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More Damning SCO Evidence At Groklaw 404

Posted by timothy
from the damn-damn-damn dept.
An anonymous reader writes "There's a very interesting story up at Groklaw right now. PJ reports on new evidence that Chris Hellwig, a SCO employee, contributed code to SMP, XFS, and JFS and did so with the knowledge of his supervisor." Groklaw is thorough, and this is another good example of just quite how thorough.
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More Damning SCO Evidence At Groklaw

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  • conspiracy (Score:5, Interesting)

    by Clay Pigeon -TPF-VS- (624050) on Tuesday December 02, 2003 @09:01PM (#7614237) Journal
    If it is possible to prove conspiracy, it SCO will be left without any recourse in regard to its so called "intellectual property," which Novell still owns... Also, if conspiracy is proven, SCO, and its board, will face criminal, as well as civil penalties.
  • Internet archive (Score:5, Interesting)

    by bstadil (7110) on Tuesday December 02, 2003 @09:05PM (#7614265) Homepage
    There is a major source of information about what SCO did and didn't do at the Internet Archive site.

    Look here [archive.org] and enjoy SCO's own word on how they supported and contributef to Linux. Year 2000 is the best.

    Quote from May 2000 [archive.org]

    A corporate sponsor of Linux International, SCO has always supported open standards, UNIX Systems and server-based technologies and solutions that benefit business computing. Our engineers have continuously participated in the Open Source movement, providing source code such as lxrun, and the OpenSAR kernel monitoring utility.

    Compare this to the legal filing they made here a few days ago telling the Judge that they never contributed Code.

  • Re:Conspiricy theory (Score:5, Interesting)

    by UnknowingFool (672806) on Tuesday December 02, 2003 @09:05PM (#7614270)
    I guess that's why they are attacking the GPL as much as they are. Since their employee gave away the code under the direction of his supervisor, the only way they can take it back is to nullify the whole process so that proprietary code can never be given away. Otherwise, even if they planted it, it's a losing battle.
  • One Amazing Lady (Score:4, Interesting)

    by rixstep (611236) on Tuesday December 02, 2003 @09:09PM (#7614292) Homepage
    No, this is not new, but PJ continues to impress.
  • by mauryisland (130029) on Tuesday December 02, 2003 @09:13PM (#7614323) Homepage
    Her efforts in putting together this site, with the participation of so many knowledgeable contributers is fascinating, and I'm sure it's valuable to those who oppose SCO's legal antics. I find the site to be generally "wide and deep" (thanks, Darl), and I'll wager that the people at SCO take very little humor from it. I wonder if the legal teams at IBM and Red Hat find it interesting? It's seems that there's a huge amount of free legal and technical research being undertaken.

    Pamala Jones has my early vote for "Linux Booster of the Year for 2003".
  • by jms258 (569015) on Tuesday December 02, 2003 @09:16PM (#7614347)
    how long does SCO intend to bang its head against this particular wall?

    i suppose this does pose a threat to linux in terms of leaving a bad taste in vendors' mouths concerning but there really is absolutely no way SCO is going to shut us down.

    even if SCO gives linux and gnu somewhat of a bad reputation, we already have major players in the industry who are committed to supporting linux (ibm, novell, sun). and by the time all of this bullshit blows over, linux will be even more robust and marketable, and our detractors will soon find themselves knocking down our doors once again to profit from our technology.

    really the only thing we have to fear from the whole sco debacle is discouragement ... to me this seems like an underhanded attempt to knock the wind out of our sails, regardless of whether or not our ship sinks. fortunately the open source movement does not seem to attract developers that quit at the first sign of difficulty, so i am optimistic that sco will fail even in this capacity.

    but really the most appalling thing about the situation is sco's utter lack of common sense; it makes me wonder how they thought they were going to win in the first place (see below). how do they expect their argument to hold up in court when they STILL HAVE NOT YET PRODUCED ANY HARD EVIDENCE?!?

    darl mcbride: "well ... i was raised on a farm ... i rode plenty of horses in my day, let me tell you ... and the one thing i learned from shucking corn and milking cows was ALWAYS to claim that the other guy's ranch was really MY ranch, even though the other guy built his ranch all by himself from the ground up and never asked me for any help."

    SCO, if you are reading this, pack your bags, go home. to quote eddie murphy (quoting richard pryor): "have a coke and a smile and shut the fuck up."

    we all get the point that you don't like us, but unless you are going to actually do something about it, piss off.
  • Re:Conspiricy theory (Score:5, Interesting)

    by Entrope (68843) on Tuesday December 02, 2003 @09:22PM (#7614384) Homepage
    There's a legal premise that would cover that kind of behavior: estoppel. Certain behavior on your part can bar you from later claiming damage in a civil suit. For example, if I told you it was okay to eat my lunch, I could not later sue you for improper consumption of my sandwich.

    To the extent that an agent of The SCO Group helped develop and promote these technologies, The SCO Group is barred from making claims against others on that basis. There are lots of other defenses available, and other forms of estoppel than simple promissory estoppel (when you say something is acceptable, either explicitly or implicitly), but the above would apply to many defendants at once.
  • by IANAAC (692242) on Tuesday December 02, 2003 @09:23PM (#7614397)
    that in his yearly performance review, somewhere there is mention of contributions made to the kernel. Hell, I look back at some of my performance reviews and there is all sorts of "extra-curricular" stuff. If he had a half way decent boss, he would have included this stuff in his review to show initiative.
  • Re:Old news (Score:5, Interesting)

    by badasscat (563442) <basscadet75&yahoo,com> on Tuesday December 02, 2003 @09:24PM (#7614406)
    This has been known for quite a while, and to be honest it doesn't change that much. SCO will simply claim they had no idea where this code originated for at the time and so never sanctioned its official distribution. Their entire case is ridiculous, however it would be ridiculous even if they hadn't ever distributed linux or contributed to the kernel.

    I'll dig up the old standby: RTFA. Better yet, RTFPTLTFTA, otherwise known as "read the f'ing post that links to the f'ing article", as it pretty well spells out the difference between what Groklaw discovered and what's been "known for quite a while" - namely that SCO willfully and knowingly not only distributed but also contributed to specific features of the kernel that they specifically claimed never to have touched in their legal filings. As far as I know, this is completely new - and it's not just an allegation, it's proved in the linked article.

    In other words, they both modified and distributed the specific code they are claiming to now have been stolen from them and they did it under the GPL. This code did not get "misappropriated" from SCO's Unix into Linux, this code was put into Linux by SCO. This is huge.

    IANAL, but it would seem to me that this blows pretty much their entire case out of the water in one fell swoop. This renders any contractual issues (the basis of their case against IBM) moot and leaves them only one fallback - that the GPL is invalid and is trumped by their own copyright. Of course, this is something they've also been saying now for a few months (not since the beginning of their case, though - I think they probably realized their case against IBM was flimsy at best a while back), but to say this news is "old" or doesn't affect their legal standing seems to be a misunderstanding of the facts.

    If these are facts (and it seems Groklaw has done their homework to me), then SCO will get laughed out of court on day one. They did something, they lied about it, then they filed a lawsuit based on that lie... and now they've been caught.
  • by Anonymous Coward on Tuesday December 02, 2003 @09:27PM (#7614430)
    SCO has stated in the court documents that they never knowingly released the disputed code in their Linux disto. One of the vague areas that SCO claims to have rights (of some unspecified type) to is JFS. SCO's marketing department obviously was aware that IBM had contributed JFS, as they made a big deal about its inclusion in the kernel. Now *maybe* they didn't know what JFS code IBM contributed. But now that it's shown that a SCO programmer was working on the JFS code...

    Sure a rogue programmer could do something on his own, or not be aware of the legal nuances behind a piece of code. But if a programmer is working on it, and the marketing department knows and advertises it, it's really hard to say that management and legal didn't know about it.

    And yet that's what SCO is saying.
  • by k98sven (324383) on Tuesday December 02, 2003 @09:44PM (#7614548) Journal
    It seems statments from the man himsel are rare, but here [google.com] are several interesting comments from Hellwig himself on the case.. (there are several others in the same thread.)

    I feel sorry for the guy.. like so many other linux contributors caught up in this BS..

    "Most of that stuff is also bullshit. The folks in IBM LTC that work
    onm the kernel are mostly ex Sequent, not ex AIX folks. Now
    Sequent also had a SVR4 source license for Dynix/PTX, but in fact
    most of the scalability changes in SVR4.2 SM / ES actually come from
    Sequent! (Just take a look at the Authors of the VFS and VM design
    documents for SVR4.2 ES / MP).

    AIX OTOH was only developed with a SVR3 source license up to AIX4,
    and neverless the actual kernel does not resemble SVR3 or SVR4 at
    all, and although I'm not sure I think they even only used it for userland
    not the kernel.

    AIX5L (that project Monterey) had additional components licenses from
    SCO UnixWare like procfs or bfs - but IBM has very strict policies
    that the AIX5 and Linux groups basically don't communicate. For example
    I was involved in the JFS/Linux project which is very similar to the JFS2
    in AIX5L because they're both based on JFS in OS/2 - when there were
    bugs found in the old OS/2 codebase they weren't able to inform the
    AIX folks about it or send patches. Similarly I wasn't able to get
    information about the layout used for Posix ACL on AIX when I started to
    implement those for Linux."

  • by mauryisland (130029) on Tuesday December 02, 2003 @09:46PM (#7614559) Homepage
    That's a damn fine point. I know that she has been chased of a couple of servers due to the slashdotting. The bandwidth has to be costing someone some cash.

    I'll cough up some cash.
  • Re:Conspiricy theory (Score:3, Interesting)

    by Fnkmaster (89084) * on Tuesday December 02, 2003 @09:57PM (#7614625)
    Right (and IANAL). I believe in order to make a claim of estoppel, you need to show that you made a reasonable reliance on a promise or contract in entering into other contracts or arrangements, and that the first party reneging on their contract would cause harm or damage to you.


    So this should be an affirmative defense against violating their copyright on these portions of the code that they intentionally placed under the GPL, assuming that the corporate entity SCO knowingly did so, the agent had proper authority (it would be hard to argue he didn't, since they had some of these specific claims in their marketing literature and under United Linux joint press releases and so on). Nonetheless, as with any legal argument, there are no guarantees or magic bullets in court. You still have to go pitch that the GPL was a legimitate contract that was entered into by SCO and the recipients/licensees.


    Now it starts to seem more clear why SCO's attorneys want to attack the GPL itself. If the contract is illegitimate for other reasons, it seems like it could weaken an estoppel defense. Furthermore, to actually invoke promissory estoppel, I think you need to show that there is a lack of mutual assent as to the contract or the terms thereof. Since there's really no acknowledgement at all of what code may or may not have been "lifted" or where the infringement occurs, it's not yet possible to invoke estoppel until the discovery phase airs all this stuff out publically (which may never even happen).

  • Re:Internet archive (Score:5, Interesting)

    by Bagheera (71311) on Tuesday December 02, 2003 @10:00PM (#7614641) Homepage Journal
    Without rehashing all the corporate history of the SCO/Caldera legacy, I can only say "Are you sure?" I don't believe they can lay claim to the SCO name, IP, assets, etc., and still claim "But that's not really us." They may not be under the same control or operating under the same business model, but they are still SCO.

    It would be kind of like DaimlerChrysler claiming they never made the Plymouth Aries K. They certainly didn't in modern times, of course. But they acquired what used to be Chrysler Corp., who owned Plymouth, who made the K. The legacy came with the purchase. But, to add a nice SCO twist to this whimsical example, let's imagine DC is sueing all surviving Aries K owners for not paying a mendatory re-engine fee to become a Mercedes. "You didn't really buy that Plymouth from us, so you don't actually own it."

    Ok, so maybe it is a stupid analogy . . . Kinda like the whole SCO suit.

  • by Snorpus (566772) on Tuesday December 02, 2003 @10:08PM (#7614688)
    Yeah, me too.

    I can't imagine the hours that Pamela has put into this, and from all I've seen, she's not into the tech aspects at all, she was and is a paralegal.

    Now, how long before ThinkGeek comes out with "Go Pamela, you go Grrl" T-shirts.???

  • by Anonymous Coward on Tuesday December 02, 2003 @10:08PM (#7614689)
    Thanks for the prodding, she has done an awesome job. I just donated.
  • by Snorpus (566772) on Tuesday December 02, 2003 @10:19PM (#7614756)
    Chris H. wasn't the only SCO employee to make significant contributions to Linux. The "members only" area at Groklaw contains an "article in progress", which will demonstrate that another SCO employee made *significant* contributions to the effort of developing the SMP kernel.

    Without a kernel debugger, developing an SMP kernel becomes increasingly difficult. Register at Groklaw, or wait till the article is published for all the nitty-gritty details.

  • by Malcontent (40834) on Tuesday December 02, 2003 @10:33PM (#7614823)
    "This is another tinfoil hat theory that has no real proof to back it up."

    Well MS was the first company to pay SCO a ton of money to bankroll this thing. SUN was the second. These companies have repeatedly said awful things about linux and open source sometimes reffering to OSS developers as communists and cancer.

    It makes perfect sense to presume that MS is behind all this. It's just like them to something like this and they even hinted at doing something like this in one of the haloween documents.

    If it walks like a duck ... well you know the rest.
  • Re:Old news (Score:5, Interesting)

    by Almost-Retired (637760) on Tuesday December 02, 2003 @10:51PM (#7614936)
    Any judge who believes a company that suddenly claims ignorance after years of marketing Linux under the GPL, unlimited access to Linux source-code, and now proof of Linux code submissions, should have his financials investigated just to be sure his rulings don't return a profit.

    In this I wholeheartedly agree. Not to mention that if this goes to court, which it presumably eventually will, killing as much time as possible so the perps can liquidate as much of their holdings as they think the SEC will ignore.

    I hope the judge explains the penalties for perjury very carefully to the members of both legal teams while stareing straight at the SCO side of the table. Including Darl McBride if he has what it takes to show up without dipping his face in liquid nitrogen to keep it straight while he testifies.

    Bah, bunch of losers, and I'm damned if I can understand why the VC and market analyst people cannot see that. There must be some kind of a soundproof barrier between reality and the guys bidding this crap on the marketplace floor...

    But like P. T. Barnum said, there is one born every minute.

    Cheers, Gene
  • Re:Overall Picture (Score:2, Interesting)

    by hermancarl (611510) on Tuesday December 02, 2003 @11:23PM (#7615120)
    Due to the perversity of the Law of Unintended Consequences and as amply corrobated by Gnu/Linux adoption notices (e.g. Munich, Estremadura, Brazil,etc) Microsoft might just move to the category of game providers, spoil-sports, security incompetents and has-beens. We might even get a higher percentage of more knowledgeable users. Let us not only hope for the best but provide help and appreciation to people and entities like GrokLaw.
  • Re:SCO Supporters (Score:2, Interesting)

    by GreyPoopon (411036) <gpoopon&gmail,com> on Tuesday December 02, 2003 @11:49PM (#7615304)
    That will take a huge effort to correct the mistaken view of millions.

    Or a win by RedHat in their suit against SCO....

  • Re:Old news (Score:5, Interesting)

    by spiritraveller (641174) on Tuesday December 02, 2003 @11:59PM (#7615384)
    Well, if the programmer had the OK to release this from a higher-up, or if he did so with a reasonable understanding that it was OK, he was acting within the scope of authority.

    It could get more complicated than that. IIRC, SCO is claiming that its existing code was taken from another product and put into the Linux kernel. In that case, the "scope of authority" would have to be the authority to relicense that code under the GPL.

    But if the programmer only had authority to help write code for the Linux kernel... that doesn't necessarily include the authority to relicense SCO's other code.

    Anyway, I think SCO will lose because they released the code under the GPL. Copyright is strict liability. Even if they didn't know there own code was in it, publishing it under the GPL puts it out under the GPL.

    The fact that their own employee may have contributed some of this code directly only adds fuel to the fire that will take SCO down.

    BTW, I'm a law student too.

  • by Urug (459845) on Wednesday December 03, 2003 @12:12AM (#7615474)
    Maybe the whole suit isn't intended to win, but to kill off Linux by losing. Once execs hear "SCO lost their assets because one of their programmers contributed to Linux" they will do whatever they can to keep their own employees from contributing.
  • Re:what!!! (Score:4, Interesting)

    by Anonymous Coward on Wednesday December 03, 2003 @12:23AM (#7615557)
    >I hope the FBI, DoJ and Stock Exachange Commission get involved now as it looks like pumpndump, Fraud, extortion, and slander to me

    Like the FBI and DOJ and SEC are doing now??

    They're not doing ANYTHING about corporate crime, even AFTER they found conspiracy emails at Enron detailing how to bring plants on and off-line in such a fashion as to inflate prices (there never was a shortage).

    The ONLY reason you're hearing about new scandals on Wall Street is due to the New Jersey state investigations.. the "feds" have tried to ignore this for as long as they can. (Hell, the feds ignored the Phoenix Memo, so why should this surprise anyone. Fucking traitors).

  • by Xabraxas (654195) on Wednesday December 03, 2003 @01:50AM (#7616042)
    So? You would think that since Caldera itself sold GPL'ed stuff, that would stop SCO from suing, period. But it hasn't.

    They could simply say that Hellwig was doing this in his spare time, or that he and his boss were coding for Linux in their spare time. The problem here is, Hellwig is a peon. Just another worker bee. Doesn't matter what employees do, it's a question of whether the top executive know. Did they know what Hellwig was doing? Did they realize all the implications? Those are the real questions. And here we enter the realm of plausible deniability (lawyers can jump in to correct me anytime now). Did the executives know what one worker bee was doing? Hell no! Why do they care what one of their workers was doing in his free time?

    Wake me up when Hellwig's boss's boss's boss's boss knew about the problem, understood the implications, wrote a letter, and forwarded it to his boss, who then fired it up through management to the upper echelons.

    You're wrong actually. A CEO is entirely responsible even if he is not aware of what is happening. This is the first thing anyone learns in asset protection. You have to be aware because if you are not you will still be held liable. CEO's have been held liable in the past. This is not theory, it has happened.

  • Re:SCO Supporters (Score:3, Interesting)

    by BoneFlower (107640) <george.worrollNO@SPAMgmail.com> on Wednesday December 03, 2003 @02:03AM (#7616122) Journal
    Good point.

    For that matter, wouldnt' it be possible for IBM and SCO to both win their suits? IBM is smacking down on GPL violations and patent issues that don't require them to be innocent of contract violations to still win. SCO might win against IBM, but get crushed when IBM blows them out of the water on GPL and patent violations.

    This requires popcorn.
  • Re:Buying damage (Score:3, Interesting)

    by Simon Kongshoj (581494) <<kd.elbacno> <ta> <johsgnoks>> on Wednesday December 03, 2003 @10:52AM (#7618131) Homepage
    I don't doubt that MS did sabotage Windows 3.1x to quash competition from DR-DOS, but it makes little sense that Caldera is able to collect money on that. They hadn't been damaged financially from MS' actions, since they didn't own DR-DOS at that time. I hate the Evil Empire as much as the next guy, but this is one of the cases where the other side was even more loathsome.
  • Re:Mr Hellwig (Score:4, Interesting)

    by Vlad_the_Inhaler (32958) on Wednesday December 03, 2003 @12:20PM (#7618931) Homepage
    That indicates inadequate research by Groklaw, they present (by implication) his work on XFS as evidence that SCO are involved in this area. In reality, this is what he has been doing since he turned his back on that mob. Yes - I know they give his two SGI e-mail addresses but in reality, this has nothing to do with SCO at all.

    In other parts of the document, they take the presence of his contributions to mean that SCO was still involved recently. Wrong.

    The older stuff where he had an e-mail address belonging to SCO / Caldera is good, though.
  • Weasel words. (Score:3, Interesting)

    by Jaywalk (94910) on Wednesday December 03, 2003 @12:21PM (#7618943) Homepage
    Insofar as this interrogatory seeks information ... SCO has never authorized, approved or knowingly released any part of the subject code ...
    Whenever I see something like this I immediately look for the weasel words; stuff that seems to say something on the first read, but says much less when you look close, giving the speaker a plausible escape if cornered by facts.

    I see three examples of it here. The opening phrase allows the writer to say, "Oh, I didn't think you wanted that information." The phrase "authorized, approved or knowingly released" allows the writer to respond that any releases (note they never claim not to have released the code) were not sanctioned. And, of course the big one: "the subject code." Until SCO deigns to define what code they're talking about, they can continue to claim that any releases they authorized are not the code in question.

    In spite of this, they're in for a rough time if they need to argue in front of a judge that all of Caldera's pre-lawsuit Linux work was unintentional.

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