Linux Users Reject SCO Offer

eWeek.com ^ | July 28, 2003 | Peter Galli

[amigatec]

Many Linux customers have no intention of paying The SCO Group for a UnixWare license that would indemnify them from legal liability for using the open-source operating system.

SCO, which is suing IBM over Unix for more than $1 billion and which claims that Linux is an illegal derivative of Unix, last week said Linux users are also violating SCO's Unix copyrights, particularly now that SCO has registered a U.S. copyright for its Unix System V source code.

[amigatec]

Don't worry Tux is safe.

[amigatec]

Calling all Penguins!!

[Nick Danger]

I don't understand why SCO thinks they are the only people who could be selling these "protective licenses." There are several companies out there who have the right to sublicense UNIX technology. More than a few have fully paid-up licenses, meaning they can sublicense to their heart's content without paying anyone any more royalties.

Right now we're at the stage where SCO has not even proven that anyone needs such a license; they are merely claiming this to be the case and threatening to sue anyone who doesn't pay up.

Since SCO is promising to publish prices for these licenses, it makes zero sense for anyone to pay them anything until SCO actually drags them into court. Then they either fight the court case, or buy a license at the published price, depending on their druthers.

Or they tell SCO they already have a license to run System V on that box; it came free with the hardware. Almost all the big hardware guys have these fully paid-up UNIX licenses; they could pass out System V sublicenses like candy without sending SCO a dime.

[Liberal Classic]

SCO, which is suing IBM over Unix for more than $1 billion and which claims that Linux is an illegal derivative of Unix...

More grist for the mill.

[Only1choice____Freedom]

Linux Users Reject SCO Offer

Oh now I didn't see that one coming. Those silly Linux users, they will be assimulated. Resistance is futile.

[Liberal Classic]

[Paul C. Jesup]

Surely someone has made Hillary and Bill Cliton versions of this picture.

[Paul C. Jesup]

Cliton = Clinton

[Golden Eagle]

Red Hat Inc. spokeswoman Leigh Day told eWEEK that the Raleigh, N.C., Linux vendor has not seen any of the offending Unix code and has confidence that its Linux offerings do not infringe on SCO's IP rights.

"We see no validity in their claims, and we therefore see no reason for our customers to feel that they need to buy a license from SCO," Day said.

I don't really understand how the Red Hat spokesperson can say "We see no validity in their claims", when they themselves have outright refused the offer to view the evidence for themself?

If I was a Red Hat customer, I would be concerned that Red Hat may actually be completely ignoring a potential problem of mine, and are possibly instead just trying to downplay the significance, which may be staggering, ie. paying twice for the same code, and still not be protected from it happening again.

[D-fendr]

" they themselves have outright refused the offer to view the evidence for themself? "

What were the terms of that offer?

[jbstrick]

SCO's claims are a bogus attempt to boost their stock price.

Are they claiming ANY application/program that has touched the UNIX tree will require a licensing fee to SCO?

I am not a UNIX history guru but I am wondering if this means that services like ftp, http, smtp, nntp, ip, tcp, udp and the like will require a licending fee. These protocols and services were developed on unix systems.

[Golden Eagle]

Here is an in depth article by a Linux magazine journalist who took SCO up on the offer to view the duplicate code that might provide your answer:

http://www.linuxjournal.com/article.php?sid=6956&mode=thread&order=0

Despite his admitted bias, he did make another admission in the piece: "I admit that SCO's example unsettled me by what it implies..." and goes on to recommend wholesale changes to their current contribution process near the end of the article.

[Golden Eagle]

Are they claiming ANY application/program that has touched the UNIX tree will require a licensing fee to SCO?

Not that I am currently aware of. This seems to mostly be about whatever code that was previously in Unix Sys V or IBM AIX that made it word for word (supposedly including typos) into Linux.

http://news.com.com/2010-1071_3-1019336.html

[D-fendr]

Thanks for the link, very much.

However, with regard to your statement and my question, the article weighs against you. Re:

1) I don't really understand how the Red Hat spokesperson can say "We see no validity in their claims", when they themselves have outright refused the offer to view the evidence for themself?

2) What were the terms of that offer?

From your link:

SCO was willing to speak only with people who signed a Draconian non-disclosure agreement …Most Linux developers are unable to sign such an NDA, as it easily could prevent them from ever again working on the kernel. Similarly, employees of any company that works with Linux cannot sign such an NDA.

[Nick Danger]

Are they claiming ANY application/program that has touched the UNIX tree will require a licensing fee to SCO?

It appears so. One of the technologies they name in their complaint against IBM is the IBM journaled file system (JFS). The JFS2 code base was originally developed for OS/2. IBM subsequently ported it to AIX. They also contributed it to linux.

SCO claims that by porting it to AIX, IBM made JFS2 a "derivative work of UNIX," and having done so, cannot contribute its own code to linux.

It's hard to see how this is not claiming a sort of "you made system calls to UNIX, so it's mine" right to limit subsequent distribution of code that is quite clearly not theirs. Oracle basically does the same thing; in fact on some level, an RDBMS is just a very fancy file system. They ported it to UNIX. Is it now SCO's? No matter what arm-waving might be employed to say "no, they don't mean that," it's hard to see what legal distinction could be made.

[Golden Eagle]

Possibly, but remember this term 'Draconian' is only coming from Linux proponents, not anyone else who has seen the evidence for themselves. However most importatnly you might notice my issue was with the Red Hat statement "We 'see'..." when it fact they have seen nothing. IMO they need to either go look at the evidence, or update their statement, instead of inferring they have, when they have not.

[StopGlobalWhining]

IBM ain't so dumb. They have been quietly working behind the scenes to build up a "Rapid Response Lethal Strike Force" to stop the SCO suit dead in it's tracks.

They have recruited a group of the most feared, most extreme, most mean-spirited and most intolerant business lobbys anywhere that they will be able to launch against SCO and bankrupt them before this lawsuit ever gains traction.

For more information see IBM Sponsors Gay Chamber of Commerce

[Nick Danger]

          Confidentiality and Nondisclosure Agreement

      This  Confidentiality and Nondisclosure Agreement is  dated
June ____, 2003 and is by and between the following Parties:

          SCO:      The SCO Group, Inc.
                    355 South 520 West
                    Lindon, Utah 84042

          RECIPIENT:     ______________________________
                    ______________________________
                    ______________________________

      WHEREAS,  The  SCO  Group, Inc. ("SCO")  possesses  certain
Confidential  Information,  including  source  code   and   other
proprietary information, and

      WHEREAS,  RECIPIENT  desires  to  review  the  Confidential
Information,  and thereafter to generally summarize  portions  of
the  Confidential Information without revealing the  confidential
source  code  itself,  or  its design methods  and  concepts,  or
specific comparisons of code;

      NOW THEREFORE, IN CONSIDERATION of the mutual promises  and
agreements   made   herein,   and   other   good   and   valuable
consideration,

THE PARTIES agree as follows:

      1.    Disclosure  of  Confidential Information.   RECIPIENT
desires  that  SCO  disclose  to RECIPIENT  certain  Confidential
Information  relating to SCO's Unixware and SCOsource  businesses
and  certain  statements  SCO has made publicly  regarding  SCO's
property  relative  to  the  Linux operating  system.   RECIPIENT
acknowledges  that it will receive access only to  a  portion  of
information relevant to these issues.

      2.    Purpose.   RECIPIENT warrants that  the  Confidential
Information disclosed by SCO to RECIPIENT shall only be used  for
the  purposes of (a) evaluating SCO's public statements regarding
its  UNIX source code and attendant rights and the ways in  which
those UNIX rights affect one or more distributions of Linux,  and
(b)  evaluating  whether  RECIPIENT's or  other's  use  of  Linux
violates  any of SCO's UNIX-related source code or other  rights.
Following RECIPIENT's review of the Confidential Information,  it
may  publicly  offer its general opinion on and a general,  brief
summary  of  the Confidential Information it has seen.   However,
RECIPIENT  shall  not  divulge details or  specifics  as  to  any
Confidential  Information with respect to specific  source  code,
files,  derivative  works, modifications or  design  methods  and
concepts  it  has  seen,  nor shall it divulge  any  third  party
information  it  has  seen,  either  in  source  code,  products,
contracts or in other third party Confidential Information.

     3.   Definition of Confidential Information.  " Confidential
Information"  means  any  and  all  data,  technology,  research,
inventions,  intellectual  property,  trade  secrets,  know  how,
computer  programs,  source  code,  file  names,  file  trees  or
extensions,  works  of authorship, products, processes,  methods,
customer  names, plans, forecasts, prices, business  information,
financial information, and other information shown or relayed  by
SCO to RECIPIENT  on _______________________ [date].

      4.   Protections.  RECIPIENT shall not disclose or transfer
any  Confidential  Information to any  other  person  or  entity.
RECIPIENT shall not use Confidential Information except  for  the
purpose  and by the methods described in Paragraph 2.   RECIPIENT
shall  use  its  best efforts to ensure against  any  disclosure,
transfer  or  use  of Confidential Information  not  specifically
authorized by SCO in writing.

      5.    Employees.   Access  to Confidential  Information  by
RECIPIENT's employees shall be limited by RECIPIENT to  employees
having  a  specific need to know.  RECIPIENT shall be responsible
for its employees and their compliance with this Agreement.

     6.   No License.  SCO is not obligated to grant to RECIPIENT
any  license or right under any patent, trade secret,  copyright,
trademark or other intellectual property right of SCO.

     7.   No Obligation to Disclose.  SCO has no obligation under
this   Agreement  to  disclose  to  RECIPIENT  any   Confidential
Information which SCO elects to withhold.

      8.    Injunctive Relief.  It is understood and agreed  that
damages  are  an inadequate remedy in the event of  a  breach  or
intended or threatened breach by RECIPIENT of this Agreement  and
that  any  such  breach by RECIPIENT will cause  SCO  irreparable
injury  and damage; accordingly, RECIPIENT agrees that SCO  shall
be  entitled, without waiving any additional rights  or  remedies
(including monetary damages) otherwise available to SCO  at  law,
or  in  equity,  or  by  statute, to  preliminary  and  permanent
injunctive  relief  in  the event of  a  breach  or  intended  or
threatened breach by RECIPIENT.

      9.    Severability.   In  case  any  one  or  more  of  the
provisions contained herein shall, for any reason, be held to  be
invalid,   illegal,  or  unenforceable  in  any   respect,   such
invalidity, illegality or unenforceability shall not  affect  any
other  provisions of this Agreement, and this Agreement shall  be
construed   and   enforced  as  if  such  invalid,   illegal   or
unenforceable  provision(s)  had  never  been  contained  herein,
provided that such invalid, illegal or unenforceable provision(s)
shall  first  be curtailed, limited or eliminated to  the  extent
necessary    to    remove   such   invalidity,   illegality    or
unenforceability with respect to the applicable law as  it  shall
then be applied.

     10.  Final Agreement.  This Agreement constitutes the final,
complete  and  exclusive  agreement  between  SCO  and  RECIPIENT
concerning  the  subject matter of this Agreement and  supersedes
all    prior   agreements,   understandings,   negotiations   and
discussions,  written  or oral, between SCO  and  RECIPIENT  with
respect  thereto.  Any modification, recission  or  amendment  of
this  Agreement shall not be effective unless made in  a  writing
executed by SCO and RECIPIENT.

      11.  Waiver.  Any waiver of, or promise not to enforce, any
right  under  this  Agreement shall  not  be  enforceable  unless
evidenced by a writing signed by the Party making said waiver  or
promise.

     12.   Construction.  The headings in this Agreement are  for
the purpose of convenience only and shall not limit, enlarge,  or
affect  any of the covenants, terms, conditions or provisions  of
this  Agreement.  This Agreement represents the wording  selected
by  the  Parties to define their agreement and no rule of  strict
construction shall apply against either Party.

      13.  Governing Law, Jurisdiction and Attorney's Fees.  This
Agreement shall be governed and enforced in accordance  with  the
laws of the state of Utah, without regard to its conflict of laws
principles,  and  RECIPIENT  hereby  consents  to  the  exclusive
jurisdiction  and venue in courts (whether federal or  state)  in
the  state  of Utah.  RECIPIENT waives all defenses  of  lack  of
personal jurisdiction and forum non conveniens.  In any action to
enforce  any right or remedy under this Agreement or to interpret
any  provision  of this Agreement, the prevailing party  will  be
entitled  to  recover its reasonable attorney's fees,  costs  and
other expenses.

      14.   Authorization.  The persons signing  below  represent
that  they  are authorized to execute this Agreement for  and  on
behalf  of  the Party for whom they are signing and to bind  said
Party to the terms of this Agreement.


AGREED TO AND ACCEPTED BY:


("RECIPIENT")

                           Authorized                  Signature:


                               Name                      (print):


                                                           Title:



     The SCO Group, Inc.  ("SCO")

                           Authorized                  Signature:


                               Name                      (print):


                                                           Title:

Things that I think make that one of the most restrictive NDA's I have ever seen:

• There is no exclusion for information the recipient can prove he already knew, or which is already public, or which might become public through no fault of recipient.
• There is no term. This thing never expires. There is no secret in the computer business that is worth squat even 3 years later.
• There is no escape hatch for disclosing information when required to do so by a court of law.

  These are common, everyday things that everybody has in their NDA's... except this one.

[Question_Assumptions]

Interesting article. It sounds plausible that IBM developers did something that they shouldn't have done. It also sounds plausible that, if those market capitalization figures are correct, that SCO will simply be bought out to solve the problem if IBM is guilty.

As the author implies, a lot of things could be done that aren't. I suspect that if firms like SCO and IBM "go nuclear", that they could expose the soft underbelly of software copyrights and patents that would result in changes to the laws. I still say that there is something fundamentally wrong with the law when you can't tell if you are breaking the law until you are in a courtroom and have a judgement.

[Question_Assumptions]

Interestingly enough, in some jurisdictions, contracts without terms are automatically invalid.