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IBM Points Out SCO's GPL Software Distribution 482

An anonymous reader writes "Cnet is reporting that IBM has launched a counterstrike against SCO Group's attack on Linux users, arguing that SCO's demands for Unix license payments are undermined by its earlier shipment of an open-source Linux product." points out a similar but more colorful article on The Register "in which SCO says that 'SCO-Caldera does not own the copyrights to JFS (Journaling File System), RCU (Read, Copy, and Update), NUMA (Non-uniform Memory Access) software, and other IBM-developed AIX code that IBM contributed to the Linux kernel.' Gee, now that I was almost buying their license ..."
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IBM Points Out SCO's GPL Software Distribution

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  • by BoomerSooner ( 308737 ) on Monday July 28, 2003 @09:06PM (#6555425) Homepage Journal
    I've decided I'm only using SCO Xenix to avoid all the licensing issues with Linux.

    Hell I even bought a Compaq Deskpro 386/25M. Who knew the bios could only be accessed by boot disks!!! Took me a good hour or two to figure that out. Thank god HP/Compaq still has these on their site.

    Xenix the choice of an old generation.
  • Ahh... (Score:4, Funny)

    by deunan_k ( 637851 ) <> on Monday July 28, 2003 @09:07PM (#6555433) Homepage
    And what do I say to this all?

    I say.. Finally.. IBM really took their time to get things done. Frankly, I am tired seeing SCO bashes Linux community and generally making life miserable..

    In your face SCO!

  • by perimorph ( 635149 ) on Monday July 28, 2003 @09:08PM (#6555449)
    So does this mean that as long as you use Caldera or SCO or whoever's distro of Linux, you have the Top-Secret Stolen Code under a Proper License and you're safe from the supposedly Harsh Penalties Of Law for using Top-Secret Stolen Code?

    I swear, this is getting more and more like threatening to sue the readers of a newspaper because it contained an AP story that wasn't properly credited.
    • Even better (Score:5, Informative)

      by einhverfr ( 238914 ) <chris.travers@gm a i l . c om> on Monday July 28, 2003 @09:18PM (#6555528) Homepage Journal
      From the article:

      It appears from Blake Stowell's answers to the copyright-related questions that SCO says it does not have copyrights to JFS, RCU, and NUMA software code or to items (a) through (k) of paragraph 108 of SCO's Amended Complaint in the SCO-Caldera v IBM lawsuit.

      From the amended complaing:
      108. IBM has breached 2.05 of the Software Agreement by, inter alia, actively promoting and allowing use of the Software Products and development methods related thereto in an open and hostile attempt to destroy the entire economic value of the Software Products and plaintiff's rights to protect the proprietary nature of the Software Products. By way of example and not limitation, IBM has used protected UNIX methods for others in accelerating development of the 2.4.x kernel and 2.5.x Linux kernel in, among others, the following areas: (a) scalability improvements, (b) performance measurement and improvements, (c) serviceability and error logging improvements, (d) NUMA scheduler and other scheduler improvements, (e) Linux PPC 32- and 64-bit support, (f) AIX Journaling File System, (g) enterprise volume management system to other Linux components, (h) clusters and cluster installation, including distributed lock manager and other lock management technologies, (i) threading, (j) general systems management functions, and (k) other areas. But for the use by IBM of these protected UNIX methods in Linux development, the Linux 2.4.x kernel and 2.5.x kernel capacity to perform high-end enterprise computing functions would be severely limited.

      This is big. In essence, SCO has admitted that they don't really have *any* copyright case and that Linux intellectual property is all above board. They can still accuse IBM of breach of contract, but I really don't think any of us have the details on what the contracts stated.
      • Re:Even better (Score:5, Insightful)

        by Anonymous Coward on Monday July 28, 2003 @09:25PM (#6555565)
        That's essentially where SCO started this whole thing from -- before certain executives started shooting their mouths.

        The core issues is still a big hissy fit over the failed Monterey AIX-UnixWare unification project, and you're right that nobody here has the details.
      • by perimorph ( 635149 ) on Monday July 28, 2003 @09:28PM (#6555584)
        You didn't properly credit the article. Therefore, I'll be filling lawsuits against all Slashdot members who read the above post.

        Joking aside, thanks for the clarification. I'm slightly less completely lost now.
      • Re:Even better (Score:3, Insightful)

        by norwoodites ( 226775 )
        Most of the original 32bit PPC support was done by Apple, not IBM (for MKLinux). So how can SCO claim that one.
      • Only slightly better (Score:5, Interesting)

        by Ian Lance Taylor ( 18693 ) <> on Monday July 28, 2003 @11:59PM (#6556357) Homepage
        I've been saying this for a while now, but there are two different kinds of code here.

        First, I'll note that SCO has never claimed a direct copyright on JFS, etc. They've claimed in the past that that code was a derived work of Unix, implying a copyright interest. If they are in fact abandoning that claim, that is good. It's not clear to me from the article that they are abandoning that claim.

        In any case, that code--JFS, etc--is the basis for SCO's suit against IBM. SCO claims that IBM's contribution of that code to Linux violates the terms of the contract which IBM signed with a predecessor of SCO. SCO has tried to claim that that code makes Linux a derivative of SCO's Unix, but they haven't been pushing that claim all that hard, probably because they are aware that it would be very hard to make it stand up in court.

        That brings me to the second kind of code which SCO is talking about: code which they claim has been directly copied from Unix to Linux. They claim that this code causes Linux to directly infringe on their copyright on Unix. This is the 80 lines of code which gets discussed here and there--SCO claims there are much more than 80 lines, actually. This is not part of JFS or any of the other code which is part of the IBM lawsuit.

        So, in other words, even if SCO abandons all copyright claims to JFS, etc.--and it's still not clear to me that they are abandoning that claim--it does not mean that they are abandoning the claim that Linux violates SCO's IP.
      • Re:Even better (Score:5, Informative)

        by MuParadigm ( 687680 ) <> on Tuesday July 29, 2003 @06:58AM (#6557691) Homepage Journal
        "In essence, SCO has admitted that they don't really have *any* copyright case and that Linux intellectual property is all above board. They can still accuse IBM of breach of contract..."

        Finally, someone gets it right. Darl has said in interviews, "We know IBM put code in there (Linux). Their copyrights are in it." Darl is not claiming that SCO owns the copyrights. Yet.

        SCO alleges that IBM had no right to share code with the Linux project, because SCO's contracts with IBM compel IBM to keep any derivative work confidential. In other words, despite SCO's attempts to "license" Linux, the only case they have outstanding is still a contract breach with IBM.

        "...but I really don't think any of us have the details on what the contracts stated."

        The contracts are available at SCO's website. Go to The IBM contracts are Exhibits A-D on the right hand sidebar. Exhibit E is the letter from Darl to Palmisano threatening to terminate IBM's AIX license. Exhibits F-G are the Sequent contracts.

        In Exhibit C (section 2), the contract grants ownership of IBM's derivative works to IBM. Exhibit D, section 3.04, would seem to confirm that IBM is not obligated to keep confidential any of its derivative works.

        Besides, I doubt that a judge will be willing to accept a definition of "ownership" that obliges the owner to treat its own work as confidential.

        So, SCO's case against IBM still looks pretty weak.

        SCO's allegations that Linux illegally appropriates derivative work also seems equally weak. SCO's main allegation against Linux is that any code contributed by an ISV or IHV (that has contracts with SCO) is a misappropriation of code that should have been kept confidential under SCO's contracts with them.

        This seems to also fall apart under section 3.04 of Exhibit D, because that clause is part of what looks like a standard contract that SCO used with *all* parties to renew System V licenses after its purchase of the source from Novell. In other words, that clause is not part of an IBM side agreement, but appears to be a grant SCO made to any ISV or IHV licensing the System V source.

        Of course, I'm not a lawyer, so none of the above should be construed as legal advice. It's just my opinion, derived from reading the contracts that SCO published on their web site and referenced in their court claims.

    • Nope.... (Score:5, Insightful)

      by Kjella ( 173770 ) on Monday July 28, 2003 @09:27PM (#6555581) Homepage
      SCO can not distribute their proprietary code linked with GPL code, because it would be illegal under the GPL. So if they claim they can, SCO, and by the SCOian logic, all SCOs customers are liable for a class action lawsuit from everybody that has ever contributed to those OSS projects. Sounds like cannon fodder for some counter-FUD, not to mention a countersuit to me.

    • by GooberToo ( 74388 ) on Monday July 28, 2003 @09:30PM (#6555601)
      Considering SCO now admits that IBM owns the copyright to the code, this simply becomes a contract case. That means, since IBM disclosed code which they own all the IP to, no one else has anything to worry about. After all, it's IBM that's ultimately responsible for their actions. Having said that, most of their legal department is taking a nap because SCO's claims are so worthless. Furthermore, IBM's Unix license is irrevokable, so it hardly puts IBM in a pinch, even with AIX. For SCO's claims to even hold water, SCO would have to have IP or copyright claims to IBM's products, such as AIX, OS/2, etc. They do not. Remember, just because SCO has IP rights on Unix, doesn't mean they, in turn, have rights to everything IBM has done to add value to Unix.

      If you look at what they've been doing, they've been trying to pump up their stock prices. SCO's execs have been dumping SCO stock almost as fast as they can. This doesn't even sound like a company that is expecting to get a huge infussion of cash from an outstanding legal battle. This is the act of rats trying to bail on a sinking ship. I personally hope the FTC is watching them very closely.
      • by Richardsonke1 ( 612224 ) * on Monday July 28, 2003 @10:20PM (#6555853)
        yeah, you're right. Look at the insider trading on yahoo: []. Over 1.25 MILLION dollars since June 20th. I also like how someone some of them, like Jeff Hunsaker, and Reginald Broughton traded twice on the same day, but once it went down as "Vice President" or "Senior Vice President" but the second time it went down as "Employee." Sounds kinda weird...
        • SCOX insider trades (Score:5, Informative)

          by Anonymous Coward on Monday July 28, 2003 @10:43PM (#6555964)
          2003-07-23 HUNSAKER, JEFF F.
          Vice President 5,000 Automatic Sale at $13.30 - $13.44 per share.
          (Proceeds of about $67,000)
          2003-07-22 BROUGHTON, REGINALD C.
          Senior Vice President 20,000 Automatic Sale at $12.91 - $13.2 per share.
          (Proceeds of about $261,000)
          2003-07-17 BROUGHTON, REGINALD C. 15,000 Planned Sale
          (Estimated proceeds of $195,000)
          2003-07-15 WILSON, MICHAEL SEAN
          Senior Vice President 6,000 Option Exercise at $0.66 per share.
          (Cost of $3,960)
          2003-07-15 WILSON, MICHAEL SEAN
          Senior Vice President 6,000 Sale at $10.66 - $10.8 per share.
          (Proceeds of about $64,000)
          2003-07-14 WILSON, MICHAEL
          Senior Vice President 6,000 Option Exercise at $0.66 per share.
          (Cost of $3,960)
          2003-07-14 WILSON, MICHAEL
          Senior Vice President 6,000 Sale at $10.77 - $10.87 per share.
          (Proceeds of about $65,000)
          2003-07-11 OLSON, MICHAEL P
          Vice President 8,000 Automatic Sale at $10.40 - $10.99 per share.
          (Proceeds of about $86,000)
          2003-07-09 HUNSAKER, JEFF F.
          Vice President 5,000 Sale at $11.76 - $11.814 per share.
          (Proceeds of about $59,000)
          2003-07-09 HUNSAKER, JEFF F.
          Vice President 5,000 Automatic Sale at $11.76 - $11.814 per share.
          (Proceeds of about $59,000)
          2003-07-09 HUNSAKER, JEFF F.
          Employee 5,000 Planned Sale
          (Estimated proceeds of $55,000)
          2003-07-08 BENCH, ROBERT K.
          Chief Financial Officer 7,000 Automatic Sale at $10.91 - $11.12 per share.
          (Proceeds of about $77,000)
          2003-07-08 BROUGHTON, REGINALD C.
          Senior Vice President 5,000 Automatic Sale at $10.90 - $10.95 per share.
          (Proceeds of about $55,000)
          2003-07-08 BROUGHTON, REGINALD C.
          Employee 5,000 Planned Sale
          (Estimated proceeds of $56,450)
          2003-06-25 BROUGHTON, REGINALD C.
          Sr Executive Vice President 5,000 Automatic Sale at $10 per share.
          (Proceeds of $50,000)
          2003-06-20 BROUGHTON, REGINALD C.
          Senior Vice President 5,000 Sale at $11.08 - $11.1 per share.
          (Proceeds of about $55,000)
          2003-06-20 BROUGHTON, REGINALD C.
          Employee 5,000 Planned Sale
          (Estimated proceeds of $53,750)
          • I'm rather concerned that BROUGHTON, REGINALD C. is reported three times with different titles here.

            Senior Vice President
            Sr. Executive Vice President
      • I personally hope the FTC is watching them very closely.

        I think you meant the SEC, which is the agency that would be interested in insider trading.
  • by questamor ( 653018 ) on Monday July 28, 2003 @09:10PM (#6555455)
    McBride was also quoted as saying "he he fellas, come on, you knew we were joking all along don't you? right?"

    Darl was last seen in tattered pieces scattered around IBM.
  • by oliverthered ( 187439 ) <(moc.liamtoh) (ta) (derehtrevilo)> on Monday July 28, 2003 @09:12PM (#6555474) Journal
    Well from the chuff in the story it look like 'yet another sco v linus' slashdot artical.

    The fact that IBM has evenetually responded to the allocations that SCO has made over the past few months if very important and more-or-less blows the worries of any users out of the window:(IBM will settle the issue)
  • by pair-a-noyd ( 594371 ) on Monday July 28, 2003 @09:13PM (#6555476)
    "On Friday, SCO spokesman Blake Stowell reiterated the company's earlier position that the GPL provisions don't apply because SCO is the Unix copyright holder and it never placed the copyrighted code under the GPL."

    Bullshit. Go to their FTP site and READ THE GPL they have posted there. It states explicitly that SCO is distributing the code under the GPL.

    Fscking LIARS....

    Oh yeah, hey Darl, here's a little something special for you:
    Behold, the truth.. []
    • "On Friday, SCO spokesman Blake Stowell reiterated the company's earlier position that the GPL provisions don't apply because SCO is the Unix copyright holder and it never placed the copyrighted code under the GPL." and the same time they are telling no SCO but IBM is the copyright holder and this is no copyright case but a contract case!!!
    • by Anonymous Coward on Monday July 28, 2003 @10:18PM (#6555846)
      SCO will be forced to choose between:

      1. Claiming that there's SCO copyrighted code in the Linux kernel that they say they don't consent to be licensed under the GPL, which means: a) they're committing fraudulent and deceptive behavior by misrepresenting that the code they're distributing is completely under the GPL when it isn't, and b) they're infringing on the rights of the copyright owners of the kernel code since they're knowingly mixing in non-GPL code, a direct violation of the GPL.


      2. The only way they can avoid committing fraud and violating copyright law is to distribute ALL the code in the kernel under the GPL, which means they forfeit any ability to collect royalties.

      SCO should be deathly afraid of being sued if they choose #1 because they don't even have the money to stay alive for all the years it will take to fight the IBM lawsuit, so I don't see that they have any choice except #2, unless they don't care about the destruction of their company.

      Either way, SCO is almost certainly screwed.
  • Simple (Score:3, Funny)

    by Anonymous Coward on Monday July 28, 2003 @09:13PM (#6555481)
    I registered my copy of Linux with SCO. It only costs $700, and I don't have to worry about getting sued or breaking the law.
  • It's what Slashdot pundits have been saying all along: SCO's shipment of a Linux distribution undermines its demands for Unix license payments. Nothing new here for the well-informed Slashdot reader.

    SCO counters with the expected: they didn't contribute the code knowingly, and thus the code was never officially released under the GPL.
    • That sounds a lot like telling a judge that I didn't read a contract before I signed it, so how can it be enforced?

      My fault, my loss. SCO's fault, SCO's loss.

      But like you said.. SCO is countering with the expected, and no one expected them to come up with something better than that. Sad, ain't it?
    • not so simple (Score:5, Interesting)

      by sbwoodside ( 134679 ) <> on Monday July 28, 2003 @10:49PM (#6556009) Homepage
      from the CNET article:

      Section 0 of the GPL states, "This license applies to any program or other work which contains a notice placed by the copyright holder saying it may be distributed under the terms of this General Public License." However, Section 6 states, "Each time you redistribute the program (or any work based on the program), the recipient automatically receives a license from the original licensor to copy, distribute or modify the program."

      We must ask:
      1. Did SCO "place a notice" on the program ?
      2. Or did they just copy someone else's notice ?
      3. Did SCO add ANY of their own code to SCO Linux, under GPL? If so, then they are copyright holder for at least SOME code in the distro.
      4. Would that "copyright holder" status spread to the whole distro or stay only the code they willfully added ?
      5. What responsibility do they have to check the code they just copy ?
      6. Since they are COPYing someone else's code, doesn't that mean they should check to make sure they have PERMISSION ?
      7. Did they "place a notice" ?
      8. If so, did they do it "as the copyright holder" even if someone else put the code in ?
      9. What if they didn't put it in, but they knew it was there ?
      10. Once they knew it was there, how quickly did they react ?

  • Where's the meat? (Score:5, Interesting)

    by darnok ( 650458 ) on Monday July 28, 2003 @09:17PM (#6555522)
    Several weeks after people were able to view the supposedly offending code (under NDA), there's still no report of what it actually is.

    This is in contrast to every known FUD convention, where it's normal practice to sign a NDA, look at something secret, wait a few days then quietly have a word in your buddy's ear and get him to post some still-speculative-but-extremely-specific detail of what it is you looked at.

    Why the sudden maintenance of SCO's secrecy, when there's an industry-wide history of violating similar NDAs at the first opportunity? How can we not know even the tiniest specific detail of SCO's case, yet we know e.g. details of every close-kept Apple product release several days before Steve Jobs announces it?

    A few weeks back, I honestly expected the following to happen:
    - a few people sign the NDA and view the code in question
    - (nothing happens for a few days)
    - new code gets quietly released for functions A, F, H and Z in the kernel, gets exhaustively tested by several key Linux people and very quickly appears in the next kernel release
    - confident pronouncements from Linus, RedHat, SuSE etc. that they are absolutely sure the SCO case has no merit, that they believe (but can't confirm) the code in question is "old code no longer in use" and so on

    Actually, maybe this happening now and I should keep quiet about it. If so, could someone tell me which step we're up to? I promise not to tell
    • Re:Where's the meat? (Score:4, Informative)

      by Rabidbunnylover ( 600898 ) on Monday July 28, 2003 @09:27PM (#6555578)
      According to that article a while back about the person visiting SCO, those that sign the NDA aren't given copies of the offending code. All he was able to do was look at a Powerpoint presentation that didn't even specify what version of Linux the code was from. Additionally, since anybody who signs the NDA can basically be barred from kernel development work, those who take SCO up probably aren't going to be familiar enough with the components SCO is talking about to be able to recall the exact sections of code from memory.
      • by darnok ( 650458 ) on Monday July 28, 2003 @09:53PM (#6555732)
        Even so, the guy still walked out from SCO with some intimation of what the code actually was. Assuming it didn't look ridiculously generic and therefore likely to be produced by 2 people working on the same problem at the same time, it would have some defining characteristics that a grep through the source would probably find pretty quickly.

        If it's in an old version of the kernel, then it may just take a bit longer to grep for it.

        I'm not talking about something as gruesome as a SCO copyright message, but you'd think there would be some aspect of the code that would remain in the guy's mind when he left SCO.

        Furthermore, I can't believe the individuals who signed the NDA were that disinterested that they didn't do exactly this. I know *I* would have done so, if only to satisfy my own curiosity.

        Assume just one of these people did this, and now has concrete proof (if only in their own mind) as to whether SCO is talking out of their arse or not. Would that person not be inclined to find a way to make this information public, via whatever obfuscation process was required to ensure their identity was untraceable? I mean, these guys were picked because of their kernel and/or coding knowledge; surely they could make a few discreet enquiries about anonymous mail relays and how to use them...

        I'm not encouraging these guys to flout SCOs NDA; I'm just surprised that it hasn't occurred through "osmosis" as normally happens with NDAs, and there's not a general feeling among OSS people that the problem has gone away if it actually ever existed.
        • Re:Where's the meat? (Score:3, Informative)

          by Arker ( 91948 )

          A german guy reported that they forgot to make him sign the NDA and did a pretty thorough report. If you search back aways you should be able to find it.

          He said they showed very small clips, the linux code was from mailing list archives, they just showed a few lines from each that matched without the context. Not enough to do much with.

          There are plenty of opportunities given what's known about the code to come up with small clips like that. There's some BSD code. There are POSIX implementations (with cu

    • Re:Where's the meat? (Score:3, Interesting)

      by miratrix ( 601203 )
      Maybe it just means that the people who actually did sign the NDA and looked at the code are not technically familiar with the Linux Kernel. My understanding was that it was mostly members of the media and stock analysts who signed the contract and looked at the code. I remember reading one guy (analyst? can't remember) who looked at the code and wrote that every other line seemed copied - he obviously has no programming experience.

      Otherwise, it may mean that infringing code actually does not exist or
    • by Theolojin ( 102108 ) on Monday July 28, 2003 @09:37PM (#6555641) Homepage
      A few weeks back, I honestly expected the following to happen:...- new code gets quietly released for functions A, F, H and Z in the kernel, gets exhaustively tested by several key Linux people and very quickly appears in the next kernel release

      i am amazed at the number of folk who simply assume the claims of sco are accurate, that there is unlawful code in the linux kernel. could it be that the above has not happened precisely because there is no offending code to replace?!
    • Re:Where's the meat? (Score:4, Interesting)

      by msgmonkey ( 599753 ) on Monday July 28, 2003 @09:55PM (#6555747)
      [Rant on]

      I thought this stopped being about just code a long time ago. SCO keep moving the goal posts, some of the claims I've read (may not be in cronological order):

      - Linux has stolen SCO code inserted by IBM.
      - No one is allowed to create Unix-like OS's without paying us.
      - All operting systems owe their existance Unix, so we could sue others too.
      - JFS, NUMA, etc, technolgies dont belong to IBM, they broke contracts by contributing these.
      - SCO's Unix was no.1 on X86 until Linux came along, this could n't have happened without IBM's help.
      - All your Linux are belong to us, not just the Linux kernel but also the GNU tools.
      - It takes massive corpations and millions of dollars to make the kind of OS that Linux has become so IBM must have help them. Remember Linux is an OS put together by "Punk Ass Kids"

      I'm sure there are others I cant recall at the moment. It's amazing how they've managed to twist the original claim of copyright violation to ownership of Linux and the demand of payment for Linux licenses. In hindsight we should have known, there are the guys who purchased DR-DOS just so they could sue MS (not that MS were in the right with regards to DR-DOS). They are also the same people who tried to bring out a per seat model for Linux (not to be confused with support contracts).

      [Rant off]
    • Re:Where's the meat? (Score:5, Interesting)

      by Ian Lance Taylor ( 18693 ) <> on Tuesday July 29, 2003 @12:14AM (#6556454) Homepage
      I signed the NDA and saw the code. Here is my writeup [].

      The scenario you describe did not occur for a few reasons.

      First, I signed the NDA in good faith. I knew going in that I was not going to be permitted to disclose the code. Those were the ground rules which SCO set, and it was not my intention to cheat them.

      Second, SCO is demonstrably a litigious company. Were they to sue me, that would be a major problem for me. Were they to win a lawsuit, I could lose everything I own and have my wages garnished for eternity. While it's true that it would hardly be worth their while to sue me, the level of risk requires cautious behaviour on my part. Basically, I want to be sure that if the code which SCO showed me is removed from the Linux kernel, that there is absolutely no reason to think that I had anything to do with it.

      Third, SCO only showed me one example of what they claimed to be direct copying. They claimed that they had many other examples which they were not going to show me. So even if I were to quietly reveal the one example they showed me, it would not affect their claims significantly. Of course, it is possible that they are lying about having other examples. But since SCO's claims in general rely on FUD, removing one instance of potential direct copying, when there are other claimed instances, would not materially lessen the FUD.

      I can't really speak to your suggestion that people routinely violate NDAs. I've never knowingly violated one. Aside from any considerations about keeping my promises, if people became aware that I had violated an NDA, I think it would be quite a bit harder for me to find my next job.
  • by Jameth ( 664111 ) on Monday July 28, 2003 @09:23PM (#6555551)
    No, really, I do.

    I don't think it will help anything if section six of the GPL can overrule section one. If the copyright holder did not Know they had code in Linux, they should not be obligated to have that code be considered GPLed because they distribute it.

    It is a question of knowledge, and I suspect it would be hard to prove that SCO hadn't just missed a few snippets of code.

    A ruling that SCO put its code under the GPL unknowingly would destroy corporate faith in the GPL, and that's a very bad thing.

    Also, I don't think it is morally correct to punish for distributing code they did not know about.

    Of course, I hope SCO dies painfully a few months later when its law-suit actually hits IBM.
    • by edwdig ( 47888 ) on Monday July 28, 2003 @09:38PM (#6555645)
      There's one problem with that defense. SCO continued to distribute Linux for a few weeks after they first announced their claims. If they stopped distributing Linux when they announced the claim, then they could use the defense that they only distributed Linux because they didn't know their code was in it.
    • I disagree (Score:5, Insightful)

      by tkrotchko ( 124118 ) * on Monday July 28, 2003 @09:43PM (#6555674) Homepage
      If you have a business where you essentially own System V; where in fact, the only thing you have of value is System V, and you release Unix-like code under GPL, it seems to me you'd better understand what you're releasing!

      What I mean is that the GPL in this case had the possibility of unique harm to SCO (a 1st year legal student could see that), and yet they (a) encouraged their own employees to work on a GPL project (b) released a version of the GPL OS themselves.

      It seems a bit disingenuous to say "I am an operating system company, but I didn't know what I was releasing".

      They're either stupid or lying. In either case, it appears to be that they lost their unique ability to distribute the moment they distributed Linux.

      How can an Operating System company claim ignorance of the copyright within an operating system they sold? Its inexplicable. It goes beyond the boundary of veracity. Or, like I said earlier, they're a bunch of yahoo's that have no idea of what they're doing.

    • by MrGrendel ( 119863 ) on Monday July 28, 2003 @09:45PM (#6555691)
      How can they not know about this? [] They are distributing the supposedly infringing version of Linux as I type this. Regardless of what they may or may not have known in the past, they certainly do know that whatever code they believe they own is in Linux right now, yet they continue to distribute it in blatant violation of the license.
      • Look at the size of the file. It cannot be
        the whole kernel source, only patches.

        Ironicly, if SCO prevails with their copyright
        extremist view against IBM, then even distributing
        these patches would be as damaging as the
        whole kernel because of "derivitave works".

        Copyright is a unique failing of our democracy,
        because it is the pet issue of the media.
        That is why our founding fathers created a
        constitution and explicitly required the promotion
        of the useful arts and a time limit. Too
        bad it failed.

        Had software
    • by gl4ss ( 559668 ) on Monday July 28, 2003 @09:49PM (#6555712) Homepage Journal
      they are _STILL_ distributing it, it would be another thing if they had stopped distributing it.

      right now, on this day, several months after it this crap started, still it's on their ftp, with gpl attached.

      you don't say to a judge that you didn't know your cars breaks were failing six months after it failed the inspection because of the brakes and you kept driving it anyways, "sorry sir, i didn't know they were faulty, even though i must have known!"..

      and licensing binary only running of linuxes is just sick (paying for nothing, except for the privilidge of doing a contract with these jolly sue maniacs), and has no point at this phase of the legal progress anyways.

      anyways, now they're claiming theres entire files in there, but at the same time they're claiming they belong copyright-wise to ibm.. so.. actually i don't have any idea anymore theres so much of this crapfud around, how on earth can they be ibm written and at the same time line by line copied from sco's unix base? or are they trying to say that their contract with ibm forces ibm not to do any research on their own on the same fields they have licensed from sco(seperate developer groups and all included)?
    • If there really is code in Linux that's copyrighted by SCO, all they've "lost" is that code, and that's because they were dumb enough to redistribute it.

      The complaints that the GPL is "viral" would be fair if the consequences went beyond that: if, say, the result of this was that the whole of SCO Unix, not just that part in Linux, suddenly has to be GPL'd. This is not the case, as no part of SCO Unix has been copyrighted by an entity other than SCO or one that's licenced the code to SCO under the GPL.


    • A ruling that SCO put its code under the GPL unknowingly would destroy corporate faith in the GPL

      So far, the RCU patch [] seems to be the focus of the suit. SCO claims this "infringement" was discovered during a recent code audit. As discussed in "How SCO Helped Linux Go Enterprise" [], a clueful Caldera employee publicly acknowledged and encouraged this work.

      Based on this information, I hope SCO loses the GPL argument (although I really doubt it will come to that). Otherwise, free software users will always

  • SCO's shell game (Score:5, Interesting)

    by Anonymous Coward on Monday July 28, 2003 @09:25PM (#6555568)
    Last week SCO [] announced acquiring the assets and technology of Vultus [], a web services company, who offer web development tools called WebFace [] ("Runs on Internet Explorer 5 and up").

    While SCO predicted that they would obtain 15%-20% of a $3.7bn Web Services market [], I have to admit to being perplexed how this is supposed to happen, and also wondering how well an Internet Explorer-based product could fit into SCO's UNIX offerings.

    ComputerWorld has an alternative explanation of the Vultus acquisition, they call it: "SCO's Shell Game []".

    One thing is for sure - it sure is lucky that Vultus was in the same (Canopy-owned) building as SCO [] (check the picture), even before the acquisition!

    Update: More on this story at GROKLAW []

    Repost: Form-4 filings with the SEC [] reveal Executives profiting from SCO stock sales: they made $398,833.90 in June, and $781,964.70 in July (so far)!
  • by analog_line ( 465182 ) on Monday July 28, 2003 @09:30PM (#6555602)
    Did SCO's counsel just miss the day everyone took a big swig at SCO, or has the company finally decided that this whole thing was getting out of hand (little late to the game, but hey, the stock is up)?

    Or have we been in the grip of one hellacious Reality Distortion Field, and none of this "We Really Own Linux, We Don't Care About Some No-Name Finnish Geek" crap ever actually happened? What else has occured since then that might not have happened? Could Bush have been impeached and I just missed it somehow?
  • a question about SCO (Score:5, Interesting)

    by linuxislandsucks ( 461335 ) on Monday July 28, 2003 @09:37PM (#6555638) Homepage Journal
    Sounds to me like SCO Group top managment disagreed with past actions of Caldera employees concerning the code they contributed to FS (Journaling File System), RCU (Read, Copy, and Update), NUMA (Non-uniform Memory Access) software

    So McBride hatches this FUD plan to sue IBM for copyright infringement despite the fact that the actual code is from their own employees!

    Hoping for buyout from IBM..unfortunately IBM has clear records of Caldera employee contributions and thus knows its own contributions to same subsystems and thus know its in the clear and ha snot violated copyrights..

    So my question is..

    When SCO goes bankrupt aroudn Christmas wil the top execs be charged with fraud for pumping up stock on false information and if so whne can we see MCbride behind bars?
  • prior art (Score:5, Interesting)

    by Veteran ( 203989 ) on Monday July 28, 2003 @09:37PM (#6555644)
    UNIX is as much a derivative of MULTICS as Linux is a derivative of UNIX. SCO's claim to hold the 'intellectual property rights' to all modern operating systems fails because of that fact - a point which needs to made against them.

  • by Waffle Iron ( 339739 ) on Monday July 28, 2003 @09:38PM (#6555650)
    It seems that without copyright claims over the features in question, SCO's complaints are based on their contract with IBM over the Unix source code. SCO asserts that this contract license is viral. In fact, it's the Ebola virus of licenses: If you write some code then link it with System V, your code becomes a derivative work of Unix, and it falls under the control of the Unix license forever. Your code becomes permanently tainted and it can never be revealed to anyone, even in its original form from before it was linked to Unix.

    Meanwhile, SCO says that the GPL is barely viral at all, not even worthy of a runny nose. That's because they linked their code to a bunch of GPL'd software, but they say that they can ignore the license because "hey, we didn't really mean it". In fact, the GPL must be so unviral that SCO can still distribute this code from their FTP site.

    It will be interesting to see if any court buys both of these arguments at the same time.

  • 1. This bozo spokesman essentially affirmed what Linus said, that the lawsuit is a contract case between IBM and Caldera. Caldera has no claim on the technologies that IBM contributed, other than to say, "Hey, you can't tell them that! That's a part of proprietary Unix, and can't be disclosed, even if you wrote it!" Doesn't bode well for some other companies who've contributed parts of their proprietary Unixes to Linux. *cough* Silicon Graphics *cough* But that covers NUMA, RCU, and JFS. If IBM loses here, they are also open to a lawsuit from Microsoft. Why? Because JFS didn't come initially from AIX. It came from OS/2.

    2. All that said, there's no resolution of the "copied" code sections Caldera has brought up. From many, many, of their previous statements, it would seem that the technologies mentioned above are what they're trying to milk GNU/Linux users for. If it's *not* NUMA, RCU, and JFS, what, exactly, are the infringments GNU/Linux users are responsible for? I eagerly await a cogent answer, but I know the chances of getting such are slim to none. I will use GNU/Linux (when I'm not playing around with the Hurd) until an individual user loses a lawsuit to SCO over copyright or patent infringement.
  • by mcdrewski42 ( 623680 ) on Monday July 28, 2003 @09:45PM (#6555692)
    Actually, this is the first SCO article in a while which has made me think of the case in a new light... refreshing for a rehashed story like this.

    It seems that SCO are saying that the issue is not actually about copyrighted code being in Linux at all. The issue is about IBM putting it there in contravention of their contract to "keep it secret, keep it safe".

    However, I understand that IBM's linux teams and the AIX teams were pretty seperate for that specific reason - no cross pollination. So, SCO is saying that algorithms, solutions and ideas are the problem, not code.

    <irony>Luckily this area of legal rights on ideas, concepts and algorithms is really clear in the US legal system.</irony>

    clips from the article:
    This lawsuit is about breach of contract and other tort claims. It is not about copyright infringement.

    SCO-Caldera being able to prove that IBM-developed AIX code ... are derived works under the Unix licenses is the critical and key issue to SCO proving that IBM breached the Unix license agreements. ...the Unix license prohibits IBM from disclosing Unix Software Product code, methods, secrets, and so forth to third parties.Simply put, if SCO-Caldera can prove that IBM-developed AIX code ... are derivate works and therefore part of the Unix Software Product and that IBM disclosed the code, methods, secrets and for them to the Linux developers, then SCO wins its IBM lawsuit.

  • by imsmith ( 239784 ) on Monday July 28, 2003 @09:53PM (#6555736)
    This is a pretty big deal, because its the first article that confirms what i have been thinking all week - the Caldera-SCO strategy is to say that all of IBM's AIX development efforts, and all the experience gained from them, are derivative works of System V Unix.

    This is a seriously different approach and it constitutes a valid approach to Caldera-SCO's grievance with IBM.

    I don't know if they can win, but I know that winning a derivative works argument is substantially easier than winning a copyright violation argument. And if they can convince a judge and jury that they have derivative rights to the AIX code base copyrighted by IBM, either by contract or by copyright, then the contribution of that code base to the Linux kernel is a violation of either the contract or the copyright on System V.

    That is the strategy, it seems, and its not something that anyone should be scoffing at, becuase it just might be enough to win.

    That said, what would have to happen to undermine that strategy?

    An agent of Caldera actively circumventing an existing contract with IBM, if Caldera was the owner of the contract in question at the time of the action, would be a strike against Caldera. That seems to have been shown to be the case by the statements of the former Caldera CEO and a 'Unix-Linux Kernel Integration Engineer' working for making contributions of code and advice to the Linux kernel development team.

    A ruling that the AIX code base is sufficiently independant from the System V code base would invalidate the whole issue, regardless of the contract, unless the contract specifically prohibits all copyright distribution rights of code developed on top of the System V code base - something I doubt IBM's legal team would have agreed to.

    A ruling in the original BSD case settlement, which is still sealed, that would invalidate the subsequent System V contracts with IBM. I'm not holding my breath.

    A body of evidence that proves some Enterprise capabilities in the Linux kernel evolved from non System V / AIX origins. This certainly could be the case with SMP.

    It seems important that as the Caldera-SCO strategy becomes clearer, that the opposition is able to dissect the various parts of it into manageable parts with independant solutions.

    Ranting about Caldera-SCO is no longer sufficient.

    • by msgmonkey ( 599753 ) on Monday July 28, 2003 @10:56PM (#6556048)
      Derive is definitely the word here, according to my dictionary it is "to draw or be drawn (from) in source or origin".

      Linux in its self is probably safe here as the Santa Cruz Organisation never seeked to use litigation against Linux.

      JFS, NUMA and RCU from a technical point of view are just add-on's to a system. JFS itself coming from OS/2 (OS/2 derived from Sytem V?). NUMA was obtained when IBM purchased Sequent and RCU is just a method of multual exclusion that speeds up locking for systems with lots of CPU's. None of these are derived from System V, they are just "features" bolted onto AIX/Linux/Kitchen sink OS.

      Regardless of JFS, NUMA and RCU, AIX may be a derivative of System V but that does n't mean that any new technology they add is automatically owned by SCO unless there is some kind of contract that states that(Project Monterey?). When contributing to Linux IBM where very careful not to contribute anything directly from AIX hence JFS code was from OS/2 and not AIX.

      To use derive in this sense would be like me saying two totally different cars can be a derivitive of another by sharing the same spoiler.
    • be rational (Score:3, Informative)

      by 73939133 ( 676561 )
      And if they can convince a judge and jury that they have derivative rights to the AIX code base copyrighted by IBM, either by contract or by copyright, then the contribution of that code base to the Linux kernel is a violation of either the contract or the copyright on System V.

      Well, excuse me, but there is a huge difference between "the contract" and "the copyright".

      If IBM violated a contract with SCO, that's IBM's problem and IBM would have to pay the bill for that. If you have ever dealt with IBM's l
  • What if... (Score:3, Insightful)

    by CaptainPuppydog ( 516199 ) on Monday July 28, 2003 @09:59PM (#6555767)
    For a while, many people have been speculating that SCO-Caldera is looking to get bought out. The usual assumption is that the purchasing party would be IBM....

    I present to you, gentle reader, another possibility. One that has the purchaser as not IBM, but Microsoft... think about it for a bit.. MS buys a SCO license at the first possible minute (more or less), then later starts openly postulating similar things as SCO...

    Deep pockets vs. deep pockets... who will win?...

    And you thought the DOJ vs MS was a long trial...
  • by naejulak ( 586787 ) on Monday July 28, 2003 @10:01PM (#6555775)
    "Distributing a product is not the same as contributing to a product," Stowell said Friday. In other words, the mere act of distributing GPL-covered code isn't sufficient; the copyright holder also has to deliberately release the code as open-source, he said. "The copyright holder has to knowingly contribute this code." --from the first article linked above

    So, to summarize, SCO didn't pay attention to the product they were distributing, and accidentally released source code under a license that they should not have. Isn't this exactly what they accuse IBM and Linus of doing, of not paying attention and violating someone's IP rights in the process?

    The great thing about it is that IBM and Linus' "victim" is SCO, and SCO's victim is SCO!

    If only every other Linux competitor were so self defeating...
  • by Skapare ( 16644 ) on Monday July 28, 2003 @10:05PM (#6555792) Homepage

    IANAL ... whee ... so this is my own opinion, only.

    SCO's defense with regard to GPL provisions applying to their distribution is the Linux community's defense. SCO is claiming that there is a distinction between merely distributing a copy of Linux versus actually incorporating their own code into it. In theory, I presume, this means they were unaware that code they claim is their intellectual property was already in the Linux kernel. So, by being unaware of it, they were not actually performing the act of contribution. If it can be shown that they were aware, that argument could vaporize. But left to stand, it could be valid (presuming it is also proven that code in Linux is in fact their property).

    By basing their defense on being unaware of the existance of (supposedly their own) property in the Linux source, they are also handing the Linux community the same defense. If in fact there is SCO property in Linux, then everyone who was unaware of it can also claim like innocence on that same basis. Only those who knowingly or negligently placed any SCO property in Linux (if this did in fact happen) would be unable to use SCO's own defense.

    To whatever extent SCO claims that anyone who was unaware of the existance of the property they claim is in Linux is liable, then SCO itself is liable for the GPL provisions despite their own lack of awareness. So watch the cards they play and follow suit.

  • ABOUT TIME! (Score:4, Interesting)

    by IWannaBeAnAC ( 653701 ) on Monday July 28, 2003 @10:20PM (#6555854)
    Has anyone else been really frustrated that IBM have been sitting back and letting SCO get away with pure bullshit, with no response?

    What I'm really hanging out for is some serious action from IBM. For example, if IBM announced that they would indemnify all Linux users against SCO lawsuits brought about due to actions from IBM themselves, then all of this "if you buy a UnixWare license, we won't sue you for using Linux" crap would instantly go away.

    If IBM doesn't have the balls to make such a move, then what are they worried about? Even with the very strong technical case they have, their inaction seems weird to me.

    • Re:ABOUT TIME! (Score:5, Insightful)

      by jjohnson ( 62583 ) on Monday July 28, 2003 @10:29PM (#6555888) Homepage
      It's their apparent inaction that makes me think they're really serious about kicking SCO's ass.

      Think about it. SCO, who's full of shit, is whining loudly and spreading as much FUD as it can, trying to scare Linux users and IBM's customers. IBM is sitting back, smug, waiting for its day in court, and quietly reassuring its customers. They're walking softly, which makes me think they're the ones with the big stick.

      Now if IBM lowered itself to SCO's level, trying to win in the court of public opinion, then I'd be worried.
  • by Famatra ( 669740 ) on Monday July 28, 2003 @10:32PM (#6555902) Journal

    I'm surprised this article was not posted, it is very factual: n/0,14179,2914364,00.html []

  • by BlackSabbath ( 118110 ) on Monday July 28, 2003 @10:36PM (#6555921)
    Most posters seem to be missing the point. SCO still have a chance at getting away with something here. To quote from the article:

    "SCO-Caldera being able to prove that IBM-developed AIX code, JFS, NUMA software, RCU, and so forth are derived works under the Unix licenses is the critical and key issue to SCO proving that IBM breached the Unix license agreements. So proving they are derived works brings the IBM developed AIX code, JFS, NUMA software, RCU, and so forth under the umbrella of Unix Software Product as set forth in the Unix Licenses.

    "That's because the Unix license prohibits IBM from disclosing Unix Software Product code, methods, secrets, and so forth to third parties. Simply put, if SCO-Caldera can prove that IBM-developed AIX code, JFS, NUMA software, RCU, and so forth are derivate works and therefore part of the Unix Software Product and that IBM disclosed the code, methods, secrets and for them to the Linux developers, then SCO wins its IBM lawsuit."

    SCO doesn't need copyright, and they can happily state that IBM *did* develop those bits. But if a judge rules, that those bits are "derived works" and are a part of "Unix Software Product", then they have won their contractual battle.

    This is why SCO claim that its "hundreds of files" not "lines" of code. They are including everything IBM developed as derived works and therefore part of "Unix Software Product".

    Let's say the judge agrees and they get damages from IBM (for contract violation). The big question is where this leaves linux. They *did* afterall knowingly (ie after the it was pointed out to them) continue to distribute SCO linux under the GPL.

    I'm guessing the code will end up being replaced, however this won't be trivial. Developers that have been "tainted" by seeing the code will probably be hesitant to contribute to new versions of those bits. And you can bet SCO will be looking through any new code with a fine-toothed comb.
  • by walterbyrd ( 182728 ) on Monday July 28, 2003 @11:43PM (#6556294)
    The lawsuit against IBM doesn't even start until April 2005. Lawsuit will take years. FUD money from sunw and msft will be gone by 2003. Sales at SCO are going from abysmal to worse. SCO has been *gushing* red ink since day one.

    So what is scox going to do to pay the bills? I suppose scox can become a shell company, and exist only for the one-in-a-million chance that IBM will settle or something.

    Makes me wonder how scox will get 15% of the market for web-tools, considering scox can't afford R&D. Even if scox could afford R&D, nobody would buy from scox.

    Wow, what a bright future. No wonder SCO shares have gone from under $1 a share to over $13 a share.
  • by Markus Registrada ( 642224 ) on Monday July 28, 2003 @11:53PM (#6556334)
    Does anybody remember the story about the Crosspatch Decision, from Heinlein's Stranger in a Strange Land ?

    IBM has been very careful in the contracts it signed, making careful distinction between ATT Unix and IBM's own contributions. Not all Unix licensees were as careful, possibly including Sequent. The question is, if Sequent's possibly incautious contract would have kept them from contributing their inventions to Linux, would that contract bind IBM, too? Would it prevent the inventions' new owner from releasing them unencumbered? Or, do IBM's own contracts with (the shell that is now) SCO subsume Sequent's?

  • WAIT ONE DAMN MINUTE (Score:3, Interesting)

    by gsfprez ( 27403 ) on Tuesday July 29, 2003 @12:45AM (#6556632),3668,a=45013, 00.asp

    and i fscking quote....

    "Until now the case started off as a contract dispute with IBM and did not involve intellectual property or copyright. As of today it's a different game, and Linux users now do have a copyright issue to deal with," SCO CEO and President Darl McBride told a media teleconference on Monday.

    and now i read... yr ights_Story01.html

    Blake Stowell: No we don't, but this is not a copyright case. This is a contracts case. We have taken IBM to court because they are in breach of contract.

    so which the fsck is it? and where is the equal time in PHB websites like InformationWeek, etc.. about this new development??

    aaaaarrrrghhh. i'm totally frustrated by this nonsense. And where is the SEC when you ened their sorry butts?
    • Which is it? It's both. There are two different, albeit related, things going on.

      SCO claims that IBM violated their contract. This is the basis for the lawsuit.

      SCO claims that Linux distributions infringe on SCO's Unix copyright. This is the basis for the letters sent to Linux users, and the offer to not sue Linux users who purchase a Unixware license.

      The alleged IBM contract violation involves code which IBM contributed to Linux. SCO has said what this code is: it's JFS, NUMA, etc.

      The alleged Linu
  • by ikekrull ( 59661 ) on Tuesday July 29, 2003 @01:02AM (#6556716) Homepage
    If IBM were to make AIX open source - that is, make the AIX kernel, which included and depended on SysV code to function, open source, then they would indeed be in breach of their UNIX license.

    AIX, as an OS kernel which includes Sys V code, is indeed a derivative work.

    However, to claim that any SysV-derived UNIX cannot and has not received IP contributions from existing projects, which themselves are not licensed under the terms of the AT&T/Novell license, and as such distributing these works independently is illegal, is ludicrous.

    Like, stunningly, incredibly ludicrous. In fact, I would say such a licensing agreement violates anti-trust laws, and would be ruled illegal and unenforceable, possibly rendering the entire contract void.

    Free/Open/NetBSD cannot legally exist with this interpretation of 'derivative work', because they include code that was once linked with SysV code.

    According to SCO, it doesn't matter if the BSD people own the copyright to every line of code, because it was once linked with SysV code, and hence is a derivative work.As such, they may not disclose it

    This is quite clearly not the situation.

    To claim that any IP placed in any SysV-derived UNIX strips the copyright-holder of that work's right to redistribute the original work under any license they see fit is absurd.

    Are they really trying to say that because the text of the BSD license is included in SysV that nobody may distribute the text of the BSD license because it is covered by AT&T licensing agreements, and must be kept secret?

  • by MrCreosote ( 34188 ) on Tuesday July 29, 2003 @01:28AM (#6556808)
    Which book? Read to the end.

    "All this was inspired by the principle -- which is quite true in itself -- that in the big lie there is always a certain force of credibility; because the broad masses of a nation are always more easily corrupted in the deeper stata of their emotional nature than consciously or voluntarily, and thus in the primitive simplicity of their minds they more readily fall victims to the big lie than the small lie, since they themselves often tell small lies in little matters but would be ashamed to resort to large-scale falsehoods. It would never come into their heads to fabricate colossal untruths, and they would not believe that others could have the impudence to distort the truth so infamously. Even though the facts which prove this to be so may be brought clearly to their minds, they will still doubt and waver and will continue to think that there may be some other explanation. For the grossly impudent lie always leaves traces behind it, even after it has been nailed down, a fact which is known to all expert liars in this world and to all who conspire together in the art of lying. These people know only too well how to use falsehood for the basest purposes." A. Hitler - Mein Kampf

If you can't learn to do it well, learn to enjoy doing it badly.