Posted on 11/24/2003 3:40:28 PM PST by Salo
There's a traditional definition of a shyster: a lawyer who, when the law is against him, pounds on the facts; when the facts are against him, pounds on the law; and when both the facts and the law are against him, pounds on the table. The SCO Group's continuing attempts to increase its market value at the expense of free software developers, distributors and users through outlandish legal theories and unsubstantiated factual claims show that the old saying hasn't lost its relevance.
Just The Facts
SCO continues to claim in public statements about its lawsuit against IBM that it can show infringement of its copyrights in Unix Sys V source code by the free software operating system kernel called Linux. But on the one occasion when SCO has publicly shown what it claimed were examples of code from Linux taken from Unix Sys V, its demonstration backfired, showing instead SCO's cavalier attitude toward copyright law and its even greater sloppiness at factual research.
On August 18, 2003, SCO's CEO, Darl McBride, offered a slide presentation of supposed examples of infringing literal copying from Sys V to Linux at a public speech in Las Vegas. Within hours the free software and open source communities had analyzed SCO's supposed best evidence, and the results were not encouraging for those investors and others who hope SCO knows what it is talking about.[1]
In Las Vegas Mr. McBride offered two examples of code from the Linux program that were supposedly copied from Sys V. The first implements the "Berkeley Packet Filter" (BPF) firewall. Indeed, the Linux kernel program contains a BPF implementation, but it is the original work of Linux developer Jay Schulist. Nor did SCO ever hold an ownership interest in the original BPF implementation, which as the very name shows was originally part of BSD Unix, and which was copied, perfectly legally, into SCO's Sys V Unix from BSD. Because the BPF implementations in Sys V and Linux have a common intellectual ancestor and perform the same function, SCO's "pattern-matching" search of the two code bases turned up an apparent example of copying. But SCO didn't do enough research to realize that the work they were claiming was infringed wasn't their own (probably because they had "carelessly" removed the original copyright notice).
Mr. McBride's second example was only slightly less unconvincing. Mr McBride showed several dozen lines of memory allocation code from "Linux," which was identical to code from Sys V. Once again, however, it turned out that SCO had relied on "pattern-matching" in the source code without ascertaining the actual history and copyright status of the work as to which it claimed ownership and infringement. The C code shown in the slides was first incorporated in Unix Version 3, and was written in 1973; it descends from an earlier version published by Donald Knuth in his classic The Art of Computer Programming in 1968. AT&T claimed this code, among other portions of its Unix OS, as infringed by the University of California in the BSD litigation, and was denied a preliminary injunction on the ground that it could not show a likelihood of success on its copyright claim, because it had published the code without copyright notices and therefore, under pre-1976 US copyright law, had put the code in the public domain. In 2002, SCO's predecessor Caldera released this code again under a license that permitted free copying and redistribution. Silicon Graphics, Inc. (SGI) then used the code in the variant of the Linux program for "Trillium" 64-bit architecture computers it was planning to sell but never shipped. In incorporating the code, SGI violated the terms of Caldera's license by erroneously removing Caldera's (incorrect) copyright notice.
Thus SCO's second example was of supposedly impermissible copying of code that was in the public domain to begin with, and which SCO itself had released under a free software license after erroneously claiming copyright. SGI had complicated matters by improperly removing the inaccurate copyright notice. So how many PCs and Intel-architecture servers around the world contained this supposedly infringing code? Zero. No version of the Linux program for Intel architectures had ever contained it. No SGI hardware for which this code was written ever shipped. HP, which sells 64-bit Itanium servers, has removed the code from the IA-64 branch of the Linux code tree; it was technically redundant anyway. But SCO's research went no farther than discovering a supposed instance of "copying," without asking whether SCO had any rights in what had been copied, and certainly without providing the audience to whom it was speaking any indication that the "Linux" it was talking about was a variant for rare computers from which the supposedly-offending code had already been removed.
What the Las Vegas "examples" actually demonstrated was that SCO's factual claims were irresponsibly inflated when they weren't being kept artfully "secret." With the facts running against them even when the facts were of their own choosing, it was unsurprising that after August SCO turned to the law. But the law was not on their side either.
Making Up the Law
SCO's legal situation contains an inherent contradiction. SCO claims, in the letters it has sent to large corporate users of free software and in public statements demanding that that users of recent versions of the kernel take licenses, that the Linux program contains material over which SCO holds copyright. It also has brought trade secret claims against IBM, alleging that IBM contributed material covered by non-disclosure licenses or agreements to the Linux kernel. But it has distributed and continues to distribute Linux under GPL. It has therefore published its supposed trade secrets and copyrighted material, under a license that gives everyone permission to copy, modify, and redistribute. If the GPL means what it says, SCO loses its trade secret lawsuit against IBM, and cannot carry out its threats against users of the Linux kernel.
But if the GPL is not a valid and effective copyright permission, by what right is SCO distributing the copyrighted works of Linux's contributors, and the authors of all the other copyrighted software it currently purports to distribute under GPL? IBM's counterclaim against SCO raises that question with respect to IBM's contributions to the Linux kernel. Under GPL section 6, no redistributor of GPL'd code can add any terms to the license; SCO has demanded that parties using the Linux kernel buy an additional license from it, and conform to additional terms. Under GPL section 4, anyone who violates GPL automatically loses the right to distribute the work as to which it is violating. IBM therefore rightly claims that SCO has no permission to distribute the kernel, and is infringing not only its copyrights, but those of all kernel contributors. Unless SCO can show that the GPL is a valid form of permission, and that it has never violated that permission's terms, it loses the counterclaim, and should be answerable in damages not only to IBM but to all kernel contributors.
IBM's counterclaim painted SCO into a corner on the subject of the GPL. Not only the facts but also the law are now fundamentally against SCO's increasingly desperate position. SCO and its predecessor, Caldera, have benefited enormously from the protections of the GPL. Thanks to the GPL, SCO has been able, for example, to use the invaluable work of compiler designers and implementers around the world who have made GCC the premier cross-platform C compiler. Customer applications run on SCO's Sys V Unix because of GCC, to which SCO contributed modifications particular to its system, and for which it assigned copyright to the Free Software Foundation. Caldera and SCO could not have marketed a usable operating system product without the contributions of the free software community. SCO was happy to take the benefits, but it has unethically sought to avoid its responsibilities. The law does not permit SCO to have it both ways.
So now it has become time for SCO and its lawyers to pound the table. SCO's response to IBM's counterclaim has been a round of absurd attacks on the GPL, its users, and its author, the Free Software Foundation. The GPL, SCO's answer to IBM's counterclaim alleges, violates not just federal statutes but also the United States Constitution. How a private copyright holder can violate the US Constitution by giving others permission to copy, modify and redistribute its work SCO does not deign to say. Legal theories aren't secrets; if SCO's lawyers had anything to offer in support of this novel proposition, they would offer it. Not one case decided in the long history of US copyright affords support to this ridiculous conception of an unconstitutional copyright license. No lawyer of my reasonably broad acquaintance, no matter what his or her view of the GPL may be, takes this moonshine seriously. After failing on the facts, failing on the law, and raising no more than derisive laughter from pounding the table, even the proverbial shyster is out of luck. What will we see next from SCO, an attack on the umpire?
Footnotes
1 The most complete review of the SCO Las Vegas presentation was written by Bruce Perens, and is available athttp://www.perens.com/SCO/SCOSlideShow.html.
Copyright © Eben Moglen, 2003. Verbatim copying of this article is permitted in any medium, provided this notice is preserved.
Eben Moglen is professor of law at Columbia University Law School. He serves without fee as General Counsel of the Free Software Foundation.
Instead they hire lawyers to argue weak cases to cover the mistakes of a badly run company.
I paid $500 for the SCO operating system for my brand new PC in 1991 and I did not even get X-Windows or a C compiler. There was no customer support (you need to buy more licenses!), and they treated me badly.
It seems that the last thing an unsuccessful technology company does before they go out of business is to file a bunch of lawsuits.
What are those Santa Cruz hippies smoking these days?
Caldera Systems, based in Utah, was founded in 1998 by Ransom Love, and received start-up funding from Ray Noorda. Its main product was Caldera Linux, a Linux distribution mainly targeted at business customers and containing some proprietary additions. In 2000, Caldera acquired several UNIX properties from the Santa Cruz Operation, including SCO UNIX, a proprietary operating system for PCs that would be expected to compete directly with Linux. In 2002, Caldera joined with SuSE Linux, Turbolinux and Conectiva to form United Linux in an attempt to standardize Linux distributions. Later that year, Ransom Love left the company. Caldera's management recognized that the majority of its profits were coming from the legacy SCO flavor of UNIX, and renamed the company to SCO Group. (The company is not related to the former Santa Cruz Operation, now called Tarantella, other than in its purchase of certain assets from the former
If I recall correctly lawyer Boise used to make a big deal out of the fact he does/did not use a computer. Based upon his track record against Microsoft, his defense of Napster (his kids got him involved in that)and so far with his work on SCO you can tell he does not know much about technology.
The SCO/Caldera deal appears to be nothing more than a classic pump&dump.....
See if you can make it all the way to the second paragraph of this:
Yeah right. That's exactly what I'm talking about, IBM's defense is just as flimsy as any of SCO's claims.
What are SCO's claims, Mr. Eagle? Have they told you?
You know, they filed this lawsuit, and we're almost eight months into it now, and they can't actually describe anything specific that IBM is alleged to have done. They are very good at making arm-waving broad accusations in the press, but when it comes down to naming anything in particular that we might hold a trial over, they suddenly balk. It's always "a million lines" or "derivative works" or "trade secrets". But never any particular lines, or anything particular about a specific derivative work, or any particular trade secret.
IBM has requested, as they have a right to do, that SCO name specifically what it is that IBM supposedly misappropriated. If we're going to haave a trial, we have to have a trial about something. It can't just be, "They done us wrong, your honor." But SCO refuses to answer. Instead they dump irrelevant documents, and say, "It's in there, you find it."
Mind you, this is a civil trial in a U.S. Federal Court, where a Defendant has the right under law to know what the charges are, so as to be able to prepare a defense. But we have a Plaintiff who refuses to answer. So IBM has petitioned the court to compel SCO to tell IBM what the lawsuit is about, other than arm-waving generalities. What was SCO's response when IBM did that? They petitioned the court for a delay in preparing their answer. The judge sent them all off to work it out themselves, with a head-knocking exercise scheduled for December 5 if they can't. Well, the judge held a meeting with the attorneys last week, and all the minutes say is "Hearing scheduled for December 5."
So, while you crow and dance about all these charges SCO supposedly has, SCO itself is stalling and weaseling like mad in the courtroom, trying to avoid having to name anything specific that could be proven or disproven. (Incidentally, for those who care, all of these pleadings are on line here, mostly in the form of pdf's scanned by the court.)
SCO's lawsuit is a scam, folks. This is yer basic shakedown lawsuit that was filed assuming that IBM would hand over a bag of money to make it go away. Faced with having to actually press their claims in court, they can't do it. They can't actually name one specific thing where they will say, under oath, "IBM misappropriated this." Without that, we can't have a trial. Which means that SCO has no case.
On December 5, the judge will probably rule that SCO has until January XX to tell IBM what it is they have to defend against. If they can't do it, then IBM files a motion to dismiss, the judge grants it, and we're done with SCO's mighty lawsuit against IBM. SCO doesn't want that, so they'll undoubtedly come up with something, because this is the best ticket to unending PR they have ever seen. But even the judge will know it's something they threw together at the last minute; there is no reason, under civil litigation rules, to try to "hide the weenie" on what the lawsuit is about. It's strictly a stalling tactic.
Ask yourself: why is the guy who claims he has a solid case that could win him $3 billion filing pleas for more time to answer why he shouldn't be given more time? Seriously: SCO did that. SCO was stalling, IBM filed to make them stop stalling, and they filed a plea asking for more time to answer IBM's plea that they stop stalling. I guess we can call that "stalling squared."
Name one. Name a portion. Point to a specific place within linux where we will find this AIX code.
This is a court trial, not a game. You can't come into court and say, "He stole portions of my stuff." The law says you have to describe with particularity what it is the defendant supposedly stole.
They can't do it, Eagle. They have been asked numerous times to identify something specific that they consider a trade secret, and point to where it is in linux. They can't.
All they do is provide a laundry-list of files and say, "our secrets are in there!" What secret? Where? They can't answer.
Suppose I accuse you of stealing. We get to court and I say, "Eagle stole something." Your lawyer will quite reasonably ask, "What did Eagle steal?" And I say, "A portion of my stuff. Here's a list of things I saw in Eagle's garage. It was one of those things."
Your lawyer will again ask, "Well, what specifically? What thing or things in Eagle's garage belong to you?"
And I say, "Eagle knows what he stole. He knows very well that it's on that list of things in his garage."
So your lawyer says, "Sir, Eagle claims to have receipts for everything in his garage. You tell us which thing you think is yours, and we'll see if Eagle can produce his receipt."
But I say, "I already told you! It's on the list of things in his garage. What part of 'it's in his garage' don't you understand? He has stolen stuff in his garage! And it's my stuff!"
So your lawyer says, "Well sir, let's try it the other way around. Do you have a receipt for any particular item in Eagle's garage? And if so, which one?"
And I answer, "Yes. I have a receipt. Here it is."
"Sir, there are 517 items on this receipt. Which of these particular items are you claiming Eagle stole?"
"It's simple! A portion of them."
That isn't a court case, Eagle. It's a farce.
Roscoe: You boys are under arrest! (chuckle)
Bo: For what?
Roscoe: For... for... (light dawns in eyes) For BREAKING THE LAW!
Luke: Roscoe, you have to be more specific....
Here we see a standard paranormalist argument. No matter how many UFOs are identified as mundane atmospheric and celestial objects, how many psychics are exposed as carnival frauds, and how many Bigfeet turn out to be eroded bear tracks, there remains a residue of unexplained cases, because it is the nature of things that evidence is generally neither complete nor quite correctly interpreted.
This is why the argument that IBM hasn't proven that SCO doesn't have a case will not do. The burden is on SCO to prove that it does have a case. If it fails to meet this burden -- and, to date, it has done so quite miserably -- it must be filed along with sightings of Elvis telekinetically levitating a flying saucer.
Disclaimer: Opinions posted on Free Republic are those of the individual posters and do not necessarily represent the opinion of Free Republic or its management. All materials posted herein are protected by copyright law and the exemption for fair use of copyrighted works.