More Damning SCO Evidence At Groklaw

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

Old news

[Anonymous Coward]

This has been known for quite a while, and to be honest it doesn't change that much. SCO will simply claim they had no idea where this code originated for at the time and so never sanctioned its official distribution. Their entire case is ridiculous, however it would be ridiculous even if they hadn't ever distributed linux or contributed to the kernel.

Mr Hellwig

[Anonymous Coward]

Christoph Hellwig has been working with Linux since about 1995, dealing with kernel-related issues much of the time. He has been invloved in many Open Source projects, raging from small fixes to major contributions.

He is in the top-ten list of commits to both the Linux 2.4 and Linux 2.5 tree according to the Bitkeeper statistics (which he hasn't faked himself but still should be taken with care).

After a number of smaller network administration and programming contracts he worked for Caldera's German development subsidiary on various kernel and userlevel aspects of the OpenLinux distribution. Last year he joined the fileystem and storage group at SGI and is focussing on XFS for Linux now.

http://www.ukuug.org/bios+profiles/CHellwig.shtm l

We still have problems people....

[herrvinny]

In the case of JFS, they not only distributed Linux with JFS, one of Caldera's employees, Christoph Hellwig, contributed code to JFS...

So? You would think that since Caldera itself sold GPL'ed stuff, that would stop SCO from suing, period. But it hasn't.

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

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

ibmlawsuit.com [ibmlawsuit.com], googlesuit.com [googlesuit.com]

Full article text, properly formatted, no troll

[nacturation]

In its Supplemental Responses to IBM's Second Interrogatories and Second Requests for Documents, [groklaw.net] SCO gave this answer:

"Insofar as this interrogatory seeks information as to whether plaintiff has ever distributed the code in question or otherwise made it available to the public, SCO has never authorized, approved or knowingly released any part of the subject code that contains or may contain its confidential and proprietary information and/or trade secrets for inclusion in any Linux kernel or as part of any Linux distribution."

Cross your heart and hope to die, SCO? Or cross your fingers behind your back? Let's see what the evidence shows.

SCO has specifically mentioned the following four as being code at issue in this case: JFS, NUMA, RCU, and SMP, and while it is conceivable that the "subject code" they are talking about in this response to IBM's interrogatory is referring to some other code, it seems reasonable to look at the code they have mentioned publicly. Actually, it's more than reasonable. It's our only choice, until they tell us exactly what code they are complaining about with specificity. Is it true that they never "authorized, approved or knowingly released" any of this code for inclusion in any Linux kernel or as part of any Linux distribution?

Let's start with JFS. In the case of JFS, they not only distributed Linux with JFS, one of Caldera's employees, Christoph Hellwig, contributed code to JFS, as Groklaw reported [groklaw.net] on July 18. Here is a snip from that article:

"Here [geocrawler.com] is an email in which he tells an inquirer how to contribute to JFS, including this tidbit: 'I've run native sysvfs tools under linux, but as now that I'm Linux sysvfs maintainer I'm looking into implementing free versions of it. . . . The JFS/Linux core team has setup a CVS commitinfo, but currently I'm the only one who receives it.'

"And here [geocrawler.com] he encourages someone to donate to the main JFS repository at IBM and talks about his role:

"'I'm one of the main commiters to JFS outside IBM and I'm really happy to see more people involved :)

"'First I'd like to encourage you to contribute your userspace changes to the main JFS repository at IBM. For the 1.0.11 release I have added autoconf/automake support to easify portability and a bunch of portablity patches (mostly getting rid of linuxisms) is under way to the Core team.'

"He also posts to the freebsd list as freebsd-fs at freebsd.org.

"Here [prnewswire.com] is the press release when SCO in 2002 released 'SCO Linux Server 4.0 for the Itanium (R) Processor Family' and which mentions that the product is based on United Linux. This SCO page [216.239.39.104]lists JFS as one of its features. . . .

"They are complaining that IBM contributed JFS to Linux, but their own employee, from this evidence, was involved in helping out. On the day IBM announced JFS was being given to Linux, Hellwig is listed [iu.edu]as making five contributions to the kernel."

And he is listed on this page [ibm.com] of JFS contributors. Here [ibm.com] is IBM's page on Who Is Using JFS? and it lists United Linux. So they not only released a distro with JFS in it under the GPL, their employee helped make it h

Re:Conspiricy theory

[glwtta]

Occam's Razor for conspiracy theorists suggests that one should never ascribe to conspiracy what can be ascribed to incompetence.

I believe you are thinking of Hanlon's razor, Occam's razor is more general.

Re:Leave SCO alone you communists.

[Kleedrac2]

You have a point, but I do believe most of the /. community is not so much defending IBM, but damning SCO because they aren't following the rules. In a copyright infringement you are supposed to recieve a "Cease & Desist" order first. Not only did Linux users globally get a "Cease & Desist" order, but SCO has never told any of us what exactly we are supposed to Cease or Desist! You can't tell somebody "Stop that" and not answer the obvious "Stop what?" you will get in response. And insofar as IBM's involvement, we're sticking up for them because they're sticking up for us who can't afford to fight this bullshit.

Kleedrac

Re:Pamela Jones and Groklaw is a huge asset

[Swampfox]

She's got my vote. But more importantly, she's got my cash. She has an innocuous little "Donate here" PayPal link on the left side of the page.

If you appreciate what she's doing, and the incredible amount of time and precision and effort behind it, take a minute and make a donation.

I finally got off my behind today and dropped her a few dollars.

Comment removed

[account_deleted]

Comment removed based on user account deletion

Re:Old news

[and by]

IANALBIAALS (but I am a law student)
Well, if the programmer had the OK to release this from a higher-up, or if he did so with a reasonable understanding that it was OK, he was acting within the scope of authority. At that point, SCO knew because he *was* SCO in terms of that transaction.

Re:We still have problems people....

[Anonymous Coward]

Hey, even if you don't trust the poster ("...and did so with the knowledge of his supervisor"), trust the article:

Hellwig's supervisors, in this case Ralf Flaxa, ([e-mail]) are aware that he is online and making changes to the Linux kernel:

'Reading this thread and previous requests I see a need by ISVs and applications to determine at runtime certain processor related features. They can roughly be grouped into:

1. number-crunching power in general

o number of CPUs
o CPU family and type
o BogoMips (per CPU and/or overall)
o SMP capabilities (here kernel scalability could be an item)

2. features specific to a processor

o for x86 e.g. the "flags" and *_bug fields
o info about FPU, MMU and the like

'I have asked Christoph to work on a proposal and present it to this list. I think we agree that there is a need and demand for a standard way to gather this info and that /proc/cpuinfo was just a bad start - so I would like to give it another chance. This is Ralf speaking as director of Linux development at Caldera and as technical lead for the LSB sample implementation.'


So it's pretty clear that at least the first level of software development managers at Caldera/SCO made conscious decisions to put their developers to work on these allegedly stolen sections of code. Which means that SCO should be suing it's own lower-level managers, not other companies or Linux users. After all, you can only recover damages (legally) from someone who actually caused you harm.

No so surprising

[arevos]

Similar thing happened with AT&T and BSD, IIRC. AT&T claimed that their code was in BSD. It went to court. It emerged that it was AT&T that had taken code from BSD, rather than the other way round. AT&T settled for an undisclosed amount.

Plausible, but is it true?

[xant]

Personally I lean toward the "SCO Upper Management is a bunch of fucking loonies" theory. Here's an article that puts concrete numbers on the effect SCO is having on linux adoption.

http://blogs.ittoolbox.com/linux/archives/000194 .a sp

16% may be a big number or a small number, depending on your point of view, but it's not what I'd call a palpable blow to Linux.

Re:quotes from Chris..

[CrazyDuke]

Quothe Mr. Hellwig:

"It might be more interesting to look for stolen Linux code in Unixware,
I'd suggest with the support for a very well known Linux fileystem in
the Linux compat addon product for UnixWare.." (sic)

hint hint...

hint hint hint..

HINT HINT HINT HINT HINT!

Re:Supervisor = permission?

[gmhowell]

Wrong, wrong, wrong, wrong. It's called the doctrine of 'apparant authority'. If Hellwig and his supervisor acted on behalf of SCO, presented themselves as being representatives of SCO, and there was no reason for Linus not to believe this, they are acting for SCO.

Now, go back and read the article(s). SCO was advertising (on their own or via UnitedLinux) many of the features they are now suing over. They knew what was going on. They condoned it. They are engaging in barratry.

IANAL; clearly, neither are you.

Re:Conspiricy theory

[anwaya]

As one of the contributors to the article in question, I feel bound to offer some corrections to this argument. Employees of SCO and Caldera did not "give away the code" under the direction of their supervisors: they collaborated with the Linux development community, which includes people from IBM, in an effort to integrate SMP, JFS, NUMA and RCU in the kernel in order to produce an Enterprise class Linux.

The evidence that SCO was broadly aware of this work lies in the SCO Linux 4 ("powered by UnitedLinux") marketing materials.

There is an interview [desktoplinux.com] from August last year where Darl McBride not only says that SCO Linux would be "certified enterprise-ready by IBM", he also says that he understood what Open Source was in 1994, when he was first shown Linux.

I do not believe that Darl McBride can continue to pretend that he (i) didn't know what the GPL was about, or (ii) that he didn't know that Linux was going to the Enterprise.

Re:Old news

[and by]

The Restatement 2d of Agency says the following:

7
Authority is the power of the agent to affect the legal relations of the principal by acts done in accordance with the principal's manifestations of consent to him.

26
Except for the execution of instruments under seal or for the performance of transactions required by statute to be authorized in a particular way, authority to do an act can be created by written or spoken words or other conduct of the principal which, reasonably interpreted, causes the agent to believe that the principal desires him so to act on the principal's account.

Where the agent is the employee and the principal is the employer.

As to whether or not a given jurisdiction follows the Restatement, that's not a question I can answer. What, incidentally, is your jurisdiction?

Re:Old news

[cthugha]

I'm in Australia, where company law is governed at the Federal level and the law of agency wrt corporate relations with company outsiders is heavily affected by statute. Here's a (very) potted summary. At common law (also uniform in Australia because of our integrated court structure) the apparent authority of an agent can only be relied upon where appropriate representations have been made by the principal, and you would be right in that an outsider's belief in the existence of authority would be irrelevant (save for the rule in Royal British Bank v Turquand (1856) 6 E & B 327, which entitles outsiders to assume, in the absence of contrary evidence, that there has been compliance with a company's constitution and internal processes).

The statutory position (Corporations Act 2001 (Cth) ss 128-30) codifies the common law and allows certain "good faith" assumptions to be made, including that a person held out as an officer or agent is properly exercising the power customarily given to a person in that position. As the person giving away the code is a senior figure in SCO's open source operations it may be held, under Australian law, that the outsiders were entitled to assume that he was authorized to give away code on his corporate employer's behalf.

Again I have no idea of the general US position.

Crap shoot

[t0ny]

I stay that with the American legal system, SCO still has pretty good odds. I mean hell, they just let a psychotic crossdressing murderer go free, who may have killed two OTHER people as well. AND they let OJ go free, we also had the Supreme Court elect the president with a court ruling which shouldnt have been made at all, was totally incomptehensible even to lawyers, and was explicitly stated as being a situational, non-president setting ruling (the last of which they have no grounds to say, since the judicial system is all about president; that is an issue for future cases to decide).

I realise some of those examples are criminal cases, but it doesnt matter: its symptomatic of the whole system. Im sure there are tons of other examples of cases with no merit at all still winning or having to be settled. Unfortunately, the facts have very little to do with our American "Justice" system.

Deutsche Bank bullish on SCO

[DeepRedux]

This may be a bit off-topic, but a different point of view. From CBS MarketWatch [marketwatch.com]

Barron's quotes a Deutsche Bank analyst who said there's a chance for more "dramatic gains" in SCO's stock price, based on the company's intellectual property lawsuits that seek compensation for what SCO claims is its stolen code that's included in the widely used Linux operating system.

Barron's is published by the Wall Street Journal; its web site is paid-only.

Re:We still have problems people....

[DaveAtFraud]

RTFA when the site isn't slashdotted. The kernel contribution records are just a small part of the puzzle. There is a s-pile of Caldera and SCO marketing blurbage, white papers and official technical documentation that says that SCOO knew at a corporate level what was in the 2.4.X Linux kernel (JFS, NUMA, SMP) and these details were being used as a selling point by Caldera/SCO. Admittedly, RCU tends to be burried pretty deeply but their is also evidence of official input from SCO and this is there least plausible "intellectual property" claim since, as an example, I was doing read, copy, update of circular buffers on VAX 782s (two CPU vaxen) in 1983.

What PJ & company have done is assemble the pieces to show that what was being contributed by Christoph Hellwig (and other peons at SCO) was well understood by both his immediate boss and by corporate management. There is no plausible deniability.

Probably the best thing to come out of all the GrokLaw digging is this quote:

"From: Jeff V. Merkey ([e-mail])
"Date: Wed Aug 23 2000 - 12:19:53 EST

"This whole SCO thing is overrated. I worked on the Unixware code base at Novell, and it's putrid in comparison to Linux. It's got a lot of good apps, but so does Linux. This kind of tripe propaganda is what the "cult" followers of Unixware are good at. They lost @ $ 38,000,000 dollars each year at Novell ramming UnixWare down our throats and pissing of our customers -- Novell finally cut rheir losses and sold it. Don't get me wrong, it's decent Unix stuff, but Linux is tons better as a general purpose PC Unix. Just remember, Caldera is a LINUX company -- they will take the best of both, and use it to improve Linux ...."
v :-)

Jeff

The full thread is here [iu.edu].

Re:Buying damage

[Xabraxas]

Doesn't this company have a history of this? If memory serves, Caldera (which is just SCO by another name, no?), made a pile a number of years ago by buying DR DOS from Digital Research and then turning around an suing Microsoft for alledgedly sabotaging versions of Windows 3.1x such that it would not run properly on DR DOS.

Funny though, I'll bet most of the /. crowd was on the Caldera side of that one. How times change.

That's because MS did actually sabotage DR DOS. DR DOS was better than MS DOS but if you tried to run it underneath windows instead of MS DOS, you would get error messages about using an incompatible version of DOS. Everything still worked but it would pop up error messages anyway.

Re:Emmm.....is this fair?

[SLot]

1) IBM has more patents that M$
2) Meritless case has no affect on adoption according to gartner & the like. In fact, the opposite appears to be happening - more adoptions since lawsuit announced. CIO's aren't scared of this. I'll go dig up the graphs if I really have to, but I'm drunk and tired tonight, and tired of seeing them in the trade rags.
3) You have made it clear that you are worried about that which you should not be worried about.

I HAVE SPOKEN. ;) or something.

Not exactly barratry. (IANAL)

[khasim]

They've only filed one legal case.

Just one.

They've said that they'd file more.

Lots more.

Maybe lots and lots more.

But they've only filed one so far.

Barratry means filing multiple cases to harass someone. Like if I drag you into court on some charge (real or not). Then I file another one against you. Then another one.

It would be VERY INTERESTING if SCO did file more claims and a judge ruled that SCO was attempting to harass "Linux".

Re:Old news

[Anonymous Coward]

Your parent post pretty much sums up how an agent assumes the right to act for the principal.

Your post is closer to the issue at hand, namely how 3rd parties are expected to deal with agents. And, in the US, the rule appears generally similar.

A transaction stands frim against the principle when a 3rd party accepts the agent's authority to commit the transaction as any reasonable person might. The transaction reamins frim even if said agent was not, in fact, authorized by the principal.

The 3rd party need only pass the resonable person test. Clearly any reasonable perosn would think SCO various employee's and supervisors were authorized to release the code they did. There were simply too many entities within SCO confirming this behavior as appropriate, in both word and deed.

Linus clearly reasonably accepted the agency in good faith. In the US, the courts would be loath to reverse any such transaction.

To be otherwise would void the entire concept of agency, as EVERY transaction would have to be vetted directly with the principle.

Now SCO could seek damages from those that acted outside the scope of their agency. But, I suspect they were suitably authorized (with Sr. Managment titles and all) even if they acted in error. (authorization to an agent to make a decision leaves the principle, utterly, with the fallout of the agent's bad decisions.)

Re:Legolas said it best

[Accipiter]

where is that 'donate via paypal' button on your site?

Front Page [groklaw.net], left side, vertically between the links and the login form.

Re:Supervisor = permission?

[Zeriel]

And the thing about this whole situation is that IBM/Linux are indemnified due to "apparent authority"--that is, any employee of SCO can be assumed by an outside party to be acting with authority granted by SCO, if a "reasonable person" would believe they would have the authority.

In this case, it's clear a "reasonable person" would believe that the head of Caldera/SCO's UnitedLinux department would have code release authority, and thus the most SCO could do is go after their own employees for violating trade secret laws and their employment agreements that siad they couldn't release.

Re:Old news

[big-giant-head]

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

Look at the whole dotbomb crap, there were VC's everywhere that dumping Millions if not Billions into companies that did'nt even have a formal business plan.

Just because someone has some VC money, it does not grant them any amount of intelligence. In fact it appears to do quite the opposite.