Law Professor Examines SCO Case 558
An anonymous submitter writes "This law professor from the University of California points out weakness in SCO's legal bluster, and further takes a poke at closed software, for those hungry for more SCO scraps. At the end, he references Slashdot for more info ('itself a demonstration of the power of dispersed individuals working together')."
Re:The Biggest SCO Weakness (Score:1, Interesting)
I doubt they're going to win. (Score:5, Interesting)
It could be that they've got a solid case. It could be that they're working out some great shenanigans. Irregardless, I'm starting to wonder if Linux should be open to the average user to contribute, or if perhaps it should be restricted to a core group of companies and Linus who can afford lawyers to vet the code. Things are getting pretty scary in the open source world, particularly with the lawyers getting involved...
What has been said all along (Score:5, Interesting)
The second principle is that a party's rights can be affected by its later conduct - which can constitute a "waiver," giving away rights. Until recently, SCO was a willing player in the Linux movement, releasing code under the open source ("copyleft") license. Everything that happened to Linux was in the open. Yet SCO delayed in suing.
SCO had made their bed in deciding to take advantage of the open source movement. Now they want to retroactively change the decision.
No Kidding? (Score:4, Interesting)
If I could spell more than 15 words in the english language correctly, I'd create an article and submit it.
They are rehashing the same statements, we can all tell that SCO has almost no case to stand on, which is why the story is so compelling.
It's like watching the Iraqi Information Minister. It's hilarious to watch someone openly ignoring the blatent obvious.
And we get really mad when they make headways in the case, because they are so utterly moronic.
Finally a legal perspective (Score:2, Interesting)
..power of dispersed individuals working together (Score:2, Interesting)
How many /.ers are members of the EFF? /.ers don't go out to buy RI/MP-AA products? /.ers write a physical letter to their congresswhores? /.ers actually use Linux? or contribute to it or other OSS? /.ers live alone in their parent's basement, rather than with a helpful cult or commune? /.ers use Office & save their files in .doc format?
How many
How many
How many
How many
How many
Bob Dylan would say something about wind here.
BTW, I think the professor is trying to recruit /.ers for his own private army. Sure, SCO today, but tommorrow...the world?....
Re:What has been said all along (Score:5, Interesting)
But their claims are far broader than copyright, and seem to stem from a questionable interpretation of the word "derived".
You might be able to build a case that SCO had no reason to know about the alleged copyright infringement, but clearly SCO new about and even participated in incorporating "enterprise class" features into Linux. Not only wasn't it a secret, it was widely publicised by IBM.
Now, looking a the contracts as shown on SCO's web site, you might be possible to interpret them SCO's way (well, I don't really think so, but let's pretend for the sake of argument). There's no way you could conclude, however, that SCO didn't know that IBM was porting JFS or RCU to Linux. SCO knew it, and continued to distribute Linux anyway as part of their business.
Re:No Kidding? (Score:1, Interesting)
You bet. Say, did they find them WMDs yet?
Re:The Biggest SCO Weakness (Score:3, Interesting)
Their lies and threats (the threatened SuSE, RedHat, Linus Torvalds, all Linux users, and others - without ever really suing anybody) have given their stock a big rise and by now the executives should have sold their stock.
More SCO insider stock sold. (Score:5, Interesting)
I just reloaded [msn.com] to see a Reginald Charles selling $55,450 worth of his SCO stock. At $55,450 that's the largest insider trade listed since this thing started.
06/20/03 BROUGHTON REGINALD CHARLES Sold 5,000 $11.09 $55,450
SCO violates BSD license too (Score:5, Interesting)
Buying "damaged" goods (Score:5, Interesting)
I wasn't aware of the timing, but according to the article, SCO's McBride said:
Let's see. He's saying that IBM quit working on Project Monterey before Caldera bought Santa Cruz Operation's UNIX rights. That Santa Cruz Operation sold the rights precisely because they weren't as worth much at that point.
But part of SCO's lawsuit against IBM is SCO's claim that because IBM quit working on Project Monterey, IBM is conducting anti-competitive behavior.
Since SCO knew about this at the time they bought it, then surely, the price SCO paid for those rights was already discounted because IBM was no longer pursuing Project Monterey.
It's kind of like buying a junked car that had been damaged in a collision and then suing the driver of the other vehicle for wrecking your car. It was already wrecked when you bought the car! At best, the seller might have had a claim against the other driver, but not the seller.
If SCO wins, maybe we should buy the salvage rights to a World War II navy vessel sunk in a World War II battle. Then we can sue Japan for the full cost of the ship plus interest and penalties because they sunk our boat.
MS funds SCO while disposing of Corel (Score:3, Interesting)
Corel shareholders fight suspicious takeover deal
Corel is being buried alive, and at breakneck speed [corelrescue.com], by Microsoft cofounder Paul Allen [www.cbc.ca] and a former MS executive who, incidentally, also worked for the McKinsey consultancy firm which validated the post-MS investment strategic U-turn. Under the deal all Corel products [corel.co.uk] would be privatized for a measly $30M. Corel shareholders [corelrescue.com] - who've also pushed for Linux support long and hard - hope to canvass enough NO VOTES to scrap the deal but the raiders are tilting the rules in their favour.
It all went horribly wrong after the Linux powerhouse merger [vnunet.com] agreement between Corel and Inprise/Borland was derailed three years ago. We understand that Borland (in which MS had a shareholding stake) had valid reasons for pulling out under the agreed terms, but the combination would still have made perfect sense. Corel founder and CEO Mike Cowpland was soon ousted and CTO Derek Burney was named interim CEO. Conveniently soon afterwards Burney's half-acquintance, Microserf Tom Button, gave him a call [com.com] and invited Burney for a visit at the MS campus and before we knew it, he had signed a $135M investment deal with MS, accompanied by an incredibly one-sided Alliance deal [macworld.com] in which Corel had all the commitments [216.239.39.100] and Microsoft basically none. In his debt of gratitude, Burney even promised not to sue MS over any anti-competitive tactics that MS "may" have used in their MS-Office offensives. Next Burney drew up a new strategy based on those commitments - again incidentally [www.cbc.ca] killing all Linux efforts and reducing emphasis on anything competing with Microsoft - and submitted his ideas for "validation" [itworld.com] by McKinsey & Company, a consulting firm with strong culture of alumni networking [mckinsey.com].
From 2001 onwards Corel milked the increasingly-abandoned WordPerfect Office for revenue while toiling away on its dotNET descendant. Staff was getting laid off as a three-year turnaround plan was revealed to be centered on a dotNET-based enterprise system for massaging corporate data and delivering it in realtime to any type of devices through extensive use of XML and SVG graphics. Corel even bought SoftQuad and Micrografx to merge their technologies into the project codenamed Deepwhite [zdnet.co.uk]. Great idea but with somewhat misguided execution.
In 2002 Corel managed to strike a few high-profile albeit limited OEM preload deals [com.com] with the likes of Dell, HP and Sony. While Corel received little in terms of revenue from those deals, even that limited success must have come as a shock for Microsoft. "How dare those ingrate nobodies invade our holy turf!" could have been the likely reaction at Redmond. With the anti-trust spotlight under a friendly operator it was time for the final strike, and how better add insult to injury than by not just taking Corel out but actually keeping the corpse within the family!
In December 2002 the Paul Allen financed Vector Group, managed by a fo
txs SCO (Score:3, Interesting)
I hope that, then, more and more people will feel more confident about open source, then start to use it.
Re:Buying "damaged" goods (Score:5, Interesting)
The point is:
DR-DOS was already damaged when Caldera bought it. Caldera got it cheap as a result.
MS actions may have damaged DR-DOS, but it was DR that suffered, not Caldera. Yet Caldera was the one suing for damages (and getting a settlement).
Seeing a pattern here? You should.
Re:What has been said all along (Score:1, Interesting)
I think you should read this [linuxjournal.com] (specifically the part entitled "Derivative Works") before making claims like that.
A clear and interesting article (Score:5, Interesting)
All of this begs the question as to what SCO have been showing to their independent experts. Suppose they grab the code for XYZ scheduling, as seen in AIX. Then they grab the code for XYZ scheduling, as seen in Linux. Obviously, these two pieces of code, are going to be a pretty good match, even down to the comments. They tell the independent consultants that the former is System V code (because SCO claims that everything that was ever added to AIX belongs to them). And they tell the consultants that the latter is from kernel 2.4.XX. So the independent consultants, in all good faith, report that there is a match between "SCO code" and Linux code. My bet is that this is what SCO have been doing. I believe that this is the reason for SCO wanting people to sign NDAs. They can't risk anyone who knows anything about the kernel saying exactly what the code represents. It is in their interests to fudge the issue of where the code has come from. If some random hacker has grabbed the original SVR4 code and slipped some of it into a patch that has found its way into the Kernel, that could occasion some sympathy for SCO (not $3bn or even $1bn worth of sympathy). If that is the case, it looks like code that SCO originally paid for is being used without SCO being compensated. On the other hand, if it's IBM's implementation of XYZ for AIX, which they have ported to XYZ for Linux, then SCO's case is dead in the water, and SCO knows it.
Re:We've got grounds for a lawsuit! (Score:2, Interesting)
(1) How long before SCO shareholders sue the current management?
(2) How well will the current execs be able to hide their profits from those suits?
Chris Dibona discusses SCO at Usenix. (Score:3, Interesting)
Re:We've got grounds for a lawsuit! (Score:3, Interesting)
As to the 2nd part, I don't know, not too well I expect (which assumes such a suit would succeed which is a big assumption), and I imagine Canopy might be an obvious target for any potential litigant too.
RTFC professor Chander (Score:3, Interesting)
Some defensive items in the article are correct but that is because previous reporting got those right already, for example the delay in SCOX taking action and their willful distribution of supposedly infringing code under GPL terms (fully willful, there was no "inadvertent" element, they were "advertising" these featues)
The closing comment highlights how much this article is about politics more than law Otherwise, there will be no such thing as truly open, free software - and as a consequence, there will effectively be an economy-dragging tax on information technology. A judge will hardly be bothered with the existance or not of free software, there isn't a law or constitutional principle or similar that says freedom of software is protected. Same for SCOX being able to collect a "tax" from others, if judges were bothered by this, stupid patents wouldn't have a chance and we know this is not what actually happens...
So, Mr. Chander, please read the freaky claims before speaking about them. Getting infected with slashdotters' bad habits can be very dangerous in court.
Read history McBride (Score:5, Interesting)
In the final years of the 1930s the german army raced across Europe trashing all opposition in their path. At the time of their greatest military successes the German army was running a field command structure called "mission based" command.
Mission based command placed the authority to act in the hands of the soldiers on front line, the idea being that those closest to the front would undoubtably be best positioned to make fast assessments of a situation. Should an opportunity present itself they were free to exploit it to their advantage without having to check with the beaurocracy above. The overall target was known - to win, and as long as your actions fitted the target it was up to you.
This system worked so well that all fell in their path 'til they hit the English channel and turned on Russia (at the instruction of their one leader).
Contrast this to the latter half of the war. The more centralised command became around the leader and his sycophantic entourage, the worse things got until eventually the leaders own incapability to understand the demands of those at the front line led to the collapse of the whole system.
The first example was Hitlers order to Rommel to stand fast to the last man at El-Almain. The same mistake was made again at Stalingrad and in several other situations.
The distributed, "module based" development of Linux allows developers to react in the same way as the soldiers on the front line, patching and adding features on the fly without having to discuss it with their manager, product manager, product devlopment manager, product development management manager etc. leading to events like the KDE team patching the SSL flaw in konqueror while the MS FUD machine was still denying it was a problem.
NO! before you start saying it their are no insinuated similaraties between OSS community developers and certain historical characters of an evil nature it's the model that's similar. Ironically the intent in the case of Linux is freedom not enslavement.
Re:Nope. (Score:3, Interesting)
It won't be IBM. There has to be a room somewhere in Armonk with reams and reams of case material. If they don't use it to stomp SCO they can surely use it against whoever buys that material. Anyway, I don't think IBM is necessarily opposed to buying that IP themselves. They're just not going pay SCO's market cap for it. Once SCO craters, then yeah they'll likely buy it at a fire-sale price just so nobody else can make trouble with it.
Re: SEC (Score:3, Interesting)
Or perhaps, it suddenly occurs to me, the SEC is hesitant to interfere with ongoing private litigation and will act if and when the case is shown to be meritless and it all becomes public record? (NB: a sealed settlement with IBM would massively complicate that effort). Twitchy they may be, but they're still run by an administration that is decidedly anti-regulation; that might limit their potential eagerness and make them act cautiously.
Re:Ummm, no (Score:5, Interesting)
No, no there isn't. The difference between application level software and operating system software is completely arbitrary, and many people disagree about what the difference is.
And no matter where the line is, doing the actual programming is absolutely the same.
How long before SCO's claims can be debunked? (Score:3, Interesting)
Why this article helps. (Score:5, Interesting)
At least one has come into my office asking if we use Linux and expressed concern about the lawsuit when informed that we do. (Samba, CUPS, etc.)
I explained the lgeal reasons why they should not be concerned but since I am just the IT manager my words have little credence.
This is the kind of article I can forward to all the lawyers who ask as it's from the kind of source they will listen to, speaking a language they understand.
As other posters have pointed out, it's not what he says (which we all already knew), it's who is saying it.
Re:I doubt they're going to win. (Score:3, Interesting)
Re:Credit where credit is due... (Score:2, Interesting)
An OS is a set of programs that controls access to devices, filesystems, scheduling, startup, etc. Sure, it needs a kernel, but it also, under Linux, includes glibc, init, ifconfig, fsck, dd, etc.
All OSes include some sort of ability to launch programs, and standard libraries to access files and devices and whatnot. When an OS is loaded in a computer, the computer must 'work', for undefined values of work.
There's a reason there's two different terms for 'operating system' and 'kernel'.
Now, with Linux, there's a blur between 'the OS' and 'stuff that comes with the OS but isn't needed'. And with Windows, there's a blur between 'the kernel' and 'the OS' and 'stuff that comes with the OS but isn't needed'.
Note, BTW, that you can have systems on top of OSes...like Linux has the X Window System. They are, in a way, mini-computers...they have a kernel, usually XFree86, they have an OS, which can be anything from an xterm launched at startup to Gnome, and they have application software.
Eat a cake and have it too (Score:3, Interesting)
If SCO sold the SCO Linux to its customers legally then that sell is governed by GPL and SCO loses right to its proprietary code. If it didn't sell them under GPL, then SCO had no right to sell at all and its customers are using illegal copies and now anyone can sue SCO Linux customers. In truth, the SCO Linux customers are doomed. Either SCO must recall the product or they can be sued by Linux developers. SCO wants to sell SCO Linux but without GPL and it can't do it.
The SCO case against IBM is altogether a different matter. That is between IBM, SCO and let them figure out in court. But if SCO tries to sue Linux customers, it is in deep trouble.
Re:closed makes it easier to hide patent infringme (Score:5, Interesting)
In fact it can be easily argued that open-source discourages copyright infringement because it can so easily be detected.
Re:Ummm, no (Score:3, Interesting)
But that is beside the point. What I mean is that writing explorer.exe doesn't have to be different from writing winword.exe. That is all. Sure, you and I might both understand the explorer.exe is not technically part of the operating system, but I don't think SCO would make that distinction. Many computer programmers wouldn't either.
Re:Next Slashdot Article (Score:3, Interesting)
If SCO was truly clever they would have gone after Microsoft first. Maybe they could build a case on BSD code in Windows. Lots of OSS people would cheer them on, and help SCO find material and arguments to support their claims. At the end of the case MS pays up, and SCO would have a precedent for controlling BSD-stuff which they could then sue against Linux, IBM, etc.
If I was MS I would be checking and double checking all my contracts with SCO. The Xenix stuff, the original license, and anything else, just to make sure there isn't some clause in there that SCO will later turn against MS.
Re:Give credit where credit is due. (Score:3, Interesting)
So far all of SCO's claimed violations are related to code in the Linux kernel. Therefore GNU has nothing to do with this lawsuit.
You might be running a GNU/Linux operating system. More power to you. I'm running a GNU/KDE/Mozilla/Sun/Python/PHP/Apache/Linux operating system, thank you very much. GNU only contributed a tiny portion of what I use. I'm very grateful to GNU for their software contributions, but to say that GNU and Linux are the only important components of the O.S. is the height of silliness.
Re:SCO's real game (Score:2, Interesting)
The OSS community must counter attack. The best approach would be a collective libel and defamation suit by some thousand OSS developers, seeking punitive damages against SCO.
Such a suit would not win but it would show SCO that their opponents are not helpless nerds unable to understand the meaning of cold, hard steel. Knives out!!
</quote>
No, but what would work is if those thousands of OSS developers sued SCO for distributing non-GPLed code with their GPLed code. If SCO were to actually win against IBM, they would loose against the developers. If IBM won, then the developers would drop their case as the whole issue is null.
Scary Thought - SCO's REAL intentions (Score:2, Interesting)
Ignore all of the bluster that SCO has been spewing about copyright's and patents, what you are left with is a supposed contract dispute between IBM and SCO. SCO is trying to claim ownership over derivative works of UNIX which they are apparently trying to claim is anything that uses UNIX services. Thus anything that is a derivitive work is supposedly covered under the license that SCO and their predecessors made UNIX available under.
Now compare this to the GPL. When you release a piece of software under the GPL you must make all derivitive works available under the same license as the GPL. Sound awful familiar? I thought so too.
So...if SCO is going to compare their license to the GPL and claim, "if the GPL can do it why can't we?" than what is the result? I have read the GPL and think I understand it as well as anyone. Not being a lawyer I can't claim authority in that respect but I believe it to be a totally fair and appropriate license. So why can't SCO claim the same thing? The license they released UNIX under may be vague in this respect but if it comes down to "any derivitive work of UNIX must be released under this same license" than how can the GPL be lawful and the SCO UNIX license not be lawful? Both can't be true.
There is one aspect that may be different between these two cases. The GPL has no exclusivity clause. Thus although the copyright holder is forced to make the source available under the terms of the GPL they can also make the program available under any other license they choose. In fact this is sometimes done so that the community can work on the GPL'ed code and the copyright holder can make money by selling to companies that want to hide their code changes.
Now I don't know that the SCO license has an exclusivity clause but there's no reason it couldn't. It's certainly fathomable that the GPL could include a clause that said "you must make the source available ONLY under the GPL" but I think it would be much less useful and certainly not as widely accepted. Anyway, the point is that SCO could have an exclusivity clause in the license. The end result being that indeed anything that uses UNIX services or runs on top of UNIX could be considered a derivitive work and thus subject to the terms of that license. In which case IBM and others would be libel for damages since they broke SCO's license by releasing code that by copyright belonged to them but that they gave up control over.
So...this is just a thought, as I write it already I see ways to argue against it. But it would be a sorry day in hell if either "derivitive work" was restricted such that only code that used code from another program was a derivitive work. Effectively this would put all GPL code under the LGPL. A particularly unscrupulous company
Furthermore, if SCO has no exclusivity clause in the license than the point is moot. As the copyright holder is certainly within their rights to release the software under other licensing terms.
I'm not sure what kind of probability to put on this scenario. But I've heard of stranger things. It's entirely possible SCO wouldn't mind going to court either to restrict the term "derivitive work" or even somehow in a backhanded manner, invalidate the GPL all in an attempt to avoid copyright infringement for work they have placed in to the SCO Unix offerings. Invalidating the GPL wouldn't get them anywhere though since than they would have to deal with the actual copyright holders and I'm thinking they wouldn't be too beholdin' to SCO.
Anyway, it's just a thought.
Re:The Biggest SCO Weakness (Score:3, Interesting)
they threaten everybody, here's the thought train. If they can convince a judge or jury to rule that the code that was inserted into Linux was the same code as was previously inserted into System V they win,( it's a system V derivative, and therefore owned by SCO). If IBM can convince the judge or jury that the code that was inserted into Linux came from the non-specific implementation as did the code inserted into system V IBM will win (it's a paralell developement, not a derivative). Anything that goes into system V belongs to SCO; anthing that is derived from systemV belongs to SCO.
More ominous is that SCO is making noises that BSD violated it's settlement with At&t and therefore BSD has the same problem as Linux, SCO is going to claim BSD is a system V derivative. Why would SCO bother with BSD, because Windows used BSD code, making Windows a system V derivative!
Following this through to its logical conclusion, unless you are running Solaris, you're going to be paying SCO a system V license fee.
That's right SCO considers IBM, low hanging fruit! the code in violation actualy has their copyright notices for all to see in Linux, the BSD thing will be slightly more difficult to prove but not much, then on to Apple, then Microsoft; or so the crystal ball says.