SCO Madness Reigns Supreme

Sri Lumpa writes "It will come as little surprise for those of you that followed the SCO stories and read their latest filing that an IP attorney, Douglas Steele, Esq., thinks that 'SCO is trying to get the judge to declare all works released under the GPL for the last 3 years put into the public domain.' Meanwhile, more lawyers give their opinions, with Eben Moglen saying 'It's just rubbish,' while another says of SCO's defense: 'From the outside, it appears so bizarre and so ridiculous that I fear their argument is being misstated,' while Blake Stowell of SCO believes Congress has drawn a boundary between proprietary and open source and still insists that IBM should indemnify its Linux users while refusing to indemnify SCO's Samba users against a potential MS lawsuit. More links to related news stories continue to appear in the comment section of the first link, thanks to the Groklaw readers." Read on for another handful of updates in SCO vs. The World.

Roblimo knows good, honest Constitutional argumentation when he sees it, and over on NewsForge amplifies SCO's claims that the GPL is unconstitutional.

Dopey Panda writes "Looks like SCO has become just a bit worried about their liabilities for distributing the Linux kernel. Starting November 1 you will have to be a registered SCO customer to be able to access their FTP site. So that leaves just a couple days for you to download your own genuine SCO-approved GPL code!"

And perhaps today's most interesting SCO submission: 1HandClapping writes "In alwayson-network.com, Mark F. Radcliffe (HIAL) writes about a little-reported aspect of the SCO vs IBM case: 'Novell, as part of its sale of the UNIX licenses to SCO, retained the right to require SCO to "amend, supplement, modify or waive any right" under the license agreements (and if SCO did not comply, Novell could exercise those rights itself on SCO's behalf). At IBM's request, Novell employed this right and demanded that SCO waive IBM's purported violations. When SCO did not do so, Novell exercised its right to waive the violations on SCO's behalf. Basically, this defense destroys the core of the SCO case: IBM's violation of its UNIX license with SCO.'"

Noorda's revenge?

One crazy thought that keeps popping into my mind is that the entire SCO mess might be Ray Noorda's final revenge on Microsoft.

Consider that Noorda has been around the tech industry a LONG time, that he has been involved in a lot of companys, he presumably knows who the A-team and B-team players are, and that he appears to dislike Microsoft a little bit.

So - he takes one of the organizations under his control. He fills it with C-team players. He fills (or prompts someone to fill) the C-team with truthful but misleading information about SCO's purported "intellectual property". He advises them to go after the biggest target first.

Then he sits back and watches while SCO leads a hopeless charge against IBM. This has the dual effect of (a) laying down case law _supporting_ the GPL that Microsoft will have a very hard time overturning (b) smoking out various linkages and anti-competitive behaviour on Microsoft's part.

Crazy, but I have a hard time seeing why else SCO is being so incompetent.

Hanlon's Razor

"Never attribute to malice that which can be sufficiently explained by stupidity."

Re:Hanlon's Razor

Sure, we all love Hanlon, but his razor is not all-encompassing. I don't believe that explaining SCO's actions as "stupidity" is *sufficient* at all. This isn't a personal attitude, it's just that with all the complications, details and seemingly malpracticed legal maneuvers that there is just too much going on for stupid people to be responsible, and furthermore that there are smart people doing stupid things. Don't think for a minute that they don't have a plan, and that SCO execs aren't just flying off the handle randomly because their legal staff thinks that whatever they want to do is just fine. While we may not be able to accurately speculate what that plan is, it doesn't mean that there isn't one that we'll find out about later.

This one's Malice *and* Stupidity

Look, just because Stupidity is clearly in effect here doesn't mean there isn't also Malice....

SCO and Microsoft aren't the first people to dislike the GNU Public Virus. It's a licensing approach that's very aggressively designed to promote certain ideas about how Free Software should work, and there are alternative viewpoints even among people who *do* like free software. However, SCO does appear to be the first group that's sufficiently well-funded, aggressive, and boneheaded to attack it with a large crash-and-burn lawsuit.

They do have a partial case - the Unix source license terms were always unclear and dodgy in terms of exactly how closely derived something from Unix source had to be covered, and it's possible that IBM or Sequent or SGI slipped close enough to the edge to sue, but the BSD lawsuits pretty much established that reverse-engineered work-almost-alikes are ok, at least with sufficiently careful clean-room techniques, and IBM has more experienced software-issue lawyers than anybody except possibly Microsoft or remotely possibly the US Government (who also suffer from combinations of malice and incompetence.) However, SCO's distribution of Linux 2.4.x weakens their position substantially.

Me? I've probably still got my Usenix "Mentally Contaminated" pin from a few years ago, though Unix source has evolved a bit from the System V Release 2.0p days when I last looked at licensed kernel source, or from the early 90s when I was using licensed user-space code, and it's amazing how much bit-rot can set in...

Re:This one's Malice *and* Stupidity

GNU Public Virus. It's a licensing approach that's very aggressively designed to promote certain ideas about how Free Software should work,

You've got a good post here, but Id like to pick at this statement. Nobody is forcing ANYONE to use GPL Software, or GPL code in their projects. If you don't like the license you are free to write the code yourself. End of story. People who whine about the GPL piss me off, they want *free code* and no responsibility. The GPL is Candy and the GPL says "You can have any of our candy, but you have to give our candy and your candy to anyone that asks." If you dont like that, don't take their candy and you are no worse off. none at all.

Re:Noorda's revenge?

Well if you are in to conspiracy theories, it could also be said that maybe Microsoft is pulling the strings and funneling money into SCO to try to undermine the Linux movement. That makes more sense then Noorda starting this whole mess.

After losing the first anti-trust trial (not the one most recently concluded), Bill Gates vowed never to be out-maneuvered in Washington again. And he appears to have purchased the best and the brightest in political, lobbying, and legal advice. If he wants to go after the GPL he will do so in a much more controlled and precise manner. In fact I think Microsoft is lobbying right now to have the GPL outlawed, but you aren't hearing about it in Infoworld. No, this doesn't smell like the new, politically aware Microsoft. Not that they aren't enjoying the pre-game anyway.

Why, if he wanted to get back at Microsoft, would he do something that directs most of the damage to IBM and Linux? Microsoft is loving every minute of this Linux FUD. Even if he advised that SCO go after IBM, if Darl McBride was the least bit sane he would have known he could never win.

In the short term, Linux is being "harmed" in some eyes. But if the outcome is solid case law that backs the GPL and once-and-forall resolves the SysV ownership issue, then the long term benefits to Linux will be immense. And IBM really isn't being hurt by this. Their lawyers get paid whether they work today or not, and IBM can make money selling Linux, AIX, Unixware, Multics, Windows, whatever. They are pushing Linux right now because it is hot and it keeps Microsoft under control, but they don't have any intrinsic stake in anything nowadays except the S/370 systems.

sPh

Selling Multics?

IBM can make money selling Linux, AIX, Unixware, Multics, Windows, whatever.

While most of your post is accurate and informative, I have to dispute one point: nobody could make money selling Multics, or they'd still be selling it today. GE tried and failed, Honeywell tried and failed, and no one else was stupid enough to buy it after that. (I am a former Multician.) Multics was very good at a bunch of things, but it was never designed to be ported to different hardware, and it just cost too damn much to run and maintain.

Re:Noorda's revenge?

They are doing nothing but trying to drag this out for as long as possible. Now ask yourself, who is going to gain from all this extended FUD?

With Longhorn still two years away, it might be best to drag this out as long as they can. You wouldn't want people changing over to Linux while you try to figure out your new OS, right?

(e)stop the madness

By now, hasn't SCO contradicted themselves so many times on so many issues they're estoppeled [legal-definitions.com] from any course of action whatsoever?

Maybe just a non-lawyer's wishful thinking...

Re:(e)stop the madness

By now, hasn't SCO contradicted themselves so many times on so many issues they're estoppeled from any course of action whatsoever?

In a way, i kinda hope not. I would really like to see this go to court. Not only for the satisfaction of seeing SCO get smashed by an elephant, but also to see how the GPL will shake out in the courts. It's only a matter of time before the GPL gets called into court, and down the road there may be other opportunities, but it would really be advantageous to those supporting the GPL (of whom are habitually broke) to have this happen now, with the muscle (and finances) of IBM in our court.

At any other time, the "attrition strategy" of prolonging the court process until the other side is bankrupted might get turned against us.

We all know that even if the GPL is completely rock solid, it can still lose in court depending upon its presentation. And if it *does* lose in court, that could potentially start a firestorm of FUD and abandonment, if not a poor perception of Open Source products (even BSD-license ones.. consider how a PHB thinks). Next thing you know, we'll all be replacing linux/bsd servers with Windows Server 2003 or SUNW at our workplace.

I would hate to see the party crashed just as it was getting started, you know?

Re:(e)stop the madness

You're thinking of equitable estoppel. There is also collateral and judicial estoppel. Collateral estoppel means that once a court has come to a decision, that decision affects other similarly related facts. Judicial estoppel prevents a party from asserting one thing in one instance and then the opposite in another instance.

Re:(e)stop the madness

It's important to note that estoppel is an equitable doctrine, meaning it's a subset of legal arguments traditionally pled where someone's clear legal rights will lead to an egregious injustice.

Right, the biggest problem with SCO's case is that they refuse to mitigate their damages by telling the Linux community what the parts of the code alleged to infringe are.

It is very clear that the minute SCO reveals that information that the code will be yanked and replaced by non infringing code, most likely within hours, days at the outside.

This limits the damages that SCO can claim, since it is very clear that the infringement is not only not willful, it is involuntary. The only reason why the infringement is continuing is because SCO refuses to release that information.

The analogy would be to the distributor of a compilation 'best of hits' CD consisting of a selection from the distributor's archives, being challenged by a record label claiming that it is actually the legitimate owner of the rights to one of the songs on the compilation but refusing to specify which song is in dispute. The distributor of the compilation is then given the choice between not distributing the CD at all and risking a possibly bogus infringement claim. If the distributor is told the song that is in dispute they can easily swap it for a different one, it is the refusal to be specific that is the only reason that the plaintif's claim has standing.

This is not estoppel, but estoppel could also apply. SCO has allowed Linux to be distributed for many years and is in fact a distributor itself. Failure to enforce claims can result in them being lost. In fact this is the same claim that SCO is making against the GPL.

I don't think that the SCO objection holds because it is the behavior of IBM that is at issue, not the FSF. In this case IBM does not appear to have a history of failure to enforce its limited reciprocal rights under the GPL for the simple reason that SCO is the first company to attempt to sue...

The Madness of King Darl

I posted this to LWN earlier....

It's important to understand that this really is a war, and SCO has a point, albeit not one that sane people should accept.

The GPL is a truly revolutionary license, it is *designed*, as SCO says, to reduce the financial value of proprietary software. Yes, GPL software is freer than public domain, in the sense that the source code can never be taken proprietary (other than by the original author) and redistributed.

SCO's argument will likely be that this contravenes Congress's will, by creating a commons under rules other than those established by law.

SCO will say that GPLed code cannot be restricted by export controls, thus violates national security laws.

According to SCO, GPL purports to grant *too much freedom* and therefore, according to this argument, the lesser freedom of the public domain is and should be the appropriate terms by which previously GPLed code should be distributable.

By this reasoning, then, SCO will claim it has every right to use GPL code in its proprietary distributions, but on the other hand, can contend that its own code (or code which IBM created under a license which grants SCO ownership of their code) was never intended (by SCO) to be released under GPL nor public domain.

Now, to fully understand these arguments, you must put yourself in the mindset of a madman. Which, undoubtedly, Darl McBride is. Microsoft and others have surely encouraged his delusional state, and given him the resources he needs to pursue his dreams of world domination, with the understanding that even if SCO has no chance of succeeding in the final analysis, the legal case can and will create FUD to slow the adoption of Linux and buy time for proprietary firms.

If this is a war, SCO is a foot soldier. SCO will die, of course, but that's what foot soldiers are expected to do.

Re:The Madness of King Darl

McBride is *truly* delusional, IMHO.

As for the attorneys, under the amended agreement with SCO, they get 20% of certain licensing fees and investments, I believe. Which means they probably pocketed $1.6M from Microsoft's most recent licensing payment, and perhaps $10M from the RBC/BayStar investment.

Quite a motivation to continue pursuing a losing case. Even if Boies & Co. were to be disbarred, this is the kind of money that can make them say, "So what."

inth Amendment?

Only one problem, the 9th and 10th Amendments have been effectively removed from the US Constituition. When was the last time a major case turned on one of them? For if the Courts were t rediscover them they would be forced to strike down most of the Federal Government.

Example: I have the babble box on in the background right now, happen to be on CNNFN and was half listening to a discussion about a new proposed EPA rule requiring apartments to install water meters on each unit in the name of water conservation. The discussion covered a lot of issues, whether it would actually save water, how hard it would be to retrofit existing structures, blah blah. At no point was the most important question asked. What section of the US Constituition granted the Federal Government the power to regulate water supply to dwellings? Since there is no such section, the clear language of those same Amendments mean it HAS no such authority. Most of the EPA, FDA, HUD, etc. etc. are illegal according to the Constituition but violate their edicts and you will go directly to jail, not pass go and never find a lawyer willing to take your 200/hr to use the 9th or 10th Amendment in your defense.

The Constituition uses shockingly clear and direct language, but it still gets ignored.

Amendment 9:

The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.

Amendment 10:

The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.

Re:inth Amendment?

Commerce clause.

Ok, and how does the water supply to an apartment fall under "interstate commerce"? Sure, you can come up with contrived logic like "the pipes may have been manufactured outside the state". Once you do that, there is *nothing* that is off limits to government, because every single activity anybody performs anywhere can have some remote tangential connection to some act of interstate commerce. I have a hard time believing this is what the founding fathers intended.

Re:The Madness of King Darl

The GPL is a truly revolutionary license, it is *designed*, as SCO says, to reduce the financial value of proprietary software

Wrong... it is *designed* to generate _THE_ best software that is humanly possible, whether for financial gain or not.

Re:The Madness of King Darl

Quote from the GNU Manifesto:

"GNU will remove operating system software from the realm of competition. You will not be able to get an edge in this area, but neither will your competitors be able to get an edge over you. You and they will compete in other areas, while benefiting mutually in this one. If your business is selling an operating system, you will not like GNU, but that's tough on you. If your business is something else, GNU can save you from being pushed into the expensive business of selling operating systems."

The same principles apply to non-OS GPL software, although the original concept was just to create a replacement for Unix.

Re:The Madness of King Darl

No.

The GPL is designed to ensure that there is free software. That is all.

Any quality benefits are purely coincidental. (The Open Source crowd disagree, but that's a different kettle of fish, and a whole other bunch of licenses).

Re:The Madness of King Darl

The one thing I've never truely understood about the Export Control argument is that, firstly, Linux is not American, and can therefore not be controlled by it's government, secondly, export controls only apply to that which is not already freely available to the public. Unless, US law suddenly applies to everyone else in the world, I don't see this being successfull.

Shame really. I can just see it now. McBride's just spent his new $50 million hollowing out an old mountain (for SCO's new headquarters), bought him self a brand new white cat and leather chair and got his employees kit-ed out in matching grey overalls.

Re:The Madness of King Darl

Yes, GPL software is freer than public domain, in the sense that the source code can never be taken proprietary (other than by the original author) and redistributed.

This is a very odd thing to assert, and I suspect that the same people who believe this believe that the GPL isn't a contract. No matter what, GPL'd software has restrictions -- the restrictions listed in the GPL. Public domain software has no restrictions whatsoever. Public domain software HAS to be more free.

You seem to think that because someone can take a copy of public domain software and make THE COPY restricted, the software is less free. But that applies only to the copy. For example, take the original work _The Wind in the Willows_, by Kenneth Grahame. The copyright on the original book has expired, and the book is now in the public domain. You decide to make the 95th Anniversary Special Edition of TWITW, based on the original work, and sell it. Because it's in the public domain, you may do this, and you may claim a copyright -- NOT on the Grahame's original TWITW, but on your particular derivative version of it. The original book -- and, more importantly, the text -- though, is and always will be public domain. Your buddy can sell "the Real 95th Anniversary Edition" using the original book; your mother can sell "the Unauthorized Complete 95th Anniversary Edition" using the original book; Darl McBride can sell "the Poorman's Library 95th Anniversary Edition" using the original book -- and each can claim a copyright on each of their versions, but none, not even Darl, can claim a copyright on the original book, ever. How is this not as free as GPL, which forces you to do something in exchange for being able to redistribute the subject code?

Another way to look at it is this. When a copyright on a work expires, the work becomes more free, right? I don't think anyone would argue against that. So when the copyright expires on a GPL'd work, what happens to that work? Does it become less free? If I take, then, a copy of a public domain work, and redistribute it but with the GPL, is my redistributed copy more free than the public domain work I copied?

Re:The Madness of King Darl

The madness of King Darl

While King Darl is pretty good, a more interesting name would be "The Princess McBride" ;)

Oh, I see.

The tactic is to get everything thrown in the public domain. I guess we figured out the new strategy---

1. File law suits

2. Get the licensing declared illegal

3. Profits

The only thing is getting everything released under the GPL in the last three years turned over to public domain would trampel the very concept of a copyright. It is a nice idea for SCO, but in reality they have to be smoking crack to think that this one will work. I honestly can not see it happening.

I repeat again - and i called it in advance...

i used to say...

SCO has every reason in the world to see the GPL killed. That reason is that they have (most likely) been using GPL'd code in their proprietary code. They want to see the GPL nulled and voided so that when "they win their case", they can, at a later date, keep right on using Linux code in their shitty products.

now, it looks like i need to amend it slightly...

SCO has every reason in the world to see all GPL software made public domain. That reason is that they have (most likely) been using GPL'd code in their proprietary code. They want to see the GPL nulled and voided so that when "they win their case", they can, at a later date, keep right on using Linux code in their shitty products, as well as to prevent being sued into oblivion by a horde of GPL contibutors.

it sucks being right.

I'm telling you - we need to see SCO's "closed source" product code - for there, you will see that they have been going what they have accuesed everyone else of doing.

There is NO other reason for wanting all GPL code made "public domain".

Here's a thought...

Why is SCO trying to get GPL code into the public domain? Could they perhaps be trying to cover their tails in case someone were to uncover GPL code in software THEY have been releasing closed source?