of an AIX centric development mindset. The writer ignores the fact that someone working at IBM may have been an application programmer writing software for AIX and not a kernel hacker. Additionally, I do not believe that the writer takes into account the fact that someone may have worked on AIX years ago and now works on Linux. It isn't believable that someone who once worked on AIX in the past would be forever limited/tainted on all future development projects until the day they died.
3: The writer initially tries to show SCO to be somewhat of a victim and yet admits that after the Boies law firm took over the case expanded and the legal battle heated up. He also mentions the code that he believes does exist in Linux. Darl McBride also mentioned that code 2 years ago, but to this date, no actual code has been released in court documents that support that remark. Darl initially said that there were thousands (or tens of thousands) of lines that were copied and could be traced to Unix. Amazingly, SCO has asked (and received) AIX source code from IBM. If SCO had identified that source 2 years ago and in the legal battle wants more source, why would the writer make the statement that he believes it is there. He should have expanded his reasoning for that remark. SCO said they already identified it. We (as a community) would like to know:
"Where is it?".
4: The writer talks uses the terms "mislead the public", "focus attention on irrelevancies", and "Anti-SCO hysteria". Admittedly, many Linux users are passionate about the operating system and have said some wildly inaccurate things about SCO (and Microsoft), but there have also been a lot of intelligent and thoughtful discussions about the case. Strangely enough, the writer does NOT talk about the wildly inaccurate and misleading statements from SCO and their legal team over the past 2 years.
Neither side in this case is perfect, but I am surprised that this article has such a one sided feel when there is so much information available (from sites like Groklaw and SCO's own legal filings page) that give a much clearer view of things over the article itself.
When that entity terminated, they transferred stewardship of POSIX to the IEEE. IEEE may have copyrighted subsequent versions (but see the Veeck case), but they can't retroactively copyright US Government documents.
sPh
and many of the advantages of a micro kernel are in Linux's current design using modules. Of course, that does not include the main one, which is that one bad module can not take down the kernel.
I prefer the "u" in honour as it seems to be missing these days.
Actually some of the modules are resistant to crashing. Back in early 2.6, there was a bug in the HID handling that caused the keyboard handler to oops if you pulled the USB keyboard you were using out. HID would then crash and burn and quit working, but you could still ssh in and reboot the system.
;)
Not all of the modules are this way, and of course crashing the BigModule of a kernel would kill the system, but its a start
I think the confusion is that Mr. Murphy, being out of ideas, meritable or not, re-hashed his sys-con.com 2003 article for publication at CIO Today today. Is it possible to plagarize onself? Regardless, he should only get 1/5 of the money he was paid since he merely removed reference to the June 13, 2003 ultimatum date. There's no change in his thinking.
-- @rjamestaylor on Ello
You wrote: "PJ ... may even have made a few bucks selling Linux insurance."
But you must've missed it back in Nov when PJ resigned from Open Source Risk Management, which is what you're clearly referring to. You really should read her reasons. It will make you feel very very guilty. That is, if you were honestly misinformed, and not trying to spread nasty rumors.
At any rate, in my mind, PJ's esaay in the link above was an amazingly inspirational act. You'll know what I mean when I say that she's a real role model, not deserving of this kind of smear.
The migrated code originated from V7, not BSD. (It is under BSD license by now, anyway.)
No one needs a license to "do POSIX." POSIX is merely a set of Federal Information Processing Standards (FIPS) - definitions of how various o/s interfaces and services operate, among other things. There is no true "POSIX" to license. A number of companies wrote dramatically different releases of software that met the POSIX standards.
The article gives SCO too much credit.
IBM claims the following:
1. SCO is not the successor in interest of AT&T.
2. IBM did not contribute copyrighted AT&T code to Linux.
3. IBM did not contribute AT&T 'derived' code to Linux, whatever derived means.
4. Had IBM contributed derived code to linux, it would be legal.
5. Had IBM contributed AT&T's code to Linux, it would be legal.
So far, SCO has not succesfully beaten any of those claims. In fact, SCO has had a great deal of difficulty producing any evidence whatsoever regarding these claims. IBM only had to win one of those claims in order to get the case dismissed.
WhiteWolf666 an exBush supporter. All you new-school,compassionate,save the children Republicans can rot in hell
Thompson & Ritchie were handing out copies of the source code like candy in the early days. This was while AT&T was still under consent decree, and they were not allowed to be in the computer biz. Bell Labs was required by the terms of the consent decree to license its non-telephone technology to anyone who asked.
Not public domain, but pretty danged open.
Ignorance killed the cat. Curiosity was framed.
Is there a legal or constitutional reason that a judge can't just go, "okay, you've wasted enough of the court's time, either produce something now or I'm dismissing this case and hencheforth further blocking you from ever filing a baseless lawsuit like this ever again"?
It's called dismissing with prejudice. Can't stop the plantiff from refiling in another court, but it does keep it out of that court pretty much for good. And regardless of SCO's "unorthodox" and frankly stupid moves, their suit isn't frivolous, simply without merit. All frivolous suits are without merit, but not all suits without merit are frivolous.
Minix was a teaching tool to teach OS design concepts - with source.
Just saying it like it are.
The problem is that Murphy probably obtained his information by reading SCO's legal briefs. Here's a quote from a declaration of John Harrop, submitted by SCO:
... based on and derived from UNIX,"
"... Mr. Torvalds had been studying an operating system that one of his professors [Andrew Tanenbaum]
IBM, in a later brief, pointed out that Tanenbaum teaches in Amersterdam, while Torvalds was a student at the University of Helsinki in Finland.