Posted on 07/28/2003 2:23:20 PM PDT by amigatec
Edited on 04/13/2004 2:58:59 AM PDT by Jim Robinson. [history]
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.
(Excerpt) Read more at eweek.com ...
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. |
More grist for the mill.
Oh now I didn't see that one coming. Those silly Linux users, they will be assimulated. Resistance is futile.
"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.
What were the terms of that offer?
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
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.
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.
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
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:
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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.
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