Posted on 06/24/2003 6:07:26 PM PDT by Ernest_at_the_Beach
Ashton was a macaw that lived in the lunch room at George Tate's software company, Ashton-Tate, home of dBase II, the first successful microcomputer database. There is a lot about that long-gone company that was unusual. There was the macaw, of course, which was named for the company, not the other way around. There was George Tate, himself, who died at his desk when he was only 40, but still managed to get married two weeks later (by proxy -- please explain that one to me). And later there was Ashton-Tate's copyright infringement lawsuit against Fox Software that pretty much destroyed the company when it became clear that Ashton-Tate didn't really own its database. NASA did, which meant that Fox had as much right to dBase as did Ashton-Tate. All this came to mind this week while I was thinking (still thinking -- this story seems to never end) about the SCO versus IBM lawsuit over bits of UNIX inside Linux. There is a lot SCO could learn from the experience of Ashton-Tate.
Those who have stuck with this saga recall that I earlier wondered whether SCO put those bits of UNIX System V into Linux themselves, whether they were scavenged from BSD UNIX into both System V and Linux, or whether the problem lay behind Door Number Three.
Door Number Three it is! According to some of those who have had a look at the offending code, it DID come from IBM after all. There are reportedly many lines of identical code, and at least some of the Linux code even carries an IBM copyright notice. Well, this is a surprise to me and a delight at SCO headquarters in Utah, I'm sure, but I'll bet my house that SCO does not prevail and here's why.
According to Laura Didio of the Yankee Group, "[SCO's] claims are not limited to just one area of the Unix System V kernel. SCO claims there are multiple instances of copyright violations. SCO said these include: NUMA (Non Uniform Memory access) a mechanism for enabling large multiprocessing systems, RCU (Read Copy Update) (and) SMP. All of the aforementioned functions represent high end enterprise performance and scalability functionality portions of the code."
And all those parts appear to have come originally from Sequent Computer Systems, now owned by IBM. RCU was implemented in Sequent's DYNIX/ptx, a legally-licensed derivative of System V, in 1994 for SMPs and in 1996 for NUMAs. The RCU code inside the Linux version 2.2 kernel even includes the name of Paul McKenney, who was a major contributor to both the DYNIX and Linux versions. The same guy wrote both pieces of code and probably did do some cutting and pasting between them. To SCO, this is the smoking gun that makes IBM viable for treble damages because SCO's UNIX licenses cover derivative works. That means if I have a System V source code license and I change that code, any changes I make live under the original UNIX copyright.
So that makes IBM guilty, right? Wrong.
If we go back to the Sequent RCU research papers published about this work, we'll see they are very carefully written to present a general way of solving this problem on almost any multi-threaded operating system. It is a general solution. In the key paper, the first mention of some version of UNIX doesn't come until page five under the "implementation" section. They did this work -- work that was supported by a variety of federal grants and involving more companies than just Sequent -- to develop a concept that they then implemented on UNIX.
Now let's think about the UNIX license and how it concerns intellectual property claims. I am not a lawyer, but unfortunately, I have been involved in several copyright and trademark cases, and believe I know the law in this area. SCO looks inside the System V source code and finds this implementation. They look in the Linux source code and find a similar or identical implementation. Sure enough, both can be traced to the same programmer at Sequent, which is now owned by IBM. And SCO, as the UNIX IP enforcer, owns the license for all derivative works -- all derivative UNIX works. David Boies sees this as his smoking gun and he's going to use it. But David Boies is not an IP lawyer by trade. This is key.
The IBM lawyers (who ARE IP lawyers) will strongly argue that none of this matters since we have a case of a single person who did two very similar implementations based on his earlier research. Both his UNIX and Linux versions (works B and C) were derived from his original research (work A) which was not exclusively limited to UNIX. His paper shows that was the case and while SCO may see it as the smoking gun, IBM will see it as the proof of innocence.
What SCO owns (forgetting for the moment Novell's contrary ownership claim and perhaps AT&T's) is the copyright on this particular work as applied to UNIX. But Linux is not UNIX, so applying the same ideas -- even the same code if it comes originally from an upstream source -- is not necessarily copyright infringement.
Say I write a new high-level programming language, then do nearly identical implementations of that language for UNIX and Linux and the UNIX version is made part of some official UNIX distribution. Does that mean the Linux version violates the UNIX copyright? No. But I wrote both versions and the code is identical. Surely that is a copyright violation? No. This isn't a matter of clean rooms and virgins and reverse engineering, it is a matter of precedence and authorship. Sequent (now IBM) did not give up all its rights to the code when it was made part of UNIX. They were very careful to plan it that way.
IBM has the largest legal department of any company in the world. They are INCREDIBLY sensitive about IP ownership, which produces for them more than $1.5 billion per year in license fees. They have embraced the GPL very carefully for their Linux work. The very fact that this code was released under the GPL indicates it was vetted and found acceptable by the IBM legal department. It's not like sometimes they don't bother to go through this procedure.
The upshot is that I believe David Boies will put on a very good show, but that the case will be thrown out on its merits.
And while this is happening, a whole lot of damage will have been done to vendors and customers alike, with only one party benefiting from the drama -- Microsoft.
SCO is effectively trying to destroy both the UNIX and Linux markets. This makes no sense, but that is the logical result of their current efforts. The idea that 1,500 of America's largest companies will be forced to drop Linux and will do so in favor of SCO's UNIXware is ludicrous. Why would those companies spend big bucks buying licenses from SCO -- a company they are upset with -- when they can comply just as easily, and almost for free, by converting to one of the BSD variants? Only Microsoft has had success bullying customers into buying its operating systems and SCO is definitely not Microsoft. This behavior won't sell any software.
Meanwhile, Oracle is trying to destroy PeopleSoft, one of the most successful application development companies around. PeopleSoft's Customer Relationship Management (CRM) software is at the heart of many of the biggest Oracle databases. Oracle, thinking it is reaching for growth in a flat market, actually runs a terrible risk of infuriating its biggest and most important customers.
Microsoft is smart and quick. They are no doubt angling to take advantage of this new chaos in the software industry. If history repeats, Microsoft will make very good business decisions. Everyone else will make very poor, if not stupid business decisions. The result will be that Windows will be stronger, and Microsoft's own CRM products, acquired when it bought Navision (the Danish CRM company), will gain a foothold in the market against PeopleSoft and Oracle. A year from now, Microsoft will be a vastly more powerful business even than it is today, which is saying something.
Where is IBM in all this? If IBM were smart, they would be beating a path to J.D. Edwards, PeopleSoft, and SAP's doorsteps. They would be making those companies sweetheart deals to support and resell IBM's Websphere development environment and DB2 database, grabbing some market share from Oracle. IBM should be helping PeopleSoft hold Oracle at bay, making it worthwhile for customers to move their PeopleSoft and SAP applications from Oracle to DB2. But this is very unlikely to happen.
Unfortunately, it would take IBM months to recognize such a golden opportunity and more months to approve a plan. Probably every IBMer who sells or supports products in this "space" (IBMspeak) understands the situation. But when your leadership is too unaware and too lethargic, well opportunities are missed.
Which brings us back to Ashton the macaw. When Ashton-Tate sued Fox Software for copyright infringement in 1988, the suit was eventually thrown out because Ashton-Tate was shown to have made false statements in its original copyright application for dBase II.
The company claimed that it "owned" the source code underlying dBase II -- code drawn from a database called Vulcan that was developed by Wayne Ratliff at NASA's Jet Propulsion Laboratory. Vulcan was a Z-80 assembler version of JPLDIS, a mainframe database program written at the lab by Jeb Long and others. Long later joined Ashton-Tate and was responsible for leading development of dBase III and IV. Where Ashton-Tate apparently made its mistake was in forgetting that buying the marketing rights to Vulcan from Ratliff didn't invalidate the intellectual property rights of Ratliff's employer, JPL.
Think about it. Ashton-Tate's claim on dBase was, in many ways, similar to SCO's current claim on derivative UNIX works. They both ignored upstream property rights of others. What is ironic about this is that Fox Software wasn't the only company sued by Ashton-Tate for this supposed copyright violation. Fox's co-defendant was SCO. And having been on the other side of such a similar case, they should know better.
If it's a "lone coder" that ripped the source, that lone coder could just as easily post the source on USENET, IRC, FR, etc. In either hypothetical scenario, the victim is unlikely to receive full restitution for their loss. If a "lone counterfitter" prints an unknown quantity of $20 bills, do you plan to jail everyone that unknowingly accepted and passed those bills -- and how could you? It is probably best to keep your source code and plates secured, because robbery is a truly unpleasant experience. That's why the word "victimized" is often used to describe the situation.
Ya know, when I saw all your replies to me, I thought maybe you had discovered some evidence of code ownership. Imagine my dissapointment when I discovered more hypothetical, opinion, and FUD. I really don't have time to debate the potential consequences of hypothetical crimes. Ping me when some evidence shows up.
Maybe you believe that users of closed source are safer because any potential theft would be hidden from prying eyes? I believe that users of open source are safer precisely because the code is exposed for the world to see, and any stolen code is more likely to be quickly located and replaced.This argument equates to saying "It's nice of my guys to leave their stolen cars in the front yard, so you cops can easily find them. You should let them keep doing it, just for that."
No, this argument equates to saying, "We are not doing anything illicit, and we have nothing to hide. See for yourself. By the way, if you find a bug, either let us know, or feel free to fix it yourself."
If you are unwilling to accept that analogy, perhaps you will understand this - this is strictly placing the burden of finding the stolen code on the true owners, or on law enforcement, as Torvalds freely admits he does not do this
Whereas code owners and law enforcement have virtually no chance, whatsoever, of finding stolen code in closed source products. Who have you tasked with the responsibility of policing closed source for stolen code, the thieves?
Project Manager: "We're getting ready to release Project X. You wrote all this code yourself, right?"Do you really think big software companies like M$, Oracle, CA, Symantec, have time to waste pouring through Linux source to see where pilfered items might be?
Lone Coder/Thief: "Of course, boss. That's what you're paying me to do, right?"
Project Manager: "OK, nice work! Here's your bonus for getting the project wrapped up by release date..."
Do you really think big software companies like MS, Oracle, CA, Symantic, have time to waste pouring through source code -- to which they have no access -- to see where pilfered items might be?
There is no comparison to be made in this regard. Theft is a terrible crime; a code owner is no less a victim simply because they are unaware that a crime happened. Be mindful of those you give access to your "trade secret" code. With all the security holes that seem to get past MS QA, do you really believe that stolen code or trojans would be caught? Please.
EAGLES UP!
It is interesting to see how far this thread has deteriorated since Friday.
GROW UP!
Not if purged of the code anyone has a legally proven claim upon.
Your lead in sentence is completely bogus, likely making the rest of your post worthless as well.
Hey Red, your communist dreams are showing....
Yeah, especially when they implicate you and your free software movement.
Then why are you defending theft, and defending the point of view it's the owner's responsibility to prevent/report it? Couldn't be that you're trying to "talk out of both sides of your mouth" is it?
No, you grow up. It is obvious my position on these issues is the mature and responsible one.
Obvious to no one but you?
*snicker*
You sound like my kids. "But I *am* being mature! [heavy pout][stamps feet]
You're trying to sell the political philosophy of Pat Buchannan to stamp out tools that make Americans money.
Actually, your political philosophy even more radical, even more out-there, than Buchannan's -- and that's saying something.
And you're finding even less success getting people to agree with you. You're finding yourself the source of humor for others, much like Buchannan. And your debate 'style' -- well, "mature" isn't exactly the word that comes to mind.
You've completely "sold out" your freeper experience of this screen name to this issue. You've bet the farm. You've decided to be a single-issue, single-minded advocate who has burned all bridges.
If this case fails on it's merits, this screen name is going to be dead around here.
Good thing you have so many more to choose from, eh?
Not true, because many know me here, and remember seeing my picture on the front pages of newspapers around the country as a front line protestor the day of the US Supreme Court decision concerning the year 2000 election.
YOU, on the other hand, are completely exposed and done for, no matter how this particular trial turns out, because as I have always said, my positions are founded on much larger issues than this particular case, although I think it idenifies it pretty well and will be in favor of the US as much as SCO.
Harr considers to laugh over the damage of the US tech economy and likely loss of US trade secrets to foreign advesaries.
Harr continues to laugh over the damage to the US tech economy and likely loss of US trade secrets to foreign advesaries.
Oh, really now?
Then how do you explain the fact that 97.348% of the people seem to feel this case is without merit, and that Linux is a fine capitalist tool?
I know you seem not to notice how in the minority you are here, and Pat Buchannan's tiny vote intake doesn't sink in either, but you *can't* fail to notice that, at best, you're in the vast minority with your opinion of Linux, Open-source and this case.
You *must* have noticed?
I've noticed a lot about you Harr, that's for sure. Little wonder, it ain't good.
The code has already been publicly released (by SCO).Your lead in sentence is completely bogus, likely making the rest of your post worthless as well.
And now, for a "completely bogus" revelation...
SCO is still releasing their "trade secret" code on their public FTP site!
Cheese Whiz. Unlike yourself, I have absolutely no desire to see anyone surrender ownership of their projects for the greater good of your Golden Kingdom. I especially have no desire to breathe new life into Windows by having the IEEE take the reigns. I thought most folks would have recognized the sarcasm, as I pointed out your hypocrisy, but perhaps I was mistaken.
BTW, nice job on the name issue again.
I really don't have time to debate the potential consequences of hypothetical crimes.Yeah, especially when they implicate you and your free software movement.
Now it's my free software movement, and I am implicated in hypothetical crimes? Oh dear, what might be the potential consequences of this predicament? LOL!
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