All of the court documents are available on SCO's web site including the notice letter. They're claming violation of the clause that reads "LICENSEE agrees that it shall hold SOFTWARE PRODUCTS subject to this Agreement in confidence for AT&T. LICENSEE further agrees that it shall not make any disclosure of such SOFTWARE PRODUCTS to anyone, except to employees of LICENSEE to whom such disclosure is necessary to the use for which rights are granted..."
The second paragraph: "IBM's Unix license is irrevocable, perpetual and fully paid up. It cannot be terminated" is nothing but pissing on SCO's shoes. Beautiful, I can't suppress a beaming smile.
If I were IBM I wouldn't be smiling... IBM's license agreement with SCO (which SCO acquired from AT&T), says "If LICENSEE fails to fulfill one or more of its obligations under this Agreement, AT&T may, upon its election and in addition to any other remedies that it may have, at any time terminate all the rights granted by it hereunder by not less than two (2) months' written notice to LICENSEE specifying such breach, unless within the period of such notice all breaches specified therein shall have been remedied; upon such termination LICENSEE shall immediately discontinue use of and return or destroy all copies of SOFTWARE PRODUCTS subject to this agreement."
IANAL, but that seems pretty straightforward to me...
So, now SCO demands that IBM stop selling AIX. Buh? By their own logic, shouldn't they demand that IBM (and everyone else, for that matter, but let's start big) stop using the SCO-code-stealing Linux?
Don't worry, they'll get to that soon enough. The IBM case is much easier to prove though, so they're starting there.
The real issue that's going to be litigated here is to what extent SCO can claim damages from another company if the infringement is tiny. The very best thing that SCO can muster, in this case, is that they've identified a subroutine or two that seem to be close or identifical to something they claim is their own code.
They're claming much more than that now - in a recent interview their CEO is now claiming the following: "We're not talking about just lines of code; we're talking about entire programs. We're talking about hundred of thousands of lines of code...We're talking about line-by-line code copying. That includes not just the function but the exact, word-for-word lines of code. And the developer comments are exactly, 100 percent the same."
In order for IBM to be able to comply with certain actions, as I understand it, IBM would have to either:
A) Stop selling AIX.
B) Remove the offending code from Linux.
I don't think (B) would do it - they would have to remove the offending code from Linux and pay back royalties on prior versions of Linux.
Last night, I had convinced myself that I thought it was reasonable for IBM to be dual licensing code they had written. I'm still not sure SCO has proven IBM has liberated code, but if it had, and it was originally IBM's, why not allow it?
According to SCO, you're not allowed to reuse any of the UNIX code or any modifications/additions you make to it in any other products. If I were IBM I wouldn't have agreed to that, but if it's in the license agreement I don't see why it couldn't be enforced.
So, it is interesting that he is proposing taking Linux distributors (Red Hat, SuSE, etc.) and possibly other Linux users to court as well. If they are not on solid ground suing IBM over copyright infringement, how are they going to manage to sue all of the linux distributors and users on the planet for copyright infringement - since these distributors and users never had any contract with SCO.
IBM doesn't really distribute Linux so there wouldn't be a copyright case against them. There could be future cases against Linux developers and vendors, though. If you have sold or redistributed somebody else's copyrighted code, you can be found liable whether or not you were aware of the infringement, what your intentions were, or whether you corrected the problem at a later date. And there's certainly no requirement that SCO has to have a contract with somebody for their copyrights to be valid.
If the infringement constitutes 1/1000 of their code, then it is only reasonable that they pay 1/1000 of their profits from that code
That's not how it works. If SCO can show that Linux is taking sales away from UNIX as a result of the infringement, the Linux vendors would be responsible for the value of the lost sales. It's a lot like Napster, where they weren't making any money from their software but were still responsible for the record companies' lost revenues. In any case, in a recent interview, the CEO of SCO claims "...we're talking about entire programs. We're talking about hundred of thousands of lines of code". Obviously they have yet to back up those claims, but they have no obligation to do so until they're in court.
I'm not talking about the code that IBM has in there right now. I'm talking about replacing the code that SCO is accusing IBN/The Linux Community of having purloined. I get a sense that it would be difficult to find someone both capable of and willing to replace non-trivial chunks of code who could prove that (s)he had never had access to the Linux source tree.
Since the Linux source code is available to the general public, you're probably right. Replacing the code is the least of the OSS community's worries though - the alleged infringement has already taken place so damages would apply. A loss in court could also make it too risky to accept contributions to OSS projects from the general public.
In the future, this kind of thing may make closed source look more dangerous than open source. Basically, once you get a secret license to look at secrets in secret code, your brain, and the brains of all your past, present and future employees are contaminated by those secrets.
That would be true, but only in cases where you have access to the source code. With closed-source software, this is not an issue at all.
What part of the Constitution would this violate? I think it's pretty clear what the court means by "Intent or knowledge is not an element of infringement, and thus even an innocent infringer is liable for infringement". Damage is done to the copyright holder, and the infringer is responsible for giving back any profits they made using the infringing work whether they knew they were doing so or not. The Linux kernel authors have the power to whose code they will accept, and they certainly knew that IBM had access to SCO's work. This is the reason that some are saying that the OSS community is underestimating the potential impact of this case - if SCO wins an infringement case vs. Linux vendors, it could create huge problems for OSS projects that accept contributions from the public.
There are clearly cases where direct knowledge of infringement has not been required. Read the decision in the case Playboy Enterprises v. Frena:
There is irrefutable evidence of direct copyright infringement in this case. It does not matter that Defendant Frena may have been unaware of the copyright infringement. Intent to infringe is not needed to find copyright infringement. Intent or knowledge is not an element of infringement, and thus even an innocent infringer is liable for infringement; rather, innocence is significant to a trial court
when it fixes statutory damages, which is a remedy equitable in nature.
So what if you were found in violation of the other companies license. Since you made a replacement, you had no need of their original software. Nothing in the law can prevent you from using your replacement.
If the replacement system was created under the license agreement, and the license agreement is revoked, I don't think you'd be able to continue distributing the replacement system. AIX is clearly derivitave of UNIX, so I think IBM will have to drop AIX (or at least renegotiate their license) if they lose the case.
One is only legally liable if one had knowledge of infringement. If IBM inserted proprietary code into Linux in violation of their license agreements, they and no one else is responsible.
As far as copyright law goes, that's not at all true. Anybody redistributing copyrighted works can be found liable, and "knowledge of infringement" is only relevant when determining statutory damages:
USC 504(c)(1): "In a case where the copyright owner sustains the burden of proving, and the court finds, that infringement was committed willfully, the court in its discretion may increase the award of statutory damages to a sum of not more than $150,000. In a case where the infringer sustains the burden of proving, and the court finds, that such infringer was not aware and had no reason to believe that his or her acts constituted an infringement of copyright, the court in its discretion may reduce the award of statutory damages to a sum of not less than $200."
Note that these figures are for statutory damages, and that the "actual damages" figures would likely be much, much higher. Knowledge of infringement plays no part in determining whether infringement occurred, or in calculating "actual damages".
The "idea" in this case, would amount to a high level specification, without pseudocode. If the new replacement is written to such a high level specification, it will be free of copyright.
You would have to have a legal way of obtaining the algorithm or specification though - violating your license agreement with SCO by showing UNIX source to Linux developers would not fit the bill. If they reverse-engineered the algorithms they would have a much better case. If there are in fact code fragments and comments that are copied and pasted from UNIX into Linux, that pretty much rules out any legal means of obtaining the algorithms.
SCO would still have to prove that your code is derived from theirs and you'd have an opportunity to disprove
From what I've read, they only have to prove access and "substantial similarity" to the copyrighted code. Clearly IBM had access, so the question is if the code is "substantially similar" whatever that means. Algorithms aren't copyrightable (you'd need a patent), but you'd need a legal way to obtain the algorithm like clean-room reverse engineering. Code fragments, structure (function names, etc), and organization are all copyrightable. There are exceptions to this, like when a code has to be structured or named a certain way to ensure compatibility. Since Linux and Unix kernels aren't meant to be compatible, this exception would be a non-starter for IBM. If IBM did in fact copy and paste code (including comments) into Linux, I would guess that this would easily pass the "substantially similar" test.
Re:used knowledge of their software to write RFP..
on
Settling SCOres
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What was the basis for judgement? Contract law or copyright?
Definitely contract law. Copyright really wouldn't apply in our case since we didn't redistribute any code. One of the end results was a revocation of our license to use the system. I would argue that SCO is using their UNIX/AIX contract dispute with IBM as a stepping stone to a copyright infringement case - if they win against IBM (which would necessarily include proving that IBM migrated UNIX code into Linux), it goes a long way towards proving any possible future copyright infringement cases against Linux vendors.
Unless SCO patented the methodology, then coding a replacement and having seen SCO's original code does not mean you can't make an equivalent original.
Legally speaking, I'm not so sure of that. The company I used to work for was recently involved in a lawsuit. A software company that sells a product that we bought the source code to over 20 years ago claimed that we were in violation of our license because we used our knowledge of their software to develop an RFP for a replacement system. There was no allegation of patent infringement or that we had created any kind of derivative product. Because this was clearly a rediculous interpretation of the law, we refused to settle. We ended up losing the case.
Who cares if IBM is in violation of SCO's license? That has nothing to do with IBM contributing to FOSS.
The current legal action being discussed here is SCO vs. IBM. SCO wants to revoke IBM's UNIX license because they claim IBM copied UNIX code into Linux. There has been no formal action taken by SCO against any Linux developers yet. If IBM did copy UNIX code into Linux, SCO will have an excellent case for back royalties, regardless of the good intentions of the kernel developers or whether the code is replaced in future versions.
From there, I would imagine that Linus has extensive records on where particular kernel submissions came from. That leads to affidavits to the effect that the code was an original work, or its replacement with code which in fact is an original work. Either of which solves the problem.
From my understanding, if there was SCO code in there that somebody replaced, they would have had to do it without ANY access to the SCO code at all, in the same way companies like AMD did "clean room" reverse engineering jobs on Intel's chips once upon a time. If a Linux developer at IBM even had access to look at SCO-licensed code (let alone copying and pasting it), IBM would likely be in violation of their license. This is one of the reasons the kernel developers are recommending against signing the NDO to view SCO's code - once you've seen it and know SCO's supposed "trade secrets", you could very well be considered legally incapable of creating functionally equivalent, original code.
Juggling tasks simultaneously rather than serially is known as multithreading, and Sun execs contend it's possible on systems running its machines but not on Wintel or Lintel boxes.
Hmm. Maybe they should add multithreading to Windows and Linux so they can become more competitive...
Now we just need MSN and AOL to be interoperable naturally. *cough hack
which will never happen
From the article: "In May, Microsoft and America Online announced that they would collaborate for interoperability between MSN Messenger and AOL Instant Messenger."
We were considering moving an application from HP/UX to Linux, but decided not to. The problem was not strictly an OSS one though - it turns out that Sybase running on Linux is kinda crappy, and the software we are running only works with Sybase.
If we every get a shuttle back in the sky, maybe they can do a fly-by and have an astronaut give it a thump on the way by
Couldn't we just launch a big boot into space to give it a kick? That seems to work for some of my servers (the kicking part - I haven't actually tried launching them into space)
For example, some people think that Kleenex brand of facial tissue, Xerox brand photocopy machines, and Band-Aid brand adhesive strips are in danger of falling into this category
I don't think that would apply in Apple's case... You could easily say you're going to Xerox something on a Kodak copier and be understood. If you asked for a Kleenex, you probably wouldn't notice if somebody handed you a Scott tissue. On the other hand, there's a pretty clear distinction between running Linux or OS X and running Unix.
Programming languages are cultural artifacts, and their success (i.e., widespread adoption) is critically dependent on cultural factors as well as technical ones.
So the idea is to gain wider adoption by not implementing powerful features that might make code harder to understand. That should sound pretty familar to people who use VB... Not that there's anything wrong with that.
Slashdot Mirror
All of the court documents are available on SCO's web site including the notice letter. They're claming violation of the clause that reads "LICENSEE agrees that it shall hold SOFTWARE PRODUCTS subject to this Agreement in confidence for AT&T. LICENSEE further agrees that it shall not make any disclosure of such SOFTWARE PRODUCTS to anyone, except to employees of LICENSEE to whom such disclosure is necessary to the use for which rights are granted..."
The second paragraph: "IBM's Unix license is irrevocable, perpetual and fully paid up. It cannot be terminated" is nothing but pissing on SCO's shoes. Beautiful, I can't suppress a beaming smile.
If I were IBM I wouldn't be smiling... IBM's license agreement with SCO (which SCO acquired from AT&T), says "If LICENSEE fails to fulfill one or more of its obligations under this Agreement, AT&T may, upon its election and in addition to any other remedies that it may have, at any time terminate all the rights granted by it hereunder by not less than two (2) months' written notice to LICENSEE specifying such breach, unless within the period of such notice all breaches specified therein shall have been remedied; upon such termination LICENSEE shall immediately discontinue use of and return or destroy all copies of SOFTWARE PRODUCTS subject to this agreement."
IANAL, but that seems pretty straightforward to me...
So, now SCO demands that IBM stop selling AIX. Buh? By their own logic, shouldn't they demand that IBM (and everyone else, for that matter, but let's start big) stop using the SCO-code-stealing Linux?
Don't worry, they'll get to that soon enough. The IBM case is much easier to prove though, so they're starting there.
The real issue that's going to be litigated here is to what extent SCO can claim damages from another company if the infringement is tiny. The very best thing that SCO can muster, in this case, is that they've identified a subroutine or two that seem to be close or identifical to something they claim is their own code.
They're claming much more than that now - in a recent interview their CEO is now claiming the following:
"We're not talking about just lines of code; we're talking about entire programs. We're talking about hundred of thousands of lines of code...We're talking about line-by-line code copying. That includes not just the function but the exact, word-for-word lines of code. And the developer comments are exactly, 100 percent the same."
In order for IBM to be able to comply with certain actions, as I understand it, IBM would have to either: A) Stop selling AIX. B) Remove the offending code from Linux.
I don't think (B) would do it - they would have to remove the offending code from Linux and pay back royalties on prior versions of Linux.
Last night, I had convinced myself that I thought it was reasonable for IBM to be dual licensing code they had written. I'm still not sure SCO has proven IBM has liberated code, but if it had, and it was originally IBM's, why not allow it?
According to SCO, you're not allowed to reuse any of the UNIX code or any modifications/additions you make to it in any other products. If I were IBM I wouldn't have agreed to that, but if it's in the license agreement I don't see why it couldn't be enforced.
So, it is interesting that he is proposing taking Linux distributors (Red Hat, SuSE, etc.) and possibly other Linux users to court as well. If they are not on solid ground suing IBM over copyright infringement, how are they going to manage to sue all of the linux distributors and users on the planet for copyright infringement - since these distributors and users never had any contract with SCO.
IBM doesn't really distribute Linux so there wouldn't be a copyright case against them. There could be future cases against Linux developers and vendors, though. If you have sold or redistributed somebody else's copyrighted code, you can be found liable whether or not you were aware of the infringement, what your intentions were, or whether you corrected the problem at a later date. And there's certainly no requirement that SCO has to have a contract with somebody for their copyrights to be valid.
If the infringement constitutes 1/1000 of their code, then it is only reasonable that they pay 1/1000 of their profits from that code
That's not how it works. If SCO can show that Linux is taking sales away from UNIX as a result of the infringement, the Linux vendors would be responsible for the value of the lost sales. It's a lot like Napster, where they weren't making any money from their software but were still responsible for the record companies' lost revenues. In any case, in a recent interview, the CEO of SCO claims "...we're talking about entire programs. We're talking about hundred of thousands of lines of code". Obviously they have yet to back up those claims, but they have no obligation to do so until they're in court.
I'm not talking about the code that IBM has in there right now. I'm talking about replacing the code that SCO is accusing IBN/The Linux Community of having purloined. I get a sense that it would be difficult to find someone both capable of and willing to replace non-trivial chunks of code who could prove that (s)he had never had access to the Linux source tree.
Since the Linux source code is available to the general public, you're probably right. Replacing the code is the least of the OSS community's worries though - the alleged infringement has already taken place so damages would apply. A loss in court could also make it too risky to accept contributions to OSS projects from the general public.
In the future, this kind of thing may make closed source look more dangerous than open source. Basically, once you get a secret license to look at secrets in secret code, your brain, and the brains of all your past, present and future employees are contaminated by those secrets.
That would be true, but only in cases where you have access to the source code. With closed-source software, this is not an issue at all.
What part of the Constitution would this violate? I think it's pretty clear what the court means by "Intent or knowledge is not an element of infringement, and thus even an innocent infringer is liable for infringement". Damage is done to the copyright holder, and the infringer is responsible for giving back any profits they made using the infringing work whether they knew they were doing so or not. The Linux kernel authors have the power to whose code they will accept, and they certainly knew that IBM had access to SCO's work. This is the reason that some are saying that the OSS community is underestimating the potential impact of this case - if SCO wins an infringement case vs. Linux vendors, it could create huge problems for OSS projects that accept contributions from the public.
There are clearly cases where direct knowledge of infringement has not been required. Read the decision in the case Playboy Enterprises v. Frena:
There is irrefutable evidence of direct copyright infringement in this case. It does not matter that Defendant Frena may have been unaware of the copyright infringement. Intent to infringe is not needed to find copyright infringement. Intent or knowledge is not an element of infringement, and thus even an innocent infringer is liable for infringement; rather, innocence is significant to a trial court when it fixes statutory damages, which is a remedy equitable in nature.
So what if you were found in violation of the other companies license. Since you made a replacement, you had no need of their original software. Nothing in the law can prevent you from using your replacement.
If the replacement system was created under the license agreement, and the license agreement is revoked, I don't think you'd be able to continue distributing the replacement system. AIX is clearly derivitave of UNIX, so I think IBM will have to drop AIX (or at least renegotiate their license) if they lose the case.
One is only legally liable if one had knowledge of infringement. If IBM inserted proprietary code into Linux in violation of their license agreements, they and no one else is responsible.
As far as copyright law goes, that's not at all true. Anybody redistributing copyrighted works can be found liable, and "knowledge of infringement" is only relevant when determining statutory damages:
USC 504(c)(1): "In a case where the copyright owner sustains the burden of proving, and the court finds, that infringement was committed willfully, the court in its discretion may increase the award of statutory damages to a sum of not more than $150,000. In a case where the infringer sustains the burden of proving, and the court finds, that such infringer was not aware and had no reason to believe that his or her acts constituted an infringement of copyright, the court in its discretion may reduce the award of statutory damages to a sum of not less than $200."
Note that these figures are for statutory damages, and that the "actual damages" figures would likely be much, much higher. Knowledge of infringement plays no part in determining whether infringement occurred, or in calculating "actual damages".
The "idea" in this case, would amount to a high level specification, without pseudocode. If the new replacement is written to such a high level specification, it will be free of copyright.
You would have to have a legal way of obtaining the algorithm or specification though - violating your license agreement with SCO by showing UNIX source to Linux developers would not fit the bill. If they reverse-engineered the algorithms they would have a much better case. If there are in fact code fragments and comments that are copied and pasted from UNIX into Linux, that pretty much rules out any legal means of obtaining the algorithms.
SCO would still have to prove that your code is derived from theirs and you'd have an opportunity to disprove
From what I've read, they only have to prove access and "substantial similarity" to the copyrighted code. Clearly IBM had access, so the question is if the code is "substantially similar" whatever that means. Algorithms aren't copyrightable (you'd need a patent), but you'd need a legal way to obtain the algorithm like clean-room reverse engineering. Code fragments, structure (function names, etc), and organization are all copyrightable. There are exceptions to this, like when a code has to be structured or named a certain way to ensure compatibility. Since Linux and Unix kernels aren't meant to be compatible, this exception would be a non-starter for IBM. If IBM did in fact copy and paste code (including comments) into Linux, I would guess that this would easily pass the "substantially similar" test.
What was the basis for judgement? Contract law or copyright?
Definitely contract law. Copyright really wouldn't apply in our case since we didn't redistribute any code. One of the end results was a revocation of our license to use the system. I would argue that SCO is using their UNIX/AIX contract dispute with IBM as a stepping stone to a copyright infringement case - if they win against IBM (which would necessarily include proving that IBM migrated UNIX code into Linux), it goes a long way towards proving any possible future copyright infringement cases against Linux vendors.
Unless SCO patented the methodology, then coding a replacement and having seen SCO's original code does not mean you can't make an equivalent original.
Legally speaking, I'm not so sure of that. The company I used to work for was recently involved in a lawsuit. A software company that sells a product that we bought the source code to over 20 years ago claimed that we were in violation of our license because we used our knowledge of their software to develop an RFP for a replacement system. There was no allegation of patent infringement or that we had created any kind of derivative product. Because this was clearly a rediculous interpretation of the law, we refused to settle. We ended up losing the case.
Who cares if IBM is in violation of SCO's license? That has nothing to do with IBM contributing to FOSS.
The current legal action being discussed here is SCO vs. IBM. SCO wants to revoke IBM's UNIX license because they claim IBM copied UNIX code into Linux. There has been no formal action taken by SCO against any Linux developers yet. If IBM did copy UNIX code into Linux, SCO will have an excellent case for back royalties, regardless of the good intentions of the kernel developers or whether the code is replaced in future versions.
From there, I would imagine that Linus has extensive records on where particular kernel submissions came from. That leads to affidavits to the effect that the code was an original work, or its replacement with code which in fact is an original work. Either of which solves the problem.
From my understanding, if there was SCO code in there that somebody replaced, they would have had to do it without ANY access to the SCO code at all, in the same way companies like AMD did "clean room" reverse engineering jobs on Intel's chips once upon a time. If a Linux developer at IBM even had access to look at SCO-licensed code (let alone copying and pasting it), IBM would likely be in violation of their license. This is one of the reasons the kernel developers are recommending against signing the NDO to view SCO's code - once you've seen it and know SCO's supposed "trade secrets", you could very well be considered legally incapable of creating functionally equivalent, original code.
Juggling tasks simultaneously rather than serially is known as multithreading, and Sun execs contend it's possible on systems running its machines but not on Wintel or Lintel boxes.
Hmm. Maybe they should add multithreading to Windows and Linux so they can become more competitive...
This kind of destroys Microsoft's way of thinking but I guess I'll believe it when I see it.
0 .asp
Believe it or not, Microsoft is not the bad guy in this case. AOL has been blocking MSN users for years: http://www.pcworld.com/news/article/0,aid,11968,0
Now we just need MSN and AOL to be interoperable naturally. *cough hack which will never happen
From the article: "In May, Microsoft and America Online announced that they would collaborate for interoperability between MSN Messenger and AOL Instant Messenger."
We were considering moving an application from HP/UX to Linux, but decided not to. The problem was not strictly an OSS one though - it turns out that Sybase running on Linux is kinda crappy, and the software we are running only works with Sybase.
If we every get a shuttle back in the sky, maybe they can do a fly-by and have an astronaut give it a thump on the way by
Couldn't we just launch a big boot into space to give it a kick? That seems to work for some of my servers (the kicking part - I haven't actually tried launching them into space)
For example, some people think that Kleenex brand of facial tissue, Xerox brand photocopy machines, and Band-Aid brand adhesive strips are in danger of falling into this category
I don't think that would apply in Apple's case... You could easily say you're going to Xerox something on a Kodak copier and be understood. If you asked for a Kleenex, you probably wouldn't notice if somebody handed you a Scott tissue. On the other hand, there's a pretty clear distinction between running Linux or OS X and running Unix.
Programming languages are cultural artifacts, and their success (i.e., widespread adoption) is critically dependent on cultural factors as well as technical ones.
So the idea is to gain wider adoption by not implementing powerful features that might make code harder to understand. That should sound pretty familar to people who use VB... Not that there's anything wrong with that.
VB is a great beginners language, and as no self-respecting hacker would ever be seen using it, microsoft might as well give it away free.
They almost got split into two companies the last time they tried bundling something with Windows...