Posted on 07/14/2005 4:01:54 PM PDT by Salo
Davidson reports:
The project was a result of SCO's executive management refusing to believe that it was possible for Linux and much of the GNU software to have come into existance without *someone* *somewhere* having copied pieces of proprietary UNIX source code to which SCO owned the copyright. The hope was that we would find a "smoking gun" somwhere in code that was being used by Red Hat and/or the other Linux companies that would give us some leverage. (There was, at one stage, the idea that we would sell licenses to corporate customers who were using Linux as a kind of "insurance policy" in case it turned out that they were using code which infringed our copyright).
So, Darl's SCOsource scheme wasn't even original, was it? SCO *hoped* to find copyright infringement so they could make some money selling "insurance" for Linux, the email says. Sound familiar? And after all that effort, what did they find?
At the end, we had found absolutely *nothing*. ie no evidence of any copyright infringement whatsoever.
SCO has had due process to the point of abusing the system. The problem most people have is that despite Darl saying there were millions of lines of SCO code in Linux, they have not been able to show them -- publicly or to the court.
We may not know their inner workings. We may not know the contents of their still-sealed exhibits. But we DO know that Judge Kimball has gotten irritated with SCO, stating that they have no evidence as of yet. We may not know those things, but Judge Kimball sure as hell should know.
Also, a copyright holder can't notify people of a vague infringement claim and then not do his duty to mitigate damages (i.e., tell Linus what's infringing so it can be removed). If SCO is correct, with their current tactic, Linux has been infringing for the past few years, and SCO would be able to recoup none of that because they did nothing to mitigate damages after they found the infringement. Such actions annoy people and annoy the courts.
I'm sure people said that exact same thing about Bernie Ebbers. Let this thing play out. It's still got a ways to go.
The court has sanctioned SCO, on multiple occasions. Discovery was stayed for months because SCO refused to comply with a court order. SCO was denied the opportunity to file a third amended complaint, and their proposed scheduling order was canned. IBM's dispositive motions were delayed, not dismissed as SCO wanted. These are some of the results of SCO being caught at trying to game the system.
SCO's claim is apparently not based on copyright infringement but on contract violation.
Right. And what is the contract violation based on?
Hint: see paragraphs 6 thru 14 of SCO's Second Amended Complaint. See also paragraph 79.
"a significant amount of UNIX protected code and materials are currently found in Linux 2.4, 2.5x and Linux 2.6 releases in violation of SCO's... copyrights."
If SCO drops the copyright claims, their whole case collapses. Won't that be fun?
You're right, no sanctions -- yet. But you can see both judges getting frustrated with SCO. Wells even wrote an order with one part of it having the explicitly stated purpose of keeping SCO from further complaining that they didn't get everything. And again in that same order states "Once again by requiring this, the court seeks to circumvent the rote objection by SCO alleging that they did not get enough information."
Does that sound like the judges are happy with SCO's constant delays?
And yet he hasn't (1) dismissed the case, or (2) sanctioned SCO. So I wouldn't read too much into it.
He's stated that everyone should wait until discovery is over. He wanted to grant IBM's mostion for PSJ back when he made the statement about lack of evidence, but for technical legal reasons decided to postpone that until the end of discovery.
You're right, final results aren't in. But It's not looking good for SCO given the statements of the judges.
SCO's claim is apparently not based on copyright infringement but on contract violation.
Ah, you believed it! SCO wants you to forget that this also started as a copyright and trade secrets suit. They thought the judges would forget, too, but the judges didn't, and chastised SCO when they recently tried to claim that copyright isn't an issue in this case.
I can certainly call it abusive, as a look at the court record makes it obvious. Whether it's abusive to the extent that they will be sanctioned remains to be seen.
OSS guys have declared that this case was going to be dismissed and McBride led away in shackles so many times that it's hard to take anything you say seriously.
SCO's legal maneuvering and and delay was too good (although not good enough -- they didn't get to amend yet again) to allow that to happen in any decent amount of time. It may still happen, or IBM's countersuit could break SCO, but this will probably play to the end.
Of course the Darl in shackles thing can't happen in relation to this suit. If/when SCO is found to have nothing in Linux, I then expect more lawsuits against SCO and a fraud prosecution to begin. If they lose this then the Red Hat suit will go forward with full force, the issue already decided (according to SCO's claims now), and SCO will be hurting.
The lineage of Unix code is so twisted and tangled that it's not surprising that the question of copyright infringement is still being litigated. Personally, I'm willing to wait to see what SCO has to say about it.
We already know that. SCO claimed infringement, and then SCO retreated from their claim when IBM used it as the basis for their own claims against SCO. They tried to tell the judge there was never any copyright issue, therefore removing IBM's right to press its own counterclaim, but the judge apparently had a good memory and caught them on it.
"Notwithstanding SCO's puzzling denial in its briefing that it has not alleged a claim against IBM for copyright infringement arising out of its use, reproduction, or improvement of Linux, it clearly has alleged such a claim."This was the same ruling where Kimball said SCO had shown no evidence. If they had a good copyright claim, why did they back off so fast?
But the alleged contract violation is the meat of the case, IMO.
SCO is trying to make that their main claim now, and seems to be the only one that can win them anything and put Linux in jeopardy. Unfortunately for them, the people who actually wrote and managed the contract between AT&T (to which SCO is successor in interest) and IBM say their position is unsupportable.
Duh. Anyone in law enforcement considering such is not going to broadcast that fact before any warrants are issued.
Never say never. 1,500 federal counts of mail fraud are hanging over his head if it's shown that SCO has no IP rights over Linux. Plus imagine the SEC investigation and stockholder suits when SCO goes belly-up if they lose this case. Well, they might survive losing their claims against IBM itself. But they probably wouldn't survive losing IBM's counterclaims or Red Hat's claims. And don't forget, if they lose IBM they pretty much automatically lose Red Hat.
They can only play their "anywhere but here" litigation strategy for so long. If they ever allow something to be decided (which they've been trying very hard to avoid), then the effect will cascade through the other suits.
Just another Utah scammer....let LINNUX live freely
You're still offering nothing but FUD. Show me how the existence of Linux is hurting our economy. Would IBM et al be so enthusiastically supporting Linux if it were truly the spawn of Satan?
One question: Why is SCO paying Novell every (IIRC) quarter for something that they supposedly bought all rights to?
He can't because it isn't there. He also doesn't understand economics, taking a very narrow view. I've asked him repeatedly to read and understand the "broken window" economic fallacy, which is related to his misunderstanding, but he refuses.
SCO's interpretation of the original AT&T contract has been pretty well nullified by the actions of AT&T and Novell through the years, and has been debunked by many of the principals and signatories.
And it mostly still boils down to AIX being a partial derivative of SYSV and what happened to IBM's own code. Paragraphs 113 - 116 of the complaint reveals SCO's contention that the original violation was AIX code --> Linux, and SCO still can't show it. All of the wookies in the universe won't hide this fact.
IBM may have additional copyright liability -- but it is not clear yet what that is.
It's not clear yet whether SCO holds any copyrights that were infringed.
The issue of Novell not transferring copyright simply isn't credible, in my view.
If you can dig up any credible evidence that Novell transferred the right copyrights to Santa Cruz, and that Santa Cruz transferred them to Caldera, I'm sure someone at BS&F would like to talk to you.
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