Appeals Court Rules: SCO v. IBM Case Can Continue (arstechnica.com)

Long-time Slashdot reader Freshly Exhumed quotes Ars Technica: A federal appeals court has now partially ruled in favor of the SCO Group, breathing new life into a lawsuit and a company (now bankrupt and nearly dead) that has been suing IBM for nearly 15 years.

Last year, U.S. District Judge David Nuffer had ruled against SCO (whose original name was Santa Cruz Operation) in two summary judgment orders, and the court refused to allow SCO to amend its initial complaint against IBM. SCO soon appealed. On Monday, the 10th US Circuit Court of Appeals found that SCO's claims of misappropriation could go forward while also upholding Judge Nuffer's other two orders.
Here's Slashdot's first story about the trial more than 14 years ago, and a nice timeline from 2012 of the next nine years of legal drama.

Comments

Appropriate link

[Chris Mattern]

https://www.youtube.com/watch?...

License Fee

[110010001000]

Good thing I paid my $699 License Fee to SCO. Who is laughing now???

Re:License Fee

[Billly Gates]

Did you also pay them $1400 for a TCP/IP stack? Gee I have no clue why SCO Unix faded away. No idea at all how Linux possibly could have taken over with pricing strategies like that.

Re:License Fee

[110010001000]

I live in Seattle so I can only get dialup, so no TCP/IP. Just BBS.

Re:License Fee

[Aighearach]

Time for a fidonet <-> owncloud gateway! The future is here at last!!!!1!

Re:License Fee

[mikael]

Is that PPP or are you still using SLIP?

Re:License Fee

[stasike]

Gee I have no clue why SCO Unix faded away.

This is different SCO - SCO Group.
This SCO Group was originally called Caldera. Caldera purchased *some* intellectual property for SCO Unix from the original Santa Cruz Operation. Santa Cruz Operation then renamed itself to Tarantela and the new SCO proceeded with their racketeering scam against IBM and Linux users in general.

Re:License Fee

[PolygamousRanchKid]

Who is laughing now???

Steve Ballmer is laughing now . . . he totally skanked you!

Ok, I actually need to recuse myself here, because I was required to give a deposition for the case . . . along with a buttload of other harmless developers.

I did development work for IBM's AIX kernel, and then worked for their Linux Technology Center. Just about everyone who was tainted with that experience got nailed.

The deposition was ok . . . the lawyer was on Park Avenue in New York, and I live in Europe, so it was just a pleasant phone call. We tend to rant on about lawyers here in Slashdot, but I was quite positively surprised to talk to the lawyer. He wasn't an IBM employee, but worked for a law office that handled a lot of the "grunt work" for IBM. The lawyer told me ominously that the case would drag out . . . and that someone with a lot of money was sponsoring SCO . . . and that some unnamed executive from SCO got a hefty deposit in a bank account on the Cayman Islands.

Re: License Fee

[1s44c]

PPP or SLIP can tunnel IP over a serial connection. TCP/IP became the dominant protocol because it could run over anything.

Re:License Fee

[nukenerd]

The lawyer told me ominously ... that someone with a lot of money was sponsoring SCO . .

I wonder who that could be.

What The F---??

[laurencetux]

please tell me this is just the legal system grinding out the last little bits of this farce??

message to the 4 interns and junior lawyer that SCO has

You are Going Against THE NAZGUL bail now and you might be able to continue in the legal field someday.

You ain't Hobbits and you do not have the ONE RING

Re:What The F---??

[Aighearach]

This is just the legal system grinding out the last little bits of this farce. The courts really don't care how stupid the case is, all the little technical bits still have to get handled the same.

The reason it is still around is that IBM isn't willing to just walk away and let it go, they want to burn the case completely to the ground as a warning to others who would sue them. So as long as SCO isn't willing to walk away the clear loser, they can drag it out like this. Both sides have lots of money, so the Court doesn't really care if they want to hash out the correct answer to each legal argument that was made in the case. Neither side is crying about the process.

Re: What The F---??

[mangastudent]

SCO provided a list of source code files in the Linux kernel that infringe SCO's copyrights.

What copyrights? As the article indicated, it was discovered at the end that SCO never owned the copyright to UNIX, they'd just bought for about 5% the value of that the right to administrate the licencing of it. And they demonstrated they knew this just before starting SCO v. The World by trying to get the rights from Novell.

Re: What The F---??

[Anonymous Coward]

> SCOIBM provided a list of source code files in the Linux kernel that infringe SCO's copyrights. The continued presence of infringing code in the Linux kernel is justification enough for the case to continue.

No. You are wrong. First you were wrong with 'SCO provided ...' when you obviously meant 'IBM provided ...'. Then you were wrong with 'SCO's copyrights'. It isn't 'SCO' that is the plaintif, it is 'TSG' - The SCO Group, in fact even TSG is out of having sold the litigation rights to someone else. TSG bought the business of collecting Novell's licence fees from SCO. SCO had not bought the copyrights from Novell and thus TSG did not have any copyrights to Unix form Novell/Unix Labs.

One claim is that IBM put code from AIX for Itanic developed in Project Monterey into Linux. This is untrue. The same specification was used to develop similar software with completely different code for OS/2 on x86. It was this code that was put into Linux.

Re:What The F---??

[Anonymous Coward]

> Both sides have lots of money

No. IBM has money. TSG (or who they sold the litigation rights to) has none*. BSF has an obligation, they have a contract with TSG and its successors to continue the case to the bitter end in the hope of getting a percentage of the win.

* TSG gave BSF 30million to continue the case indefinitely. They did this to stop Novell collecting anything from their win in court. TSG's business that they bought from SCO was to collect licence fees and pass them to Novell who would pay back 5%. TSG kept the lot. Novell sued and won. TSG had no money left after giving it all to BSF.

Re:What The F---??

[tinkerghost]

Um, SCO is in bankruptcy and has been for at least 3 years. As of the last filing with the bankruptcy court, they don't have enough money left to pay their bankruptcy lawyers let alone their creditors or for any filings on this case - or to appeal the case where they already owe Novell for slander of title.

Re: What The F---??

[sjames]

You missed the part where it turned out that SCO didn't actually own any of the source that went into the Linux kernel. Also the part where evidence suggests they knew that but figured they could grab a few million off of IBM.

Now, they're claiming IBM distributed code as part of AIX that they were only permitted under a technicality. They wish for the court to find that the technicality was too thin.

Re:What The F---??

[Anonymous Coward]

It's nice to see, after all these years, that people still don't care about reporting the story correctly.

Last year, U.S. District Judge David Nuffer had ruled against SCO (whose original name was Santa Cruz Operation)

No. The "SCO" in this lawsuit is The SCO Group whose original name was Caldera.

The original SCO -- The Santa Cruz Operation --- sold their UNIX business to Caldera and then changed their name to Taligent.

A couple of years later, just before filing this lawsuit, Caldera changed their name to The SCO Group for the specific purpose of creating confusion and making people think that they are the original SCO.

Re: What The F---??

[HornWumpus]

SCO's attorneys took the case, to the bitter end, for a chunk of now worthless SCO stock.

This is the Nazgul playing with those lawyers, like a cat playing with a 3/4 dead mouse. But every whack is that law firm bleeding 20+ shyster-hours (plus countless admin/paralegal hours).

I bet it's fun.

Re:What The F---??

[HornWumpus]

SCO's lawyers took the case, to the bitter end, for a chunk of SCO stock. The Nazgul are now slowly, publicly 'eating those lawyers livers', as a warning.

They won't stop until they put that firm's partners into personal bankruptcy, and the shouldn't.

Re: What The F---??

[thegarbz]

SCO provided a list of source code files in the Linux kernel that infringe SCO's copyrights.

And got so incredibly slapped down that the company went insta-bankrupt. That's why this case here is called an "appeal". Until the appeals court rules otherwise, none of the code presented by SCO is considered infringing.

Re:What The F---??

[Desler]

The Nazgul must not be that formidable or scary since SCO has kept the suit going on for more than a decade with no end in sight.

Re: What The F---??

[fibonacci8]

http://www.groklaw.net/ There you go

Re:What The F---??

[Aighearach]

If they didn't have money to pay, and were already bankrupt, they'd have dropped the case.

The reality is that if you're already bankrupt, and the lawyers are still working, it doesn't even matter if they fill out invoices because they'll be behind all the other creditors.

It isn't SCO that needs to have lots of money in that case, but rather, the lawyers themselves need to have lots of money if they want to keep chasing the case.

The reality is that the people behind the scenes who own SCO, and the lawyers, are not significantly different parties. And all the people making the decisions have plenty of money to keep making those same decisions.

Re:What The F---??

[Aighearach]

The firm can always walk away... if they can manage to let go of the Precious!

I just had to mix that in, so that I can hear the disturbance in the force when thousands of millennials cry out in horror and pain at once!

Re:What The F---??

[tinkerghost]

Their lawyers were prepaid through the end of the case (lump & contingency). SCO only has to pay for the filings and paperwork - not the actual legal work.

Re:What The F---??

[HornWumpus]

I don't think so. They 'took the case', they are contractually bound to defend it. Even after their client is bankrupt, the counterparty (IBM) can make them continue to bleed procedurally.

Re:What The F---??

[Aighearach]

You don't seem to have been paying attention to the details. Go and find out what they used to make the payment, then maybe you'll understand the current situation.

SCO still in business?

[Billly Gates]

How? I have not seen a version of Caldera Linux (now sco) sold in a very very long time now. No one buys SCO in 2017 either. They just already have them and the servers are 30 something years old now and are bandaided together. 95% of them have been migrated to Linux or Windows Server eons ago.

Where are they getting there money from as lawsuits are certainly not cheap?

Re:SCO still in business?

[110010001000]

They sell licenses for $699 each. That can buy some lawyers.

Re:SCO still in business?

[v1]

Well this appeal was lodged while they still had a few pennies left, so although there's an order now that allows the appeal, whether or not they can actually do it is a very different question.

Most (all?) of the SCO core have been disbarred, and most of the lawyers that have helped them in the past have been threatened by judges, so them finding someone to go in front of a judge with a straight face could be challenging.

The problem here all along has been one of odds. If you have a 1 in 100 chance of winning, but the reward is more than 100x your cost of litigation, AND you have enough of a warchest to file hundreds of lawsuits, you go for it. That's what they've been doing the last few years. That's why big companies like MS and Apple and IBM are frequent targets... not because their complaints have merit, but because of the slim chance of a huge payout. If they can win 1 in 100 and get enough of a win to refill their warchest, they just keep it up. This continues until they empty their warchest by either a long string of losses or a few major countersuits.

Re:SCO still in business?

[Billly Gates]

They sell licenses for $699 each. That can buy some lawyers.

Anyone besides 10 people bought them? I realized Microsoft 13 years ago funded them but ironically Windows 10 and Azure would have to pay some fees with the WSL Linux subsystem and Azure images so it would not be in there best interests for a SCO win.

My hunch is fucking thank Oracle due to the lawsuit with Android the courts have now interpreted clean room implementations and look alikes as actual derivatives. So Wine is owned by Microsoft even they didn't write it! GNUC is owned by AT&T even if they didn't write any of it. Look Linux has grep therefore it is owned by SCO etc.

I sense desperation, but Novel owns the Unix license so there is hope. This is a very very old argument and flame here from Bush's 1st term of office on slashdot. It comes to show how much corruption and problems with the legal system there is as it is unreasonable for a frivolous 15 year old lawsuit can continue.

Re:SCO still in business?

[mangastudent]

My hunch is fucking thank Oracle due to the lawsuit with Android the courts have now interpreted clean room implementations and look alikes as actual derivatives.

Fortunately it's not hardly this bad. That decision was made by the United States Court of Appeals for the Federal Circuit, a court that was created in 1982 and that is very biased towards rights holders. They are the court of appeal for patent issues, and Oracle was able to go directly to it because they had both patent and copyright issues in their appeal.

So the "you can copyright APIs" precedent they established isn't binding on any lower courts, excluding of course the court for the Oracle case for just that case.

But it does show how absolutely sociopathic Oracle the corporation is, they were sanguine with the prospect of catastrophic damage to the US software industry as long as they could squeeze billions out of the Goolag, in fact, far more than they bought Sun for.

Re:SCO still in business?

[Anonymous Coward]

> Novel owns the Unix license so there is hope.

Novell isn't really a company anymore, so much as a brand under Micro Focus (who bought Attachmate, who bought Novell).

Re:SCO still in business?

[Billly Gates]

They sell licenses for $699 each. That can buy some lawyers.

Noting Microsoft charges for Windows Server 2016:

• Datacenter, Highly virtualized and software-defined datacenter environments, 16-cores: $6,155
• Standard, Low density or non-virtualized environments, 16-cores: $882
• Essentials, Small businesses with up to 25 users and 50 devices: $501

Still cheaper than VMWare ESXi and that doesn't include the licensing of guest operating systems. Of course didn't SCO Xenix or OpenServer once charged $1500 for an outdated TCP/IP stack?

Re:SCO still in business?

[Anonymous Coward]

You can't steal intellectual "property", so your entire concept is utterly idiotic.

It's not actually a thing. Copying isn't stealing. So even a direct exact copy of code is NOT STEALING.

But your suggestion that it's somehow possible to "steal" an API is a whole new level of moronic.

Re:SCO still in business?

[Smallpond]

Yes. As a result of this suit the cost of Linux dropped in half!

Re:SCO still in business?

[sk999]

In Bankruptcy Court, SCO never listed Caldera Linux as an asset. When the Unix assets were sold to Unxis (now Xinuos), Caldera Linux was not included. Which means that SCO still retains ownership of "OpenLinux".

R.E. money for lawsuits, one of the sillier things David Boies did was to set up a capped fee arrangement with SCO. Meaning that all the lawyer fees for the services of Boies, Schiller, and Flexner are already paid, so no future payments needed.

Re:SCO still in business?

[ninjaz]

In Bankruptcy Court, SCO never listed Caldera Linux as an asset. When the Unix assets were sold to Unxis (now Xinuos), Caldera Linux was not included. Which means that SCO still retains ownership of "OpenLinux".

The irony of ironies would be if they brought it back and by virtue of not having systemd, it shot to the lead in the Enterprise Linux market.

Re:SCO still in business?

[Desler]

And yet people like yourself will use the term “stealing” in reference to using BSD code in full compliance with the license.

Re:SCO still in business?

[michael_wojcik]

Novell isn't really a company anymore, so much as a brand under Micro Focus (who bought Attachmate, who bought Novell).

Yes. As far as I know, that means we (Micro Focus) still own the copyright on the UNIX sources that Novell got from USL. In 2010, Attachmate confirmed that it intended to keep them after the merger; and while I don't remember seeing anything official, there are various stories online that refer to MF as "the current owner of UNIX".

Novell transferred the UNIX trademark and the rights to the UNIX specification to The Open Group, for use in the Single UNIX Specification.

Paging Pamela Jones...

[Anonymous Coward]

Pamela Jones, please return to the Groklaw desk

Re:Paging Pamela Jones...

[cute-boy]

Pamela Jones, please return to the Groklaw desk

Hopefully with a better UX than was used last time!

Groklaw

[Salo2112]

Does this mean Groklaw is coming back to cover this mess again? :-)

In Praise Of Groklaw

[Freshly Exhumed]

Well, I guess its still not time to say "Goodnight PJ, wherever you are."

Owing for the most part to this ongoing SCO saga, the web was once gifted with the presence of Groklaw and the inimitable Pamela Jones, who brushed aside direct and very personal attacks from Darl McBride, Maureen O'Gara, and others as she provided insights and clarity for computer geeks on what tends to be a quite opaque judicial system. The comfort bar amongst FOSS supporters was raised significantly by her.

Now please, SCO, die already. Just die.

Halloween was 5 days ago

[OrangeTide]

Now is not the time for zombies to rise from their graves.

Re: FFS

[Kobun]

https://en.wikipedia.org/wiki/...

I have yet to see anything that unequivocally states what you are repeating throughout this discussion. Links, please.

Re: FFS

[OrangeTide]

The question has more to do with legal agreements between SCO and IBM. And the code is not something that is strictly defined as infringing SCO, as the code in question that is present in the Linux kernel (or as patched from IBM) was authored by IBM and copyright by IBM. That aspect the non-infringing nature of the code in Linux is not disputed.

SCO asserts they have every one who has agreed to their Unix license to be under a non-disclosure agreement. And that by releasing code to open source, IBM has violated an NDA. This isn't copyright law, and Linux is still clean. But it does mean that if IBM has violated the NDA that they could be paying some penalties and at the extreme end of what is possible IBM may be prohibited from distributing Linux further.

But you and I can still distribute Linux, including IBM's code. As we are not party to the agreements between IBM and SCO. And because we are following copyright laws to the letter, and IBM still has the right to license software they have authored even if distribution of that software violates an NDA agreement that none of us have signed.

(IANAL; but I can legally practice in Nevada)

It isn't SCO

[Anonymous Coward]

> ruled against SCO (whose original name was Santa Cruz Operation)

There was a company called "SCO (whose original name was Santa Cruz Operation)" but this isn't them, they changed their name to Tarantella when they sold the business to Caldera. Caldera changed their name to 'The SCO Group'.

SCO did not litigate against IBM, that was TSG.

Wha..?

[Rick Zeman]

My first thought this was one of the randomly generated Slashdot stories from last week from, say, 2006.

Re:Wha..?

[frankenheinz]

This has become the modern version of Jarndyce v Jarndyce. https://en.wikipedia.org/wiki/...

Re:Wha..?

[thegarbz]

Thanks that was an awesome read.

patent trolss are like Zombies

[Anonymous Coward]

they never die. A Poster just mentioned how this one still won't die yesterday.... the SCO trolls must have heard him speaking. /slashdot fortune nohup rm -fr /& impostor

Wait, what

[JustAnotherOldGuy]

LOL, this truly is the lawsuit that will never die.

I fully expect my grandchildren will be reading about the "ongoing SCO vs IBM litigation" in 30 or 40 years.

Re: FFS

[JustAnotherOldGuy]

Bullshit. Not a single word you wrote is true, not one single word.

This....Is.....Rediculous......

[modmans2ndcoming]

This is the zombie case that will never die!!!!!!!! I was in college when this stupid crap started......

When this lawsuit started

[guruevi]

Most of us were in high school or college, the majority of people in the world wasn't even born and we were raving over 36GB IDE hard drives.

broken

[Tom]

If you need any evidence that the justice system is fundamentally broken, look no further.

If you can keep your enemy in court for the time that it takes the kid you fathered on the first night of the case to grow up, something is seriously wrong with the concept of "justice" that such a system delivers.

Any and all consequences from the ruling except monetary are long done with.

SCO still exists?

[Opportunist]

What happened, did they forget to turn off the light in the building and some bums moved into the abandoned site?

Ten claims are left to go back to district court

[UnknowingFool]

Of the 294 items in the Final Disclosure there are only 10 left in the case. Items 194-203. All of them deal with parts of SVR4 that IBM had put into AIX. The Appeals Court does not say that SCO's claims have been proven; they are saying that the claims should be heard in court as they were previously dismissed by the district judge. The items are:

• System V Package and Installation Tools from UnixWare/SVR4
• System V Truss technology
• SVR4 print subsystem
• System V ELF code
• System V atdialer code
• System V route.c code
• System V Korn Shell
• System V header files
• System V commands
• Man pages

From what I can tell some of those are needed for compatibility like ELF and header files. Korn shell, SVR4 print, and man pages are things that are way older than SCO's provenance.

LOL!

[DaMattster]

I did not even know SCO was still around, much less relevant. I thought they went Chapter 7 belly-up.

"Whose original name was Santa Cruz Operation"

[Chas]

NO! Whose original name was CALDERA.

They bought a bunch of IP from the ORIGINAL Santa Cruz Operation (which became Tarantella) and renamed themselves to "The SCO Group".

SCO != The SCO Group

Caldera started out as a legitimate systems and software vendor. Then their leadership got the bright idea to become a patent troll in Open Source Software.

Frankly, I'm stunned that a multiply bankrupted organization like TSG. They're like fuckin' herpes.

Re:SCO are Patent Trolls

[Desler]

Except this is about copyrights not patents.

Re:Ten claims are left to go back to district cour

[thegarbz]

Who cares. We don't use SysV anymore. It's about systemd now. :-)

In other news.... IBM and SCO still exist!

[gosand]

Wow... who knew?

One of the big reasons our government is so screwed up is because it's largely based on and perpetrated by our legal system.

Re:Ten claims are left to go back to district cour

[UnknowingFool]

Who cares.

Anyone who has been following this case for 14 years now

We don't use SysV anymore. It's about systemd now. :-)

What the heck are you talking about? The current case has nothing to do with Linux and is only dealing with SVR4 and AIX back in the days of Project Monterrey. And systemd is a replacement for SysV init. It has nothing to do with KornShell, ELF, SVR4 print, etc.

Re:Ten claims are left to go back to district cour

[hAckz0r]

Nice list. Too bad TSG doesn't actually own System V or SVR4. They own a defunct business for "administrating" the licensing program for the actual owner of System V, and since nobody is actually buying licenses to that ancient OS there is no money to be made in that "administrative" business. They have no standing in this case, and IBM still has counter charges to pound this peg into the ground. There is no point to this case continuing at all.

Re:Ten claims are left to go back to district cour

[thegarbz]

Fuck me man I even put a smiley at the end of the sentence. Lighten up.

What is this?

[Mike Van Pelt]

The next season of The Walking Dead?