Posted on 08/26/2003 7:04:02 PM PDT by Golden Eagle
SCO Defends Against Open Source Advocates
By Mitch Wagner
SCO defended itself against criticism by the open source community, saying Unix code used in Linux comes from its own, copyrighted version of Unix, not - as Linux advocates argued last week - earlier versions that have been released into open source.
SCO also said the General Public License (GPL), a popular license for releasing software into the open source community, violates U.S. and international copyright law.
SCO, which owns intellectual property of Unix, is fighting a legal and marketing campaign to show that Linux contains sufficient proprietary Unix code that Linux distributors and users are ripping off SCO. SCO sued IBM in March, claiming that IBM included proprietary Unix source code in Linux, and later SCO warned Linux users that they, too, could be subject to intellectual property lawsuits if they failed to obtain legitimate licenses from SCO. SCO introduced a $699 license this month for Linux users.
SCO has been closely guarding its evidence - the allegedly stolen source code - disclosing it only people willing to sign a nondisclosure agreement. However, last week SCO disclosed some of the code at a presentation at its SCO Forum conference in Las Vegas. Linux advocates, including Bruce Perens and Eric Raymond, obtained copies of SCO's slides, and posted responses to the Web, saying that SCO's own evidence undercut its case.
Perens and Raymond said that some of the code disclosed on the slides, governing memory allocation, comes from early, "ancestral" versions of Unix that were released into open source by SCO itself, while SCO was doing business as Caldera.
But SCO said that, while ancestral Unix versions have earlier versions of the code, the code was refined in SVR4.1, and it's the later version of the code - still proprietary to SCO - that appears in Linux.
Chris Sontag, senior vice president and general manager of SCOsource, the company's business unit for licensing SCO's intellectual property, said another vendor copied proprietary memory allocation code from Unix into Linux, removed the original copyright notices and attached its own. SCO would not identify which company did the label-switch.
Linux advocates also said last week that the memory allocation code is only used in versions of Linux for IA-64 systems, such as systems running on the Intel Itanium chip, representing fewer than 10 percent of Linux installations. The vast majority of Linux installations are running on IA-32 systems such as Intel's Xeon processors.
Sontag accused the Linux advocates of splitting hairs.
"What's at issue is that there is copyrighted Unix System V code, Version 4.1 code, copied into Linux. Whether it is used broadly or not, it is widely published and available. SCO's copyright is stripped out and others are taking credit in violation of the copyright," Sontag said.
Perens said that one of the examples of allegedly stolen code shown by SCO last week was, in fact, from Berkeley Packet Filter (BPF) routines taken from BSD, which is covered by an open source license.
But Sontag said the BPF routines were not intended to be an example of stolen code, but rather a demonstration of how SCO was able to detect "obfuscated" code, or code that had been altered slightly to disguise its origins. The slide displaying the code should have been written differently to reflect that intention, he said.
"It was an example of our ability to find moderately changed or obfuscated code, it was not an example we are using in court," Sontag said. "If they want to go off and make a big defense on that, they are welcome to it."
Sontag said the code examples SCO chose to disclose last week were not its best examples, merely the most easily understood ones. Perens had said the examples SCO disclosed were likely to be SCO's best, and underscored the weakness of SCO's case.
"He's wrong, he doesn't have examples of the evidence. We do. He is trying to put a happy face on a problematic situation for the Linux community," Sontag said. "Try as they might to come up with arguments to bolster their position, the facts and everything we know are extremely strong in SCO's favor."
SCO also focused criticism on the GPL, which is the license for many open source projects, including Linux. The license states that GPLed software and source code must be available to anyone. Modifications to GPL software are subject to the same provisions.
The Free Software Foundation developed the GPL, and defines free software on its Web site.
Linux advocates say that SCO undercut its own case by releasing its own version of Linux under the GPL. The SCO version of Linux contains the disputed code and - even if the code was once proprietary - SCO released it into open source when it released its own Linux, the advocates argue.
However, Sontag said that argument holds no water because SCO never intended to release its proprietary code into open source. "U.S. and international copyright law asserts you cannot inadvertently and accidently assign your copyright to someone else," Sontag said.
Moreover, SCO said its proprietary code in Linux does not meet the definition of free software as stated in the Linux GPL.
"The Linux GPL itself asserts that the valid legal copyright holder has to place a notice at the beginning of their copyrighted work, the source code, identifying the code and the GPL. It requires an overt action. SCO has not contributed its code, and as soon as we became aware of the copyright violation we suspended our distribution," Sontag said.
The Web site of embattled software maker The SCO Group Inc. was inaccessible again on Tuesday, fueling reports of another denial of service attack.
SCO's main Web site, www.sco.com, was off-line between 4 a.m. GMT and 2 p.m. GMT, according to the Internet monitoring company Netcraft Ltd.
That site had just recovered from a crippling denial of service (DoS) attack that lasted throughout the weekend (DoS) and for much of the business day on Monday, according to SCO.
The outage prompted Netcraft to declare that SCO was again the target of a DoS attack. However, the outage was actually due to preventative measures taken by SCO and its hosting service to mitigate the effects of future attacks, according to company spokesman Marc Modersitzki.
Those people, if they exist and aren't figments of your imagination, are wrong. The GPL has no power to remove your ownership of your code. Say X writes a program, release it under the GPL, and Y (deliberately or not) incorporates it into a closed source program which you sell. If they can't come to an agreement, X will sue Y not for "violating the GPL" but for copyright violation. The GPL is a nonissue; it would grant Y permission to modify and redistribute my program if he made his own product GPLed, but he didn't, so it doesn't, and we're back to regular copyright law, which you claim to defend.
The coding is not what they're griping about. They want to convince an unwary judge to ignore the code, but look at the abstracts.
Right. Sure.
Next thing you know, some "niece" of somebody, will step forth with a letter (from "Uncle ...") by which she "inherited" all the rights of EOF, and therefore, the running of every program out there, when it gets to the EOF, must pay a royalty.
I hereby claim all ownership and rights to trash compacting. Also, the color orange.
Thanks for clarifying now.
Yes, in that exceptionally unlikely case, Linux would revert to version 2.2 and continue from there. An inconvenience, but hardly a fatal injury.
Well, duh. You certainly are sharp tonight. But don't believe everything you think, because this time you were wrong.
?????
This is in IBM's officially submitted defense to the court!
Actually, that is what IBM is claiming in their counter suit.
SCO is only claiming what is in copyrighted code they previously purchased from ATT, or derivative code created by Sequent etc then put into Linux despite not owning redistribution rights.
Sorry, I wasn't, and reposted a larger portion of the article that showed who was wrong. There are no other excuses posted from any respected journalists claiming the attacks over the weekend were anything but denial of service related. One of your advocates Eric Raymond has already admitted this, but you can continue to deny if you wish, and probably will.
Secondly, there is no independent confirmation that the weekend outage was caused by a DoS. Everybody is just quoting Eric Raymond, and there's reason to believe he was duped.
But you can deny all of this and stick to your talking points and repeat them over and over if you wish. It's a free country.
Yes, we have both obviously chosen our sides, for better or worse.
According to several articles, it will be a jury trial. But perhaps the judge will see that SCO has failed to prove their claims and order a directed verdict before the jury gets to decide.
It's difficult to see how SCO will be able to prove their case to the jury without presenting the source code. And the courtroom will be filled with interested spectators to see the alleged evidence.
In addition to the numerous subpoenas in the case, perhaps IBM will subpoena SCO to produce the "non-infringing" code. There is no reason for that code to be covered with a protective order, and it will be easy to run diff on it to determine the parts that SCO thinks is infringing.
Sooner or later, the disputed code will be known publicly.
Presumably you're referring to this:
“By distributing products under the GPL, SCO agreed, among other things, not to assert — indeed, it is prohibited from asserting — certain proprietary rights (such as the right to collect license fees) over any source code distributed under the terms of the GPL. SCO also agreed not to restrict further distribution of any source code distributed by SCO under the terms of the GPL,” the IBM counterclaims said.Which is correct, if SCO is in fact distributing Linux under the GPL. They could always claim they're not, but that doesn't work out too well for them either. Even if Linux contains loads of infringing code, it also contains loads of noninfringing code which SCO did not create and has no rights to, yet which they have continued to distribute *after* discovering the allegedly infringing code. Only the GPL gives them the right to distribute Linux; if they don't accept it then they are violating the copyrights of every Linux developer.
Your competitors will thank you.
Suppose G.M. had a development project that it funded, to manufacture a new kind of forged aluminum piston.
The aluminum is a new compound, the makeup of which, unknown even to G.M.'s engineers, has potential beyond the project's stated aims; but G.M. "wins" patents for the compound and its stated purpose for reducing the cost of engine manufacturing.
A new model year comes along and G.M. introduces a new line of cars which include engines with the new piston. In general, the public is unaware of the piston's qualities. Yet the automotive marketplace quickly finds other vehicle applications for the engine; G.M. sells it to Toyota and Land Rover.
In the heat of off-road competition, some racer-types who naturally are always looking for improvements, experiment with this light-weight piston and discover two things.
First, because of the compound, this allows some careful re-machining of the inside of the piston, which reduces a vibration problem that has plagued the engines at high RPM's. Second, upon taking this up with XYZ Motorcraft, the whizbangs of aftermarket aluminum motor racing production in Northern Wisconsin, they find that single nitrogen atomic change to the compound, further reduces that vibration and lowers the operating temperature a few degrees.
They begin to produce these new racing pistons.
The makers of other vehicles, not G.M., buy these pistons on a large scale, to be used in their own engine manufacturing. These engines then "clean up" at the track.
The moral of the story is, that despite all of G.M.'s many years of funding development of the original aluminum compound, the new "Single Nitro" pistons are not G.M.'s ... by one nitrogen atom, no matter how clever are G.M.'s lawyers.
In this business of invention, what is uniquely the inventor's, is, his or hers; but again, it must be uniquely his or hers.
The problem of parallel development, even if the parallel developers started with 100 percent of their ideas being generated from exposure to "developer OO," so to speak, the parallel developers are entitled to their own unique developments.
Unique developments should indeed be protected.
But competition demands that those who expect to capitalize on their developments, keep on developing, because as most will tell you, to rest on one's unique developments, is rarely rewarding and almost never a position of security.
There are unfortunately, many bright ideas in filing cabinets, because the developers could not, or would not, bring them to the marketplace.
Later, should one come to light, because in the future, some opportunity affords that re-birth, the unique development is due, finally, its just rewards ... but its supporters must brace themselves for the competition that will almost surely dilute their winnings, as it were.
SCO *seems* to want a judge to say that it ain't so.
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