SCO makes it even clearer than before that they are attacking the GPL:
We view IBM's counterclaim filing today as an effort to distract attention from its flawed Linux business model. It repeats the same unsubstantiated allegations made in Red Hat's filing earlier this week. If IBM were serious about addressing the real problems with Linux, it would offer full customer indemnification and move away from the GPL license. As the stakes continue to rise in the Linux battles, it becomes increasingly clear that the core issue is bigger than SCO (Nasdaq: SCOX - News), Red Hat, or even IBM. The core issue is about the value of intellectual property in an Internet age. In a strange alliance, IBM and the Free Software Foundation have lined up on the same side of this argument in support of the GPL. IBM urges its customers to use non- warranted, unprotected software. This software violates SCO's intellectual property rights in UNIX, and fails to give comfort to customers going forward in use of Linux. If IBM wants customers to accept the GPL risk, it should indemnify them against that risk. The continuing refusal to provide customer indemnification is IBM's truest measure of belief in its recently filed claims.
They seem to be claiming to have been using those patents for years. In fact, all they are saying is that they have been shipping these products for years without making any claims about patents. They could have easily added the infringements later.
SCO has shipped these products for many years, in some cases for nearly two decades, and this is the first time that IBM has ever raised an issue about patent infringement in these products.
I don't know what the following signifies. Are they saying that IBM can't file a counterclaim that is not mentioned in their original answer to the suit?
Furthermore, these claims were not raised in IBM's original answer.
And, of course, even more blather:
SCO reiterates its position that it intends to defend its intellectual property rights. SCO will remain on course to require customers to license infringing Linux implementations as a condition of further use. This is the best and clearest course for customers to minimize Linux problems.
I just spoke with Trink Guarino at IBM, who informed me that the SCO/IBM contract regarding AIX, which SCO claims they terminated, was a three-party contract, the third party being Novell, and that Novell sent a letter to SCO disputing their right to terminate IBM's AIX license. No wonder IBM hasn't been acting worried. Funny SCO didn't tell us about this, huh?
Those patents cover several SCO products: "UnixWare and OpenServer operating systems, its SCO Manager remote administration tool and its Reliant HA package"
Programming around those ought to keep SCO so busy that they don't have time to make groundless accusations.
Come to think of it, if you're in violation of the GPL, you are also in violation of any patents involved unless you have a separate agreement with the owners of those patents.
I had read several articles on it elsewhere and none of them enumerated the patents. I hadn't noticed that the article reference above was yet another article.
Novell retained quite a few rights. I think the sale effectively made SCO an agent for Novell in handling any licenses that already existed and SCO received something like 10% of the income from those licensees.
If so, then Novell certainly has the right to overrule SCO in a large variety of matters relating to those licensees.
Reports I've seen this morning are that the filing contains several causes: 1) SCO is infringing on four of IBM's patents. 2) SCO is interfering with IBM's business by claiming to have terminated IBM's license for AIX. 3) SCO is violating the GPL by distributing GPL'ed software without the GPL.
I hadn't thought about that first point before since I always took it for granted that SCO obtained permission from IBM to use RCU, NUMA,... in their OS. (I am assuming that those are the patents that IBM is accusing SCO of violating.)
This brings up an interesting question in my mind.
IBM has clearly intentionally released code under the GPL utilizing those patents. Under the GPL we are free to use and modify that code provided that if we distribute the code we do it under the GPL.
Suppose you write a new operating system designed for some specific purpose and the only code it uses from Linux is the code encapsulating those four IBM patents. The way I figure it, as long as you use the code in-house only or as long as you distribute the code under the GPL, there will be no patent infringement. Is that right?
I got an argument like that once when buying a CD drive.
At the time, CD's in computers were really just starting to gain ground. We were starting to see computers that even came with CD drives installed!
So I went to Best Buy to buy a CD drive and picked out one made by Sony. I was talking to a manager and told him that since I didn't see the OS I was using listed on the box, I'd bring it back if it didn't work. He said that if it worked on any computer with any operating system, it was not broken and I couldn't return it.
I hadn't been back to Best Buy since then.
I drove over to another store, bought the exact same model, took it home, and it worked fine for the next six years or so.
insurance is a much better deal when you get it through an organization than if you get it as an individual.
That's exactly right.
The best deal on insurance I've found is as a student. Check with your local college to see if they have a student insurance plan. If they do, take a course each semester. And sign up for the insurance.
For what it's worth, my major medical insurance is under $1,000 a year with a $100 deductible.
What would be nice is if we could download the code filed with for them to get their copyright.
Unfortunately, I don't think they are required to file all the code in question, just a few pages.
That needs to be fixed since the purpose of the filing should be to allow people to make sure they don't infringe. I don't see why someone should be liable for an infringement if there is no possible way to find out.
With a copy of the code, it should be relatively easy to identify the most probable sections they would claim to be infringing. Those sections could then be checked out very carefully.
Just get a copy of SuSE Linux and replace the kernel of whatever you are using with the kernel from the SuSE Linux distribution on every computer in the place.
I don't think that it matters that SuSE and Lindows have a license.
The licenses just keep SCO from filing suit.
If SCO were to somehow prevail on these issues and take control of Linux, do you have any doubt that Linux would be dead in a relatively short time, and SCO and SuSE along with Linux?
And in the meantime, the FUD being spread by SCO has to be affecting everyone including those who have SCO's blessing. Red Hat is not the only one being damaged -- SuSE and Lindows are likely to be suffering the exact same types of damages.
So, in spite of license issues, SuSE and Lindows do have a very real stake in all this.
Years ago, I was Director of Technical Services (Software Development and Research & Development) for a small, high-tech company. I was also the tenth largest stockholders in the company when it went bankrupt.
My agreement with the company included my rights to keep a copy of any and all software I developed for the company and to use it as I wished.
In fact, some of the software came from a large engineering company where I had worked previously. In that case, I had asked for and been granted permission to keep and use a copy of a specific set of programs I had written.
At one bankruptcy hearing, I gave the secured creditor a good copy of all the software. He asked me where I got it and I told him I made him a copy from my copy.
The secured creditor went through the roof and started threatening me with lawsuits for "illegal conversion".
My lawyer said that I while I would probably prevail in court on the matter because of my agreement with the president of the company, it would cost me thousands to do so.
I'm pretty hard-headed. It didn't matter that the software had no commercial use except for a very narrow segment of companies (there were about three in the United States that did the same thing and they already had their own software), I refused to give it up and wasted a lot of money on lawyer fees to keep it. The bad thing is that my lawyer took it upon himself to start negotiating away my rights to keep the software without telling me.
So I fired the lawyer and kept the software.
Since neither of us really had a use for the software, he never did file suit against me and I still have a copy of the software.
All I need to use the software, besides a reason to use it, is a PDP-11 and a VAX.
If there actually was code in Linux that was an infringements of SCO's copyrights, then the thing to do is to remove it once it is identified.
Since SCO refuses to identify the so-called infringing code, it is quite possible that a judge could rule for SCO in a lawsuit against a Linux user for license fees but award no damages at all. Or maybe $1 in damages.
Of course, once the infringing code, if any, is identified, it will be quickly replaced with noninfringing code.
One that that registering the copyright is supposed to do is to make it easy to identify infringements.
I wonder if anyone has actually checked with the Library of Congress to see exactly what SCO registered.
My understanding is that when registering code is that the Library of Congress, you don't actually have to give them a copy that people could use to check for infringements. This is, I feel, a major error that, if true, should now be very apparent. If so, maybe we should all contact our Congressmen and Senators and demand a change in the law.
What we really need is that no copyright infringement damages occur at all until the copyrighted material is registered with sufficient detail to precisely determine infringements and in a manner that allows potential infringers to check.
I suspect that for code, they would need an on-line repository with free or low-priced access to anyone who needs to use it to check code.
If the code is registered in such a way that it can be checked, what do you bet that Red Hat, IBM, and others have people there checking it?
In spite of their agreements, if SCO were to succeed at their task of destroying Linux, both SuSE and Lindows would be big losers as well. As such, a win for Linux would spell disaster for both of them regardless of their agreements and licenses with SCO.
SCO would basically do to Linux what they've done to System V.
I can see it now. The Red Hat lawyers are deposing McBride and ask "Precisely which sections of code do you claim are being infringed?" and McBride answers with "I can't tell you that. You haven't signed our non-disclosure agreement!" You'd hear the sounds of Red Hat's lawyers laughing even in Antartica over a raging blizzard at -80 degrees and a couple of million penguins shouting at each other at the top of their lungs.
I believe that allegations of copyright infringement used in a court proceeding are a matter of public record. At that point, the code that SCO claims is being infringed is going to be public.
After all, one point about copyrights is to enable you to make things public without it being stolen.
I think that the reason SCO is not making their allegations public is to not expose them to the glare of publicity that can prove them groundless. And if they aren't groundless, to keep everyone from just replacing the code with code that didn't infringe.
This will force SCO to specifically list every piece of code they feel is being infringed. If they hold anything back and the judge rules against them, I doubt there is any way they can bring it back later.
SCO is going to be spending money fighting IBM. IBM has plenty of money.
SCO is going to be spending money fighting Red Hat. Red Hat will have to spend money fighting SCO. (Red Hat is asking for attorney's fees in the lawsuit.) But if Red Hat wins the injunction early on, things are going to look awful bad for SCO before Red Hat has spent any really enormous amounts of money.
I wonder if SuSE is also going to file suit. Maybe they should. SCO's FUD applies to SuSE as well as Red Hat.
If SuSE were to file, than SCO would be spending money defending that action. Assuming that SuSE files in Germany, that would likely complicate things for SCO as well with a bunch more lawyers.
What I'm really curious about is Lindows. They apparently have the right to distribute Linux, but SCO's FUD is likely to be hurting them as well even though SCO seems to have indicated that Lindows is safe. If SCO were to win, I think Lindows would be driven out of existence in short order. I wonder if Lindows will file as well.
The other distributions as well could file suit.
The burn rate for SCO could go up quite a bit in spite of the fact that preparing for one lawsuit may help them against others.
There would still be lots of additional hours spent covering the different jurisdictions. Plus, you'd have to have more litigation teams in place to cover the different jurisdictions.
Lawywers don't like to take on cases that may leave them unpaid. I can't imagine that Boies lawfirm is doing this with the intention of being paid when it is over, especially considering the dubious claims of the case. From what I've seen of lawyers and major law firms, I would expect that Boies would have to be assured of being paid regularly throughout the lifetime of the case before they would accept the case.
One thing that some of the other distributions might want to consider is that when all is said and done, fighting SCO is likely to bring them much greater name recognition from everyone and much good will from current Linux users. Any major distributor of Linux who doesn't fight SCO may find it that much more difficult to survive.
Slashdot Mirror
SCO makes it even clearer than before that they are attacking the GPL:
They seem to be claiming to have been using those patents for years. In fact, all they are saying is that they have been shipping these products for years without making any claims about patents. They could have easily added the infringements later.
I don't know what the following signifies. Are they saying that IBM can't file a counterclaim that is not mentioned in their original answer to the suit?
And, of course, even more blather:
From Groklaw
On the other hand, this may really get Darl going.
Remember the adage:
Someone pointed out elsewhere that Boies wasn't at SCO's latest press conference.
I wonder if he might be just a wee bit upset with SCO.
At least sex isn't patented.
Most variations, anyway.
Those patents cover several SCO products: "UnixWare and OpenServer operating systems, its SCO Manager remote administration tool and its Reliant HA package"
Programming around those ought to keep SCO so busy that they don't have time to make groundless accusations.
(At the time, I hadn't noticed that the article referenced above was not one of those I had already read. So I did miss that part.)
As for figuring out which patents those are, we could just do a patent search on-line for all of IBM's patents and read them all.
I have a few other things to do this month so I guess I'll just have to wait for the lawsuit to be posted on the Internet.
Come to think of it, if you're in violation of the GPL, you are also in violation of any patents involved unless you have a separate agreement with the owners of those patents.
I had read several articles on it elsewhere and none of them enumerated the patents. I hadn't noticed that the article reference above was yet another article.
Novell retained quite a few rights. I think the sale effectively made SCO an agent for Novell in handling any licenses that already existed and SCO received something like 10% of the income from those licensees.
If so, then Novell certainly has the right to overrule SCO in a large variety of matters relating to those licensees.
Reports I've seen this morning are that the filing contains several causes:
... in their OS. (I am assuming that those are the patents that IBM is accusing SCO of violating.)
1) SCO is infringing on four of IBM's patents.
2) SCO is interfering with IBM's business by claiming to have terminated IBM's license for AIX.
3) SCO is violating the GPL by distributing GPL'ed software without the GPL.
I hadn't thought about that first point before since I always took it for granted that SCO obtained permission from IBM to use RCU, NUMA,
This brings up an interesting question in my mind.
IBM has clearly intentionally released code under the GPL utilizing those patents. Under the GPL we are free to use and modify that code provided that if we distribute the code we do it under the GPL.
Suppose you write a new operating system designed for some specific purpose and the only code it uses from Linux is the code encapsulating those four IBM patents. The way I figure it, as long as you use the code in-house only or as long as you distribute the code under the GPL, there will be no patent infringement. Is that right?
I got an argument like that once when buying a CD drive.
At the time, CD's in computers were really just starting to gain ground. We were starting to see computers that even came with CD drives installed!
So I went to Best Buy to buy a CD drive and picked out one made by Sony. I was talking to a manager and told him that since I didn't see the OS I was using listed on the box, I'd bring it back if it didn't work. He said that if it worked on any computer with any operating system, it was not broken and I couldn't return it.
I hadn't been back to Best Buy since then.
I drove over to another store, bought the exact same model, took it home, and it worked fine for the next six years or so.
That's exactly right.
The best deal on insurance I've found is as a student. Check with your local college to see if they have a student insurance plan. If they do, take a course each semester. And sign up for the insurance.
For what it's worth, my major medical insurance is under $1,000 a year with a $100 deductible.
I just checked. To file a computer program, you have to file the first 25 pages and the last 25 pages of the source code.
So there is no chance at all to check for infringement.
This really needs to be fixed.
What would be nice is if we could download the code filed with for them to get their copyright.
Unfortunately, I don't think they are required to file all the code in question, just a few pages.
That needs to be fixed since the purpose of the filing should be to allow people to make sure they don't infringe. I don't see why someone should be liable for an infringement if there is no possible way to find out.
With a copy of the code, it should be relatively easy to identify the most probable sections they would claim to be infringing. Those sections could then be checked out very carefully.
Just get a copy of SuSE Linux and replace the kernel of whatever you are using with the kernel from the SuSE Linux distribution on every computer in the place.
I don't think that it matters that SuSE and Lindows have a license.
The licenses just keep SCO from filing suit.
If SCO were to somehow prevail on these issues and take control of Linux, do you have any doubt that Linux would be dead in a relatively short time, and SCO and SuSE along with Linux?
And in the meantime, the FUD being spread by SCO has to be affecting everyone including those who have SCO's blessing. Red Hat is not the only one being damaged -- SuSE and Lindows are likely to be suffering the exact same types of damages.
So, in spite of license issues, SuSE and Lindows do have a very real stake in all this.
Years ago, I was Director of Technical Services (Software Development and Research & Development) for a small, high-tech company. I was also the tenth largest stockholders in the company when it went bankrupt.
My agreement with the company included my rights to keep a copy of any and all software I developed for the company and to use it as I wished.
In fact, some of the software came from a large engineering company where I had worked previously. In that case, I had asked for and been granted permission to keep and use a copy of a specific set of programs I had written.
At one bankruptcy hearing, I gave the secured creditor a good copy of all the software. He asked me where I got it and I told him I made him a copy from my copy.
The secured creditor went through the roof and started threatening me with lawsuits for "illegal conversion".
My lawyer said that I while I would probably prevail in court on the matter because of my agreement with the president of the company, it would cost me thousands to do so.
I'm pretty hard-headed. It didn't matter that the software had no commercial use except for a very narrow segment of companies (there were about three in the United States that did the same thing and they already had their own software), I refused to give it up and wasted a lot of money on lawyer fees to keep it. The bad thing is that my lawyer took it upon himself to start negotiating away my rights to keep the software without telling me.
So I fired the lawyer and kept the software.
Since neither of us really had a use for the software, he never did file suit against me and I still have a copy of the software.
All I need to use the software, besides a reason to use it, is a PDP-11 and a VAX.
If there actually was code in Linux that was an infringements of SCO's copyrights, then the thing to do is to remove it once it is identified.
Since SCO refuses to identify the so-called infringing code, it is quite possible that a judge could rule for SCO in a lawsuit against a Linux user for license fees but award no damages at all. Or maybe $1 in damages.
Of course, once the infringing code, if any, is identified, it will be quickly replaced with noninfringing code.
One that that registering the copyright is supposed to do is to make it easy to identify infringements.
I wonder if anyone has actually checked with the Library of Congress to see exactly what SCO registered.
My understanding is that when registering code is that the Library of Congress, you don't actually have to give them a copy that people could use to check for infringements. This is, I feel, a major error that, if true, should now be very apparent. If so, maybe we should all contact our Congressmen and Senators and demand a change in the law.
What we really need is that no copyright infringement damages occur at all until the copyrighted material is registered with sufficient detail to precisely determine infringements and in a manner that allows potential infringers to check.
I suspect that for code, they would need an on-line repository with free or low-priced access to anyone who needs to use it to check code.
If the code is registered in such a way that it can be checked, what do you bet that Red Hat, IBM, and others have people there checking it?
In spite of their agreements, if SCO were to succeed at their task of destroying Linux, both SuSE and Lindows would be big losers as well. As such, a win for Linux would spell disaster for both of them regardless of their agreements and licenses with SCO.
SCO would basically do to Linux what they've done to System V.
I can see it now. The Red Hat lawyers are deposing McBride and ask "Precisely which sections of code do you claim are being infringed?" and McBride answers with "I can't tell you that. You haven't signed our non-disclosure agreement!" You'd hear the sounds of Red Hat's lawyers laughing even in Antartica over a raging blizzard at -80 degrees and a couple of million penguins shouting at each other at the top of their lungs.
I believe that allegations of copyright infringement used in a court proceeding are a matter of public record. At that point, the code that SCO claims is being infringed is going to be public.
After all, one point about copyrights is to enable you to make things public without it being stolen.
I think that the reason SCO is not making their allegations public is to not expose them to the glare of publicity that can prove them groundless. And if they aren't groundless, to keep everyone from just replacing the code with code that didn't infringe.
This will force SCO to specifically list every piece of code they feel is being infringed. If they hold anything back and the judge rules against them, I doubt there is any way they can bring it back later.
I'm curious how much of Linux's first count, "For Declatory Judgement of Noninfringement of Copyrights", may depend on IBM's case.
Since a quick win on the injunctions for Red Hat could be a big help to IBM, I wonder if IBM will help Red Hat prepare.
Let's see.
SCO is going to be spending money fighting IBM. IBM has plenty of money.
SCO is going to be spending money fighting Red Hat. Red Hat will have to spend money fighting SCO. (Red Hat is asking for attorney's fees in the lawsuit.) But if Red Hat wins the injunction early on, things are going to look awful bad for SCO before Red Hat has spent any really enormous amounts of money.
I wonder if SuSE is also going to file suit. Maybe they should. SCO's FUD applies to SuSE as well as Red Hat.
If SuSE were to file, than SCO would be spending money defending that action. Assuming that SuSE files in Germany, that would likely complicate things for SCO as well with a bunch more lawyers.
What I'm really curious about is Lindows. They apparently have the right to distribute Linux, but SCO's FUD is likely to be hurting them as well even though SCO seems to have indicated that Lindows is safe. If SCO were to win, I think Lindows would be driven out of existence in short order. I wonder if Lindows will file as well.
The other distributions as well could file suit.
The burn rate for SCO could go up quite a bit in spite of the fact that preparing for one lawsuit may help them against others.
There would still be lots of additional hours spent covering the different jurisdictions. Plus, you'd have to have more litigation teams in place to cover the different jurisdictions.
Lawywers don't like to take on cases that may leave them unpaid. I can't imagine that Boies lawfirm is doing this with the intention of being paid when it is over, especially considering the dubious claims of the case. From what I've seen of lawyers and major law firms, I would expect that Boies would have to be assured of being paid regularly throughout the lifetime of the case before they would accept the case.
One thing that some of the other distributions might want to consider is that when all is said and done, fighting SCO is likely to bring them much greater name recognition from everyone and much good will from current Linux users. Any major distributor of Linux who doesn't fight SCO may find it that much more difficult to survive.
Oops. I did a little checking.
Red Hat is seeking a permanent injunction to stop SCO's FUD.
The declatory judgement would be awarded in the trial.
Sorry about that.
That is in the lawsuit, not as a company.