Quiet you!
Posted on 08/19/2003 7:39:56 AM PDT by Joe Bonforte
LAS VEGAS--When SCO Group first filed its lawsuit against IBM in March, critics characterized the move as the last gasp of an ailing company hoping to strike a series of lucrative licensing deals.
Since then the company has come out swinging even harder, bashing its detractors, standing by its allegations, and most recently, posting a profit that SCO said would allow it to continue its aggressive intellectual property fight.
At the SCO Forum here Monday, the company pulled out its latest weapon: lines and lines of disputed code that were allegedly copied from SCO's Unix into IBM's version of Linux. The company claims that IBM illegally copied Unix code into its version of Linux, and it's warning Linux customers that they may be violating copyright by using the operating system without paying SCO. It's also recently announced a new licensing plan that would require Linux customers to pay between $199 and $699 per computer.
In a quiet conference room tucked into the conference center at the MGM Grand, SCO offered customers, partners and the merely curious the chance to view the code for themselves, as long as they signed a nondisclosure agreement.
Companies involved in litigation traditionally keep such information under wraps in order not to tip their legal hand, but SCO said it decided to display the code because its critics were charging that it didn't have a case.
"Given the nature of this case and that there may be a significant period of time before it's resolved and that people were clamoring to see it, we decided to show a few pieces of evidence," said Chris Sontag, senior vice president of the SCOsource unit, which is charged with protecting SCO's Unix-related intellectual property.
As of the end of the day on Monday, more than 150 people had seen the code presentation, which the company said includes a small portion of the infringing code it has found so far. Sontag said the company has uncovered more than a million lines of copied code in Linux, with the help of pattern recognition experts.
A compelling case?
According to those who viewed the code at SCO Forum, company representatives showed off several categories of code that allegedly infringed its copyrights, including some lines that appeared to be directly copied, some that were derivative works and some that were obfuscated, such as code from which legal disclaimers had been removed. (This reporter declined to sign the nondisclosure agreement required to attend the special sessions where the companies showed off a special side-by-side comparison of the code, opting instead to gather reactions from people who saw the presentation.)
After viewing the code, Don Price, general manager of Price Data Systems, said he was surprised at the volume that was allegedly copied. "It's compelling," he said. "Some people were either extremely sloppy, or copied and thought no one would go after them."
Neil Abraham, with SCO reseller Kerridge Computer, said SCO made the right decision to pursue IBM. "I think they've got a very firm case," he said, after looking at the code. "It's not just one line. It's huge chunks."
Bob Ungetti, of Raven Technologies, who was milling about waiting to get into a room where the code was being shown off, said he wanted to see the code because his customers have been asking him about the suit. "I want to see the code myself just to substantiate the claims SCO is making, so when I talk to my customers about the credibility of the lawsuit, I can say I saw it for myself," said Ungetti, whose company is a reseller for SCO. "If they're interested in using Linux, they're concerned they may be adversely affected; my SCO customers are concerned that if the company loses the lawsuit, it may be out of business."
Ungetti said a keynote address on Monday morning had already convinced him that SCO had a pretty solid case. During a speech, SCO representatives showed a few slides containing the allegedly infringing code, offering attendees a taste of what they could see if they signed the nondisclosure agreement.
"The spelling errors and comments (copied into the code) are the real kicker. To me, that's the nail in the coffin," Ungetti said.
Many attendees of the conference are longtime SCO fans, so convincing them that the company has a case by showing them the code probably wasn't too tough. However, at least one attendee was appalled by SCO's decision to sue IBM. The man, an exhibitor on the show floor who asked that his name not be used, said that SCO's hands aren't clean either, because the company has probably taken code from other sources and incorporated it into its products. "It looks to me like there's been a lot of cross-pollination" between Unix and Linux, said the attendee, who jokingly called SCO's legal saga "As the Stomach Turns."
Legal experts agreed that SCO faces a challenge of proving that it has the original rights to the code--a task that could prove especially daunting because of a special license popular among makers of free and open-source software known as the GNU Public License, or GPL. The GPL requires companies that incorporate code into their product to share their changes. In its response to SCO's legal filing, IBM claims that SCO can't assert claims to the disputed code because it was originally covered under the GPL.
"Even if there is literal copying, you'll have to say, 'What's the source of the code?'" said Stuart Meyer, a partner with Fenwick & West, who is not involved in the case.
SCO has denied that the disputed code is covered by the GPL. An attorney for the company said Monday that even if it were, federal copyright laws protecting the company's intellectual property would trump the free software license, an argument that could form the crux of the case should it go to trial.
Well, duh. Unless they get an idiot judge, they will be instructed to have their Darl show up Monday morning with one of the following:
1. A listing of the allegedly infringing code (under notice that subsequent infrigement claims based any code absent from this list will be dismissed with prejudice).
2. His toothbrush and (optionally) a supply of Vaseline[tm].
You guys just LOVE to assume stuff is yours, as soon as you get your hands on it. However without explicit rights to do something, like redistribute, you have nada.
The only letter Ive seen said it excluded Sys III and Sys V from this license. Even if it did, I've heard this particular license cannot be redistributed under GPL.
Unfortunately for Boies, when he is done pulling things out of his rear end, it will be evident that all he has is a big pile of the same stuff that comes out of everybody's rear end.
But in a world where millions of people believe that the earth is 6000 years old, that the stars rule people's destinies, and that government can run the economy for the public benefit, I suppose that is a plausible explanation.
As a subsequent owner, SCO cannot now undo a settlement entered into nine years ago by a previous owner. That's why they call them "settlements." They settle the issue.
"Precedents" are a red herring here. There is nothing to litigate. This issue was litigated, and settled, by large institutions with competent technical and legal advice. No judge will re-open it now; otherwise no 'settlement' would ever settle anything.
It would be hilarious if James Carville suddenly grew two-foot-long purple hair, Tweety Bird, but that isn't going to happen either.
More rhetoric, at least you cut down on accompanied insults this time.
What in this settlement assures this code couldn't belong to ATT/SCO? It may be there, but so far your completely disorganized side hasn't been able to produce it despite repeated questioning, just rhetoric like above they gleaned from some blogboard.
Whatever, I really don't understand infantile whining like that. Something about tweety birds and purple hair? Ask your mom, maybe she knows.
At this point, the document (which was sealed) does not have to say anything. Upon obtaining this settlement — whatever was in it... we don't even have to know — the University of California promptly released all the BSD code under what is now called the "BSD license."
It's been nine years now. Neither AT&T, nor Novell, nor the Santa Cruz Operation, nor even Caldera/SCO until very recently, objected. The doctrines of laches and waivers say that if none of these original or subsequent owners of the AT&T code base has complained in nine years about this code being openly available under the BSD license, then they have waived any rights they might have had to the BSD code, even if they now change their mind.
DOCTRINE OF LACHES Black's Law Dictionary 6th Edition. Laches/laechaz/leychez/laeshez/. "Doctrine of laches" is based upon maxim that equity aids the vigilant and not those who slumber on their rights. It is defined as neglect to assert a right or claim which, taken together with lapse of time and other circumstances causing prejudice to adverse party, operates as bar in court of equity.
Whether SCO likes it or not, the behavior of the previous owners over the past 9 years contitutes a waiver of just the sort of rights SCO wishes it could now claim. The world assumed that the U of C was acting in good faith in releasing the code, no one objected for many years, and in the interim huge investments have been made in the belief that this code was available under the terms that the U of C said it was.
No one can claim that AT&T, Novell, or the Santa Cruz Operation were incompetent to act on their own behalf, or were restrained in any way from asserting any rights they wished to assert. They did not do so.
It is reasonable to assume that the settlement reached in the court case gave the U of C the legal right to release the code as it did, and that this is why there was no objection from AT&T/USL/Novell. But even if the settlement doesn't say that, after nine years it's too late to complain.
Golden Eagle wrote:Actually, the BSD/Novell case was settled by a contract between BSD and Novell. Novell agreed to drop their lawsuit (inherited from UNIX Systems Labs) against BSD, and agreed that BSD could have full, unconditional rights to the source code in several different modules. BSD agreed to put AT&T copyright notices in a few files that contained both BSD and AT&T code, and agreed to allow Novell to use that code in UNIX free of charge.
Wrong, the BSD/ATT case was never decided by judge or jury, so it is not any sort of legal precident. Sorry this complicates your defense so much.
BSD took the source code that they obtained from Novell under this agreement and published it under the BSD open source license. Under the terms of that license, anyone (including Linux kernel programmers) can use the BSD code, provided they abide by the conditions of the license. The main (perhaps only) condition of that license is that you must include the BSD copyright notices (and any AT&T copyright notice if that file includes the AT&T code).
As a successor to Novell, The SCO Group is bound by this settlement agreement contract. If they try to violate the terms of the settlement, they will have BSD all over them, not to mention the federal judge that approved the settlement and handled the previous lawsuit.
BSD code (which is basically totally free code) has been used by Novell, and by Santa Cruz Operation in the UnixWare flavors of UNIX (and possibly in other developments of UNIX System V). BSD code has also been used in Linux by various Linux contributors. This means that there will be some common code between SCO UnixWare and Linux. This does not indicate any copyright infringements by either the Linux developers or by SCO. It indicates a common source for the code before it went into either UnixWare or Linux.
TSG's "pattern matching" crew better understand this before they start accusing IBM or anyone else of infringing on TSG's intellectual property by using BSD code.
Golden Eagle wrote:The whole AT&T/UNIX Systems Labs/Novell v. BSDI thing is completely settled. Novell and BSDI settled this contractually by a settlement agreement. As a successor to Novell, Caldera and The SCO Group are bound by this settlement agreement. They will not be able to make the allegation that BSD code came from AT&T. They agreed that BSD owns all rights to BSD code as part of the settlement agreement.
You have no proof of that, that I've seen. BSD could have gotten it from ATT.
What I have is a copy of the book, and the "fair use doctrine" which allows me to use sample code and examples from that book in my own work, or in work that I develop for commercial uses.cc2kwrote:Golden Eaglereplied:
In 1996, the Santa Cruz Operation published this code in a book with no restrictions on it's use.
You guys just LOVE to assume stuff is yours, as soon as you get your hands on it. However without explicit rights to do something, like redistribute, you have nada.
Look, when you were in school and had to do a book report on a book for a class assignment, did you have to get a "redistribution license" or a "quoting license" from the author of the book to include quotes from the book in your report?
It's the same thing with computer books and source code. It's called the "fair use doctrine," and it's a very well established principle of law that goes way back.
Golden Eagle wrote:The code in question didn't come from UNIX System III or UNIX System V. It came from UNIX V5 and UNIX V6 and UNIX V7 and possibly other versions of UNIX that were released in their entirety by that license letter.
The only letter Ive seen said it excluded Sys III and Sys V from this license.
Golden Eagle wrote:You heard wrong. There's nothing in that license that would exclude code covered by that license from being released under the GPL.
Even if it did, I've heard this particular license cannot be redistributed under GPL.
What? It didn't get put into Linux but until just a couple of years ago, so the lawsuit seems very timely. SCO does not consider U of C 'competition' in the enterprise server market, despite what BSD people might tell you. Once SCO's business territory got invaded, and they found the alleged theft, they litigated.
But it's sealed, Nick Danger just said. So you really don't know what it says for sure, right?
fair use doctrine...
It doesn't allow book publishers to give IP to others for reprint though, which is a better analogy to what happened here.
You heard wrong. There's nothing in that license that would exclude code covered by that license from being released under the GPL.
The key is "that licensce", being a BST-"type" when referring to Calderra releases, right?
Gotta run. Have fun defending Linux, since this is just the start.
Dude, you have to at least admit this is interesting evidence. You can't hope to completely stonewall, refusing to even see the damaging evidence here posted. That outs you completely (as if everyone didn't already have your number, which they clearly do).
That kind of blind loyalty to the cause only serves to prove you're a biased advocate. If you're going to use this screen name to pretend you're just an uninvolved person posting his opinion, you have to at least pretend you see the evidence that isn't favorable. Blind denial only makes you the (further) object of our entertainment!
"This is Chewbacca. Chewbacca lives on the planet Endor. Now why would an 8-foot tall wookie wanna live on a planet with a bunch of 3-foot tall Ewoks? Why, I tell you why: because it doesn't make sense, that's why. So when you go into that jury room, I want you to think about your answer, about Chewbacca. And ask yourself, 'Does placing publicly-available code from the University of California into linux confer new rights on the SCO Group, Inc., rights that it did not have before that?' Thank you, your honor."
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