Darl McBride threatens to sue Linus Torvalds

theinquirer.net/ ^

[chance33_98]

Darl McBride threatens to sue Linus Torvalds

Barratry as a business plan

By Egan Orion: Thursday 29 May 2003, 08:08

YESTERDAY DIDN'T GO VERY WELL for Darl McBride, Caldera's CEO. Novell delivered a letter disabusing him of the notion that Caldera owns significant Unix intellectual property. It couldn't have come at a worse time -- right before the company's analyst teleconference announcing its quarterly financial results.

Then Slashdot got the story, and published a scathing commentary by Bruce Perens, soundly denouncing Caldera's litigation and threats.

Finally, Darl McBride apparently came unhinged during an interview with CBS Marketwatch. He indicated that unless more companies license Caldera's Unix intellectual property, it might sue Linus Torvalds, the Linux kernel architect and copyright holder, for patent infringement.

Caldera stock lost nearly a third of its value in yesterday's trade.

[chance33_98]

ping

[milan]

This goes far beyond normal "computer nerds" now. Aiming litigation at Torvalds? What could he possibly have done? This is as stupid as sueing McDonalds for fat people!

[FreePaul]

Somebody, or some group, is desparate to put Linux out of business. I don't know who it is but the company name describes something very small and flabby.

[DB]

I'd say Caldera is well on its way to committing a public suicide.

Personally, I hope they get slammed hard.

[milan]

Yeah...who would go after Torvalds. Really, the guy did the world a service with the Linux kernal. Where is Caldera located anyways...where do the operate out of?

[zx2dragon]

He's suing everybody.

[Ernest_at_the_Beach]

SCO formerely Caldora has a divison :

________________________________________

SCOsource Creates UNIX Licensing Programs SCOsource is a new business division to manage its UNIX® System intellectual property. The charter of the new division is to create new and innovative licensing programs to meet the changing demands of today's market and to protect its intellectual property asset. Learn More

[RinaseaofDs]

Or suing Microsoft for being a monopoly!

If Saint Linus used Caldera's Unix code in his kernel, and he represents that it is his, then Caldera has a case as long as they have any evidence at all that the code in question was theirs. Almost any evidence will do.

So now, Linus has to part with hard cash to either prove the code is his, or disprove Caldera's evidence that it is theirs.

See why this sucks? Open Source is a standing invitation to litigation by any idiot with a half-baked claim.

In the US, there is no 'loser pays' provisions for litigation, and there are triple damages on the up side for any lawyer with a shred of entrepreneurial spirit.

[milan]

Uhhh, I really don't know. He is from Sweden. I do know he works in the U.S. and I believe his father was a communist journalist...

Here is a bit of info: http://www.ercb.com/brief/brief.0225.html

I really don't know his political views, but I do know that he is a very rich westerner now.

[milan]

Possibly socialist?

[Timesink]

Somebody, or some group, is desparate to put Linux out of business.

That should be interesting to watch, given that Linux is not a business and can't be "put out of business" any more than, say, the element nitrogen.

[Liberal Classic]

An article by Robert X. Cringely on the subject had this to say:

This week, Novell -- which sold the Unix rights to SCO back in 1995 -- claimed that while it may have sold rights, it never sold Unix, and that all patents and trademarks still reside with Novell. This may not matter all that much given the fact that SCO did buy from Novell the right to license Unix, something the patent and copyright holder has not done in eight years. But Novell made a good point, which was that SCO had been asking for the copyrights for some time, and Novell had refused. If being the copyright holder didn't matter, why did SCO want that role so badly?

...

SCO has been very mysterious about proving its claims, too. I doubt that they can prove anything, but that probably doesn't matter to them. What matters is the approaching June 13th deadline, which is when SCO can yank IBM's Unix license, making any subsequent copies of AIX not Unix. A little company like SCO would think this deadline would shiver the timbers of IBM and its customers alike, but it won't. IBM will simply indemnify its customers against an unlikely SCO win and go on selling AIX as usual. If SCO tries for a preliminary injunction, IBM will just post a bond.

It doesn't help, either, that one of SCO's own people made a strong argument awhile back against the whole idea that Unix code could make it into the Linux kernel. Linus Torvalds found a Linux-kernel mailing list (lkml) posting from Christoph Hellwig, a former employee at SCO, then called Caldera. Hellwig pointed out the impracticality of actually getting copied code from UnixWare accepted by the tough critics on the mailing list. "The kernel internals are so different that you'd need a big glue layer to actually make it work and you can guess how that would be ripped apart in a usual lkml review," Hellwig wrote.

[Liberal Classic]

If Saint Linus used Caldera's Unix code in his kernel, and he represents that it is his, then Caldera has a case as long as they have any evidence at all that the code in question was theirs. Almost any evidence will do.

So now, Linus has to part with hard cash to either prove the code is his, or disprove Caldera's evidence that it is theirs.

You have this totally backwards. The burden of proof is on SCO 1.) to prove that IBM purposefully diluted the Unix trademark in the server O/S market by having some Big Blue software engineers work on the Linux kernel, and 2.) to prove that AT&T derivitive code exists in the Linux kernel. The first one is rediculously hard to prove, and the second is trivially easy to prove.

For the first part, the claim that IBM violated its Unux license when some of their highly-skilled software developers worked on Linux is absurd. Just because these software engineers are good at their job does not mean that IBM is in violation of their contract with Novell or SCO if those same software engineers work on Linux code. SCO will never be able to prove that IBM diluted the Unix mark under this reasoning, for many reasons not the least of which is Caldera itself released some Unix code under an open source license.

For the second point, all that SCO needs to do release a few examples where Linux code is plagerized from AT&T code. Since anyone may download Linux source code, SCO has no excuse to provide a few examples which they have not done. If they believe releasing an example of their proprietary software would hurt their business, they may have the judge seal parts of the court proceedings so they are not publically available. This is what Apple did when they sued Microsoft for stealing their Quicktime video compression algorithms and calling it Video for Windows. Apple did not want the code to be published but was able to prove it in a court of law.

You may not be aware of this, but the whole AT&T intellectual property controversy has already been resolved. A few years back AT&T's Unix System Laboratories sued BSDI (a small commercial Unix clone company) and the University of California. AT&T claimed that BSDI had been derived from BSD 4.4 Unix, and in turn BSD 4.4 contained some AT&T code though it was believed to be unencumbered of it. As it turned out, there were a few lines of AT&T code in it what they were shipping. The lawsuit prevented new BSD releases for a long time, and this let to the University of California getting out of the Unix work. After this happened AT&T stopped trying to sue Free-BSD and BSDI and other Unix clones. Soon, AT&T would sell off all rights to Unix to Novell, and Novell would in turn donate the Unix trademark to the Open Group and sell the source code to SCO.

However, during this hiatus in BSD development that was overshadowed by AT&T's lawsuit, Linux came on the scene and began to gain in popularity. Linux was a completely new implementation of Unix with no heritage with BSD at all, which is I SCO has not publically offered any examples where AT&T code exists within Linux. There isn't any.

[FreePaul]

You're correct, of course Linux is not a business. It's just a matter of semantics though. There are people and companies that would dearly love to have Linux disappear. I believe that they are working now to cause trouble for anyone who promotes Linux. It is a threat to the big operating system.