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The SCO Trial Through A New Lens 362

Posted by Zonk
from the thems-fightin-words dept.
An anonymous reader writes "On Yahoo! News they've got an article by Paul Murphy entitled, SCO, IBM and Outcomes-Based Circular Reasoning. Murphy claims to be 'a 20-year veteran of the I.T. consulting industry, specializing in Unix and Unix-related management issues'. He writes, 'By itself this was a straightforward contractual dispute that could, and should, have been settled quickly and easily.' And that, 'Although SCO hasn't formulated its complaint in this way, I believe it could meet these, or similar, requirements quite easily and therefore has every reason to be confident that the court will eventually enforce its stop-use order against IBM.' He also goes on to insult Linux advocates by stating that, 'the position being run up the flagpole by what Stalin famously called "useful idiots" is first that the lawsuit itself is no longer a real issue and secondly that its consequences have been generally positive.'"
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The SCO Trial Through A New Lens

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  • Bad argument (Score:5, Insightful)

    by Asgard (60200) * <jhmartin-s-5f7bbb@toger.us> on Friday April 29, 2005 @04:20PM (#12387342) Homepage
    The author uses some fallacies of his own. He shows how Linux said "you've got X,y,Z, and that is UNIX" and then goes on to say that the Linux community says "Linux is not UNIX". He's keying off two different usages of the term UNIX, which isn't a valid point.
    • Re:Bad argument (Score:5, Insightful)

      by rossifer (581396) * on Friday April 29, 2005 @04:25PM (#12387388) Journal
      Basically, Paul Murphy is wrong about what SCO is suing IBM for and wrong in his misinformed conclusion that SCO's case has any merit. The rest of his position piece follows logically from those two initial errors.

      As to why he's wrong: 1) Linux doesn't need knowledge from the AT&T SysV code base to become world-class. 2) IBM isn't trying to contribute knowledge or source from the AT&T SysV code base to Linux.

      As an aside, reverse engineering was never necessary to understand or duplicate a unix kernel and is therefore his mention of it is a complete red herring.

      Regards,
      Ross
      • Re:Bad argument (Score:5, Informative)

        by coolGuyZak (844482) on Friday April 29, 2005 @04:33PM (#12387471)

        If he had paid attention to any of the hooplah surrounding this case, he would have known 2 things:

        • The RCU code, which is one of SCOs contested points, was implemented in a clean-room manner. IBM's kernel hackers used the patent, not the code.
        • The only code that (we know) managed to "migrate" was already shown to have originated from BSD. And IBM has already stated that their coders never saw SysV code.
        • The only code that (we know) managed to "migrate" was already shown to have originated from BSD. And IBM has already stated that their coders never saw SysV code.

          about reasoning:
          We did not see the code, it was not ours to to start with, and it was allowed any way?

          • Re:Bad argument (Score:3, Interesting)

            We did not see the code, it was not ours to to start with, and it was allowed any way?

            Try this: We did not see the [SysV] code, it was not ours to to start with, and [the BSD code] was allowed.

            Now, how is this at all fallacious?

      • by ackthpt (218170) *
        Basically, Paul Murphy is wrong about what SCO is suing IBM for and wrong in his misinformed conclusion that SCO's case has any merit. The rest of his position piece follows logically from those two initial errors.

        Would you hire this consultant? it is better to keep one's mouth shut and be thought a fool than open one's mouth and remove all doubt.

      • Re:Bad argument (Score:5, Interesting)

        by wfberg (24378) on Friday April 29, 2005 @04:38PM (#12387535)

        As an aside, reverse engineering was never necessary to understand or duplicate a unix kernel and is therefore his mention of it is a complete red herring.


        Not only that, it proves a vital misunderstanding of what UNIX was and is; from the start it was an operating system that had its inner workings laid completely bare and published, at least to all who asked - and later it became a specification (POSIX and the OpenGroup's UNIX trademark).

        Why isn't SCOX taking on Microsoft? Windows NT 4.0 was POSIX compliant (at least in name), therefore it was cloned, and since it wasn't reverse-engineered (rather, tacked on to a VMS-kernel rip-off), Microsoft MUST have stolen SCOX' precious code, since every UNIX clone MUST be stolen, right? Right?
        • Didn't Microsoft buy a license from SCO? http://news.com.com/2100-1016-1007528.html [com.com]
          • Re:Bad argument (Score:5, Insightful)

            by wfberg (24378) on Friday April 29, 2005 @05:00PM (#12387752)
            Not for NT4.0. They did have a license from the original Santa-Cruz Operation for their own UNIX version called XENIX. The 2003 license was to fund SCOX' coffers to spread the FUD - they never licensed anything from SCOX prior to the lawsuit, so apparently there was no pressing need.

            Microsoft never purchased a license to do POSIX on NT4.0, just like they never paid for any of the BSD TCP/IP code they snagged (not that they needed, the former being a standard you don't need to license, the latter being BSD-licensed).

            But that's the whole point; linux isn't a UNIX clone, and neither is NT 4.0.

            Also note that buying licenses from SCOX doesn't stop them from sueing you, so they would sue Microsoft, if they weren't shills that Microsoft is bankrolling in the first place.
      • Re:Bad argument (Score:4, Interesting)

        by sphealey (2855) on Friday April 29, 2005 @04:52PM (#12387689)
        As an aside, reverse engineering was never necessary to understand or duplicate a unix kernel and is therefore his mention of it is a complete red herring.
        As a double aside, the Posix specification, which most 1990s-era Unix(tm) clones attempted to meet, was orginally a US Government standard and cannot be copyrighted.

        sPh

        • Re:Bad argument (Score:4, Insightful)

          by Cato (8296) on Friday April 29, 2005 @05:10PM (#12387849)
          POSIX is an IEEE standard, not a US Government standard, and no doubt is copyright protected like almost any other written work. However, this has no impact on products attempting to be POSIX compliant, which can do so without breaking the POSIX copyright (i.e. you can use a document without copying it).
          • Re:Bad argument (Score:4, Informative)

            by sphealey (2855) on Friday April 29, 2005 @05:23PM (#12387963)
            POSIX is an IEEE standard, not a US Government standard, and no doubt is copyright protected like almost any other written work.
            POSIX was originally a FIPS (Federal Information Processing Standard); I believe the Department of Defense orginated the request to whatever entity of the USG handled FIPS'.

            When that entity terminated, they transferred stewardship of POSIX to the IEEE. IEEE may have copyrighted subsequent versions (but see the Veeck case), but they can't retroactively copyright US Government documents.

            sPh

      • by MightyMartian (840721) on Friday April 29, 2005 @05:05PM (#12387798) Journal
        It's a little late for this kind of support for SCO. Calling Linux advocates "useful idiots" is kind of neat though. It makes this guy and all the other SCO supporters look like "useless idiots".

        What it needs now is:

        Kirk: "Save... it... Bones... Save SCO!"

        McCoy: "Damnit Jim, I'm a doctor, not a corporate shill."

        Spock: "It seems highly illogical to continuing supporting this case."

        Kirk: "There must... be... something we can... do... Scotty?"

        Scotty: "Aye Cap'n, we'll set the phasers t' maximum FUD."

        Sulu: "Haven't we tried that already..."

        Kirk: "Shut up Sulu... or... you'll be wearing a red suit! Uhura, patch in a subspace channel to Microsoft. We'll need to replace our dilithium crystals with something stronger... a good dose of under the table cash."

        Chekhov: "In Soviet Russia, Microsoft cashes you!"
    • Re:Bad argument (Score:2, Informative)

      by killawatt5k (846409)
      I thought GNU's Not Unix
    • eval Stalin==Hitler?

      Anyway, he ain't smokin' the same Unix I knew...

    • Re:Bad argument (Score:5, Interesting)

      by jd (1658) <imipak@yaCOLAhoo.com minus caffeine> on Friday April 29, 2005 @06:18PM (#12388392) Homepage Journal
      Some fallacies? You're being a little kind. I didn't see much in the entire article I could agree with.


      Let's start with his argument that Linux didn't spring from nothing, which is the same bit you talk about. Uhhh, nobody claimed it did and by claiming that it didn't, he is being disenginious as to what it is people are claiming. Contradict something often enough, and you'll convince people that the thing you're contradicting must exist for it to be contradicted in the first place.


      You're correct that there is a difference between UNIX the API (now defined by the POSIX and Unix98 standards), and UNIX the AT&T Operating System. APIs cannot be copyrighted, trademarked or patented, although they CAN be considered trade secrets. (This is why BSD can be clean of AT&T code, but yet implement a 100% AT&T-compatiable API, and why Microsoft won't publish a complete API for Windows.)


      An API is merely a specification. A description of what goes into routines and what comes out. Nothing more. It does not define HOW things are done, nor how things are organized. The former can be patented, the latter can be copyrighted. As neither apply in this case, it is a fallacy to argue that IP is material.


      When you look at his book, you begin to understand the guy better. He has zero understanding of the industry, but is excellent at producing technobabble. The Unix Guide to Defenestration [winface.com] is likely to be the No. #1 worst technical book of this decade.


      He brags about his 20 years as an IT consultant. Well, I like to brag too. I have 25 years, as consultant, programmer, administrator, network architect, researcher, .... In other words, I'm not impressed by his resume/CV. Beside, his photo makes him look a bit like Bill Gates, and how can anyone take someone like that seriously?

  • by bmw (115903) * on Friday April 29, 2005 @04:20PM (#12387343)
    OK, so this guy might have a valid point that SCO does not need to provide a line-by-line code comparison in order to prove their case but, if this is really the situation, how come they have failed so miserably to provide anything substantial in their favor? All of their claims seem so utterly ridiculous that I can't imagine them ever getting anywhere with this in court. The outcomes so far support this view. They seem to get bitch slapped out of court every time they actually bring something in front of a judge. Does anyone know of ANYTHING real that SCO has shown to prove their case? So far it just seems like they're spreading a bunch of BS and trying to scare people into buying licenses from them. Is it possible they still have an ace up their sleave?

    Something else I found interesting in the article...

    To some, the fact that SCO sees Linux as a Unix clone not only makes holding that view morally wrong but requires the immediate repudiation of nonbelievers and indeed the remarketing of Linux as "not Unix" -- a move that would replace the academic and open-source heritage powering its development with a lie and thus destroy it.
    • by squiggleslash (241428) on Friday April 29, 2005 @04:30PM (#12387440) Homepage Journal
      WRT the quoted part, I think he's keying off two different definitions of Unix that are used within the community. There's Unix the philosophy, and Unix the operating system written by Dennis Richie and Ken Thompson and others. Linux isn't the latter, but most would probably go along with the idea that it's an example of a kernel that would fit into the former in some way.

      I think SCO has generally been incompetent and this guy actually admits so much from the beginning. They tried to blow a "contract violation" up to being a major copyright dispute, arguing for billions of dollars in compensation when the contract dispute itself wouldn't have pulled anything like that. Part of this is possibly SCO realising it has to go for broke because it's up against a company it'll almost certainly lose against, so it needs to find ways of getting that company to settle.

      This has backfired. By making it look like they're accusing Linux of being a copy of Unix and containing multiple copyright violations, they've put IBM in a position where, given it's bet the house on GNU and Linux, it has to show it stands by what it's done and that the product it's selling is legal, and at the same time it has to prevent a precedent from being set that encourages everyone to find some minor problem they had with IBM and turn it into a lawsuit.

      As for this person's view on the whole thing, I suspect he's just as wrong as the more rabid SCO opponents he chastises. He claims to have no doubt that real Unix code can be found in Linux. I have no doubt this isn't true, because we've seen the best examples of what SCO could find, and we know they're not as represented. Moreover, we have no reason to think it would even be necessary to do this.

      But his point of view is interesting, and he gives good reasons to think.

      • by Samari711 (521187) on Friday April 29, 2005 @04:48PM (#12387653)
        not only that, but SCO dropped all the copyright stuff involving Linux in their last complaint. This guy got fooled by the SCOx shell game. the suit now is focused on how IBM continued to distribute AIX after SCOx revoked their lisence. IBM points to the part of the contract that says their lisence is "perpetual and unrevokable" and tell SCOx to go sit and spin. that's why IBM isn't settling because if you look past all the smoke and mirrors the actual contract stuff isn't as complicated as the case as a whole. The issue of IBM contributing code to Linux is secondary at this point, only because it is now part of one of the IBM defenses. SCOx claims they terminated teh contract because of the Linux contributions so IBM is claiming that even if they did have the right to terminate (which they don't) and they weren't barred from terminating it by Novell (which they are) they still have no cause

        this guy is really just spreading more SCOx FUD for them.

      • Is it just me, or did Murphy just kill his career?

        Unless it turns out he works for M$, of course.

        He claims to be a Unix guy, and Unix will very soon go away, replaced by Linux. Piss off the Linux activists (who, like most activists, tend to be quite rabid and have very long memories) and he will need to learn the phrase "Would you like fries with that?".

    • by Chris Burke (6130) on Friday April 29, 2005 @04:31PM (#12387452) Homepage
      To some, the fact that SCO sees Linux as a Unix clone not only makes holding that view morally wrong but requires the immediate repudiation

      Um, no, he's just wrong. Nobody cares if Linux is a "clone" of Unix. SCO sees Linux as a derivative work of Unix because it implements the same interfaces. This view has been repudiated not just by Linux advocates but also by the courts.

      And no, so far to my knowledge SCO has presented nothing resembling real evidence. That's the reason they have to keep asking for more discovery and versions of AIX to prove a convoluted "the code is derived from ours but doesn't look anything like it anymore" hypothesis. IBM seems to be taking great glee in pointing out SCO's lack of evidence in their filings.

      There was a time when it was reasonable to believe that SCO could have an actual case. That time is long past. Some people are just slow.

      • I have stdin and stdout! I am I a clone, now!
      • SCO sees Linux as a derivative work of Unix because it implements the same interfaces. How can you be Posix compliant and NOT implement the same interfaces? Does this mean that Windows is a Unix derivative, in as much as it supplies a "Posix compliant" interface?
        • How can you be Posix compliant and NOT implement the same interfaces?

          Exactly. Interfaces are considered non-copyrightable because they are required to be the same for compatability. I forget the precise legal wording, but interfaces are descriptive of what something is supposed to do, not expressive of how it works. Suffice to say this theory of SCO, despite playing this up in the press, only tried this once in court, and was smacked for it.
    • I wonder what the consequences would be if SCO actually won the case?
    • The missing point is. He claims that SCO has an arguement because someone at IBM had their eyes on Unix source and then worked on Linux source. SCO claims that IBM took works derived from Unix and put them in Linux. IBM says no, we took our own works and put them into both AIX and Linux.

      Mr Murphy is saying SCO has a claim based on eyes that tell, yet it's a claim SCO already abandon this claim. My guess is because IBM has already shown that the Unix team did notwork on/with the Linux team.

      My guess is
    • by zerocool^ (112121) on Friday April 29, 2005 @04:43PM (#12387587) Homepage Journal

      I know it's a hard concept for the non-techie to grasp, but it goes like this:

      UNIX is a trademarked word. UNIX is also a POSIX compliant operating system. In order to be a posix compliant operating system, an operating system must follow X, Y, and Z criteria. Linux follows X, Y, and Z criteria. Linux is a POSIX compliant operating system. The Linux code has been built from scratch with the aim of being POSIX compliant. Since the POSIX standard is based on the UNIX operating system, Linux is a relative of, but not a derivitive of, UNIX.

      That's not exactly it, but it's close enough, and simple enough, that a reporter can digest it.

      So, in some ways, you could say "Linux is a UNIX clone". In the same ways, you could say "Margarine is a Butter clone". Margarine was built from scratch, using entirely different ingrediants than butter, but with the aim of looking, smelling, and tasting like butter. But, margarine is not butter. However, I don't think anyone who went around calling margarine "Not Butter" is going to kill either industry.

      So, I'm not even sure I know what this guy is trying to say. It sounds like he thinks that we are mad that SCO says linux is a unix clone. I don't know a linux user that would be bothered by this statement. All we (as linux users) are saying is "Linux contains no stolen copyrighted code from Unix", and "Linux is not Unix". And maybe a "Linux is similar enough in function to Unix that they share a computing standard".

      ~Will
  • by n2rjt (88804)
    We've all heard this stuff before. Nothing to see here.
  • by MooseByte (751829) on Friday April 29, 2005 @04:23PM (#12387369)

    "Murphy claims to be 'a 20-year veteran of the I.T. consulting industry, specializing in Unix and Unix-related management issues'."

    Man, Darl's got more personalities than a Sweeps Week episode of "The Love Boat". [loveboatonline.com]

  • by Otter (3800) on Friday April 29, 2005 @04:27PM (#12387412) Journal
    In fact, the SCO suit has been a windfall for much of the Linux community. Slashdot and the other media have gotten story after story out of it, zealots have had the chance to fantasize themselves into a real world Star Wars where they're participating in an epic struggle between good and evil, Groklaw has gone from being an obscure site with a stupid name to a major Linux player with a stupid name and PJ and Bruce Perens may even have made a few bucks selling Linux insurance.

    Admittedly, the word "idiots" may not be totally inapplicable in some of those cases (and "useful" is also debatable) but the benefits were certainly there.

    • The epic struggle (Score:4, Interesting)

      by Infonaut (96956) <infonaut@gmail.com> on Friday April 29, 2005 @05:14PM (#12387888) Homepage Journal
      I think you're right on the money. This case has had provided benefits for the Linux community. But I'm not sure that OSS zealots are the only ones who have cast this struggle as an epic good vs. evil conflict.

      In Darl's infamous open letter [sco.com], he clearly defines the combatants:

      Despite the raw emotions, however, the issue is clear: do you support copyrights and ownership of intellectual property as envisioned by our elected officials in Congress and the European Union, or do you support "free" - as in free from ownership - intellectual property envisioned by the Free Software Foundation, Red Hat and others? There really is no middle ground. The future of the global economy hangs in the balance.

      This is not a disinterested "I'm just thinking about my shareholders" approach. After bringing in discussion about competing interpretations of the Constitution, Darl ends the monologue with this:

      We take these actions secure in the knowledge that our system of copyright laws is built on the foundation of the U.S. Constitution and that our rights will be protected under law. We do so knowing that those who believe "software should be free" cannot prevail against the U.S. Congress and voices of seven U.S. Supreme Court justices who believe that "the motive of profit is the engine that ensures the progress of science."

      The stated intent of SCO is to eliminate free software, because SCO views the mere existence of free software as incompatible with the U.S. Constitution. To me that's about as extreme a position as you can take, given that nowhere in the Constitution does it say that creators are not free to give away their works as they see fit.

    • by jamienk (62492) on Friday April 29, 2005 @05:38PM (#12388085)
      You wrote: "PJ ... may even have made a few bucks selling Linux insurance."

      But you must've missed it back in Nov when PJ resigned from Open Source Risk Management, which is what you're clearly referring to. You really should read her reasons [groklaw.net]. It will make you feel very very guilty. That is, if you were honestly misinformed, and not trying to spread nasty rumors.

      At any rate, in my mind, PJ's esaay in the link above was an amazingly inspirational act. You'll know what I mean when I say that she's a real role model, not deserving of this kind of smear.
  • Copyright and Patent law can only be enacted to promote science and the useful arts. And congress should promote science and the useful arts as cheaply as possible. Therefore Congress should be protecting Open Source, not feeding it to the Proprietary dogs. http://www.greglondon.com/bountyhunters/ [greglondon.com]
    • Two words: pipe dream.
    • The problem is that copyright and patent laws are hardly ever enacted to promote science and IMHO never to promote the arts.
      Thankfully OSS is now gaining many freinds in big business ,IBM is a major proponent and cases like the SCO one have served to do a few things .
      Promote OSS , test many of its foundations , make alot of lawyers rich, Make the SCO CEO and freinds rich ,,from bleeding the company dry.
      Most importantly though it has been a major case that by its very nature may convert a few people in the
      • IP law has become a corporate pork belly via political donations. But nothing changes the hard requirement that everything congress enacts must meet the Constitution's requirement that it promote (not inhibit) science. And Congress should be giving the job to the lowest bidder. In the case of software, open source is the lowest bidder. Therefore congress should be protecting open source because it promotes science faster and cheaper than any other solution.
  • From the article... (Score:5, Interesting)

    by Future Man 3000 (706329) on Friday April 29, 2005 @04:28PM (#12387416) Homepage
    The problem here is that the underlying assumptions about the lawsuit being both over and baseless are unfounded. The claim that a failure to find copied code today proves that previous processes were uncontaminated is fallacious. And the presumptive consequence about due diligence having been widely rendered is unsupported wishful thinking.

    The crux of the matter is this: IBM does not have to prove previous processes were uncontaminated to win the case -- rather, the burden is on SCO to prove that they were, and they don't appear to have come up with anything substantial. Perhaps this is a wake-up call to open source developers to vet submitted code carefully, but I don't believe the wishful thinking is coming from the Linux camp.

  • What an idiot. (Score:5, Insightful)

    by autopr0n (534291) on Friday April 29, 2005 @04:28PM (#12387421) Homepage Journal
    If the two teams have no contact except through the specifications documents, and neither team is contaminated by knowledge of the original engineering, then the new product is considered just that: a new product and not an illegal copy. It's possible, therefore, to recast SCO's basic claim as saying that IBM was contractually obligated to ensure that this type of "chinese wall" existed between those of its people who had some contact with the protected Unix knowledge or code and those of its people who contributed to the Linux development effort in the run-up to the 2.4 kernel release, but failed to do it. What a stupid argument. You don't need to do a "Chinese Wall" to be legal, you do it in order to prove that what you did was legal. The IBM ROM-BIOS was likely going to have a lot of code in common with the Phoenix bios that Compaq purchased. In other words, if the data is physically identically, then you're going to need some pretty strong proof that what you did didn't involve copying. On the other hand, Linux and SCO didn't contain any identical duplicate code. There were some pieces that were similar, IIRC, but those were lists of variables out of a book and had to do with meeting standards. And secondly, the "Chinese Wall" is all about preventing copyright infringement. This was a contract dispute, not a copyright case, because Linux wasn't a copy of SCO. offensive tshirts [sinfulshirts.com]
    • by autopr0n (534291)
      God I really fucked up that formatting.

      Accept my appologies.
    • For those of you who weren't potty-trained at the time, I'll point out that IBM published the source code for their BIOS in the famous "Purple Book:" the IBM PC Technical Reference Manual.

      So, among other things, it was harder for Phoenix to explain away any similarities in source code than if the only available BIOS code was binary.

    • Re:What an idiot. (Score:4, Interesting)

      by cpaluc (559921) on Friday April 29, 2005 @05:43PM (#12388135)
      Exactly. The article author has it assbackwards. First you show *actual* copied lines of code (to establish, prima facie, copyright infringement). Then, if the alleged infringer can show that it was a clean room development then they can legitimately argue that the code wasn't copied but was developed independently (which isn't copyright infringement even if the code is identical). If you don't have the clean room development then it's going to look a lot more like all you did was copy it.

      The point is that it's a *defence* which an alleged infringer can bring up *after* the complainant shows the copied code. You don't argue from lack of clean room to copyright infringement - it's absurd without first showing the copied code.

      As the parent post says; when your reimplementing something, chances are you will create identical code because there are only so many ways to implement various functions.
  • by Anthony (4077) * <adavid@adavid.com.au> on Friday April 29, 2005 @04:30PM (#12387433) Homepage Journal
    Here's an example:-

    The reason Tannenbaum apparently gave Linus a "C" for his kernel hack probably wouldn't have been that the code was bad or derivative, but that he disapproved of sacrificing design elegance for a performance benefit available only on the x86.

    Here is what Tannenbaum really said:-

    I still maintain the point that designing a monolithic kernel in 1991 is a fundamental error. Be thankful you are not my student. You would not get a high grade for such a design :-)

    Note the smiley.
    • So, the author doesn't even get that Linus wasn't a student of Tannenbaum. And we're supposed to believe his "keen insights" into the SCO v. IBM case? If they're anything like his keen knowledge of history, I'd take his view with enough salt to upset your doctor...
    • I still maintain the point that designing a monolithic kernel in 1991 is a fundamental error. Be thankful you are not my student. You would not get a high grade for such a design :-)

      Tannenbaum was merely ahead of his time. We're already almost in an age where the operating system overhead is pretty minimal, and the latest advances in microkernels put message passing almost on a par with direct context switching anyway.

      What this means is that, at some point in the not too distant future, the monolithic k
  • by eric76 (679787) on Friday April 29, 2005 @04:31PM (#12387450)
    As a result, SCO issued a stop-use order with the 100-day hiatus required under the contract, but IBM neither changed its behavior nor embarked on good-faith negotiations to settle the issue. SCO therefore asked the court to enforce its rights under the contract.

    I find it hard that you have to negotiate to settle an issue when you are completely in the clear by the terms of the contract.

    SCO's interpretation of the contract is so overbroad that it is absurd. The definitions they are using for the terms are completely different from the normal usage of the same terms.

    For example, a derivative work incorporates the original work or elements of the original work. But SCO takes the view, with nothing in the contract to support them, that developing your own code to run under their UNIX makes it a derivative work even though it has never contained any element of the original work.

    • by schon (31600) on Friday April 29, 2005 @04:50PM (#12387666)
      SCO issued a stop-use order with the 100-day hiatus required under the contract, but IBM neither changed its behavior nor embarked on good-faith negotiations to settle the issue.

      And what really happend:

      SCO issued a stop-use order with the 100-day hiatus, but failed to include in that order an explanation of what IBM did wrong, or how they could correct it as required under the contract, and so therefore IBM neither changed its behavior nor embarked on good-faith negotiations to settle the issue, because SCO never gave them that option.
  • Then how come they are getting their asses handed to them in court?

    Surely SCO has enough lawyers, and I bet all of them know more about IP law than Paul "Who the fuck am I, again?" Murphy.

  • by canfirman (697952) <pdavi25@@@yahoo...ca> on Friday April 29, 2005 @04:32PM (#12387463)
    It's interesting the author states, "By itself this was a straightforward contractual dispute that could, and should, have been settled quickly and easily." If it was so straightforward and should have "been settled quickly and easily", then the judge should have seen that too. So, the fact that the case is still going on shows that it's definitely not a "straightforward" case. (However, as we all know with SCO, that it's never straightforward, or quick and easy.)

    If you read the beginning of the article, it sounds like the author assumes that SCO is in the right, but that has yet to be proven. I thought that's what courts were for.

  • And I haven't seen this stressed enough. Not only is there at best a disputed issue over if "new" SCO (aka Caldera) even has the rights to sue over this due to the wording of the Novell agreement selling "old" SCO the right to license the code (note the code itself was not SOLD in the first place by Novell), there isn't anything showing exactly what "old" SCO actually sold to "new" SCO, as apparently that paperwork was lost. To claim what "new" SCO claims, they have to have a clear authority over the code
  • So if the people looking at the positive side for Linux are Stalin's useful idiots. Then in his story, it seem he has poisitioned himself as Stalin?

    I can't say I agree with him. This is a bit more complicated on the contract side of things. I think that this is more a projection of how he would like things to be.

    I know more than a few Unix admins from the 80's that wish for the old days. Most like the comfort of a large company to provide software. Software like food is better when someone makes i
  • by Anonymous Coward
    I RTFA maybe too quickly, but one point. It is in dispute if SCO even has IP rights to Unix code. I didn't see any mention of Novell's case against SCO. So his is drawing his own conculusions?
  • by StevenMaurer (115071) on Friday April 29, 2005 @04:35PM (#12387498) Homepage
    Even assuming that SCO actually owned the copyrights to Unix (which they don't), that the "similar code" wasn't already in the public domain (which it probably was), and IBM used this kind of methodology to create their own code (which they probably didn't), SCO has no case. There is no concept in Copyright that allows holders to make broad claims over concepts and ideas. That's what Patents are for. The so-called "ladder" theory is barely a crude legal supposition on SCO's part - a plea for the worst sort of Republican judicial activism in the Utah courts.

    Here is the way established law actually works. I can buy a copyrighted book, change every sentence and chapter in it until there is nothing left of the original work, and then release it as my own. By that point, it is my own. You cannot copyright people's inspiration. It is silly to try.
    • The parent post captures precisely the difference between copyright and patent. SCO is not making a patent claim but a copyright claim. This is the same sort of claim that IBM lost with their PC back in 1982 when Phoenix reverse-engineered the BIOS and sold it to Compaq to allow them to sell an IBM clone. IBM did not hold a patent over the ideas in the BIOS but a copyright and Phoenix developed an alternative BIOS (a variation of which is still used today) that did the same thing but didn't use any IBM
  • by bigtallmofo (695287) on Friday April 29, 2005 @04:36PM (#12387508)
    Software reverse engineering requires two teams

    Says you. I can see how an entity might be on firmer legal ground if they adopt the procedure you've outlined. However, to say that legal reverse engineering "requires" two teams is a total fabrication.

    What a troll article.
  • by LWATCDR (28044) on Friday April 29, 2005 @04:37PM (#12387517) Homepage Journal
    I mean really this is a bad opinion piece by someone that has no legal training about a law suite. If you print any story about SCO will it end up on Slashdot? Great way to drive up your ad income.
    Next week at Playboy on line. The women of SCO.

    The suite has been setup by SCO as Linux is evil and belongs to us and we will sue all the users that do no pay us.
    There are no Linux advocates involved with the court case it is Freaking IBM that is involved.
    Here is what happened.
    Someone convinced SCO that Linux could only have gotten so good by stealing SCO's code. SCO was going down fast and grabbed that straw with the hopes that IBM would just buy them to shut them up.
    IBM knew that SCO did not have a case so it decided to make an example of them.
    SCO trying to get more people to pony up attacked any deep pockets that it could. Autozone and other show the court that SCO had nothing so that backfired.
    Frankly at this point I really want to believe that McBride really did believe that IBM had stolen the code. I would like to think that he has just backed himself into a corner and can not see anyway out. The only other answer is he is delusional.
  • by Anonymous Coward on Friday April 29, 2005 @04:37PM (#12387518)
    It is more commonly attributed to Lenin, but it seems that he didn't really say it either:

    "Lenin, it is said, once described left-liberals and social democrats as 'useful idiots,' and for years anti-communists have used the phrase to describe Soviet sympathizers in the West, sometimes suggesting that Lenin himself talked about 'useful idiots in the West.' But the expression does not appear in Lenin's writing. We get queries on 'useful idiots of the West' all the time, declared Grant Harris, senior reference librarian at the Library of Congress, in the spring of 1987. We have not been able to identify this phrase among his published works."

    The source of this passage is a work entitled "They Never Said It: a Book of Fake Quotes, Misquotes, and Misleading Attributions", authored by Paul F. Boller Jr. and John George, published by Oxford University Press in 1989. The text goes on to explain that the phrase apparently first appeared in a John Birch Society pamphlet labeling President Ronald Reagan a "useful idiot" because of some agreement he had negotiated with the Soviet Union.

    btw, most of Lenin's writings are available for searching at http://www.marxists.org/archive/lenin/ [marxists.org]
  • Questionable premise (Score:4, Informative)

    by lildogie (54998) on Friday April 29, 2005 @04:39PM (#12387539)
    Quoth the article:
    "According to SCO, it is the legal successor to AT&T..."

    That is a fact in dispute. It seems the rest of the article is founded on this premise.

    If SCO does not "own" Unix, then the arguments in the article fall flat.
  • Cracked lens more like. Seriously, who's paying this guy to write this? He's just rehashing old fud giving it a new twist.
  • What doesn't kill you makes you stronger.

    It's not "circular" reasoning. I could have told you that SCO losing would make the whole thing positive for Linux. But, I was too busy being enraged at the fact that, with the US legal system, it was possible (still is possible) for companies like SCO to win.
  • Perhaps it's time... (Score:3, Interesting)

    by 0x461FAB0BD7D2 (812236) on Friday April 29, 2005 @04:41PM (#12387565) Journal
    I remember SGI did its own comparison [newsforge.com] of SystemV and Linux source code, and found only trivial similarities.

    Does anyone know of a similar comparison by IBM comparing AIX and Linux?

    If they haven't done one, perhaps it's time for one. While they couldn't publish examples of the code, but they could do a similar comparison and post the results only.
  • by TheNarrator (200498) on Friday April 29, 2005 @04:42PM (#12387576)
    what Stalin famously called "useful idiots"

    It was Lenin who said that and he actually didn't say it. It was invented by the John Birch Society to describe Ronald Regan.

    Source [wolfgangvonskeptik.mu.nu]

    There is much more evidence that Lenin referred to them instead as "Deaf Mutes" which is much less of a marketable term for the anti-communists to use in describing how communists view their dupes.

    Article that Makes Reference to the Deaf Mutes Quote [tripod.com]. This quote was also referenced by Theodore Radzinsky in his Stalin Biography as being authentic.

    "The so-called cultural element of Western Eurpoe and America are incapable of comprehening the present state of affairs and the actual balance of forces; these elements must be regarded as deaf-mutes and treated accordingly....

    (The Lufkin News, King Featurers Syndicate, Inc., 31 July 1962, p. 4, as quoted by the Freeman Report, 30 Sept. 1973, p. 8).

  • by wan-fu (746576) on Friday April 29, 2005 @04:43PM (#12387584)
    He's getting destroyed by readers on his very own forum. [winface.com]. Also, from his website, are a bunch of his other writings on the SCO case [winface.com].
  • by overshoot (39700) on Friday April 29, 2005 @04:44PM (#12387589)
    how IBM should have entered into "good-faith negotiations" with SCOX.

    Me, I've read the correspondence filed with the Court on the subject. IBM asked what they were supposed to have done wrong so that they could remedy the problem, SCOX told them they'd see them in court.

    Yeah, that's bad faith on IBM's part all right. Here we are more than two years later and IBM is still trying to get the Court to make SCOX tell them what IBM is supposed to have done wrong, so far with no luck.

  • SCOX is sueing IBM for violating their copyright.

    Novell have a contract with SCOX saying they never bought that copyright, and that even if they did, Novell can prohibit them from sueing people.

    Novell told SCOX to quit, SCOX didn't.

    Looks pretty clear-cut to me.
  • by LittleLebowskiUrbanA (619114) on Friday April 29, 2005 @04:47PM (#12387631) Homepage Journal
    This could be of interest to PJ at Groklaw.

    Re: SCO V. IBM -Thursday April 28/05
    Author: Robert Weiler (204.247.40.---)
    Date: 04-29-05 16:45

    Dear Paul,

    I have over 25 years in the software business, most of it on Unix systems and I have worked for two SVR4 licensees. It was very clear at both of these companies that code that we created belonged to us and that AT&T did not control it in any way. The only copright notices that we placed in our code was our own, not AT&T's. This is explicit in IBM's agreement, and it was made explicit in the $echo newsletter. The notion that SCO controls the subsequent work product of everybody that has ever seen Unix source is complete nonsense and would in fact be illegal restraint of trade in most states. Your notion seems to be even more expansive than SCO's; as I read your argument, any code that ever ran on AIX and was subsequently ported to Linux would belong to AT&T. This idea is so silly it doesn't even merit a response, so I'm asuming that I've misinterpreted what you wrote.

    SCO's notion of what constitutes a derivative work is not only completely at odds with the SOFT aggreements, it is at odds with copyright law. If the only thing that SCO has is a few suggestive emails and the 'mental tainiting' argument that you espouse, then IBM will win on summary judgement as a matter of law. And according to Judge Kimall, that is apparently all they have.

    Finally I should note that even if SCO were to prevail on their contract dispute with IBM, it means absolutely nothing to Linux. At worse, the offending code is removed, any liability is IBM's.

    I would greatly appreciate it if you would inform yourself on the issues of this case and write a followup article. Every CIO should be evaluating a migration from Windows and proprietary Unix to Linux as the cost savings are dramatic. It would be very, very unfortunate if any CIO delayed a transition to Linux based on misinformation about SCO's legal propects which are virtually nonexistant.
  • As the Simpsons so nicely put it:
    Hutz: Mr. Burns, we've got witnesses, precedent and a paper trail a mile long.
    Burns: Yes. But I have ten high-priced lawyers.
    Hutz: Ya, ya, yaaa!!! [runs out of office]
    Homer: He left his briefcase. Hey, it's full of shredded newspaper.
  • Over at LinuxWorld (the infamous sys-con.com) is a history of Mr. Graham's writings on the SCO Monkey Trial, beginning with his assessment [sys-con.com] that a SCO win is a slam dunk -- in May 2003. His conclusion in May 2003 was:
    I'm sure IBM will either settle, enter into serious negotiations and thus get SCO to lift the deadline, ask a court for a temporary injunction, or come up with a better overall answer.
    He was right about one thing, IBM did "come up with a better answer" -- they stood their ground and fought.

    I'm not calling Mr. Graham a troll or shill. Just wrong. Consistently wrong on this issue.

  • by Lumpy (12016) on Friday April 29, 2005 @04:56PM (#12387717) Homepage
    is a more appropriate title to the tripe the FA has in it.

    The man makes wild assumptions based on loose guesses he himself made, where-as 20 minutes with google would have produced facts to write an article that would have had some merit. Most of what he rants on about are flat-out wrong. He knows nothing about linux and I strongly suspect his claims about Unix experience.

    I am very interested in how supposedly linux supporters are suddenly claiming that Linux is not unix as he mentions in the article? From what I remember this has been the norm cince 1994 when I started dabbling in it and I bet that if someone looked they would find even earlier evidence of that fact.

    that article tarnishes not only the writers reputation but the publication that carried it.

  • He wrote an published his own book ("available only in PDF"). Tell me he didn't steal his cover layout from O'Reilly: The Unix Guide to Defenestration [winface.com]. Oh and by the way, I in no way encourage anyone to actually purchase it for any purpose other than defenestrating the book.
  • IBM DID copy thousands of lines into linux. Look!

    {
    }

    There are THOUSANDS of these in the Linux code!
  • Since MOG, Didiot, and Pretenderle have shot their collective bolt; it sounds like SCO and MS need a new shill.
  • by MattW (97290) <matt@ender.com> on Friday April 29, 2005 @05:22PM (#12387953) Homepage
    The author ignores a number of inconvenient facts.

    First, and foremost, SCO's bluster about Linux and copyright infringement predates their lawsuit against IBM. Whether or not IBM violated its contract with SCO is not the community's beef with SCO; the community is up in arms because SCO had the gall to suggest that Linux was a big ripoff of SCO's proprietary unix code and began to do things like sell linux licenses, as if it had some right to collect that money. So this is not merely a "simple contract dispute".

    Moreover, he is skewing the origin of Linux. Regardless of the author's qualifications, the two people most able to state whether or not Linux was or was not dervied from Minix or contained Minix code would certainly be Linus Torvalds and Andrew Tannenbaum. Tannenbaum said, "I told [Ken Brown, President of the Alexis de Tocqueville Institution] that MINIX had clearly had a huge influence on Linux in many ways, from the layout of the file system to the names in the source tree, but I didn't think Linus had used any of my code." [cs.vu.nl] Eric Raymond may have been citing this to make a point, but when Linus and Andrew both are clear on the point that Linux did not use Minix code, then I believe take their assertions on that point.

    The assertions about due diligence are equally off-base, as the Open Source Risk Management company is offering insurance against claims of copyright infringement. It is basically absurd to suggest they could get millions and millions of dollars of insurance underwritten without due diligence against the product they were insuring - which, in this case, is the code that comprises Linux.

    Finally, the author completely ignores how unclean SCO is with its own source management. They distributed a version of Linux for quite some time, and continued to distribute it even after they had made public claims. If they had discovered claims but continued to distribute the code, one could quite easily argue (and surely IBM will) that they have themselves have placed whatever code is in question under the GPL.

    This only touches on the number of issues he manages to gloss over in a few brief pages. By no means do I think that David Boies would have been involved on contingency unless he felt he had some chance of winning, but the fact is, SCO is bleeding money like tomorrow's bacon, and it is hard to imagine how anyone would care to purchase a real product from SCO in the future, given their propensity to do things like, say, sue their customers [usatoday.com].

    Certainly, at this point, Canopy can only be hoping that the payoff from the lawsuit against IBM and other actions will be sufficient to justify flushing the company. But even *if* SCO managed to prove IBM contributed tainted code, there's a mountain of counterclaims to deal with and SCO has to try to establish damages, and it's hard to see how SCO can justify damages that are a significant multiple of its own market capitalization at the time the offense occurred. It would be like Harold Welte suing Asus for $2B [gpl-violations.org] or such. It may sound like a nice round number, and SCO can say that it wants "infinity times infinity" for damages, but that doesn't give it a snowball's chance in hell of actually seeing such damages.
  • by CodeBuster (516420) on Friday April 29, 2005 @05:39PM (#12388092)
    The entire article looks suspiciously like what the public relations firms call a "press hit", meaning that the public relations firm feed factual background information to one of their reporter contacts, which may not be entirely false but almost certainly represents a selected truth (e.g., figures don't lie, but liars sure do figure), who then cuts and pastes the "facts" into an article. The end result is that one news bureau after another reprints the "facts" until the real source of the information in the article, (.i.e., the public relations firm), becomes entirely obscured. The vast majority of the public has no idea that the majority of the articles that they read today, especially trade-magazine articles and technology pieces where reporters have to rely more on outside experts, are "press hits" prepared by public relations firms for their clients. If I were SCO then I would certainly be engaging the services of a PR firm in light of the acrimonious nature of the ongoing litigation. A good PR firm can charge upwards of $20,000 per month for their services, but the really good ones get results and marketers, advertisers, and lawyers everywhere know that.
  • If SCO could... (Score:3, Interesting)

    by dionysian.mind (862531) <elvis DOT nuno AT gmail DOT com> on Friday April 29, 2005 @05:43PM (#12388137)
    There seems to be a lot of talk in Paul Murphy's article about "... if SCO could..." Right. That's about what all legal cases of this nature come down to -- if they *could* show that IBM stole code, or had direct access to AT&T UNIX (etc.) and implemented it in linux. No argument here -- that's what the whole case is about. But they can't.

    But here is what it actually comes down to: what SCO has done, and is doing -- indeed the only thing they *can* do...

    SCO has proved through this absurd circus-show that they are motivated by profit margins, political assassination of FOSS, and spreading FUD about the whole Linux development community.

    And what is this whole talk about when Linux "... became a new kernel by March of 1991 and a whole new Unix clone when file system processing was internalized in June." That is the pivot point that makes Linux a "UNIX clone?"

    Linux is anything but a "UNIX clone." We could point to a lot of things that linux is *kind of like*. Linux is kind of like BSD, or Minix, or even some parts are like UNIX -- but it is anything but a "UNIX clone" -- linux is a GNU clone, hence whole NotUnix thing (get the acronym?).

    The overall article speaks of somebody who has a command over *NIX rhetoric, but very little command over what makes a *NIX and how they work. He shows a little knowledge of AT&T UNIX history, but very little knowledge of a *NIX varient in terms of technology and development.

    It is ironic that Paul Murphy references the 1982 IBM legal case. The conclusion that he positing -- potential SCO victory over IBM -- would be the tipping point that would thrust us away from FOSS progress and back into the land of proprietary obfuscation -- the exact opposite from what IBM's defeat in 1982 meant to the tech world. Instead of gaining freedom from proprietary operating systems we would be gaining again the time when one (or at least very few) companies could hold total control over where and what computers do and making us pay for it at the same time. No offense Mr. Murphy, but after being a "20-year veteran of the I.T. consulting industry..." you would think you would have gained one thing: a clue.

  • Here's the deal: (Score:3, Informative)

    by WhiteWolf666 (145211) <sherwin@[ ]ran.us ['ami' in gap]> on Friday April 29, 2005 @05:55PM (#12388249) Homepage Journal
    The article gives SCO too much credit.

    IBM claims the following:
    1. SCO is not the successor in interest of AT&T.
    2. IBM did not contribute copyrighted AT&T code to Linux.
    3. IBM did not contribute AT&T 'derived' code to Linux, whatever derived means.
    4. Had IBM contributed derived code to linux, it would be legal.
    5. Had IBM contributed AT&T's code to Linux, it would be legal.

    So far, SCO has not succesfully beaten any of those claims. In fact, SCO has had a great deal of difficulty producing any evidence whatsoever regarding these claims. IBM only had to win one of those claims in order to get the case dismissed.
  • by tsotha (720379) on Friday April 29, 2005 @06:01PM (#12388286)
    Am I the only one who read

    Murphy claims to be 'a 20-year veteran of the I.T. consulting industry, specializing in Unix and Unix-related management issues'.

    and translated it

    Murphy claims to be 'a 20-year veteran of the I.T. consulting industry', so it's been 20 years since he's done anything but produce fluffy white papers for non-technical management.

Swap read error. You lose your mind.

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