Legal commentators weigh SCO's chances - And find them slim to none

The Inquirer ^ | Tuesday 29 July 2003, 14:14 | Egan Orion:

[Ernest_at_the_Beach]

THE SCO WAR might go down as the first Open Source lawsuit, in a couple of senses. First, because the GNU General Public License, or GPL, might be legally tested for the first time. Secondly, SCO has probably sealed its defeat by ticking off many intelligent Open Source users.

It's quite probable that the GPL will be tested in court. If not in the SCO vs IBM case, then in other litigation, either by or against SCO.

IBM recently issued a memo, as reported by C|Net here. The IBM memo explicitly refers to SCO's prior distribution of Linux under the GPL as invalidating its claims of Linux copyright infringement. Whether or not this implies that IBM will employ the GPL as an element of its defense is uncertain, but it's possible.

If SCO actually carries out its threats to sue Linux developers, vendors or users, the GPL will certainly be tested in court in any such case. Or it could well turn out that Linux kernel developers may have solid legal grounds to sue SCO for copyright infringement, if it's seen that SCO has violated the GPL. Or a Linux distribution vendor could decide to sue SCO for interference with its business, if it can show real commercial harm. Or, if SCO singles out any Linux user, that user might decide to sue. In any of these circumstances the GPL's validity could come up in court.

Linux and Open Source advocates should be hoping to see this happen. Any nagging worries about the GPL's strength in court would be dispelled.

More importantly perhaps, SCO's drumbeat of irresponsible and escalating statements denigrating the Linux community, and the insults to the Linux developers appearing in its Complaint against IBM, have had a remarkable effect. Certainly, SCO has succeeded in making lots of very smart people extremely angry. This isn't a great strategy in almost any situation. In SCO's case, its strategy will likely result in SCO's eventual defeat.

As often happens when confronted by a common enemy, the various arguing factions in the Free Software and Open Source communities have suspended their differences to focus on understanding the threat and to defeat it. The Free Software Foundation (FSF) and Open Source Initiative (OSI) have not traded barbed comments publicly in months. Once common disagreements over which Linux vendor builds the best distribution have subsided. Even those sometimes obstreperous KDE and Gnome desktop groups recently seem to have stayed closer to their respective knitting. There seems to be a generally pervasive understanding that such petty squabbles can wait.

Even more remarkably, people are contributing research outputs, analysis programs and scripts, historical documents, as well as commentaries and ideas. And the power of all their contributions and efforts is becoming apparent in resources that have been assembled, with visible results.

I've mentioned the SCO vs IBM informational Wiki previously, and that is here, providing starting references and analyses. If anyone has additional materials, that's a good place to submit those.

Paralegal Pamela Jones writes the scrupulously researched Groklaw web log. Her entries are detailed, interesting, and clearly instructive about the relevant legal doctrines and points of argument on both sides of the several disputes that might arise. Ms. Jones' crisp and spirited commentaries are easy to read and her essays alone are totally worth the trip. Her awesome Groklaw dissection of the SCO War can be found here.

Even the sometimes, erm, uneven MozillaQuest has moved beyond its earlier frustrated, repetitive rants to post a disciplined, well written series of analyses lately, including an accessible article that presents succinct legal commentaries culled from interviews with a few attorneys who appear well versed in the issues that are likely to be decisive. The most recent MozillaQuest installment containing these discussions is here. The consensus of the lawyers' opinions in that article is that SCO's legal case will collapse like a house of cards.

SCO's scheme is already unraveling. Now, after suing IBM when it refused to pay up or buy it out, hitting up Microsoft for a so called "license" for $10 million (that it probably didn't need) and mugging Sun for about $8 million in "protection" (likely a wash versus the cost of a lawsuit), SCO has apparently run out of big Unix vendors. HP and SGI aren't saying but they must have told SCO to take a hike. As have the largest Japanese Unix and Linux vendors, Fujitsu and NEC. So SCO has threatened big Linux users with potential lawsuits in a desperate ploy to replace flatlining Unix revenues. But most IT pundits and the users aren't buying SCO's FUD act. And the reason for this is vocal grass roots Open Source opposition from the Linux developer community and thousands of individual users. It is not what SCO expected when it launched its license extortion scam.

I could probably go on at length about this, but perhaps you already get the point. SCO has attacted a lot of attention with its assaults on IBM, Unix, GNU/Linux, the GPL, and the Free / Open Source Software community, as well as the equally shared commons of publicly available intellectual property that Open Source contributors and users develop and deploy. But aside from a few shills for proprietary software at the vendor supported publications and IT industry analyst firms, most reactions and responses are inimical to SCO. Judging from its statements, SCO did not anticipate that Linux developers and users would oppose its schemes so passionately and publicly. But it should have known that it couldn't attempt to steal the work of thousands of people with impunity. SCO has miscalculated -- attacking Open Source will prove its undoing in the final reckoning. µ

[Ernest_at_the_Beach]

OFFICIAL BUMP(TOPIC)LIST

[E. Pluribus Unum]

Linux and Open Source advocates should be hoping to see this happen. Any nagging worries about the GPL's strength in court would be dispelled.

In other words, Bill's little scam is going to blow up in his face.

[Ernest_at_the_Beach]

The following is a snippet from the GROKLAW Blog mentioned in the article.

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Wednesday, July 30, 2003

Caldera's Linux Contributions Were Official, not by Rogue Employees Back on July 18, I reported that then-Caldera employee Christoph Hellwig contributed to the Linux kernel. One commenter opined that if he broke an NDA, he was going to be in trouble. Ever since, I have been looking for proof positive that Caldera's employees -- and we have found more than one -- contributed with the knowledge and approval of their employer. Here's what I found, plus something helpful from mathfox, a Groklaw reader: "I scanned the linux-2.6.0-test2 source tree for the name Caldera and found a few occurrences: "In the file net/ipx/af_ipx.c the following text can be found: * Portions Copyright (c) 1995 Caldera, Inc. * Neither Greg Page nor Caldera, Inc. admit liability nor provide * warranty for any of this software. This material is provided * "AS-IS" and at no charge. "They knew the implications of the GPL. It is likely that the code was contributed to Linux a few years after 1995, but before 2000. "In 1997-1998 Caldera contributed the ThunderLAN (tlan) drivers. During the year 2001 several bugfixes were provided by engineers from Caldera Germany. As an example: Marcus Meissner contributed to the sound/oss/esssolol.c and sound/oss/maestro.c drivers." This doesn't prove that they knew of each and every individual contribution, but it shows that they knew contributions were being made and that they were made officially, with Caldera's blessing. The next question would be: what kind of ... nah, I don't want to tell them. They might rewrite history. I figure by now they probably read Groklaw. I then found a Bradley Kuhn interview, back in May, where he says Caldera assigned copyrights on employee contributions to the FSF: ""Indeed, FSF holds documents from SCO regarding some of this code. SCO has disclaimed copyright on changes that were submitted and assigned by their employees to key GNU operating system components." Note he is here talking not about the kernel, judging from the quotation. But it's obvious and I think now settled, that Caldera knew of and approved of its employees contributing to GNU/Linux. There you go, Christoph. In case anybody comes after you. On the patent front I found an article in the Virginia Journal of Law and Technology, written by attorney Rod Dixon, in which he argues that open source code is so vital now that copyright for software code ought to be done away with completely. His view is that most of it doesn't meet the originality requirement, and further that open source makes it possible to quit reinventing the wheel, something proprietary methods doom programmers to have to do over and over, since they can't look at each other's code. The benefitis to society from rapid improvements built into the open source method, in his view, make a complete review of copyright law necessary as it relates to software. Here's part of his conclusion: "The DMCA's ostensible approval of locking up access to source code regardless of whether the source code meets the originality requirement may violate copyright's constitutional mandate under circumstances where the technological barrier protects an unoriginal work." It's not an "easy read" by any means, and his view is not mainstream, but it certainly is thorough, with cases and analysis you may find of interest. Actual pdf is here. The article is in Virginia Journal of Law and Technology, Spring 2003, titled, "Breaking into Locked Rooms to Access Computer Source Code: Does the DMCA Violate a Constitutional Mandate When Technological Barriers of Access Are Applied to Software?" by Rod Dixon 8 Va. J.L.& Tech.2 (2003) There is also a New Yorker piece saying patents have gotten out of hand. Here is one snip: "The new regime's defenders insist that in today's economy such vigilance is necessary: ideas are the source of our competitive strength. Fair enough. But you don't compete by outlawing your competition." Want a laugh? Here's an Onion story on MS patenting ones and zeroes. It's dated 1998, so some of you may have seen it already. Nevertheless, it's funnier than ever in the midst of the SCO soap opera. comment [ 0] 12:30:31 PM

Tuesday, July 29, 2003

Sun Is Currently Distributing the 2.4 Kernel Under the GPL My readers are the best. Here's a note from Dr. Stupid, which I decided to put up here, in case some of you don't read all the comments: "Check this: ftp://ftp.cobalt.sun.com/pub/products/sunlinux/5.0/en/updates/i386/SRPMS/ "kernels as recent as 2.4.20. "Dr Stupid" Well, then, it's under the GPL. No protest from SCO. License says they can do it anyway. You do the GPL math. Heh heh. SCO, Sun, and MS are the Keystone Kops of the GPL. comment [ 4] 6:53:56 PM

Sun Finds a New Way to be Repulsive

Just when I think I have seen it all, Sun springs into the spotlight and does some new, seriously off-putting thing that makes me wonder, once again, if they are behind this whole SCO mess.

Now they are thinking of putting out their own version of Linux, offering customers indemnification based on their license with SCO. They found a journalist willing to push this as a plus. Read it for yourself, while I go throw up:

"Sun has a Unix license that appears to cover just about any aspect of the operating system. Further, the company will indemnify users from legal issues that could arise relating to the operating system. There's no doubt McNealy believes Solaris is a better solution than Linux, and he's not above taking advantage of the FUD -- fear, uncertainty and doubt -- sowed by SCO to promote the operating system on which Sun has lavished so much research and development over the years.

"McNealy may be ready to seize an opportunity that the dispute presents. He told me Sun is considering offering its own Linux distribution, which the company's Unix license may fully cover. If Sun could indemnify its Linux customers, it would have an unassailable advantage. I don't think you will find a similar indemnification for Linux from the other open-source vendors. It would also be in keeping with Sun's offering an integrated, airtight whole -- shades, once again, of the vertical integration that's Sun's heritage.

"For enterprise buyers, it's certainly a wise approach to go slowly with any deployment until the court clears up the dispute or the vendors agree to bear any legal burden you may face. Offering a 'better' Linux -- one that's legally unencumbered -- might just give McNealy a reason not only to hug the Penguin but also to give it a big squeeze."

Hold the squeeze, please. No, really. "Not above taking advantage of the FUD." You can say that again. In fact, this story adds to it.

And that's why I'd never accept their Linux distribution, let alone pay for it. In fact, I have a message for business. Leave GNU/Linux alone, if you don't understand it and accept what it is. Just write your own code, for crying out loud.

You need GNU/Linux, not the other way around. Otherwise, you wouldn't be thinking of putting out a Linux distribution, would you?. But if you mess with what made free software what it is, you'll have nothing worth co-opting. So do what you do. Be as proprietary as you please. But don't grab free code and underhandedly give nothing back, or worse, grab it and leave a hole where it used to be. It's morally wrong. And there's no way to make it right. Consider that, next time you lecture on the sanctity of your Most Holy Secret IP, will ya? My stomach can only take so much.

Also, read the GPL, will you? I mean before you do a distribution. Get a lawyer to explain it to you, because when it turns around and bites you in your Achilles heel, a la SCO, I don't want to hear any whining about it being viral or you didn't know combining your code with GPL code means it all goes GPL. Big business' mind set makes it hard to grasp the purpose of the GPL, which is to protect the freedom of users. From you. The coders who wrote the code distributed it under the GPL for a reason, and they have the right to demand that you respect their license that comes attached to their creative, copyrighted work. You know what a license is, don't you? OK, then at least on this point, we're speaking the same language. They have a legal right. But they also have a moral right. Um.. you know what morals are, right? You heard about it?

If not, here's practical, business language: offending the coders that create the Linux kernel, which is the part under dispute currently, means your business will tank, if you depend in any way upon Linux. People that use Linux, as you call it, will avoid buying your products. That's why Caldera couldn't make a living from Linux.

That's your unsolvable problem. If the community marks you as no good, and they will if you behave unethically according to its lights, they won't encourage their bosses to buy your product; they won't write for you; they won't give you the benefit of any doubt. You'll waste time and effort and end up thinking no one can make a living from GNU/Linux when really it's you, because you've been exiled from the community. It's not organized. It'll just be that way, just as Sun is now marking itself Not a Member of the Community. Not that it ever was.

So, to come full circle, I think Sun had better just leave GNU/Linux alone. Journalists may praise their ideas, but without community support, it'll fall flat. And a year from now, I'll be linking to this article and saying I predicted it. Some things are just obvious.

One other tip: by distributing Linux, the kernel SCO is suing over, you are putting it under the GPL. Your SCO license doesn't change that. It's there already, because they've been distributing it long after they filed the lawsuit, but you'll confirm it. No kidding. You guys need to read the GPL. It'll spare us all stupid lawsuits.
comment [ 24] 5:11:47 AM    

[Ernest_at_the_Beach]

Sun seems to be in on this too!
See above!

[Calvin Locke]

I like the It is not what SCO expected when it launched its license extortion scam. part.

Desperation.

Hello? Does the RIAA fiasco ring a bell? No? How about the names Uday and Qusay?

[epluribus_2]

in the wiki, they claim that linux or SCO argue about who owns the rights to the SMP (Symmetrical MultiProcessing) concept. What a joke. SMP was first a product of DEC (Digital Equipment Corp) research in the mid 80's, well before any of this mess. Damn fine OS, VAX-VMS, too. DEC is now owned (and digested) by Compaq. No justice in computer wars.

[TexasBlues]

I would not be too quick to believe the Legal commentators as they are in general terms cut from the same cloth as the stock commentators. Anyone who has followed the stock market knows how well they have done. They basically make a living by selling opinions and who wants a boring opinion.

Doesn't anyone understand that this Open Source concept is basically a Socialistic initiative for economic change! It is based on the premise that all good things must be freely available to everyone so that society as a whole benefits from the efforts of the many. Can anyone say Communism?

Whatever happened to Capitalism. "I made it. If you want it, buy it." That is a Capitalistic free market economy. Look how well the Soviets have done with socialistic economic structure. Do we want that?

The GPL has little to do with the situation or at least to SCO's core lawsuits. If someone breaks into your house and steals some of your glassware do you say a theft has not occured if you can prove the home owner himself has thrown aware glassware in the past?

The issue is the question of if Linux has incorporated code from the Unix kernel which is protected under the Unix patents that SCO has bought up over the years. If they can prove it then it is theft plain and simple. All legal positioning and commentary aside that is the companies response to SCO. Either prove it or take a long walk off a short pier!

I do like the tatic that asks if SCO has incorporated anything from the Linux kernal covered by GPL into Unix? Clever reversal of the question!

That's my opinion.

[Ernest_at_the_Beach]

The above from the GROKLAW Blog is under the following: (Which is new to me )

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[TexasBlues]

Sorry but I remember evaulating a company in the early eighties pre-Dec that had SMP in production. I haven't a clue who created it but even if it was Dec who pioneered the technology someone beat them to manufacturing.

Can't remember their name though, its been 20 years...

[jimkress]

SCO has miscalculated -- attacking Open Source will prove its undoing in the final reckoning.

One can only hope ...

SCO = Self Crafted Obliteration

[George W. Bush]

I do like the tatic that asks if SCO has incorporated anything from the Linux kernal covered by GPL into Unix? Clever reversal of the question!

SCO is distributing a Linux even now. They withheld the source but the patches actually contain GPL notices from IBM! They're still distributing it right now.

They are so screwed. IBM might end up owning SCO before this is all done.

There are also considerable indications of SCO's officers unloading their own stock following the runup in SCO stock prices. I think they might end up in prison.

Note to SCO execs: don't piss off Linux users.

As far as Sun issuing a Linux, I think it would be a good thing. If the price is comparable to the RedHat offerings, it seems a good way to bring more standards to the community and would encourage adoption of Linux by businesses who want solid corporate tech support from a big player. To have Sun join IBM in the Linux game is a plus, as long as the OS stays GPL'd.

[Ernest_at_the_Beach]

SCO = Self Crafted Obliteration

Good one!!

[adam_az]

The GPL is not socialistic. It's just a license, one that software authors can freely choose to apply to their own works.

There is a distinguished history of people inventing things and giving them to all mankind - Penicillin, for example.

The glassware argument is invalid because glassware does not come with a license. :)

The argument here is really that SCO entered into the GPL license contract in various ways that incvalidate their claim against IBM. The GPL has EVERYTHING to do with SCO's lawsuit, as much as SCO's license agreements do.

SCO is making the claim - the burden of proof is on SCO to "Either prove it or take a long walk off a short pier!"

Curiously SCO has not made public exactly what the offending code is, and the dozen people they have shown it to were forced to sign restrictive NDA's that won't let them discuss what it is exactly.

Why? Because they have no case and are hoping to use the legal system to extort money from people using a product that SCO has no legal ownership of. Is THAT your idea of good capitalism???

IBM supports Linux heavily, and makes a lot of money in the process. Is IBM not capitalist enough for you? (I'm and ex-IBMer and can tell you - IBM is all about profit. IBM culture, more than any other company I've every worked for, applies tremendous pressure on employees to TEAM, EXECUTE, WIN. *ESPECIALLY* WIN!)

[George W. Bush]

IBM, already well-regarded by the Linux community, will be even more popular after they crush SCO. Last I heard, they have already defined eleven legal strategies to use against the SCO suit.

Watching IBM and SCO is like waiting for the bear trap to snap shut on Bambi.

IBM's legal staff must be going bonkers with all the legal fun they're planning to have wiht this.

[Incorrigible]

Just to be safe, everyone should buy and install Microsoft Windows XP on their computer.

[Ernest_at_the_Beach]

I have my copies!

[B Knotts]

Safe from what?

[Incorrigible]

Safe from the fees LINUX users will have to pay!

Windows will be a bargain!