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SCO Hints at *BSD Lawsuits Next Year, And More 971

Posted by timothy
from the and-son-light-a-match dept.
shystershep writes "Apparently attacking one Unix-like OS isn't enough. According to Darl McBride, SCO has plans to target BSD. "The more yarn you pull out the more you see," according to McBride. They're a little preoccupied with the IBM litigation right now, though, so "we probably won't file any suits against BSD until sometime in the first half of next year." Hmmm. I can't imagine why SCO executives feel that they need to hire bodyguards." How to get at the *BSDs? vireo writes "In this Newsforge story, we learn that Boies, Schiller & Flexner will directly attack the 1994 AT&T/BSD settlement." Read on below for another handful of updates on the giant SCO lawsuit frenzy.

osullish writes "The Financial Times reports that SCO is indicating it will sue an as-yet un-named Linux-using corporation within the next 90 days. Also mentioned in the article is possible action against Novell, which recently purchased Ximian and SUSE Linux."

Iaitos points to this rather stiffly-worded notice from Novell (on their site) regarding the non-compete agreement SCO claims would taint Novell's acquisition of SUSE:

PROVO, Utah Nov. 18, 2003: Novell has seen the November 18 InfoWorld article in which SCO CEO Darl McBride refers to a supposed non-compete agreement between Novell and SCO. Mr. McBride's characterization of the agreements between Novell and SCO is inaccurate. There is no non-compete provision in those contracts, and the pending acquisition of SUSE LINUX does not violate any agreement between Novell and SCO.

Novell has received no formal communication from SCO on this particular issue. Novell understands its rights under the contracts very well, and will respond in due course should SCO choose to formally pursue this issue."

slavitos points to a ZDNet article covering the same ground, writing: "A characteristic SCO twist in the story: "McBride added that lawsuits likely will be preceded and possibly prevented by communications offering businesses an opportunity to get right with SCO. "We'll be communicating with users what our expectations are," he said.". Oh, that's helpful, Darl - and no, we didn't really expect you to be any more specific."

If your lips aren't yet too tired, ansak writes "PJ has done it again -- okay, "co-ordinated it" would be the better phrase. The transcript of SCOG's conference call is now available (and in danger of being slashdotted without slashdot's help, even!).
#include <std.thanks.to.volunteers.h>"

Another legal theory being thrown about is that SCO's lawsuit (the one against IBM, that is) all leads back to Sequent. Petrol writes "The Inquirer has a story about SCO's action against IBM. 'Sources close to the action describe a trail of code that might well be the target of SCO's ire against IBM and the Linux community.'"

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SCO Hints at *BSD Lawsuits Next Year, And More

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  • Re:Apple? (Score:5, Informative)

    by k98sven (324383) on Wednesday November 19, 2003 @01:47PM (#7512524) Journal
    Possibly..possibly not..
    OS X was based off NEXTSTEP, which was based on Mach, which was a completely new kernel, with BSD ported to it.

    But compared to Linux, i'd say it's less of a stretch to say that OS X is UNIX than Linux.

    I don't mind if they go after Apple.. just one more company joining in the fun of beating SCO up.

  • Re:Sig (Score:3, Informative)

    by freeweed (309734) on Wednesday November 19, 2003 @01:55PM (#7512621)
    Yeah, except it should say coming too fast, not going :)
  • Re:Apple? (Score:3, Informative)

    by Anonymous Coward on Wednesday November 19, 2003 @02:02PM (#7512703)
    OS X was based off of NEXTSTEP, yes.

    However, it did base off of BSD. "Mach" is not a full kernel. It's something called a "microkernel"-- a very thin abstraction layer that rests between the hardware and the real kernel, so that the real kernel is more easily portable to different hardware. It's like the Windows NT HAL. On top of Mach, NEXTSTEP had to have an actual kernel, and for this they used BSD. Plus, as I'm sure RMS would tell you, an operating system is not just a kernel, and the base associated tools (cp et al) that allow you to actually do things with NEXTSTEP were taken from BSD.

    Moreover, Apple has been continuously merging in code from more recent versions of FreeBSD ever since they took the project over. So even if NEXTSTEP weren't "contaminated" with BSD before Apple bought it, it definitely is now.
  • by molszewski (655889) on Wednesday November 19, 2003 @02:25PM (#7512928)
    9.8m/s2 is an acceleration, not a velocity.
  • by obsid1an (665888) <obsidian AT mchsi DOT com> on Wednesday November 19, 2003 @02:34PM (#7513029)
    Correct, in fact they actually admitted to it [crn.com]: VAR Business: Other than the suit, how's business? McBride: That's the great untold story no one even asks about. We have over two million servers actively running today. Customers continue to come to us. We have laid out a growth map that will be significant for our customers. In the next year expect Legend, which will take OpenServer and update it. Longer term, expect SVR 6, which will be 64-bit Unix on Intel. That is a few years out. As we look at monetizing this two-million-user installed base, we can sell product for a $800 to $1,000 dollars, whatever. We're talking about a couple of billion dollars in upgrade opportunities. From a financial standpoint. The first part was cleaning the company up. We've done that. Going forward we have three dials. The core business, we think that's bottomed out and there's upside now with new products coming. We haven't had a new product in our OpenServer base in years and years. The second dial is the 2.5 million Linux servers out there today that are paired with our intellectual property in them. We have a licensed product $699, $1,399. Chris [Sontag] is driving that and that's another multi-billion-dollar revenue opportunity The third bucket has to do with the IBM settlement. We filed that at $3 billion. Every day they don't resolve this, the AIX meter is still ticking.... That's in a Utah courtroom 18 months out. That's a down the road revenue opportunity but the first two dials are going right now, and today's announcement today with Boies will really help move the second dial along.
  • by Zeinfeld (263942) on Wednesday November 19, 2003 @03:14PM (#7513458) Homepage
    The case you refer to was ATT vs. whoever (the Regents of the University of California?) That case may have been litigated and closed. However, any case SCO brought would be a completely different case.

    Absolutely not.

    The case would be brought on the basis of the same copyright claim as the earlier AT&T case. That claim has been rejected by the courts. The fact that the underlying copyrights have since been sold do not allow the new owner to re-open prior litigation. The copyrights were bought with the constructive knowledge of the previous litigation and its result.

    If the courts did allow this type of claim they would never be able to get rid of copyright claims and defendants could never obtain a final judgement in their favor.

    Peculiar and mercenary though David Boies may be, I think you can fairly safely assume that he has a pretty good grasp of the rules of civil procedure in the US courts.

    Which is probably the reason why he is talking trash, threatening to sue rather than issuing a writ. He knows that if he was actually to make a claim he could get slapped really, really hard.

    Given Boies ludicrous efforts in the Napster case it is safe to assume that Boies is capable of making legal claims in court that the courts rapidly reject as unfounded. Let us see if he goes one stage further in this case and makes a claim that is sanctionable.

    I strongly suspect that attempting to relittigate AT&T would be considered sanctionable, there is absolutely no reason that a lawyer should believe a claim that was littigated and lost nine years earlier to be winnable without a material change in the circumstances. I don't see the sale of the copyrights to SCO through Novell as a material change here.

    If Boies goes ahead with this it could cost him his license. The sums demanded are very significant.

  • by mengel (13619) <mengel@users.sou ... t ['org' in gap]> on Wednesday November 19, 2003 @03:24PM (#7513566) Homepage Journal
    Not exactly; the BSD case was settled because:
    • AT&T had a fairly weak derivative code claim (surprisingly like the current SCO one, actually) saying that even though all of the actual AT&T code had been removed from BSD's Net-4 release, somehow by a process of transitive derivation it was still a derivative work.
    • Berkely had a much stronger, classic copright case on the printed manuals for vi, netstat, etc. that would have required AT&T to apologize publicly, and hunt down and destroy all System V based User Guides (i.e ones for AT&T System V, IRIX, HP-UX, etc. etc.)
    Berkely really didn't care to press their case except to make the AT&T one go away.

    As somone pointed out earlier, never sue a University with a good law school.

  • Re:Heed my words (Score:3, Informative)

    by davmct (195217) on Wednesday November 19, 2003 @03:45PM (#7513795)
    copyright is a federal case, and can't be prosecuted in small-claims court.
  • by stefanb (21140) * on Wednesday November 19, 2003 @03:54PM (#7513901) Homepage
    Wasn't that case settled because of the fact that AT&T had copied a bunch of BSD code, and the realization had been made that both had screwed up and the easiest course of action was to say "From this day forth..." both were legal? that's always been my understanding of that settlement.
    I think the case was much in favor of BSD: System V contained loads of BSD files, which AT&T conventiently had lost the copyright notices to, and had also forgotten to give due credit in the documentation for; on the other hand, the Net/2 release was found to contain only minor copyright infringements, which could be healed by removing three files, and making minor modifications to a couple of others.

    The exact terms of the settlement remain secret, but Marshall Kirk McKusick wrote this nice history summary [oreilly.com].

    If SCO really has any way to re-start the proceedings on this, I somehow feel Berkeley lawyers will have none of it...

  • Microkernel (Score:3, Informative)

    by Ost99 (101831) * on Wednesday November 19, 2003 @04:31PM (#7514313)
    A microkernel is not something that rests between a "real kernel" and the hardware. It's not much like a hardware abstraction layer (HAL) at all.

    It's a kernel that has a limited set of base functions (usually thread/process scheduling and communication). Other services (device drivers and even filesystem) are run as seperate processes, and the kernel provides a means for such prosesses to communicate.

    - Ost
  • by Kefabi (178403) on Wednesday November 19, 2003 @05:07PM (#7514688) Journal
    Just opened news.google.com.

    Under technology's top stories:

    Novell slams latest SCO claims
    SCO Hints at *BSD Lawsuits Next Year, And More
    SCO CEO claims top spot on Forbes List of World's Most Hated Business Leaders

    SCO doesn't have much longer to live. They've managed to get on not only techies' shit lists, but now the presses'
  • by Anonymous Coward on Wednesday November 19, 2003 @05:37PM (#7514926)
    Maybe Darl has access to some old Novell documents that he is saving as his ace in the hole...
    "From 1988 to 1996, Mr. McBride worked at networking leader Novell where he was responsible for growing Novell Japan's growth to more than $100 million in revenue. Mr. McBride concluded his tenure at Novell as vice president and general manager of Novell's Embedded Systems Division (NEST)."
    View Entire Article [forbes.com]
  • Re:Heed my words (Score:5, Informative)

    by Angst Badger (8636) on Wednesday November 19, 2003 @05:47PM (#7515001)
    What we need to do is file 1000's of small claims against SCO in your local courts, alleging copyright violation.

    I hate to hit you with this, Perry Mason, but copyright violation cases do not get tried in small claims courts. Furthermore, unless you registered your copyright with a form TX at the Copyright Office, you can't sue for punitive damages, so you will have to demonstrate actual monetary losses in order to sue for compensatory damages, and since you are, presumably, not being paid royalties on non-existent sales of the kernel, you have no grounds for a suit.

    And "lose" has only one 'o'. "Loose", as in "loose legal reasoning" has two.
  • by juan2074 (312848) on Wednesday November 19, 2003 @05:55PM (#7515091)
    If you take IBM out of the equation, Linux would not be growing up, it would not be SMP-enabled, it would not be multi processing, scaling up to hundreds of servers. It is IBM that is enabling that.

    Yeah. That was fake SMP before IBM came along. Beowulf was all IBM too, right?

    McBride must be some Linux history expert, or something.

  • Untrue. (Score:5, Informative)

    by Chris Burke (6130) on Wednesday November 19, 2003 @05:59PM (#7515156) Homepage
    There certainly has been no recount, formal or informal, would have given algore the electoral votes.

    Not true.

    The NORC study shows that under the state-wide recount oredered by the FL SC, Gore would have won.

    Under other, partial, recounts Bush won. Ironically, under Gore's prefered recount method, Gore would have lost.

    You probably saw this in the news as "Recount Shows Bush Would Have Won", with perhaps a footnote at the bottom about how actually Gore would have won, unless you used one of the recount methods that was never seriously considered.

    I think this is strange.
  • Re:Next on COPS (Score:3, Informative)

    by gladbach (527602) on Wednesday November 19, 2003 @06:09PM (#7515259)
    wow, speaking of grits...

    http://story.news.yahoo.com/news?tmpl=story2&u=/ 03 1115/ids_photos_en/r3048724578.jpg&e=5&ncid=17 56

    +1 off topic here we come! you know you love it!
  • by Zeinfeld (263942) on Wednesday November 19, 2003 @06:22PM (#7515409) Homepage
    Forgive me for saying so, but I don't think you have a very good understanding of torts.

    Forgive me but a blanket negation of an argument accompanied by abuse is hardly a good way to convince others.

    If this is true, you'll have no difficulty providing me with case law in support of your argument.

    I would not expect anyone to be idiotic enough to try litigating it. If indeed it is the case that you are correct then there should be many cases of people trying this dodge and succeeding because it would be a pretty useful one.

    1.) The original case was settled out of court, therefore there is no case law or court decision to refer to.

    Settling a case out of court would make the argument much stronger since it is a contractual agreement (actually stronger than a mere contractual agreement) that is independent of the fact being claimed. SCO's claim to the copyrights is the result of a later contractual agreement which is inevitably a weaker claim.

    Under what circumstances do you believe that AT&T could enter into a contract that would invalidate rights that AT&T had already granted under an earlier contract?

    3.) I'm not arguing that SCO's case is necessarily winnable. Simply that it's actionable and that they'd have a right to bring it before the courts.

    The term actionable is meaningless. There is no legal claim imaginable that is not 'actionable' in the sense that it is possible to commence an action by issuing a writ. The only way that a claim could not be actionable was if SCO were declared to be a vexatious litigant and barred from access to the court in question.

  • by morgue-ann (453365) on Wednesday November 19, 2003 @06:24PM (#7515433)

It's a poor workman who blames his tools.

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