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Linux Kernel Code May Have Been in SCO UnixWare
Random BedHead Ed writes "Groklaw has some interesting new information online. In an entry today,
PJ has posted the Deposition of Erik W. Hughes (PDF), a SCO employee. Hughes' 2004 testimony reveals that the Linux Kernel Personality (LKP) of UnixWare somehow used kernel code. Exactly how it was used is not clear. UnixWare was released under a proprietary license, but the General Public License under which Linux is distributed requires derivative works to use the same license. As PJ says, it's "now apparent why SCO tried to say the GPL is unconstitutional" back in 2003."
If you read the actual Groklaw article you will see it may just have been some copy of the kernel on one of their distribution disks which would be fine as far as the gpl is concerned. If they actually integrated source code from the linux kernel into their own kernel that would be very interesting and bad karma indeed for them. But that is far from certain.
http://mirrordot.org/stories/1e37d8ccf322d25235d4f 08d1380dbba/index.html
Escher was the first MC and Giger invented the HR department.
Back in the spring when Maureen O'Gara and moved to have documents unsealed, the judge turned them down. However, he also indicated that the parties should review all sealed material to see if anything had been improperly sealed.
Since then, both IBM and SCO have been releasing court filings that were originally filed under seal.
You will note, if you read the PDF, that not all pages are available. Presumably, that is the way it was released by the courts, but that is not completely clear.
If I understand the way copyright law works, this would be more than enough to let anyone with a registered copyright on part of the Linux kernel subpoena the source for LKP to check for infringement.
Should there in fact be apparently-infringing material there, then the copyright owner could get a preliminary injunction forcing SCOX to cease and desist immediately, and very likely an order recalling all licensed copies with infringing material.
Now, there would be a bond required but otherwise PI for infringement is dang near automatic. So a company with registered Linux kernel contributions and a bit of money could pretty much finish off SCOX as a software vendor by forcing their users to convert away.
I suppose that it's a good thing for SCOX that there aren't any companies like that who would be willing to go to court with them, now, isn't it?
Lacking <sarcasm> tags,
I wonder what Boies and company get out of this.
Money. Lots and lots of money. A post on Groklaw that SCO's legal fees have topped $40 million. SCO does have a cap, so by the end of this year, they will be paying no more for the current cases.
Of course, if someone whose copyright SCO had violated were to sue, that would not be covered by the current legal agreement between SCO and its law firm.
SCO has two Unix products: OpenServer and UnixWare. It is important not to confuse them.
OpenServer is based on what was Xenix, and until the recently released OpenServer 6, it was considered to be an SVR3 system.
UnixWare was obtained in some form or another (under dispute at the moment) from Novell in the mid 1990s. It is an SVR4 system.
OpenServer 6 is being labelled as an SVR5 system now, and appears to be amongst the initial steps in merging/unifying the technologies found in UnixWare.
Indeed, at this point OpenServer is still a different product than UnixWare.
Cyric Zndovzny at your service.
SCOvIBM: In the wake of the recent opinion issued by Judge Kimball, fact discovery will continue until 27 Jan 2006, and the parties must disclose with specificity all "allegedly infringing materials" by 22 Dec 2005. Redacted and unsealed motions are being rapidly released, with SCO finally joining in. The parties seem to be still consulting with each other on the privilege log issue. Finally, a fully briefed, now partially redacted discovery motion awaits a ruling, though no hearing date is yet set.
SCOvNovell: On 29 Jul 2005 Novell answered SCO's amended complaint and filed an impressive array of counterclaims . Perhaps the most compelling request that Novell indicates they will present to the court seeks to require that income SCO received from Microsoft, Sun, and the other "Intellectual Property Licenses with Linux end users and UNIX vendors" be held in a "constructive trust" until Novell's contract claims are decided. Other counterclaims call for relief relating to SCO's alleged slander of Novell's title to UNIX System V copyrights and declarative, injunctive, and monetary relief relating to SCO's alleged breaches of the contracts effecting the sale of Novell's UNIX business to Santa Cruz. In particular, Novell seeks to have the court enforce Novell's actions to stop SCO's threats regarding Linux and AIX; to audit the terms of SCO's SCOSource licenses issued to Microsoft, Sun, and others; and to collect any money owed to Novell resulting from SCO's SCOSource activities. Unless SCO is granted an extension of time, they should reply to these counterclaims by 22 Aug 2005.
RedHatvSCO: This case remains stayed. However, Judge Robinson indicated that if "it would no longer be an inefficient use of judicial resources" or "there is evidence that SCO has misrepresented the issues," Red Hat can refile their motion for reconsideration to lift the stay. The parties are instructed to update the court every 90 days on related actions in which SCO is involved. The next update is due approximately 28 Sept 2005.
SCOvAutoZone: Judge Jones stayed this case "pending further order of the court" and the parties are instructed to update the court every 90 days on the other related actions in which SCO is involved. The next update is expected around 11 Aug 2005.
Pending/Recently decided motions:
So I'm not sure what "FUD" you're refering to. Yes, generally the free software movement tends to focus on calls to remove violating code, but they don't have to, and they can, if they want, get real damages if they're prepared to take the cases to court.
You are not alone. This is not normal. None of this is normal.
They weren't trying to invalidate the GPL completely - they were trying to argue that anything under the GPL was essentially public domain, and that the GPL didn't have the power to require redistribution of source code. If they had gotten their way, then they would've been clear.
It appears that willfull infringement is a criminal offence.
I shamelessly cut and pasted the following from the Y!. Thanks are going to elcorton:
---
506. Criminal offenses
(a) Criminal Infringement. Any person who infringes a copyright willfully either
(1) for purposes of commercial advantage or private financial gain, or
(2) by the reproduction or distribution, including by electronic means, during any 180-day period, of 1 or more copies or phonorecords of 1 or more copyrighted works, which have a total retail value of more than $1,000,
shall be punished as provided under section 2319 of title 18, United States Code.
---
http://straylight.law.cornell.edu/uscode/html/usco de17/usc_sec_17_00000506----000-.html
---
2319. Criminal infringement of a copyright
(a) Whoever violates section 506 (a) (relating to criminal offenses) of title 17 shall be punished as provided in subsections (b) and (c) of this section and such penalties shall be in addition to any other provisions of title 17 or any other law.
(b) Any person who commits an offense under section 506 (a)(1) of title 17
(1) shall be imprisoned not more than 5 years, or fined in the amount set forth in this title, or both, if the offense consists of the reproduction or distribution, including by electronic means, during any 180-day period, of at least 10 copies or phonorecords, of 1 or more copyrighted works, which have a total retail value of more than $2,500;
(2) shall be imprisoned not more than 10 years, or fined in the amount set forth in this title, or both, if the offense is a second or subsequent offense under paragraph (1); and
(3) shall be imprisoned not more than 1 year, or fined in the amount set forth in this title, or both, in any other case.
---
http://straylight.law.cornell.edu/uscode/html/usco de18/usc_sec_18_00002319----000-.html
The FSF is not the copyright holder, and has no grounds to sue. Linus et. al. would have to do that.
The FSF recommends that copyrights to GPL software be assigned to the FSF. You do not give up your rights to do what you want with the code, because of the GPL, but because the FSF is the copyright holder, they can and will use their attorney-fu moves against people who violate the GPL.
Fascism trolls keeping me up every night. When I starts a preachin', he HITS ME WITH HIS REICH!
Just want to repeat what another poster said. The above post is false. Assumming there really is GPL code in SCO's kernel:
1. They *may* have to pay damages, if somebody sues them and wins. This is legally possible.
2. Under *NO* possible scenario do they "have" to open-source their kernel. This is FUD straight from Bill Gates.
3. Even if they *do* open-source the kernel, they are *still* liable for damages, because they were violating the copyright before they open-sourced it. Otherwise there would be a huge loophole in the GPL (just wait until the code is uselessly old and release it and you are absolved of all copyright violations?)
It is true that companies often decide to open source some piece of code that they put GPL code into, in exchange for a promise to drop any pending lawsuits, and/or just for good public relations. However there is absolutely no legal requirement that they do this, and doing it does not put them in a legally better situation than before.